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f2d_477/html/0138-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Edward W. HAVENS, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee. No. 72-3712 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 19, 1973. Emmett L. Goodman, Jr., Macon, Ga., for plaintiff-appellant. William J. Schloth, U. S. Atty., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for defendant-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: There was substantial evidence from which the Secretary could conclude that Havens’ epileptic seizures could be controlled by medication and abstinence from alcohol. There is no merit in the appellant’s contention that his chronic alcoholism or the symptoms resulting from his excessive use of alcohol compelled a different result in the evaluation of his claim of disability. Osborne v. Cohen, 409 F.2d 37 (6th Cir. 1969); Roberts v. Gardner, 396 F.2d 501 (4th Cir. 1968); Hirst v. Gardner, 365 F.2d 125 (7th Cir. 1966); Brasher v. Celebrezze, 340 F.2d 413 (8th Cir. 1965). The judgment of the district court is Affirmed.
f2d_477/html/0139-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Charles Michael RIVAS, Defendant-Appellant. No. 72-3222 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 11, 1973. G. Paul Shoop, Dallas, Tex. (Court Appointed), for defendant-appellant. William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: The defendant, Charles Michael Rivas, was charged on May 18, 1972, in a two count indictment as follows: Count I Knowingly and intentionally possessing with intent to distribute for remuneration approximately two pounds and five ounces of marijuana in violation of 21 U.S.C., § 841(a)(1). Count II Knowingly and intentionally possessing a quantity of marijuana in violation of 21 U.S.C., § 844(a). On June 2, 1972, Rivas was arraigned on the first count, it being specifically stated in open court that the second count was to be dismissed. The defendant, represented by counsel, was thoroughly interrogated not only by the United States Attorney but, ultimately, by the Court. In addition, the defendant stated that his counsel had gone over his rights with him “in detail”. On September 29, almost four months after the arraignment, and a week before he was sentenced, represented by a different attorney, Rivas filed a motion to be allowed to withdraw his plea of guilty. After a hearing on October 2, 1972, this motion was denied. Sentence was imposed October 5. Rivas now appeals from the denial of his motion to withdraw the guilty plea. We affirm the action of the District Court because our perusal of the record convinces us beyond peradventure of a doubt that Rivas at all times thoroughly understood his rights, was exhaustively informed as to his situation, and knew that what might have been an “included offense” in the first count was being dismissed as embodied in the second count. This appellant has in no way been over-reached, misinformed, or uninformed either as to his rights prior to the entry of the plea or as to the alternatives he might have pursued. The judgment of the District Court is Affirmed.
f2d_477/html/0140-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "\n NICHOL, District Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. George Ronald DUGAN, Appellant. No. 72-1472. United States Court of Appeals, Eighth Circuit. Submitted Feb. 14, 1973. Decided April 20, 1973. Rehearing Denied May 25, 1972. Herbert D. Schaeffer, Clayton, Mo., for appellant. Robert D. Grote, Asst. U. S. Atty., St. Louis, Mo., for appellee. Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge. Chief Judge, District of South Dakota, sitting by designation. NICHOL, District Judge. George Ronald Dugan was indicted jointly with Arthur Lewis, Jr., and Maggie Lewis, husband and wife, in a three count indictment charging two counts of possessing chattels stolen from a vehicle moving in interstate commerce, in violation of 18 U.S.C. Sec. 659, and one count of conspiracy, in violation of 18 U.S.C. Secs. 659 and 371. At trial Arthur Lewis pleaded guilty to count two and the three counts against his wife were dismissed. Subsequently, the jury was dismissed and appellant Dugan waived trial by jury and was tried to the court. The District Court convicted him on all three counts. He was sentenced to two years imprisonment on each of the three counts, sentences to run concurrently. The evidence shows that the chattels (coats) in question were manufactured by the California Manufacturing Company, California, Missouri. The bills of lading, corresponding to the two stolen shipments involved here, bear customer names whose places of business are situated outside the State of Missouri. Defendant Arthur Lewis, Jr., was a driver for the St. Louis-Kansas City Express, an intrastate carrier, and in that capacity, according to his guilty plea, stole the two shipments of coats. The coats were en route to St. Louis, Missouri, where they would have been transferred to an interstate carrier to continue their journey. ' The chattels never left the State of Missouri. The testimony at trial disclosed that appellant Dugan solicited sales from amongst various acquaintances. If a prospective customer encountered size difficulties, or voiced a style preference for a coat other than those possessed by Dugan, Dugan would attempt to satisfy those needs from the stock held by Lewis. Appellant also informed other prospects that Lewis had coats for sale in his home. Occasionally Dugan would personally escort prospective customers to the Lewis home to permit the buyer to sort through an assortment of coats contained in shipping boxes open for inspection. On appeal Dugan asserts error upon five grounds. Based upon the first three grounds, relating to counts one and two, we affirm his conviction. Dugan’s first contention on appeal challenges the sufficiency of the evidence in the District Court’s ruling that the goods covered in counts one and two, severally, reached a value in excess of $100.00 as required for two felony convictions under 18 U.S.C. Sec. 659. This argument is without merit. In the trial record and again at oral argument in this appeal the government traced the individual sales back to the two stolen shipments providing the substance for counts one and two. Dugan was identified with the sale of coats from the two stolen shipments totalling $100.00 from each separate shipment. Alternatively, Dugan can be found to have been in possession of all of the coats involved in the two separate counts which were situated in the Lewis home. “Possession” under 18 U.S.C. See. 659 includes constructive as well as actual possession. While term “constructive possession” is not free from ambiguity, it has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property. Rodella v. United States, 286 F.2d 306, 311-312 (9th Cir. 1960). United States v. Cousins, 427 F.2d 382, 384 (9th Cir. 1970). “Possession” may further be found to be sole or joint. Sewell v. United States, 406 F.2d 1289, 1293, n. 3 (8th Cir. 1969); United States v. Gulledge, 469 F.2d 713 (5th Cir. 1972). From our review of the record we find that Dugan exercised dominion or control over the stolen coats. He had access to the coats in the Lewis home which permitted him to show the goods to his prospective customers for their selection. Dugan’s dominion or control is further evidenced by his ability to exchange or supplement the coats he possessed with those in the Lewis home to accommodate a buyer’s needs. The evidence shows that he told various people that Mr. Lewis had coats for sale, and personally escorted them to the Lewis home for the purpose of making a choice. We conclude that there was a factual basis from which the trial judge could determine that Dugan was in possession of the stolen goods. The second asserted ground for error is the sufficiency of the evidence as to the District Court’s finding that appellant possessed stolen chattels knowing them to have been stolen. Specifically, Dugan contends that mere contradictory statements in and of themselves do not provide an adequate basis for establishing guilt beyond a reasonable doubt. We view the evidence in the light most favorable to the verdict of the trier of fact, accepting as established all reasonable inferences that tend to support the fact trier’s decision, and resolve any evidentiary conflicts in favor of the fact finder’s verdict. United States v. Henson, 456 F.2d 1045 (8th Cir. 1972); Burke v. United States, 388 F.2d 286 (8th Cir. 1968). In Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967), this court stated the law on the permissible inference to be drawn from possessing recently stolen property: The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and a necessary evidentiary rule. See also United States v. Brocato, 437 F.2d 1157 (8th Cir. 1971); Minor v. United States, 375 F.2d 170 (8th Cir. 1967). Knowledge that the goods were stolen must of necessity be found from the circumstances surrounding the appellant’s possession. An admission of such a mental state is not likely to be forthcoming. Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967). Thus, viewing the record in its entirety and complying with the preceding principles, we cannot find that the District Court erred in finding that Dugan knew the goods to be stolen. The District Court viewed the witnesses and heard the explanations of appellant Dugan. The trial judge found “that the defendant (Dugan) made so many statements which were at war with each other as to where these coats came from,” that he was convinced beyond a reasonable doubt that Dugan was guilty. We find no error in this determination. The third alleged basis for error is that Dugan’s Fifth Amendment right against double jeopardy has been violated. Appellant asserts that the present state of the record does not identify a particular consignee with the particular stolen coats found in his possession. Apparently it is the appellant’s position that the government’s proof fails to align specific coats found in his possession with a specific consignee and could, therefore, subject him to a second prosecution on virtually the same evidence. The appellant’s argument is based upon Kantor v. United States, 286 F. 897 (3rd Cir. 1923). There, the indictment named the consignee of a shipment of silk stolen in interstate commerce. At trial the government failed to prove that the stolen bale of silk in question was the one consigned to the party named in the indictment. This defect in proof, ruled the appellate court, deprived the defendant of the defense of “autrefois convict” and he could not assert this conviction as a defense in any subsequent charge. The case at bar does not suffer this infirmity. The alternate theory of finding appellant in possession of more than $100.00 worth of stolen chattels to comply with statutory requirements of possession for counts one and two attributes possession of all of the coats to Dugan. Thus they cannot provide the basis for a subsequent charge. Indeed, should appellant ever need to plead his conviction on counts one and two of his indictment as a bar to any subsequent prosecution, he can do so from the record made at trial. Lewis v. United States, 340 F.3d 678, 680 (8th Cir. 1965). We find it unnecessary to review appellant Dugan’s other assignments of error relating to the third count of the indictment by affirming his conviction on counts one and two. “The law is settled that reversal is not required if the conviction underlying any one of several concurrent sentences is valid and alone supports the sentence and judgment.” Kilcrease v. United States, 457 F.2d 1328, 1331 (8th Cir. 1972); Greene v. United States, 358 U.S. 326, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959); see also United States v. Huckensteine, 475 F.2d 1131 (8th Cir. March 22, 1973). The conviction of George Ronald Dugan is affirmed.
f2d_477/html/0143-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "HAMLEY, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Jassim Mohamed Thunayan ALGHANIM, Plaintiff-Appellant, v. The BOEING COMPANY, Defendant-Appellee. Nos. 71-1686, 71-1892. United States Court of Appeals, Ninth Circuit. March 9, 1973. Jennings P. Felix (argued), Thomas J. Kraft, of Jennings P. Felix and Associates, Seattle, Wash., for plaintiff-appellant. Keith Gerrard (argued), Randall Revelle, of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for defendant-appellee. Before HAMLEY, HUFSTEDLER, and GOODWIN, Circuit Judges. HAMLEY, Circuit Judge: These two appeals, consolidated for argument and disposition, present contract and tort issues concerning the scope of, and the method of terminating, a sales representative agreement and questions concerning district court procedures pertaining to discovery, amendment of pleadings and motions for summary judgment. The litigation arises out of the efforts of The Boeing Company (Boeing) to sell its airplanes in Kuwait, Arabia, and other nations along the Persian Gulf. Boeing’s prime prospect in this Middle East market was Kuwait Airways Corporation (KAC), a state-owned corporation. Yet, for years prior to 1966, Boeing had been unable to sell to Kuwait Airways or other airlines in this general area. Finally, Boeing determined that what it needed was an influential Kuwaiti citizen as its sales agent. After consultation with the American Embassy in Kuwait and Faisal Al-Fulaij (Al-Fulaij), chairman of the board of KAC, Boeing selected Jassim Mohamed Thunayan Alghanim (Alghanim) as its sales agent. Alghanim is the brother-in-law of Al-Fulaij. In November, 1966, Alghanim and Boeing executed a written agreement by which Alghanim agreed to represent Boeing in promoting the sale of Boeing Models 707, 720, 727 and 737 type aircraft in Kuwait. Clause 6 of the agreement, defining the area covered by such representation, was later amended to include, in addition to Kuwait, the Sheikdoms of Bahrain, Doha, Dubai, Abu Dhabi and Sharja. Under clause 7, the agreement was to continue in full force and effect until terminated by either party giving sixty days written notice to the other party. Clause 11 provides that the agreement shall be governed by the laws of the State of Washington. The compensation to be paid the representative was provided for in clauses 4 and 5, the pertinent parts of which are quoted in the margin. In 1967, with the assistance of Alghanim, Boeing executed a contract with KAC for the sale of three Model 707 aircraft for a sales price of approximately twenty-five million American dollars. Alghanim received full payment of his three percent commission on this sale. The twenty-five million dollar figure mentioned above did not include the substantial sum KAC paid Boeing for major component equipment, accessories, spare parts, and other items and services which Boeing delivered to KAC at the time the airplanes were delivered. Alghanim received no commission on the sale of any of these additional materials and services. Boeing thereafter conducted further negotiations with KAC concerning the purchase of additional aircraft. According to Alghanim, during this period AlFulaij asked Boeing to cancel its agreement with Alghanim. By letter of June 12, 1969, Boeing gave Alghanim sixty days notice of termination, but sent immediate notice of cancellation to KAC. KAC did not buy any additional aircraft from Boeing, nor did Boeing, at least during this sixty-day period, sell any aircraft in the expanded area covered by the representation agreement. Alghanim filed suit against Boeing in the United States District Court for the Western District of Washington on December 19, 1969 (Civil No. 8692). He sought damages in the sum of four hundred thousand dollars “or other appropriate amount” for (1) three percent commission on spare parts sold in connection with the sale of aircraft to KAC in 1967, (2) three percent commission on any sales made or contracted to be sold by Boeing during the period of the agreement in the prescribed territory, and (3) damages for Boeing’s action in assertedly wrongfully terminating the agreement. Following rather extensive discovery, the cause was set for trial on February 10, 1971. On January 7, 1971, Alghanim filed a motion for leave to file an amended complaint. The amended complaint would expand the term “spare parts,” as used in the original complaint, and add two new legal theories. These new theories were: (1) Boeing had tortiously interfered or conspired to interfere with its -representation agreement with Alghanim, and (2) Boeing had defamed Alghanim by wrongfully terminating the agreement. On January 11, 1971, the trial was continued to February 16,1971. Oh January 15, 1971, a hearing was held on Alghanim’s motion for leave to file an amended complaint. During the course of this hearing the district court indicated that Alghanim could amend his original complaint to expand the term “spare parts,” as indicated in the margin. But the court stated that it would deny leave to file an amended complaint adding the two new theories referred to above. The reason orally given by the court for denying this motion was that neither of the new theories stated a claim upon which relief could be granted. On January 18, 1971, Alghanim propounded twenty-three interrogatories of Boeing. The bulk of these interrogatories were directed to discovering what spare parts were sold, the prices for them, and the supporting documents. Two days later Alghanim moved for an order requiring Boeing to answer the interrogatories within twenty days, so that the due date would fall prior to the trial set for February 16, 1971. Boeing opposed the motion for an order advancing the time for answering the interrogatories. A hearing thereon was held on January 29, 1971. The court ordered Boeing to supply Alghanim, within the twenty-day period, information as to the dollar value of the spare parts Boeing sold KAC, but denied the motion with respect to any other information requested. In the meantime, on January 26, 1971, Boeing moved for summary judgment for defendant in the original action. Boeing made this motion on the grounds that, under the undisputed facts, (1) Boeing never agreed to pay Alghanim a commission on spare parts or accessories, (2) Boeing has not sold nor entered into a contract to sell any other aircraft in Kuwait or the Persian Gulf area, and (3) Boeing had a right to terminate its representation agreement with Alghanim. Boeing noted this motion for hearing on February 5, 1971. Two days later, on January 28, 1971, Boeing supported this motion with a brief and two affidavits. The brief also makes reference to various depositions, cables and an affidavit which had been previously filed. Alghanim promptly moved, pursuant to Rule 56(f), F.R.Civ.P., to postpone the hearing on this motion until the day fixed for trial (February 16, 1971), or such other date as would give Alghanim twenty-five days in which to respond. In a supporting affidavit, counsel for Alghanim alleged that plaintiff wished to have Alghanim make an affidavit in opposition to the motion for summary judgment, but since Alghanim was then in Kuwait and the one-way mailing time between Seattle and Kuwait is approximately five to seven days, this would not be possible prior to February 5, 1971. Counsel for Alghanim also asserted that plaintiff was continuing his discovery proceedings and that the depositions of two Boeing employees then scheduled for February 2 and 3, 1971, could not be transcribed and filed by February 5, 1971. At the same time, counsel for Alghanim moved for an order postponing the date set for trial for sixty days, so that plaintiff could have the additional time he needed for discovery and trial preparation. In his affidavit supporting this motion, counsel for Alghanim called attention to the difficulties he had experienced in preparing for trial because of Middle East tension which hampered travel. On February 1, 1971, Boeing moved to quash Alghanim’s notice of depositions and subpoenas duces tecum directed to Donald McLaren and M. W. McClung. Boeing asserted that Alghanim was thereby attempting to gain information which had been denied to him in the order, described above, pertaining to Alghanim’s interrogatories. Boeing also asserted that the two subpoenas had not been effectively served because a copy of the subpoena had not been delivered to M. W. McClung, and neither he nor Donald McLaren had been tendered the fee, as required by Rule 45(c), F.R.Civ.P. On February 5, 1971, the district court denied Alghanim’s motion to postpone the hearing on Boeing’s motion for summary judgment. The hearing was held on that day and, at the close, the court orally announced that it would grant the motion for a summary judgment for Boeing. At the same time the court struck, as moot, Alghanim’s motion to extend the trial date and Boeing’s motion to quash Alghanim’s notice of depositions and subpoenas. The formal order granting summary judgment for Boeing was entered on March 1, 1971. Alghanim took a timely appeal from this judgment. (No. 71-1686 in this court.) In the meantime, on January 22, 1971, Alghanim filed a second action against Boeing (Civil No. 9455), setting out, in two claims, the substance of the two theories he had sought to advance in his proposed amended complaint in the original action. On his first claim in this new action Alghanim sought damages in the sum of two million dollars and, in his second claim, he sought damages in the sum of one hundred fifty thousand dollars. Boeing moved to dismiss this action on the grounds that it failed to state a claim upon which relief could be granted and that the claims there asserted a.re barred by the doctrine of res judicata. After a hearing, the district court, on April 15, 1971, entered an order in which, treating Boeing’s motion to dismiss as one for summary judgment for defendant, such motion was granted on the grounds of res judicata and collateral estoppel, and judgment for Boeing was entered. Alghanim appealed therefrom. (No. 71-1892 in this court.) We consider first the questions arising from the original action. One ground urged by Alghanim why the district court erred in granting summary judgment in the original action is that the court abused its discretion in denying Alghanim’s motion for an extension of time to respond to the motion. In this connection Alghanim relies upon Rule 56(f), F.R.Civ.P., quoted in the margin. The prime reason advanced by Alghanim why he needed an extension of time to respond to the motion was that it was impossible to prepare affidavits, mail them to Kuwait, and have them returned to Seattle prior to the hearing scheduled for February 5, 1971. The affidavit of Alghanim’s counsel as to the five to seven days mailing time between Seattle and Kuwait does not appear to be disputed. Boeing contends that plaintiff’s counsel could have communicated with plaintiff in Kuwait by telephone or cable and in this way could have obtained one or more affidavits from Kuwait prior to the February 5, 1971, hearing. But the indications are that Alghanim, a citizen of Kuwait, was unfamiliar with the manner of preparing affidavits to meet the requirements of the federal rules. In passing upon requests for additional time to respond to a motion for summary judgment, any special problems in communicating with prospective affiants, and the absolute right of a party to respond, must be taken into consideration. See Harris v. Pate, 440 F.2d 315 (7th Cir. 1971). See also, Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960). Boeing calls attention to the fact that plaintiff did not, in support of his motion for a postponement of the hearing on the motion for summary judgment, allege the essential facts he expected to establish by the affidavits he wished to obtain from Kuwait. Alghanim, as a party to the action, had an absolute right to file his own personal affidavit in opposition to the motion for summary judgment within the time provided by Rule 56 or an extension thereof required by the exercise of a sound discretion. Apart from this, however, Alghanim’s counsel filed, in the district court, on the day prior to the hearing on Alghanim’s motion for an extension of time and on Boeing’s motion for summary judgment, a comprehensive brief outlining the relevant facts he hoped to establish by such an affidavit. In our opinion, Alghanim thereby alleged that he would, if given an opportunity, present by affidavit “facts essential to justify his opposition,” to quote Rule 56(f), F.R.Civ.P. We conclude that plaintiff’s counsel ought to have been given a reasonable opportunity to obtain an affidavit from at least his client in Kuwait. Alghanim would then at least have had his day in court, however effective his affidavit turned out to be. We recognize that an adequate extension of time might have necessitated a postponement of the trial date. But it was Boeing, not Alghanim, which chose to wait until three weeks before trial before filing the motion for summary judgment. It was Boeing which breached the ten-day notice provision of Rule 56(c), by filing affidavits and a statement of Kuwait law within ten days of the time set for the summary judgment hearing. Under all of the circumstances we conclude that the district court abused its discretion in denying Alghanim a reasonable postponement of the hearing on the motion for summary judgment so that an affidavit or affidavits from Kuwait could be filed. This requires that the summary judgment in the original action be set aside. We do not at this time intimate any view as to the merits of the motion, or as to whether, as Alghanim contends, some of Boeing’s supporting affidavits set forth facts which would not have been admissible in evidence, or as to whether there remain genuine issues of material fact. See Rule 56(c) and (e), F.R.Civ.P. Inasmuch as further proceedings must be had in the original action, and no trial date is presently in the offing, we think Alghanim should be afforded an opportunity to conduct further discovery with reference to any issue pertaining to the motion for summary judgment. This would include discovery with regard to whether Boeing sold spare parts (using the expanded definition of the term) to KAC, or sold any aircraft or spare parts within the Persian Gulf area as described in the agreement. It would not include, at this time, discovery pertaining only to the issue of damages, although if summary judgment is ultimately denied, plaintiff may wish discovery in this area. There remains for determination, on the appeal from the summary judgment entered in the original action, Alghanim’s contention that the district court erred in denying his motion for leave to file an amended complaint setting out two additional claims against Boeing. As stated above, this motion was denied on the ground that neither of the new theories advanced in the proposed amended complaint stated a claim upon which relief could be granted. The new claims, pertaining to interference by Boeing with its own agreement with Alghanim, and defamation of Alghanim by cancelling the agreement in the manner asserted, are based upon alleged Kuwait law and, indeed, would have no recognition under Washington law. See Hein v. Chrysler Corp., 45 Wash.2d 586, 277 P.2d 708 (1954), pertaining to tortious interference with one’s own contract. There is no Washington statutory or judicial authority for the kind of defamation claim asserted by Alghanim and he does not rely upon common law defamation. The agreement expressly provides that it shall be governed by the laws of the State of Washington. Alghanim argues that this provision should be ignored because this is a contract of adhesion. We need not reach the question of whether, in contracts of adhesion, such a provision is to be ignored, because, in our view, this is not such a contract. It was entered into after detailed negotiation, and Alghanim’s views prevailed at least to some extent in arriving at the final form of the contract. Alghanim also argues that, in any event, this provision of the agreement does not stand in the way of his new claims, because the provision was not intended to permit disregard to Kuwait’s “fundamental” law, and has no reference to tort claims such as are assertedly embodied in Alghanim’s two new theories. We are not convinced that there are valid reasons for holding the contract provision in question inoperative as to Alghanim’s new claims. It may be that Boeing has gotten itself into some trouble with the government of Kuwait by setting up and terminating a selling agency in a manner allegedly violative of Kuwait law. But as between Boeing and Alghanim, we think the contract provision must govern. While it may be that, in a broad sense, Alghanim’s new claims sound in tort, it seems to us they have their roots, even under the pleaded Kuwait law, in contractual relationships between Boeing and Alghanim. They are therefore subject to the contract provision subjecting controversies between the parties to the dictates of the law of Washington. We accordingly hold that the district court did not err in denying Alghanim’s motion for leave to file the amended complaint. Turning to the appeal from the summary judgment for Boeing entered in Alghanim’s second action, affirmance is indicated by what i5 said above. If, as we have held, the two new counts Alghanim sought to inject into the first action, by means of an amended complaint, fail to state a claim upon which relief can be granted, the essentially identical counts set forth in Alghanim’s complaint in the second action are similarly deficient. We need not decide whether, apart from this ground for affirmance, the district court summary judgment in the second action is sustainable on the grounds of res judicata or collateral estoppel. The judgment under review in No. 71-1892 is affirmed. The judgment under review in No. 71-1686 is reversed, and the cause is remanded for further proceedings consistent with this opinion. . Clause 4 provides that “Full compensation for Representative’s performance of this Agreement shall be the payment . . . of an amount equal to Three percent (3%) of the purchase prices, as hereinafter defined, of all Model 707, 720, 727 and 737 type aircraft sold by Boeing during the period of this Agreement to purchasers having their principal office and principal place of business in the territory specified in Clause 6.” Clause 5: “for the purpose of Clause 4 hereof, the term ‘purchase prices’ shall mean the prices of aircraft as set forth in the firm agreement to purchase at the time of execution thereof.” . Alghanim asserts that Al-Fulaij took this action because Alghanim refused to pay Al-Fulaij one-third of Alghanim’s commission. . Wherever Alghanim’s original complaint uses the terms “spare parts,” “aircraft parts,” or “parts,” the following phrase was to be substituted: “spare parts, accessories, components, equipment, tools, personal services, training, technical publications, manuals, computer card decks, and other things essential to the operation and maintenance of the aircraft.” . The former order to this effect, entered on January 29, 1971, recited no reason for denying the motion to add the new claims. . Boeing argued : (1) it was impracticable for Boeing to answer the interrogatories in advance of the thirty days allowable under Rule 33(a), F.R.Civ.P., because the answers require meetings or other contact with Boeing’s personnel in Beirut, Lebanon and other distant parts of the world, and would also heavily burden Boeing’s preparation for trial, (2) all of the information needed to propound Alghanim’s interrogatories was available to his attorneys by no later than the end of August, 1970, and the requests are therefore untimely, and (3) Alghanim had offered no justification for submitting interrogatories less than a month before trial. . Using the expanded definition of “spare parts.” . On February 4, 1971, which was one day prior to the noted hearing on the motion for summary judgment, counsel for Boeing filed a statement in support of the motion which quotes Article 59 of Kuwaiti Law No. 5, “The Law Governing Legal Relations Involving a Foreign Element” (1961). . “(f) When Affidavits are XJnavaAlable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” . Among other things, Alghahim’s counsel hoped, by this means, to develop facts relevant to the following matters: 1. Whether the term “aircraft” as used in the agreement is ambiguous, such that it may have been intended that the term include spare parts and accessories for use on the Model 707s Boeing sold to ICAO. 2. Whether the reason the agreement does not contain an express provision pertaining to commissions on spare parts is because, during the negotiations, a Boeing representative falsely assured Alghanim that Boeing does not manufacture spare parts, leaving Alghanim with the belief that he was entitled to commissions on whatever Boeing actually did manufacture and sell in connection with airplanes delivered within Alghanim’s territory. 3. Whether Boeing terminated the agreement because Al-Fulaij secretly told Boeing to do so because Alghanim had not shared his commission with AlFulaij and, if so, whether a termination for such a reason was permissible under the agreement. 4. Whether Boeing gave KAC immediate notice of cancellation of agreement without awaiting expiration of the sixty-day period and, if so, whether Alghanim was prejudiced thereby. . If, in fact, neither of the proposed new theories state such a claim, this would be an adequate ground for denying leave to amend. See Gilbertson v. City of Fairbanks, 262 F.2d 734 (9th Cir. 1959); 3 Moore Federal Practice § 1508(4) (2d Ed. 1968). . Alghanim argues that the fact that the commission was increased from one percent to three percent upon his request has no significance because Boeing just added the commissions to the purchase price of the aircraft. But of course, in so doing, the purchase price was substantially increased, thus prejudicing Boeing’s competitive position.
f2d_477/html/0150-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "\n WEICK, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	OLD DUTCH FOODS, INC., Plaintiff-Appellee, v. DAN DEE PRETZEL & POTATO CHIP CO. and Berg’s Pretzels, Inc., Defendants-Appellants. No. 72-1487. United States Court of Appeals, Sixth Circuit. Argued Nov. 28, 1972. Decided April 25, 1973. Charles R. Rust, Cleveland, Ohio, for defendants-appellants; Bruce B. Krost, Woodling, Krost, Granger & Rust, Cleveland, Ohio, on brief. Phillip H. Smith, Merchant & Gould, Minneapolis, Minn., for plaintiff-appellee. Before WEICK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge. WEICK, Circuit Judge. This appeal is from a summary judgment in favor of the plaintiff in an action for infringement of its trademark, “OLD DUTCH” registered in the United States Patent Office as No. 648,659 on July 16, 1957. The action was brought under the Trademark Act of 1946, commonly referred to as the Lanham Act. 15 U.S.C; §§ 1051 to 1127, as amended. Old Dutch Foods sought therein to enjoin the defendants, Dan Dee and its affiliate, from using its registered trademark “OLD DUTCH” or any words confusingly similar on the defendants’ packaged products. Dan Dee, in its answer and counterclaim, asserted that a complete injunction ought not to issue because it had a valid defense of good faith usage prior to the registration in six states, afforded by 15 U.S.C. § 1115(b)(5). In addition, Dan Dee sought concurrent registration of the term “OLD DUTCH” pursuant to 15 U. S.C. § 1052. The parties executed two stipulations and offered other evidence. The District Court in its opinion, 345 F.Supp. 1399, held that Dan Dee was entitled to the use of “OLD DUTCH” on its packaged pretzel products “within the limited geographical areas of Ohio, Pennsylvania, New York, West Virginia, Kentucky and Indiana, as established by the prior use defense of 15 U.S.C. § 1115(b).” The Court denied Dan Dee the exclusive use of the mark “OLD DUTCH” in the above-named areas and also concurrent registration of the mark under 15 U.S.C. § 1052. 345 F.Supp. 1399 (N.D.Ohio 1972). The result of this decision was that Dan Dee could use the words “OLD DUTCH” along with its mark “DAN DEE” in the same manner in which it had been using them on its packaged products in a six-state area of prior use, but the plaintiff could also use its mark “OLD DUTCH” on its products in that same six-state area if it desired to trade in that area. Old Dutch Foods is a Minnesota corporation having its home office located in Minneapolis, Minnesota. It commenced doing business in 1934 under the name of “Old Dutch Foods,” and began selling snack foods (potato chips, pretzels and popcorn) under the mark “OLD DUTCH” in interstate commerce on or about July 15, 1934. It is the owner of United States Trademark Registration No. 648,659 registered July 16, 1957, on the mark “OLD DUTCH” for popped popcorn, potato chips, cheese flavored corn confection, fresh nut meats, salted peanuts, prepared edible sunflower seeds, pretzels and cheese crackers. Its sale of snack food products under the mark “OLD DUTCH” has taken place in the following states for the time indicated: Minnesota 1934 to date Wisconsin 1934 to date Iowa 1938 to date South Dakota 1938 to date Nebraska 1938 to date Michigan 1939 to date North Dakota 1939 to date Wyoming 1955 to date Montana 1940-1942, resumed 1955 to date Oregon 1941 discontinued same year Utah 1941 discontinued same year Illinois 1960-1961 resumed 1970 to date Its approximate annual advertising expenditure in the United States for promoting its products under the mark “OLD DUTCH” was $176,687.00 in 1970 and $213,729.00 in Canada. These amounts are representative of annual advertising commitments made by the Old Dutch Foods since 1959. Its products have been promoted in two advertisements placed in periodicals having nationwide distribution, one in 1967 and one in 1968. It has always promoted its products exclusively under the mark “OLD DUTCH.” Its sales of its trademarked product in the United States and Canada for the year 1970 were respectively $11,573,082.00 and $11,162,752.00. Defendant, the Dan Dee Pretzel & Potato Chip Co., is an Ohio corporation, incorporated in 1931 and having its home base in Cleveland, Ohio. The defendant and its related companies first adopted and applied the name “OLD DUTCH,” along with its name “DAN DEE,” to its packaged pretzels in the following states on the indicated dates: Ohio 1941 Pennsylvania 1941 New York 1941 West Virginia 1941 Kentucky 1948 Indiana 1948 This use has been continuous and uninterrupted to the present date. The name as applied to pretzels was adopted and used by defendants in good faith and without actual knowledge of any use of the mark “OLD DUTCH” by the plaintiff. It had previously used the name “OLD DUTCH” on noodles from March 1, 1938 to 1948. The defendant has expended approximately $150,000.00 annually during the last five years for advertising all of its snack food products. The name “OLD DUTCH” has been advertised to the public only in conjunction with the defendant’s registered trademark “DAN DEE.” Dan Dee has used a second name in all its products such as “OLD DUTCH,” “DUTCH,” or sometimes “BAVARIAN.” In December, 1970, the defendant filed an application in the patent office for a concurrent-use federal trademark registration on “OLD DUTCH” for use in Ohio, Pennsylvania, New York, West Virginia, Kentucky and Indiana. The defendant has otherwise never attempted to obtain federal registration on “OLD DUTCH.” The application is presently pending the outcome of this appeal. 15 U.S.C. § 1115(b) provides in part as follows: “. . . (b) If the right to use the registered mark has become incontestable under section 1065 of this title, the registration shall be conclusive evidence of the registrant’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the affidavit filed under the provisions of said section 1065 subject to any conditions or limitations stated therein except when one of the following defenses or defects is established : . . . . . . (5) That the mark whose use by a party is charged as an infrigement was adopted without knowledge of the registrant’s prior use and has been continuously used by such party or those in privity with him from a date prior to registration of the mark under this chapter or publication of the registered mark under subsection (c) of section 1062 of this title: Provided, however, That this defense or defect shall apply only for the area in which such continuous prior use is proved; . . . On authority of Burger King of Florida, Inc. v. Hoots, 403 F.2d 904 (7th Cir. 1968), and Hot Shoppes, Inc. v. Hot Shoppe, Inc., 203 F.Supp. 777 (M.D.N.C.1962), the Court held that while the above section gave the defendant a limited defense, the defendant was not entitled under this section to keep the plaintiff from selling its products in the six-state area in which the defendant used the term on its products. The District Court then held that the defendant was not entitled to concurrent registration of the mark “OLD DUTCH” under 15 U.S.C. § 1052(d). The Court predicated this holding upon a finding that the defendant did not use the term “OLD DUTCH” on its products as a trademark within the meaning of the Act. The grounds for this finding that Dan Dee did not use the term “OLD DUTCH” as a “trademark” were said to be two-fold: First, Dan Dee consistently displayed the term “OLD DUTCH” on its products in conjunction with its registered trademark “DAN DEE,” i. e., that the term “OLD DUTCH” never singularly or prominently identified the defendant’s products to the consumer. Second, the defendant failed to exclusively promote and advertise the term “OLD DUTCH.” This finding is either a mixed finding of fact and conclusion of law, or it is a finding of an ultimate fact in the making of which is involved legal principles. In either event, it is subject to appellate review and the clearly erroneous rule has no application. Fed.R.Civ.P. 52(a). United States v. Weingarden, 473 F.2d 454 (6th Cir. 1973); Cordovan Assodates, Inc. v. Dayton Rubber Co., 290 F.2d 858, 860 (6th Cir. 1961). The term “trademark” as used in the Trade-Mark Act of 1946, is defined as follows: “The term ‘trade-mark’ includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” 15 U.S.C. § 1127. Thus, a trademark is a term which serves the function of designating the goods as the product of a particular trader to the prospective purchaser. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916); Sweetarts v. Sunline, Inc., 380 F.2d 923 (8th Cir. 1967). Moreover, the “designation” of the goods as those of the particular trader is liberally construed. See, e. g., Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381 (1942), wherein the Court held that it was not necessary to show that purchasers believed the goods were those of the trademark owner in order to recover for infringement of the mark. It is inconceivable that a merchant would, as the defendant has done, imprint a term on its products continuously for over thirty years without any intention that the term would help identify the product to the consumer. Furthermore, the fact that a product bears more than one mark does not mean that each can not be a valid trademark. In fact, not infrequently products have more than one trademark imprinted thereon. See e. g., Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794, 800 (9th Cir. 1970); United Lace & Braid Mfg. Co. v. Barrels Mfg. Co., 221 F. 456 (E.D.N.Y. 1915); Loonen v. Deitsch, 189 F. 487 (2nd Cir. 1911). Thus, the defendant’s use of the mark “DAN DEE” on its products does not mean that “OLD DUTCH” was used in a manner inconsistent with a trademark. “OLD DUTCH” could identify the products as those of the defendant as well as “DAN DEE.” The District Court’s second ground for holding that “OLD DUTCH” was not used as a trademark is equally unpersuasive. While the promotion of a mark may be a factor in the determination of whether the mark is used to identify the manufacturer of the goods, it is not dispositive of the issue one way or the other. Compare Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794 (9th Cir. 1970) with Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir. 1968). If anything, it appears that advertising by the defendant in this case is a positive factor in the determination of whether “OLD DUTCH” was used as a trademark. While the defendant did not exclusively promote “OLD DUTCH” with its product, it did in fact promote “OLD DUTCH,” albeit in conjunction with its other trademark. Most important, however, we note that the District Court implicitly found in another part of its opinion that the defendant used the term “OLD DUTCH” as a trademark. The Court quoted 15 U.S.C. § 1115(b)(5) which provides a defense to an infringement action where it is shown “[t]hat the mark whose use by a party is charged as an infringement was adopted without knowledge of the registrant’s prior use and has been continuously used by such party .” (Emphasis added.) In holding that the defendant had such a defense, the Court implicitly found that the term “OLD DUTCH” was used by the defendant as a “mark.” Turning to the definitional section of the Act, we find that the word “mark” means the same thing (or even more) than the word “trademark.” “The term ‘mark’ includes any trademark, service mark, collective mark, or certification mark entitled to registration under this chapter whether registered or not.” 15 U.S.C. § 1127 (Emphasis added.) For these reasons, we find that the defendant Dan Dee used the term “OLD DUTCH” as a trademark within the meaning of the Act. We therefore direct our attention to the concurrent registration provision of the Act. The Lanham Act of 1946 provides for the registration of similar marks on similar products of two different merchants in certain prescribed conditions. 15 U.S.C. § 1052 provides: “No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— . . (d) Consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive: Provided, That when the Commissioner determines that confusion, mistake, or deception is not likely to result from the continued use by more than one person of the same or similar marks under conditions and limitations as to the mode or place of use of the marks or the goods in connection with which such marks are used, concurrent registrations may be issued to such persons when they have become entitled to use such marks as a result of their concurrent lawful use in commerce prior to (i) the earliest of the filing dates of the applications pending or of any registration issued under this chapter . . . . ” There is no question but that the defendant is entitled to concurrent registration of the mark “OLD DUTCH” as a result of its use of the mark in commerce prior to the earliest of the filing dates of the registration issued to the plaintiff Old Dutch under this Act. The defendant used the mark without knowledge of the plaintiff’s use in each of the six states since at least 1948, nine years prior to the registration of the mark by the plaintiff in 1957. The only real issue then is the determination of the “conditions and limitations as to the mode or place of use of the mark” by the defendant. 15 U.S.C. § 1052(d). We note initially that another Circuit has held that such a determination can be made only by the Commissioner and not by the courts. We decline to follow this decision. Safeway Stores, Inc. v. Safeway Quality Foods, Inc., 433 F.2d 99 (7th Cir. 1970). We recognize that the concurrent registration section provides that: “. the Commissioner shall prescribe conditions and limitations as to the mode or place of use of the mark . . . .” 15 U.S.C. § 1052(d). (Emphasis added.) This, of course, applies to cases where the Commissioner, and not the Court, orders the concurrent registration. Moreover, the above language must be read in conjunction with the powers given to the federal courts in trademark proceedings before them. 15 U.S.C. § 1071(b)(1) provides: “. . . The court may adjudge that an applicant is entitled to a registration upon the application involved, that a registration involved should be canceled, or such other matter as the issues in the proceeding require, as the facts in the case may appear. Such adjudication shall authorize the Commissioner to take any necessary action, upon compliance with the requirements of law.” Thus it is true that the Commissioner shall prescribe conditions and limitations, but only upon the authorization of the court before which the proceeding is brought. We therefore turn to the merits of what conditions and limitations must be imposed upon the concurrent registration of “OLD DUTCH” by the defendant. In the Act itself there are a number of provisions which create new (federal) substantive rights of trademarks. The most important of these, and the provision that relates directly to this case, is 15 U.S.C. § 1072. This section makes registration of a mark on the principal register constructive notice to the nation of the registrant’s claim of ownership of the mark. The effect of § 1072 was concisely described in John R. Thompson Co. v. Holloway, 366 F.2d 108 (5th Cir. 1966). “By eliminating the defense of good faith and lack of knowledge on the part of the junior user, sections 1072 and 1115 [giving the exclusive right to use the mark] afford a registrant nationwide protection for its registered marks, regardless of the geographic area in which the registrant actually uses his mark.” 366 F.2d at 115. The result of this section is that, contrary to the common law, a registrant of a valid trademark has rights in his mark even in areas in which he does not conduct business. It simply is no longer the law that a trademark “does not . . . project the right of protection in advance of the extension of the trade . . . .” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 98, 39 S.Ct. 48, 51, 63 L.Ed. 141 (1918). Old Dutch Foods registered the trademark “OLD DUTCH” in 1957. After that registration, everyone had constructive notice that Old Dutch owned that mark nationwide, including the defendant Dan Dee. While Dan Dee had a right to use the mark in the six-state area of use prior to the registration by Old Dutch pursuant to the “good faith prior user” defense of 15 U.S.C. § 1115(b) (5), it did not have the right to use the mark in any other area in the nation. If it did it would be adopting a mark with constructive notice of Old Dutch’s ownership of the mark; if it did it would be in contravention of Old Dutch’s nationwide rights in the mark. We are in accord with the reasoning of the U.S. Court of Customs and Patent Appeals in Alfred Dunhill of London, Inc. v. Dunhill Tailored Clothes, Inc., 293 F.2d 685, 49 C.C.P.A. 730 (1961), wherein the court stated that concurrent registration of a mark should conform with the right of the registrant to use the mark. Having decided that the defendant’s right to use the mark “OLD DUTCH” is limited under the Lanham Act to the six-state area of usage prior to the 1957 registration of the mark by the plaintiff, we direct the Commissioner to issue concurrent registration to Dan Dee with these limitations: the registration shall reflect that the place of use of the mark “OLD DUTCH” shall be limited to the states of Ohio, Pennsylvania, New York, West Virginia, Kentucky and Indiana, and the use restricted to the manner, means and packaged products previously employed by Dan Dee as set forth in detail in the opinion of the District Court. The registration of the plaintiff shall reflect that the place of use of its mark includes the remainder of the United States. The judgment of the District Court is modified as herein set forth and, as modified, is affirmed. . Dan Dee never applied the notation Trademark or its abbreviation “T.M.” to the names “ODD DUTCH,” “DUTCH” and “BAVARIAN” on its products but it did use the notation “R” to indicate its registration of “DAN DEE”. The name “OLD DUTCH”, “DUTCH” and “BAVARIAN” have always been used in a smaller letter size and less prominent than its name “DAN DEE”, which was featured. The “OLD DUTCH”, “DUTCH” and “BAVARIAN” names have never been used by the defendants independently of the name “DAN DEE”. . The defendant strenuously urges that the District Court ought not to have issued any type of injunction, stating that there was no evidence that it intended to expand business into areas in which the plaintiff sells its products. Considering the deposition testimony of the President of Dan Dee as to expansion plans (which testimony was before the Court), we cannot say that the implicit finding of the District Court to the contrary is clearly erroneous. Fed.R.Civ.P. 52(a). . Because of our holding on the availability of concurrent registration, above, it is not necessary to decide whether this restrictive interpretation of 15 U.S.C. § 1115 (b) (5) is correct. However, we do note that it is difficult to reconcile a result that two merchants are selling similar goods with the same mark side by side on the retail shelves with the stated purpose of the Lanham Act; i. e., to protect the public by enabling the consumer to distinguish between competing goods and to protect the merchant who has invested time and money into presenting his specific product to the consumer. See H.R. Rep.No.219, 79th Cong. 1st Sess. (1945). . For example, 15 U.S.C. § 1054, created what are denominated “collective marks”. See Pacific Supply Coop. v. Farmers Union Central Exch., Inc., 318 F.2d 894, 906 (9th Cir. 1963). . This section states: “Registration of a mark on the principal register provided by this chapter . . . shall be constructive notice of the registrant’s claim of ownership thereof.” . The fact that the Lanham Act of 1946 modified the substantive law of trademarks as it existed at common law does not mean that the Act obliterated it. In fact, many of the common law concepts of trademarks prevail in statutory form. For example, a trademark does not exist independent of any use of the mark since the definition of a trademark is a symbol or word “adopted and used by a manufacturer.” 15 U.S.C. Sec. 1127. Another example is the provision which prohibits a registrant from bringing an action of infringement until he begins trading in the area in which the junior user is expropriating his mark. 15 U.S.C. Sec. 1114. See John R. Thompson Co. v. Holloway, 366 F.2d 108 (5th Cir. 1966); Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358 (2nd Cir. 1959). . Note that this is not a concurrent-use proceeding where two parties have used a mark in distinct areas and each applies for registration in the same proceeding. In such a case, the limitations on the respective registrations for the area of non-use of the mark (the remainder of the United States where neither had theretofore used the mark) can not be determined on a “right to use” basis. The reason is simply that it can not be said that either party has constructive notice of the other’s ownership where there has been no prior registration. See In Re Beatrice Foods Co., 429 F.2d 466, 474, 57 C.C.P.A. 1302 (C.C.P.A.1970).
f2d_477/html/0157-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "GEWIN, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Francisco ARROYAVE et al., Defendants-Appellants. No. 72-1800. United States Court of Appeals, Fifth Circuit. April 13, 1973. George B. Weires, Miami, Fla., Court appointed, for Arroyave. Gino P. Negretti, Miami, Fla., for Posada. Shaya Estrumsa, Miami, Fla., for Barragan. Robert Rust, U. S. Atty., Michael P. Sullivan, Lawrance B. Craig, III, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. GEWIN, Circuit Judge: On January 13, 1972, a three count indictment was returned charging the appellants, Barragan, Posada, and Arroyave with: (1) a conspiracy to import and possess marijuana; (2) the actual importation of marijuana; and (3) possession of marijuana with intent to distribute. On February 14, 1972, at the conclusion of their trial, the jury found Barragan guilty of all three counts; Posada guilty of counts one and two; and Arroyave guilty of count one. They appeal from their convictions. We affirm the convictions of Barragan and Posada but for reasons later delineated are compelled to reverse the conviction of Arroyave. On December 1, 1971, a government agency informed the United States Customs Bureau in Miami that marijuana might be smuggled into the United States aboard Colombian Air Force planes landing at the Fort LauderdaleHollywood International Airport. On December 21st, agents of the Custom’s Bureau received notice that a Colombian Air Force plane had landed at the airport at 3:00 p. m. Pursuant to this information, agents secretly surveilled the activities of this aircraft. The aircraft was inspected and cleared by Customs after a general declaration had been presented by the flight crew. No marijuana was discovered at the time of clearance. After inspection, the aircraft was removed to the Colombian Air Force Purchasing Agency warehouse where workmen began to remove several large pieces of heavy machinery. Agents DeGaglia, Mason, and Mc-Cutcheon secretly stationed themselves nearby to monitor the activities in and around the plane. After the heavy cor-go had been removed the aircraft cargo doors were partially closed thus limiting the agents’ view from the waist up of the persons inside the plane. Agent Mason testified that he saw Barragan reach above his head and place two rope-tied packages between himself and Posada. Agent DeGaglia testified that Posada carried these two packages and placed them in the bed of his pickup truck. Posada returned to the aircraft and again retrieved two more packages. Posada took the two packages and walked over to Arroyave and engaged him in a short conversation. Posada then walked to his pickup truck, placed the packages in the bed of the truck, and proceeded to leave the warehouse area. Agent De-Gaglia pursued Posada and stopped the vehicle within the airport grounds. He informed Posada that he was an agent of the Customs Bureau and then opened the packages. A field test conducted by DeGaglia revealed the packages contained marijuana. Posada was immediately arrested and the contraband seized. After the marijuana was discovered in Posada’s truck, other agents arrested those in and around the aircraft. A careful search of the plane yielded several other packages containing marijuana. There is some evidence that when Barragan was placed under arrest at the warehouse he requested to see the Colombian Consul. This request was apparently denied by the agents. After his request, Barragan was taken to the Customs Agency Service office in downtown Miami. There Agent Perez, who speaks Spanish fluently, proceeded to advise Barragan of his Miranda protections by reading the Miranda rights to him from a card which was written in Spanish. Barragan responded that he understood his rights but preferred to waive them. Barragan then proceeded to make a full confession. He stated that he knew the packages contained marijuana and he was to be paid 6,000 Colombian pesos for bringing the contraband to the United States from Colombia. He further admitted that he was to deliver the packages to various people at the airport and indeed had delivered four packages to a man who was driving a pickup truck. These are essentially the facts utilized by the government in its case which resulted in the convictions now under review. Several contentions are presented which the appellants argue mandate a reversal of their convictions. Each challenges the sufficiency of the evidence; the make-up of the jury panel; and, certain comments by the district judge which allegedly predisposed the jury to an atmosphere of guilt. Other errors are presented which pertain more particularly to each individual appellant. I. Jury Selection Appellants urge that they were denied a fair trial since the jury selection system, allegedly excludes citizens between the ages of eighteen and twenty-one years and a proportionate percentage of Latin Americans. We find these contentions to be without merit. This court has previously reviewed the plan of the United States District Court for the Southern District of Florida for the Random Selection of Grand and Pet-it Jurors. Concerning this plan, our previous observations are equally decisive on the contentions presented here. We have stated that: . . .there was no showing of a substantial noncompliance in that, considering the population of the District and the size of the master wheel, it was “practicable” (as the Plan phrases it) to have added the names of newly registered voters or that the absence of them could have produced any substantial effect on the fair cross-section concept. Likewise, appellants have also failed to show that it was practical to add the names of newly registered voters. At trial, appellants requested the court to take judicial notice that the proportion of Latin Americans on the jury panels did not equal their population in the general Miami area. This the trial court properly refused to do. Appellants made no attempt to prove these assertions. The burden is on the appellants to demonstrate the exclusion of a particular group from jury service. As the record reveals, the appellants never even attempted to fulfill this burden. Their argument that Latin Americans have been excluded from jury service is totally without merit. II. Prejudicial Comments Appellants further assert that reversal of their convictions is required-because of certain allegedly prejudicial comments made by the trial court which predisposed the jury to an atmosphere of guilt. A review of the record, however, reveals that only two of these comments were actually made in the presence of the jury. We accordingly limit our review to these comments. As part of their defense, appellants presented evidence that it was possible that the marijuana could have been placed aboard the aircraft after it landed at the airport. In furtherance of this defense, appellants questioned Mr. Smith, a customs inspector, who initially cleared the aircraft on its arrival. Smith testified that he had discovered no marijuana during his inspection. The following colloquy then ensued: Mr. Estrumsa: I have no further questions. The Court: How did you overlook 240 pounds of marihuana? [sic] Was it careless, or— Mr. Estrumsa: I object, your Honor, to these remarks, because it might very well have been possible, sir, that the marihuana — [sic] The Court: I said did he overlook 240 pounds. The jury will determine whether it is possible or not. Everything is possible. The Witness: I don’t know. The Court: Did you see the airplane leave the ground after you inspected it. The Witness: No, I did not. Additionally, during the government’s closing argument, the trial court warned Barragan’s counsel that his continued objections to the government’s closing argument might prove to be an unwise courtroom tactic. The court stated after several objections by defense counsel to the government's summation that: He [Government counsel] may play tricks on you and interrupt you every five minutes ... He might do it to you, if you interrupt him. Appellants now claim that these comments require reversal. Looking at the record as a whole, we do not believe that these two encounters could have possibly led the jury to a predisposition of guilt. The court properly advised the jury in accordance with the rule in this circuit that it was their exclusive function to determine whether the marijuana was in fact imported. Likewise, the court’s advisement after-counsel’s incessant objections to the government’s summation was an attempt to keep the jury from becoming confused. The court advised counsel that he would be given an opportunity to present his interpretation of the facts and summary of the case. The reaction of the court did not suggest the appellants’ guilt. III. Barragan Before responding to Barragan’s sufficiency of the evidence claim, a review of the propriety of admitting his prior confession is proper since the evidence adduced from this confession was the most direct and damaging in the government’s case. It appears that after Barragan was arrested at the warehouse, he requested to see the Colombian Consul. This request was denied and he was taken to the customs office in downtown Miami where he was apprised of his Miranda protections. Barragan responded that he understood his Miranda protections but did not desire an attorney. At this time he did not make a request to see the Colombian Consul. Instead, he proceeded to make a full confession. Barragan admitted at trial that he was not coerced or threatened in any manner during his interrogation. He did state that he was a little nervous but such a reaction is quite normal and surely is not grounds for holding that an otherwise permissible confession is somehow tainted. Since it is abundantly clear that the confession at the customs office was voluntary and otherwise admissible, the only issue to which we need address ourselves is whether the government must cease any further interrogation when a foreign national requests to see his country’s consul upon his arrest. The assertion of a desire to see the Colombian Consul was at most an ambiguous request. The motivation for this request is unknown. It does not share the specific connotations necessarily involved in the request for counsel. To conclude that such requests would invoke Miranda protections would unnecessarily and unwisely broaden the purpose of the Miranda decision. Barragan did not continue to request assistance of the Columbian Consul when Agent Perez informed him of his Miranda rights at the customs office. Perez did inform Barragan that he was entitled to counsel and if he could not afford to retain an attorney, then one would be appointed for him. Barragan responded that he understood his right to counsel but voluntarily waived such right. This gives added weight to the supposition that the original request for the Colombian Consul was not for the purpose of obtaining the assistance of an attorney within the rationale and teachings of the Miranda decision. Since the confession was properly admitted, Barragan’s argument that there was insufficient evidence to convict is without merit. Barragan stated in his confession that he brought the marijuana into this country; he was to be paid 6,000 Colombian pesos for his task; he was to deliver it to certain people at the warehouse; and he in fact delivered four packages to a man driving a pickup truck. In addition to the incriminating evidence adduced from the confession, the agents testified that they saw Barragan give four packages to Posada who was driving a pickup truck. We feel that this is ample evidence to sustain the jury’s verdict of guilty. Barragan’s other contentions are totally without merit. IV. Posada Posada claims that the search of his pickup truck violated his fourth amendment rights. He argues that the search was neither a customs or border type search. The contention that this was not a proper border search is totally frivolous. The agents testified that they saw Barragan give Posada several packages from a plane which had recently arrived in the United States. This Court has already held that a search need not occur at the border to be upheld as a border search. It is also unnecessary for the person to actually cross the border before he may be searched. The class of persons who may be subjected to a border search (include) persons engaged in suspicious activity near a border area Therefore, we hold that when ... an individual’s movements are reasonably related to the border area, . . . that individual is a member of the class of persons that a customs officer may . stop and search . . . The search of Posada’s pickup truck was a proper border search and the contraband seized was admissible at his trial. It is our opinion that the agents’ testimony that they saw Barragan give Posada the packages, the later seizure of the marijuana from his pickup truck, together with all the circumstances surrounding the handling and movement of the contraband, constituted sufficient evidence to sustain Posada’s conviction of a conspiracy to import marijuana. Since Posada was sentenced to concurrent two year sentences under both counts, we need not review his conviction for actual importation. V. Arroyave After a careful review of the trial transcript, we conclude that the government did not present sufficient evidence to support Arroyave’s conviction. Viewing the evidence in a light most favorable to the government, the evidence proved that: Arroyave was a friend of Posada and the latter’s truck had been seen at Arroyave’s home on several occasions; on the day in question, Arroyave was milling around the aircraft and talking momentarily to Posada. We conclude as a matter of law that the evidentiary foundation relied upon by the Government is much too flimsy and insubstantial to support a guilty verdict of conspiracy to import marijuana. Such a conclusion would stand for the impermissible proposition that one may be convicted of conspiracy on the mere association with others. The government’s evidence was purely circumstantial. In such case, it is incumbent upon the government to exclude every reasonable hypothesis except that of guilt. A cursory examination of the record in this case manifestly reveals that the government has failed in this regard. Arroyave was a former employee of the Colombian Air Force. He unloaded air craft as it arrived at the warehouse. Stella Urrea, a secretary employed by the Colombian Warehouse, testified that on the day in question she called Arroyave and informed him that he would have to come out to the warehouse office to fill out some forms to qualify for a Christmas bonus check to which he was entitled. This is surely a plausible explanation for Arroyave’s presence at the warehouse on December 21, 1971. It is not unreasonable to believe that after he came to the warehouse he decided to renew old acquaintances and engage in some holiday revelry with his friends. This Court has previously stated in circumstantial evidence cases that: There is ample cause for suspicion and conjecture in this case, but suspicion and conjecture are not sufficient to sustain a conviction. In our view the jury was not justified in reaching a verdict of guilty, even though they accepted the Government’s evidence as true and accorded it full weight. This summation is equally applicable to the government’s case against Arroyave. Accordingly, it is our conclusion that the district court committed error in denying Arroyave’s motion for acquittal because as a matter of law, there was insufficient evidence of his guilt to submit the case to the jury. No purpose would be served by ordering a new trial in this case since the record fails to reveal the probability of a subsequent conviction. As we have often said, “No good purpose could be served in ordering a new trial” in this case. The judgment of conviction of Arroyave is reversed, and his case is remanded to the district court with directions to vacate the judgment and to enter an order granting the motion of acquittal and a judgment acquitting Arroyave. In all other respects, the judgment of the district court is affirmed. Affirmed in part and reversed and remanded in part with directions. . See, 18 U.S.C. § 2 and 21 U.S.C. §§ 841 (a) (1), 952(a). . United States v. Pentado, 463 F.2d 355, 359 (5th Cir. 1972). See also, United States v. Blair, 470 F.2d 331 (5th Cir. 1972). . Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). . See United States v. Penner, 425 F.2d 729, 730 (5th Cir. 1970). . “Thus the rule in this Circuit is clear: if the trial judge chooses to comment on the evidence he must instruct the jury that they are not bound by his comments or questions.” United States v. Musgrave, 444 F.2d 755, 762 (5th Cir. 1971); see also, Hale v. United States, 435 F.2d 737, 742 (5th Cir. 1970); Bursten v. United States, 395 F.2d 976, 982 (5th Cir. 1968). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973). See, United States v. Reagor, 441 F.2d 252 (5th Cir. 1971). . United States v. Glaziou, 402 F.2d 8, 13-14 (2nd Cir. 1968); United States v. Hill, 430 F.2d 129, 131 (5th Cir. 1970). . Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Abigando, 439 F.2d 827 (5th Cir. 1971). . Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Weaver v. United States, 374 F.2d 878 (5th Cir. 1967). . Vick v. United States, 216 F.2d 228, 232 (5th Cir. 1964). . Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968). . See, United States v. Stephenson, 474 F.2d 1353, (5th Cir. 1973); United States v. Love, 472 F.2d 490 (5th Cir. 1973); Nagell v. United States, 392 F.2d 934 (5th Cir. 1968); Argent v. United States, 325 F.2d 162 (5th Cir. 1963).
f2d_477/html/0164-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "HASTINGS, Senior Circuit Judge. PELL, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	JOHN R. THOMPSON CO., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 72-1076. United States Court of Appeals, Seventh Circuit. Argued Jan. 25, 1973. Decided April 20, 1973. William A. Cromartie, Chicago, Ill., for plaintiff-appellant. James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., Scott P. Crampton, Asst. Atty. Gen., James H. Bozarth, Atty., Tax Division, Dept. of Justice, Washington, D. C., for defendant-appellee. Before HASTINGS, Senior Circuit Judge, and KILEY and PELL, Circuit Judges. HASTINGS, Senior Circuit Judge. Plaintiff John R. Thompson Co. is a corporate restaurateur. The present appeal involves its 1959 federal income tax liability, but plaintiff’s dispute with the United States centers on events which occurred in 1962. As well as owning other restaurants and restaurant chains, plaintiff owned and operated Henriei’s Restaurant on West Randolph Street in Chicago’s Loop area. A salient feature of this restaurant’s Victorian decor and flavor was the presence on its walls of 42 oil paintings, engravings and prints, most of which dated from the nineteenth century. Plaintiff purchased these works of art in 1929 as part of the transaction by which it acquired the restaurant. The paintings had been collected by the restaurant’s previous owners for over twenty years prior to the transaction, and they were used continuously after their initial acquisition to decorate the restaurant’s walls. The City of Chicago condemned plaintiff’s leasehold interest in the restaurant premises in 1962, preparatory to erecting the Chicago Civic Center on the site, and plaintiff was forced to close the restaurant. It is plaintiff’s contention that the condemnation and resultant forced closing of the restaurant in 1962 caused it to suffer a loss because of the decline in value of the collection of paintings occasioned thereby. Plaintiff alleges that, since the paintings had been utilized in the operation of its trade or business, the loss could be taken under one or the other of §§ 165(a) and 167 of the Internal Revenue Code of 1954. Of necessity, plaintiff’s contention must be regarded as being in the alternative because § 165(a), nondepreciable property, and § 167, depreciable property, are mutually exclusive. Plaintiff’s 1962 income tax return showed a consolidated net operating loss, which plaintiff used as a net operating loss carryback to 1959, pursuant to § 172 of the Code. Part of the 1962 net operating loss was the loss plaintiff claimed on the paintings. On plaintiff’s application under § 6411 of the Code, the Commissioner of Internal Revenue allowed a tentative carryback adjustment and made a 1959 income tax refund to plaintiff. Thereafter, following an audit of plaintiff’s 1962 return, the Commissioner disallowed the loss for the paintings, adjusted the 1962 net operating loss accordingly and asserted a deficiency for 1959. Plaintiff paid the deficiency assessment and then filed a claim for refund with the District Director of Internal Revenue in Chicago, pursuant to Treas.Reg. § 301.6402-2(a) (2). The claim was disallowed. Plaintiff brought this action against the United States to enforce its claim for refund and, ultimately, to vindicate its alleged right to take a 1962 loss deduction on the paintings. The district court, which had jurisdiction of the action under 28 U.S.C.A. § 1346(a)(1), held that plaintiff did not experience a loss in 1962 under either of the claimed sections of the Code. The court entered judgment for the United States, D.C., 338 F.Supp. 770 (1971), and we affirm. Section 165(a) of the Code provides a deduction from income for “any loss sustained during the taxable year and not compensated for by insurance or otherwise.” It has been stipulated that plaintiff was not insured against its “loss” on the paintings and that it made no claim for compensation for such a loss as part of the condemnation award. A Treasury regulation defines the nature of the loss allowable under § 165(a): “To be allowable as a deduction under section 165(a), a loss must be evidenced by closed and completed transactions, fixed by identifiable events, and * * * actually sustained during the taxable year. Only a bona fide loss is allowable. Substance and not mere form shall govern in determining a deductible loss.” Treas.Reg. § 1.165-1 (b). Plaintiff contends that its alleged loss is further governed by Treas.Reg. § 1.-165-2(a) “A loss incurred in a business or in a transaction entered into for profit and arising from the sudden termination of the usefulness in such business or transaction of any nondepreciable property, in a ease where such business or transaction is discontinued or where such property is permanently discarded from use therein, shall be allowed as a deduction under section 165(a) for the taxable year in which the loss is actually sustained. For this purpose, the taxable year in which the loss is sustained is not necessarily the taxable year in which the overt act of abandonment, or the loss of title to the property occurs.” The record in this case consists solely of the pleadings, a stipulation by the parties with attached exhibits and the depositions of two of plaintiff’s former employees. “Since the evidence in this case is all either documentary or in the form of physical exhibits, we are in as good a position as the trial court to examine it and determine for ourselves” the facts of this case. “Under these circumstances ‘the findings of the District Court are deprived of the degree of finality which would otherwise attach under Rule 52 [, Federal Rules of Civil Procedure, Title 28, U.S.C.A.].”’ Kiwi Coders Corp. v. Acro Tool & Die Works, 7 Cir., 250 F.2d 562, 568 (1957), quoting (in part) Steiner v. Mitchell, 6 Cir., 215 F.2d 171, 175 (1954), aff’d, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Our independent examination of the record leads us to two basic conclusions. (1) As a matter of law, plaintiff’s alleged loss in 1962 could not have been as great as it claims; the measure of loss for which it contends is wholly unsupportable. (2) As to that part of the alleged loss which plaintiff may, in fact, have sustained in 1962, there has been a failure of proof. Since the burden is on the taxpayer to prove the deductibility of the loss it claims, plaintiff cannot prevail. In 1929, plaintiff paid $184,699 for the paintings in issue. In 1962, their value in the art market was appraised at $44,150. Plaintiff would deduct the entire $140,549 difference between these two sums as a 1962 loss. Under no tenable theory was this entire amount a “loss incurred in a business,” as required by Treas.Reg. § 1.165-2(a), supra. Some part of the difference between 1929 purchase price and 1962 appraisal value may be attributable to a decline in the popularity of these paintings among the art-buying public. Plaintiff would have suffered this portion of the loss regardless of whether the paintings were hanging in the restaurant, in an art gallery or elsewhere. The mere fact that an art owner chooses to display his collection in his place of business, for whatever reason, does not transform a loss incurred in the art market into a loss incurred in the business. Cf. A.R.R. 4530, II-2 Cum.Bull. 145 (1923), superseded by Rev.Rul. 68-232, 1968-1 Cum.Bull. 79. The phrase “incurred in a business” in the regulation cited above describes the manner of incurrence, not the place of incurrence. Furthermore, plaintiff has presented no evidence that the portion of the loss attributable to the decline in art market value was “actually sustained during the taxable year” 1962, as required by Treas.Reg. § 1.165-1(b), supra. Since the value of the paintings in the art market may have continued to fluctuate during 1962, 1963 and 1964, while plaintiff held the paintings, no reason is apparent why this case should not come under the general rule that fluctuations in the value of property are not recognized as gains or losses until “closed and completed transactions, fixed by identifiable events,” occur. Treas. Reg. § 1.165-1(b), supra. In this case, we find no transaction prior to the 1964 sale of the paintings which caused plaintiff to realize a loss on the art market value of the paintings. Over and above their value in the art market, the paintings had an additional (and not inconsequential) value because of their use in plaintiff’s restaurant. This is clear from the 1971 deposition testimony of plaintiff’s former president and of the restaurant’s former manager. It is also clear that this additional value was a factor in the price plaintiff paid for the paintings in 1929. As such, its “basis” is ascertainable by subtracting the 1929 art market value of the paintings from the $184,699 purchase price. Unlike the loss in art market value for which plaintiff claimed a 1962 deduction, which we have held was barred as a matter of law, it is entirely possible that plaintiff suffered a 1962 loss on this additional value. Such a loss, if it occurred, would have been incurred by plaintiff “in a business,” for reasons having no connection with the art market, but dependent wholly upon the fortunes of plaintiff’s business. Whatever the possibilities, we must agree with the district court that plaintiff failed to prove such loss in additional value. Plaintiff’s most telling failure was in not proving that a “closed and completed transaction” occurred in 1962, “fixed by [an] identifiable event.” Although the condemnation forced plaintiff to close the restaurant on August 15 of that year, a strong inference remains in the record that the usefulness of the paintings in plaintiff’s business did not terminate on that date and that the paintings were not “permanently discarded from use” at that time. On the contrary, plaintiff considered reestablishing the restaurant, with the identical decor, at some other location in the Loop. As an alternative, it also considered trying to recreate the restaurant’s atmosphere, by means including the use of the paintings, at one of the twelve other restaurants it owned and operated under the Henriei’s name. Thus, in response to the question why plaintiff did not eventually move the restaurant to another location within the Loop, plaintiff’s former president answered: “Well, frankly, because we couldn’t find a location we liked and, particularly, the size of the room was very very important. To get that size room, the rent would have been almost prohibitive. So, after spending quite a little time looking over the various possibilities around the Loop, why, we finally give up.” The restaurant’s former manager, when asked what his position had been with respect to relocation of the restaurant within the Loop, answered to the same effect: “Well, in the first place, the square footage there was so much more than you could get in another building. This was one of the main stumbling blocks. In other words, there are many locations that became available, but most of the square footage that was offered was not adequate to take and to duplicate the Original Henriei’s.” Finally, the former manager was asked, with respect to other restaurants plaintiff owned, “[D]id you consider the possibility of using any of these paintings from the Randolph Street location?” He replied: “Well, we would have liked to have done it, yes. It would have been advantageous, particularly, at Oak Brook and O’Hare, where we made some effort to duplicate the Henrici’s. In fact, trying to capture the Victorian type era that we discussed previously. “It would have been very advantageous, certainly, to have been able to transport these particular operations, because they were in the same general location, and Oak Brook and O’Hare caters to many of the same customers who are still customers of ours.” A further indication of plaintiff’s intentions is found in a newspaper article attached to the parties’ stipulation as Exhibit 5. The article bears the date of August 9, 1962, six days before the restaurant closed. Short excerpts follow: “Chicago’s new $76,000,000 Civic Center will rise on the site by 1965. A spokesman for Henrici’s said this week ‘it is likely’ that the restaurant will reappear in the Civic Center, but no contract has yet been signed. * * * * * * “Some of that flavorful Gay ’90s decor will be salvaged before the Loop restaurant is abandoned to the wreckers. To be saved are the familiar 11% foot grandfather’s clock, woodwork, some lighting fixtures, plaster wall disks and about 85 oil paintings, including the one of Niagara Falls that decorates the wall behind the cashier. “These objects will be saved for future use in the new Henrici’s in the Loop.” To overcome the inference created by this evidence, plaintiff relies on a single sentence in the parties’ stipulation: “From the time of the condemnation in 1962, until October 18, 1964 [the date the paintings were sold at auction], plaintiff held the paintings for disposition in the most profitable (or least unprofitable, as the case may be) manner possible.” Bearing in mind that plaintiff had the burden of proof in this matter, this sentence standing alone does not carry conviction that by August 15, 1962, plaintiff had abandoned all intention of using the paintings elsewhere within its corporate restaurant business. “Disposition,” as used in the stipulation, fails to overcome the impression created by the other evidence that, until it reached a specific decision at some unknown time before October 1964 to sell the paintings at auction, plaintiff had among its options the continued use of the paintings elsewhere within its business. Continued use of the paintings within its business might have turned out to be the “most profitable” disposition plaintiff could make of the paintings. The condemnation and forced closing of the West Randolph Street restaurant would not then have been the “closed and completed transaction” required by the regulations. Likewise, the ultimate corporate decision to sell the paintings at auction has not been “fixed by [an] identifiable event” as having occurred in 1962. For these reasons, plaintiff has failed to prove its right to a 1962 loss deduction on the additional value of the paintings under § 165(a) of the Code. Plaintiff’s claim under § 167 gives us no difficulty. The loss deduction allowed under that section of the Code is for depreciable property only. Except to the extent that they are subject to physical decay (and the parties have stipulated that the physical condition of the paintings in 1962 was “not significantly different from their condition at the time the paintings were acquired in 1929”), works of art are not depreciable. The district court dealt with this question more than adequately, and we adopt that portion of its opinion which discusses plaintiff’s claim under § 167. 338 F.Supp. at 777-779. Underlying the present dispute is another disagreement between the parties as to the character of the paintings for tax purposes. Are they business assets, which give rise to fully deductible ordinary losses? Or are they capital assets, which give rise to capital losses deductible only to the extent provided in §§ 1211 and 1212 of the Code? Since we affirm the district court’s decision denying plaintiff a 1962 loss deduction, we have no occasion to characterize the paintings in these terms or to determine the nature of the deduction plaintiff may claim in the year, if any, in which it proves its loss. We express no view on the merits of this underlying dispute. For the foregoing reasons, the judgment of the district court is affirmed. Affirmed. PELL, Circuit Judge (dissenting). The only issue presented on this appeal is whether the appellant sustained a loss in 1962 deductible from ordinary income on its income tax under either § 165(a) or § 167 of the Internal Revenue Code. The holding of the majority opinion is that it did not. I respectfully dissent. While the paintings were not sold until 1964, in my opinion the loss was sustained when the taxpayer’s unique restaurant business on Randolph Street, Chicago, was permanently closed by virtue of condemnation. Looking at Treasury Regulation § 1.-165-2(a) it appears to me that a “loss [was] incurred in a business and arising from the sudden termination of the usefulness in such business of nondepreciable property, in a case where such business is discontinued [and] where such property is permanently discarded from use therein . . . . ’’ In such a case the Regulation provides that the loss shall be allowed as a deduction under § 165(a) for the taxable year in which the loss was actually sustained. Under Treasury Regulation § 1.165-1(b), the loss was evidenced by the closed and completed transaction of the restaurant doors being permanently and irrevocably closed by the identifiable event of the condemnation. I do not conceive there could have been a viable contrary argument if the sale of the paintings had occurred immediately; however, the hope, and it was at most only that, that this traditional Loop restaurant, almost an institution, might once again engage in business was foreclosed by economic facts of life, all of which were in existence and applicable in 1962, irrespective of whether completely recognized by that human characteristic which “springs eternal.” The death knell was sounded in 1962 and any subsequent tolling was merely a corroborative requiem. Although I do not conceive that it was necessary for the ultimate holding in the majority opinion, a part of that opinion is devoted to the necessity for allocating some part of the total dollar figures involved between paintings as art objects and paintings as an essential part of the decor of the restaurant. I did not understand that the Government made any such contention and certainly the taxpayer did not. In candor, I do not follow the line of reasoning in this part of the majority opinion. Any nondepreciable property utilized exclusively in connection with a business may have separate intrinsic value. But if X dollars are paid for such property on acquisition, that would appear to me to be the cost basis under the Code, and if at the time of the loss, here assumed arguendo, the fair market value is X-Y dollars, I fail to conceive why the loss (Y dollars) was not incurred in a business, where the property was used exclusively in the business, irrespective of an identifiable, separate intrinsic value of the property. The majority opinion adverts to an underlying dispute as to whether the paintings were business or capital assets. The differentiation has a substantial tax impact. I entertain a sneaking suspicion that if the paintings had sold for a substantially greater sum than their cost the parties would have been equally vigorous in their disagreement, but supporting the opposite views to those presently entertained. Such seems to be the course of tax litigation. Being of the opinion that the loss was final and irrevocable in 1962, 5 Mertens, Law of Federal Income Taxation § 28.-15,1 have recorded this dissent. . By the operation of § 6511 of the Code, the claim was only partially timely. As to the timely portion of the claim, howjever, the filing of the claim fulfilled the requirements of § 7422 of the Code. . Landerman v. Commissioner, 7 Cir., 454 F.2d 338, 341 (1971), cert. denied, 406 U.S. 967, 92 S.Ct. 2411, 32 L.Ed.2d 666 (1972). . See United States v. S. S. White Dental Mfg. Co., 274 U.S. 398, 401, 47 S.Ct. 598, 71 L.Ed. 1120 (1927). See also Hort v. Commissioner, 313 U.S. 28, 33, 61 S.Ct. 757, 85 L.Ed. 1168 (1941); Weiss v. Wiener, 279 U.S. 333, 335, 49 S.Ct. 337, 73 L.Ed. 720 (1929).
f2d_477/html/0171-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "WALLACE, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Steven KARP, by his guardian ad litem Marvin Karp, Plaintiff-Appellant, v. Elliott BECKEN et al., Defendants-Appellees. No. 25161. United States Court of Appeals, Ninth Circuit. April 5, 1973. Rehearing Denied May 4, 1973. S. Leonard Scheff (argued), Erik M. O’Dowd, Marvin D. Karp, Schorr & Karp, Tucson, Ariz., for plaintiff-appellant. Clague A. Van Slyke (argued), Frank L. Ross, Bilby, Thompson, Schoenhair & Warnock, Lawrence Ollason, Special Deputy County Atty., Pima County, Rose S. Silver, Atty., Pima County, Tucson, Ariz., for defendants-appellees. Before KOELSCH, HUFSTEDLER, and WALLACE, Circuit Judges. WALLACE, Circuit Judge: Appellant brought this action in the District Court pursuant to the Civil Rights Act (42 U.S.C. § 1983) for alleged violation of his First Amendment rights. The action was brought against school officials (appellees) who suspended appellant for five days from Canyon del Oro High School in Pima County, Arizona. Appellant sought to enjoin the school officials permanently from enforcing the suspension order. After a trial, the District Court entered findings of fact and conclusions of law in favor of the school officials. Several students, including appellant, planned a chant and “walkout” at an athletic awards ceremony which was to be held at the high school in order to protest the refusal of the school to renew the teaching contract of an English instructor. Appellant gave notice of the plans to the news media the day before it was to occur, apparently resulting in an article about the planned walkout in the morning paper on the day of the assembly. Before the ceremony began, the school officials were told by student body officers that if a “walkout” did take place, certain members of the Lettermen Club (the school athletes) would likely attempt to prevent it. Fearing a possibly violent confrontation, the school officials cancelled the assembly. Notwithstanding the cancellation, some students did stage a “walkout” from classes. As part of his efforts to publicize a demonstration to be held later in the morning, appellant again notified the news media. During the lunch hour, students and newsmen gathered in the area of the school’s multi-purpose room. At one point, appellant, who had been at this gathering, went out to his car in the parking lot and brought back signs supporting the English instructor and distributed them to other students. The Vice-Principal ordered the students to surrender their signs, claiming they were not permitted to have them. There was no specific rule prohibiting the bringing of signs on campus. All signs were surrendered immediately except those held by appellant. He asserted a Constitutional right to have and distribute the signs. When asked a second time, appellant gave up the signs and then accompanied the Vice-Principal into the administrative office, upon the latter’s request. While appellant was in the administrative office, students began chanting, and pushing and shoving developed between the demonstrators and some Lettermen. Shortly after intervention by school officials, the demonstration broke up. A couple of days later, after consultation with appellant’s parents (who were out of town at the time of the activities noted), school officials advised appellant he was to be suspended for five days. School officials then offered to reduce the suspension to three days if appellant would agree to refrain from bringing similar signs on the campus. Appellant and his father refused to make such an agreement. The difficulties inherent in federal court supervision of disciplinary problems in the 23,390 public school systems of this country were anticipated by Justice Black in his dissent in Tinker v. Des Moines School District, 393 U.S. 503, 515, 89 S.Ct. 733, 21 L.Ed.2d 731 (1962). The reason for his concern is amply demonstrated in this case, which presents a conflict between asserted Constitutional rights and good-faith actions by school officials. Tinker, of course, provides the standards. It is clear that public high-school students have a right to freedom of speech which is not shed at the schoolhouse gates. 393 U.S. at 506, 511, 89 S.Ct. 733. However, it is equally clear that the daily administration of public education is committed to school officials. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). That responsibility carries with it the inherent authority to prescribe and control conduct in the schools. When a conflict does arise, Tinker then provides that the students’ rights to free speech may not be abridged in the absence of “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities . . . .” 393 U.S. at 514, 89 S.Ct. at 740. Thus, the courts have recognized that the interest of a state in the maintenance of its educational system is a compelling one, provoking a balancing of First Amendment rights with a state’s efforts to preserve and protect its educational process. Bayless v. Martine, 430 F.2d 873, 877 (5th Cir. 1970); Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966). The Tinker rule is simply stated; application, however, is more difficult. Years ago, in a free speech case, Chief Justice Vinson noted “that neither Justice Holmes nor Justice Brandéis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.” Dennis v. United States, 341 U.S. 494, 508, 71 S.Ct. 857, 866, 95 L.Ed. 1137 (1951). The shorthand phrase referred to in Dennis was “clear and present danger,” but the remarks are equally appropriate to “substantial disruption or material interference”; federal courts should treat the Tinker rule as a flexible one dependent upon the totality of relevant facts in each case. See Grayned v. City of Rockford, 408 U.S. 104, 119, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The difficulty of application is even more pronounced because disruptive conduct was absent in Tinker; there were “no disturbances or disorders on the school premises . . . .” 393 U.S. at 514, 89 S.Ct. at 740. The Tinker court borrowed the phraseology of the rule from the Fifth Circuit decision in Burnside v. Byars, supra; but there too, disruption or interference was absent, there being only a “mild curiosity.” 363 F.2d at 748. Consequently, the two cases which provided the rule give little assistance in its application to specific facts. However, the Fifth Circuit panel which decided Burnside also decided Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966). In Blackwell, they found more than a “mild curiosity”; in fact, “there was an unusual degree of commotion, boisterous conduct, a collision with the rights of others, an undermining of authority, and a lack of order, discipline and decorum.” 363 F.2d at 754. Evidently, such conduct resulted in substantial disruption, for the court upheld a regulation banning the wearing of buttons though the regulation was similar to the one struck down in Burnside. Thus, mild curiosity alone will not justify abridgement though Blaekwellian disorder and disruption will. The question presented by the present case is whether incidents falling between the two extremes might also permit the imposition of restraints. For three reasons, we believe so. First, the First Amendment does not require school officials to wait until disruption actually occurs before they may act. In fact, they have a duty to prevent the occurrence of disturbances. Second, Tinker does not demand a certainty that disruption will occur, but rather the existence of facts which might reasonably lead school officials to forecast substantial disruption. 393 U.S. at 514, 89 S.Ct. 733. And finally, because of the state’s interest in education, the level of disturbance required to justify official intervention is relatively lower in a public school than it might be on a street corner. It should also be obvious that the actions of one claiming free speech abridgement on a school campus cannot be dissected from reality and observed in a vacuum. The same false cry of “fire” may be permissible in an empty theater, but certainly not when there is a capacity crowd. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (Holmes, J.). The striking of a match may have no effect in an open field, but be lethal in a closed room filled with gases. Similarly, in making a determination in this case, in addition to consideration of the acts of appellant, all other circumstances confronting the school administrators which might reasonably portend disruption must be evaluated. The court in Tinker emphasized that there was no evidence documenting the school officials’ forecast of disruption of the educational processes. 393 U. S, at 508-509, 514, 89 S.Ct. 733 In contrast, the record here reflects the following facts, justifying a reasonable forecast of material interference with the school’s work: 1. On the morning involved, there was a newspaper article relating to the planned assembly walkout. The article indicated that the newspaper’s source of information was a reporter’s conversation with appellant. 2. The highsehool Principal and other school officials testified that the school athletes had threatened to stop the proposed demonstration. 3. The assembly was cancelled because school officials feared a walkout might provoke violence. 4. Later in the morning, newsmen appeared on the campus and set up their equipment. During this time, appellant and other students, during a free period, were milling around outside the building talking with these newsmen. 5. The Vice-Principal testified to his impression that there was a general atmosphere of excitement and expectation pervading the campus and classrooms. There was an intense feeling something was about to happen. 6. Some students actually walked out from class, notwithstanding the cancellation of the assembly. 7. About the time when the assembly walkout would have occurred, someone pulled the school fire alarm, which, had it not been previously disconnected by the Vice-Principal, would have emptied every room in the entire school. 8. Approximately fifty students gathered in the area of the multi-purpose room who talked among themselves and with news media personnel. 9. Excited by the situation, twenty to thirty of the junior high students who share facilities with the highschool and who were eating at the highschool cafeteria during their lunch period, interrupted their lunch and ran into the area of the multi-purpose room to watch the group of students and news people gathered there. The junior high students ran about the group excitedly and, as a result, their supervisors determined their lunch period should be shortened and they were returned to their classrooms earlier than usual. 10. Appellant went to the school parking lot and took the signs from his car to the area where the students had congregated near the multi-purpose room and proceeded to distribute them. In view of these facts, the sole question is whether this evidence is substantial enough to support the school officials’ forecast of a reasonable likelihood of substantial disruption. The temptation to be a “Monday morning quarterback” should be resisted — focus should be upon whether the apprehension of the school officials was unreasonable under the circumstances. The officials in Tinker anticipated a level of disruption which did not justify curtailment of free speech. The officials in this case testified, and the trier of fact apparently believed, that they feared the provocation of an incident, including possible violence, and that they took the signs from the appellant in an effort to prevent such an incident. Considering all the facts, we do not find that such an anticipation, or forecast, was unreasonable. However, a determination that the school officials were justified in taking the signs from appellant (and thus curtailing his exercise of claimed First Amendment rights) does not terminate our inquiry. The second question is whether the school officials properly suspended him from school for five days. The district court found that the suspension resulted from “his activities in connection with the planned ‘walkout’, the demonstration, and, principally, because of his conduct in bringing the signs on campus and attempting to distribute them.” That the primary reason for suspension was the sign activity is further demonstrated by the fact that the school officials would have shortened the suspension to three days if he had agreed to refrain from bringing similar signs onto the campus. The sign activity in this case constituted the exercise of pure speech rather than conduct. Cohen v. California, 403 U.S. 15, 18-19, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Tinker, supra, 393 U.S. at 508, 89 S.Ct. 733. As such, it comes within the protective umbrella of the First Amendment. We have already held that school officials may curtail the exercise of First Amendment rights when they can reasonably forecast material interference or substantial disruption. However, for discipline resulting from the use of pure speech to pass muster under the First Amendment, the school officials have the burden to show justification for their action. Here they failed to do so. Absent justification, such as a violation of a statute or school rule, they cannot discipline a student for exercising those rights. The balancing necessary to enable school officials to maintain discipline and order allows curtailment but not necessarily punishment. Consequently) appellant could not be suspended for his activities with the signs. We need not reach the question of whether the remaining two of the three reasons for the suspension were constitutionally permissible. There is no way to determine, based upon this record, what part of the five days was solely for the sign activities. Therefore, we are left with no choice but to invalidate the entire suspension. What we have said does not mean that the school officials could not have suspended appellant for violating an existing reasonable rule. In fact, in securing the signs, he broke a regulation by going to the parking lot during school hours. However, this was not a basis of the suspension. See Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971). We have only held that, under the circumstances of this case, appellant could not be suspended on the sole basis of his exercising pure free speech when no justification was demonstrated. Reversed and remanded for further proceedings consistent with this opinion. . The absence of a specific regulation prohibiting signs is not a constitutional flaw. See Richards v. Thurston, 424 F.2d 1281, 1282 (1st Cir. 1970). . See also Karr v. Schmidt, 401 U.S. 1201, 91 S.Ct. 592, 27 L.Ed.2d 797 (Black, Circuit Justice, 1971). As of the decision in Karr v. Schmidt, 460 F.2d 609 (5th Cir.) (en banc), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972), the federal circuit courts had invested the time necessary to decide at least twenty-two cases involving the length of student hair. . See Butts v. Dallas Independent School Dist., 436 F.2d 728, 731 (5th Cir. 1971); Norton v. Discipline Comm. of E. Tenn. State Univ., 419 F.2d 195, 199 (6th Cir. 1969), cert. denied, 399 U.S. 906, 90 S.Ct. 2191, 26 L.Ed.2d 562 (1970). . See also Butts v. Dallas Independent School Dist., 436 F.2d 728, 731 (5th Cir. 1971); Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966).
f2d_477/html/0177-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "OAKES, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. Joseph P. PFINGST, Appellant. No. 424, Docket 72-1998. United States Court of Appeals, Second Circuit. Argued Jan. 23, 1973. Decided April 4, 1973. Certiorari Denied June 11,1973. See 93 S.Ct. 2779. Joseph J. Marcheso, New York City (Philip M. Kazin, Morton J. Schlossberg, and Walter I. Nathan, New York City, of counsel), for appellant. Joseph W. Ryan, Jr., Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., for E. D. New York, L. Kevin Sheridan, Asst. U. S. Atty., and David G. Trager, Sp. Asst. U. S. Atty., of counsel), for appellee. Before MOORE, HAYS and OAKES, Circuit Judges. OAKES, Circuit Judge: Following a four week trial before a jury and Judge Weinstein in the Eastern District of New York, appellant, Joseph P. Pfingst, who had served as a New York State Supreme Court Justice, was convicted on three of the nine substantive counts of a ten-count indictment. The indictment alleged that, while appellant was a practicing lawyer, he transferred and concealed corporate assets in contemplation of bankruptcy in violation of 18 U.S.C. § 152 and engaged in a conspiracy to do the same, 18 U.S.C. § 371. On each count he was sentenced to three years’ imprisonment but with execution suspended as to all but four months, the sentences to run concurrently. On this appeal, Pfingst does not challenge the sufficiency of the evidence against him. Rather, he launches a multifaceted attack on the conduct of his trial, both by the prosecutor and trial judge. While appellant’s contentions have in many eases a verisimilitude, upon close scrutiny in the light of the record none of them warrants reversal of his conviction. We therefore affirm. I. Background. To understand the reasons we reject appellant’s contentions of error requires a somewhat detailed exposition of the evidence. In 1965, when the ease begins to unfold, the Evans Dairy business consisted of a group of corporations whose stock was closely held by the Evans family. There were six related corporations dealing with all the different phases of milk production and sale: a company which operated a receiving plan, Chenango Farm Products, Inc. (“Chenango”) ; a purchasing company which also operated an additional milk receiving plant, W. M. Evans Dairy, Inc. (“W. M. Evans”); a processing and distributing company, Evans Amityville Dairy, Inc. (“Evans Amityville”); two companies which sold directly to retail customers, Woodside Farms, Inc. (“Woodside”), and Half Hollow Farms, Inc. (“Half Hollow”); and a real estate holding corporation that owned the property used by the processing and distributing company, Highground Realty Corporation (“Highground”). The two principal components of the business were W. M. Evans and Evans Amityville. In 1965 one Ramon N. D’Onofrio, who pleaded guilty to charges similar to those brought against appellant and who was the principal witness against appellant at trial, had been a salesman for and ultimately became a vice president of Evans Amityville. Early in that year D’Onofrio learned that the Evans dairy business was for sale. He was encouraged and advised by Pfingst, at that time a practicing attorney and personal friend, to purchase the business. D’Onofrio, however, could not obtain the necessary credit on his own. By virtue of associating with one Sam Marcus, an experienced and respected dairy man whose credit was excellent, D’Onofrio was able eventually to acquire the Evans dairy business jointly with Marcus from the Evans family, largely for some long-term notes. Pfingst became the lawyer for the purchasing interest in connection with the negotiations that ensued. Upon completion of the purchase, Pfingst became a director of all the corporations, secretary of all of them except Evans Amityville, a minority stockholder of Evans Amityville and Half Hollow, and general counsel to the dairy business. There was evidence, centering around Pfingst’s demand for $50,000 legal fees conpensating his work for the purchase, that Pfingst was aware as early as August, 1965, of the poor financial condition of the Evans dairy business. After Marcus and his son discovered that D’Onofrio had drawn checks payable to Pfingst in the sum of $26,500 from Woodside and $20,000 from Evans Amityville, Pfingst kept $10,000 and took a $30,982 mortgage owned by High-ground and a $7,500 note from Evans Amityville. In October, 1965, Sam Marcus died and plans for the rehabilitation of the Evans business accordingly suffered a severe blow. D’Onofrio, who lacked financial resources and managerial experience, could not carry on alone. As a buyer could not be found, D’Onofrio and Pfingst decided to acquire the interest of the Marcus estate in the business and, as the jury could infer, to milk whatever profit could be made before the business went bankrupt. They became, according to D’Onofrio’s testimony and corroborating evidence, 75%-25% partners, acquired the interests of the Marcus estate on February 28, 1966, and refinanced some of the debt of the business by factoring accounts receivable. There was evidence from which it could be inferred that the Evans dairy business was already bankrupt at the time that it was acquired by the D’Onofrio-Pfingst partnership. In April, 1966, milk suppliers refused to extend further credit and total collapse could no longer be avoided. An assignment for the benefit of Evans Amity-ville creditors was made in state court that same month. Later in the year W. M. Evans and Evans Amityville were adjudicated involuntary bankrupts. The Government’s case was that Pfingst and D’Onofrio, knowing bankruptcy to be both inevitable and imminent, fraudulently moved to skim the cream of the assets of the Evans dairy business for their personal benefit. Two of the steps they took in this regard formed the basis for Pfingst’s conviction. The first began on March 15, 1966, when a substantial portion of the major Evans Amityville asset, its wholesale customer business, and the Chenango milk receiving plant were sold to a competitive dairy for $229,000. Fifty thousand dollars of this amount was held by Pfingst in escrow pending completion of certain provisions in the sales contract which he had prepared. The remaining $179,000 was deposited in the Evans Amityville bank account. Three days later $160,000 was transferred from the Evans Amityville account to the W. M. Evans account. Subsequently, on March 21, 1966, a check payable to D’Onofrio for $75,000 and a check payable to Pfingst for $25,000, both marked “for Purchase of Stock,” were drawn on the W. M. Evans account. These checks were not drawn according to the usual corporate procedure nor was a purchase of D’Onofrio’s or Pfingst’s stock by W. M. Evans authorized by corporate resolution. Furthermore, W. M. Evans was in precarious financial position at the time and could ill afford the expenditure. While Pfingst- contended that the $25,000 check to him represented payment for legal fees, D’Onofrio testified that the notation “for Purchase of Stock,” was pursuant to a scheme devised by Pfingst to make the transfer look like a bona fide stock transfer. The jury convicted Pfingst of fraudulently transferring the $25,000 to himself, although it acquitted him of fraudulently participating in the $75,000 transfer to D’Onofrio. The other transfer which formed the basis of the counts on which Pfingst was convicted concerns two other checks drawn on the W. M. Evans account and paid for out of the proceeds of the March 15, 1966, sale of the dairy business’s assets described above. These checks were for the aggregate amount of $10,600, with $7,950 (or 75 per cent) going to D’Onofrio and $2,650 (or 25 per cent) going to Pfingst. The money, according to D’Onofrio’s testimony, was to finance a joint venture in a Puerto Rican dairy unrelated to the Ex-ans business, and an accountant corroborated him by his testimony - that D’Onofrio and Pfingst wanted him to accompany them to Puerto Rico to look over some dairy books in connection with a “possible purchase.” The checks were marked “Dividend, Woodside Farms,” but there was evidence that payment of a Woodside Farms dividend by W. M. Evans was “irregular” and unsubstantiated by corporate resolution, and that W. M. Evans needed the cash used for the “dividend” to pay its debts. The defense did not offer any explanation for this transfer and the jury found Pfingst guilty of fraudulently arranging it for his own and D’Onofrio’s benefit. It is to be noted that on all charges D’Onofrio’s testimony was a considerable portion of the prosecution’s ease against Pfingst. D’Onofrio was involved in many other dealings that were shady, to say the least, and his credibility was a critical issue at trial. Indeed, on the charges of which Pfingst was acquitted the evidence was limited to D’Onofrio’s testimony, while on the charges of which Pfingst was convicted, in contrast, documentary evidence and the testimony of other witnesses corroborated D’Onofrio’s version of events. It is important, however, to describe in some detail the unrelated bribery charge brought against appellant in the Eastern District, for it is involved in some of his contentions here. Some nine months after the indictments in the bankruptcy case a grand jury indicted him for the crime of having paid one Frederick R. Fellman, the Babylon, Long Island, town Republican leader, $50,000 in cash in return for that party’s nomination in 1968 for the judgeship. The bribery indictment charged that, inter alia, Pfingst traveled and caused D’Onofrio to travel to Switzerland to arrange for the bribe money in violation of 18 U.S.C. § 1952. Fellman, but not D’Onofrio, was indicted for participation in the bribery scheme. Fell-man pleaded guilty but Pfingst went to trial. The bribery trial began one month after the verdict in the bankruptcy case, lasted five weeks, and was also presided over' by Judge Weinstein. During its course D’Onofrio refused to permit the Government or the defense access to his (and supposedly Pfingst’s) Swiss name bank account, “Gypsy.” Rejecting D’Onofrio’s claim of self-incrimination on this point Judge Weinstein held him in contempt for the duration of the trial. D’Onofrio was thus discredited in front of the jury, and the Government was deprived of D’Onofrio’s further testimony. The jury acquitted Pfingst on the bribery charges. Judge Weinstein, however, denied Pfingst’s motion for a new bankruptcy trial based upon the bribery acquittal, holding that the bribery acquittal did not make D’Onofrio’s testimony in the bankruptcy case incredible as a matter of law. II. Contentions of Prosecutorial Misconduct. Perhaps the most vigorously pressed of appellant’s contentions of error in this case is that individually and cumulatively various instances of prosecutorial misconduct deprived him of a fair trial. We shall treat each instance of alleged misconduct separately and then consider their alleged cumulative impact. A. Pre-trial publicity. Appellant complains that the United States Attorney (with the Suffolk County District Attorney) held a televised press conference to announce the “much more sensational” bribery indictment on the eve of the bankruptcy trial and this resulted in prejudice to his rights. His complaint has two components: first, that the prosecutor deliberately manipulated the timing of the bribery indictment and that the remedy for this misconduct is to award appellant a new trial; and second, that the publicity attendant upon the announcement of the bribery indictment created an atmosphere in the community which made a fair trial for appellant impossible. The charge of deliberate manipulation of the timing of the bribery indictment is not supported by the record. Although D’Onofrio told the FBI about the bribery plan in January, 1971, before the bankruptcy indictment was filed on February 8, 1971, indictment on the bribery count was delayed until September 1, 1971, when the Government had the evidence of actual payment of the bribe- supplied by Fellman’s confession of August 4, 1971. Once Fellman confessed, the Government decided to press forward with the bribery case because it was far simpler and the supporting evidence was thought to be stronger than on the bankruptcy fraud charge. Both Judge Bartels and Judge Rosling, who each presided over aspects of the pretrial maneuvering in both eases, agreed with the Government’s contention that the bribery case should be tried first. Judge Weinstein, to whom both cases were eventually assigned, was of a similar view, but nonetheless acceded to the defense request that the bankruptcy case be tried first. The announcement of the bribery indictment was made in early September, 1971, and while the trial date for the bankruptcy case had been set in June tentatively for October 15, 1971, it was not actually tried until March of 1972. The timing of the bribery indictment was obviously related to Fellman’s confession and cannot support an inference of deliberate prosecutorial misconduct in connection with the bankruptcy case when the latter’s trial date was set for six weeks later and then set only tentatively. The form of the public announcement of the bribery indictment, however, raises more troublesome questions. The announcement emphasized the allegations that the bribe money had been withdrawn from a Swiss bank account and that this was the first federal indictment of a state Supreme Court justice. The Government properly argues that the presence of the Suffolk County District Attorney was justified as evincing state and federal law enforcement cooperation on a matter of joint interest. While the information about the Swiss bank account was a matter of public record and the unprecedented nature of the indictment is not disputed, it is contended that the press conference violated the spirit, if not the letter, of Rule 8 of the Criminal Rules of the Eastern District of New York. These circumstances and remarks do seem too much designed for dramatic effect and to call attention to the prosecutors rather than for public information and enlightenment about the administration of justice in Suffolk County. Judge Bartels, indeed, took the Government correctly to task for its conduct during this phase of the proceedings. The press conference did not, however, create the kind of “carnival atmosphere” resulting from pretrial publicity that requires a new trial under the sixth amendment and the due process clause. Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); see Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); cf. ABA Standards Relating to Fair Trial and Free Press 27-40 (1968). The press conference occurred some six months before the jury in the bankruptcy trial was drawn; the memory of the public for such news is short. The degree of pre-trial publicity in this case is minor compared to the kind of on-going, never-ending sensationalist publicity which infected the trial in Sheppard, or in the other cases where reversal has been warranted. Appellant never moved for a change of venue. Furthermore, unlike Sheppard, the trial judge here “fulfill [ed] his duty to protect [the defendant] . . . from inherently prejudicial publicity . . . . ,” 384 U.S. at 363, 86 S.Ct. at 1522, Judge Weinstein scrupulously examined the jurors before they were impaneled on questions relating to the possible influence of pre-trial publicity. Only one potential juror was excused on that ground. We are satisfied that appellant’s trial was not rendered unfair by this one press conference. B. Publicity during the trial. Appellant contends that the Government deliberately arranged for or “had” Fell-man plead guilty to the bribery charge on the second day of the bankruptcy trial and that the resulting publicity made the bankruptcy trial constitutionally unacceptable. This contention is baseless. In fact the defense withdrew a charge of deliberate manipulation below, while maintaining that the Government is charged “with knowing the natural consequences of their act . .” Rather than being the result of a prosecutorial conspiracy the timing of Fellman’s plea and sentencing was arranged by the trial judge and Fellman’s counsel at the pre-trial conference in the bribery case. Appellant’s counsel was present and stood silent when the date for the pleading was set. Probably as a result of this silence the trial court apparently thought the sentencing date favorable to appellant. The defense had concurred in the trial court’s desire to have D’Onofrio sentenced before the bankruptcy trial began, presumably because the defense wanted the fullest possible ammunition for D’Onofrio’s cross-examination. By virtue of defense counsel’s silence the trial court may well have thought the defense wanted the same tactical advantage for Fellman’s testimony in the forthcoming bribery trial. Here, too, Judge Weinstein scrupulously protected the trial from being infected with prejudice by any of the publicity surrounding Fellman’s plea. Although rejecting appellant’s mistrial motion based on it, the judge immediately renewed his stern warnings to the jury against reading, seeing or listening to news reports about the trial. He examined each individual juror on this subject, and found that none had violated his instructions. Thereafter, he opened court each day by asking the jurors collectively and individually whether they had been exposed to publicity about the case. He closed each court day with á stern warning to the jury to avoid it. Appellant has made no colorable showing that there was any prejudice from the timing of Fellman’s plea, at least in the light of this very careful judicial conduct. C. The prosecutorial “demand.” A central issue at trial was whether Pfingst and D’Onofrio in fact established a partnership to take over the Evans dairy business or whether, as the defense contended, Pfingst merely acted as a lawyer representing D’Onofrio’s interests. To prove that Pfingst was D’Onofrio’s partner on the third day of what was to be a four week trial and during D’Onofrio’s direct examination, the Government offered in evidence its Exhibit 14. This exhibit was a conformed copy of a signed agreement with the estate of Sam Marcus, which released, on various conditions, the interest of that estate in the Evans dairy business to Pfingst and D’Onofrio. One of the recitals in Exhibit 14 states, “D’Onofrio and Pfingst desire to acquire the stock theretofore owned by Sam Marcus in Evans Amityville Dairy, Inc.....,” thus clearly indicating that Pfingst and D’Onofrio were in fact partners in acquiring the Evans dairy business. By virtue of discovery proceedings, the marking of the exhibit for identification two weeks before trial, and the understanding that objections to authenticity would be made in letter form, the defense had adequate opportunity to but did not object to the admissibility of Exhibit 14 prior to trial. It did object, however, when Exhibit 14 was offered into evidence, on what the trial court articulated as a “best evidence” ground. To meet this objection the Government sought to lay a foundation for the introduction of the copy by establishing that D’Onofrio returned the original from which Exhibit 14 was copied to Pfingst and never regained possession of it. In an excess of zeal, which almost caused a mistrial on the spot, the prosecutor “ask[ed] the defendant to produce the signed agreement.” The trial court immediately interrupted examination of D’Onofrio, admonished the prosecutor, “We will have no such demand in the future,” and told the jury, “The demand should not have been made, the defendant does not have to turn over anything. There is no indication the defendant has any such document in its [sic] possession.” Almost immediately thereafter a recess was declared. The defendant then moved for a mistrial because of the prosecutor’s demand. The trial court denied the motion, but again admonished the Assistant United States Attorney (who admitted his error and apologized). At the defense’s request when the jury returned the court instructed them: Ladies and gentlemen, it was improper for the Government attorney to make any such demand on the defendant, as I told you earlier, not only for the reasons I indicated, that is that the defendant is not obligated to produce anything, which I indicated at the outset of the case, and no inference against a defendant may be drawn from the fact that he doesn’t produce anything. It is not his obligation. But more important in this particular instance there is no evidence at all that the defendant had the original of these documents. The prosecutor, at the defense’s request and under the guidance of the trial court, then recounted to the jury the Government’s efforts to obtain the original, which established that Pfingst had not been asked previously to produce it. The court then admitted Exhibit 14 with an appropriate cautionary instruction as to its weight. A post-verdict new trial motion based in part on the prejudice allegedly flowing from the demand was denied, erroneously appellant submits here. The Government quite properly concedes that the demand was erroneous. It obviously violated the principle that the burden is on the Government to prove the defendant’s guilt beyond a reasonable doubt; it also goes to the defendant’s privilege against self-incrimination. See generally 8 J. Wigmore, Evidence § 2264 at 379 (McNaughton rev. 1961); Rex v. Purnell, 1 Black W. 37, 45, 96 Eng.Rep. 20, 23 (K.B. 1749); see also State v. Squires, 1 Tyler 147 (Vt. 1801). There remains, however, the question whether the error was serious enough to require a new trial. In deciding this question we must consider, in the circumstances of this ease, the degree of prejudice created in the minds of the jurors by the demand, the quality and forcefulness of the trial judge’s corrective action and the strength of the Government’s case. United States v. Semensohn, 421 F.2d 1206, 1208-1209 (2d Cir. 1970). We might also consider the value a remand for a new trial might have as a deterrent to the United States Attorney to avoid such errors in the future for: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The degree of prejudice flowing from the demand was minimal. The prosecutorial misconduct did not irreparably weaken the appellant’s or a key witness’s credibility, see United States v. Semensohn, supra, 421 F.2d at 1209; United States v. C. L. Guild Construction Co., 193 F.Supp. 268, 274 (D.R.I.1961), or some other critical element of the defense. Rather, viewed in perspective the demand was a minor, isolated incident near the beginning of a long and complex trial. We agree with Judge Weinstein that “It is impossible to try any case, particularly a case of this nature, without having things occur which others might prefer not to have occur” and that in “A case as complex and well tried as this, and tried over as many days, all of these minor things just wash out.” Cf. Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Our conclusion that the prejudice to appellant was minimal is reinforced by the strong curative action of the district court. The court’s statements left no doubt that the prosecution was in error or as to what the nature of the error was. Cf. United States v. Semensohn, supra, 421 F.2d at 1209. If curative instructions ever have any effect in dispelling prejudicial conduct by a prosecutor they certainly would have that effect in this case. Cf. United States v. Sawyer, 469 F.2d 450 (2d Cir. 1972). Our conclusion that the prejudice was minimal is also reinforced by the quantity and quality of the evidence against appellant, the sufficiency of which he does not contest here. This is not a case where that evidence was of such questionable weight .that doubt exists as to whether the case should have been submitted to the jury altogether. Ample documentary evidence and testimony exists to support appellant’s conviction. We thus do not fear that the prosecutor’s improper conduct may have tipped the scales of justice against appellant. See Berger v. United States, supra, 295 U.S. at 88-89, 55 S.Ct. 629. Finally, we consider the need for deterring the Assistant United States Attorney from making a similar demand in the future. We reject out of hand appellant’s contentions that the demand was part of a deliberate plot by the prosecutor to prejudice the jury against him. The demand was made — whether out of incognizance, anger or, indeed, frustration — spontaneously under the pressure of an unexpected best evidence objection. Despite appellant’s other contentions of misconduct by the prosecutor, we see no support in the record for appellant’s insinuations of a pattern of deliberate prosecutorial misconduct with a cumulative prejudicial effect on his trial. Cf. Berger v. United States, supra, 295 U.S. at 84-89, 55 S.Ct. 629. We see no need whatsoever for further deterrent action as the Assistant United States Attorney has been warned by the district court and has freely admitted the error. Appellant also points to a portion of the Government’s summation quoted below which he claims referred back to the demand, and, when taken in combination with the demand, allegedly prejudiced appellant. Despite numerous other objections during the Government’s summation, appellant did not object to the statement he questions here. Nonetheless, immediately after the prosecutor made it, the trial court sua sponte warned him to be careful not to tread on the appellant’s presumption of innocence. When examined in context, the prosecutor’s argument objected to here was simply part of a larger (and otherwise certainly proper) argument about the difficulties of investigating and proving the kind of crime with which Pfingst was charged. D. Testimony of the expert accountant. Appellant alleges that the testimony of Matthew Lippman, a lawyer and accountant, called by the Government as an expert witness, was so misleading as to constitute part of the alleged deliberate prosecutorial plot to prejudice appellant. Lippman’s testimony was, however, offered for a legitimate purpose, to show the jury the bankrupt condition of the Evans dairy business during the course of the crimes charged. That Evans Amityville was bankrupt on February 28, 1966, at the date of its acquisition by D’Onofrio and Pfingst was an element of the Government’s case and no malevolent purpose can be ascribed to the Government for trying to establish that fact. The trial court permitted Lippman to testify as a qualified expert witness and appellant does not dispute that ruling here. Once Lippman was permitted to testify the weight to be given his testimony was a matter for the jury. Appellant was afforded a full opportunity to cross-examine Lippman at trial and, in fact, according to appellant, cross-examination totally discredited his testimony. Appellant could also have called his own expert accountant if further refutation of Lippman's testimony were needed. Appellant’s objections to Lippman’s testimony in reality go to the possible role it played in convincing the jury of appellant’s guilt. E. Improper summation. Appellant complains that portions of the prosecutor’s summation deliberately and erroneously implied that the jury did not have to believe D’Onofrio to convict Pfingst. Again, when read in context, however, these statements were part of a legitimate argument that on certain key issues of fact documentary evidence supported D’Onofrio’s, testimony. In other parts of his summation the prosecutor argued that D’Onofrio should be believed by the jury. The trial court found the summations on both sides to be “highly professional and restrained.” But even if the trial judge were wrong and marginal error did creep into the prosecutor’s summation the instruction given that D’Onofrio’s testimony was “crucial” to the Government’s case and could be accepted or rejected in whole or in part mitigated the effect of any error. Under the circumstances, the claim of reversible error owing to improper summation must be rejected. F. Testimony of FBI Agent Scuderi. The Government called FBI Agent Scuderi, the chief investigating officer in the Evans Dairy affair, to the witness stand. Very early in his testimony the defense argued, and the trial court agreed, that Scuderi should not be allowed to testify about a meeting he had with D’Onofrio, with appellant present. After the defense’s objection was sustained, on the basis that Pfingst’s fifth amendment privilege would be violated, Scuderi’s testimony was quickly ended. Appellant claims that the prosecutor knew Scuderi’s testimony was inadmissible and deliberately sought to make it appear that the defense did not want the jury to hear about the meeting. Thus, according to appellant, calling Scuderi “constituted prejudicial insinuations concerning appellant’s right to remain silent.” The Government asserts that it had legitimate reasons to call Scuderi that negate any inference of deliberate misconduct. It rather weakly claims that Scuderi in describing the circumstances of the FBI interview of D’Onofrio on April 14, 1967, at which Pfingst was present, would have helped to negate the defense’s contention that Pfingst did not become a subject of investigation until he became a Supreme Court Justice some two years later. The Government is on much more solid ground in reference to testimony relative to milk delivery records it intended to offer through Scuderi. A stipulation was ultimately entered into making the milk delivery records admissible without Scuderi’s testimony, but absent that stipulation his testimony might well have been necessary. The Government’s claim that testimony by Scuderi about evasive conduct by Pfingst at the interview was admissible to show Pfingst’s consciousness of guilt is a question we need not decide, although it appears highly debatable. Cf. United States v. Semensohn, supra, 421 F.2d at 1209-1210; see generally 8 J. Wigmore, supra § 2263 at 378. Judge Weinstein’s caution was the better part of judicial valor. Though the admissibility of Scuderi’s testimony is doubtful, it is certainly not evidence of prosecutorial bad faith. G. The 75-25 “hoax.” Appellant next claims that the prosecution deliberately introduced false and misleading evidence that D’Onofrio and Pfingst were 75-25% partners in the Evans dairy business. To support these allegations appellant argues that D’Onofrio’s testimony that a February 28, 1966, issue of 484 and 485 shares of W. M. Evans stock to D’Onofrio and Pfingst respectively was false, because D’Onofrio had never surrendered back to the company his stock certificates from which the February 28 issuance was made. Thus the certificates were, appellant argues, “meaningless pieces of paper.” Appellant chooses to ignore the evidence that these certificates were in Pfingst’s handwriting and that the stubs as well as the two certificates relating to D’Onofrio’s alleged ownership were missing. There were indeed various inferences that the jury could draw from what was and was not in the W. M. Evans stock book. Appellant made his points on cross-examination to D’Onofrio and in summation. If the jury did not credit them, it might have been because the jury thought that as a lawyer apparently in charge of the stock book appellant wouldn’t have written up the certificates unless they had some meaning. Furthermore, appellant’s “hoax” argument ignores the fact there was substantial evidence other than the stock book — including Exhibit 14, see Point IC and footnote 2 supra — from which the jury could have concluded D’Onofrio and Pfingst were in fact partners in the Evans dairy business. There was no prosecutorial misconduct. H. The prosecution’s “deal” with D’Onofrio. Appellant claims that the prosecutor failed to reveal that D’Onofrio and the Government- had a mutually beneficial understanding that in return for D’Onofrio’s testimony against Pfingst D’Onofrio would receive lenient treatment for his numerous sins. Failure to reveal evidence of such an understanding would, of course, violate due process and require a new trial, for evidence of any understanding would have significantly aided the defense’s position on the critical issue of D’Onofrio’s credibility. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). See generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant vigorously claimed that a “deal” had been made during cross-examination, of D’Onofrio and in summation. The trial court also instructed the jury: Mr. D’Onofrio is a self-confessed criminal. If you believe that Mr. D’Onofrio was induced to testify in this case by any promise of immunity, or that any hope was held out that he would be rewarded or in any way benefit if he implicated the defendant in the crime charged herein, or if he believed he would so benefit even if no such promises were made, then you may consider the fact in determining what weight to be given to his testimony. The jury apparently decided, despite appellant’s contentions of a “deal,” not to reject D’Onofrio’s testimony in toto but to credit it when supported by documentary evidence. For this jury’s decision we cannot, and would not if we could, provide appellant a remedy. The Government continues to deny strenuously any such understanding between itself and D’Onofrio on this appeal. Despite the above, appellant asserts six “facts” which he claims makes the Government denial of a deal “fl[y] in the face of logic.” All of these “facts” were either not asserted below or were rejected by the finder of fact at one time or another. Examination of each, furthermore, reveals no support for appellant’s contention that an unrevealed deal was made. First, appellant argues that the prosecutor “honored” D’Onofrio’s refusal to reveal any information about his secret Swiss bank accounts despite the fact the Government knew that D’Onofrio had not paid income taxes in years. The Government only “honored” D’Onofrio’s privilege against self-incrimination which was persistently asserted — once during the bribery trial to the point of contempt — to thwart all interrogation about Swiss bank accounts. The Government’s only alternative was to grant D’Onofrio immunity from prosecution, which it properly determined not to do. The second “fact” appellant points to is that despite D’Onofrio’s failure to testify about the Swiss bank accounts he was allowed to plead guilty to only one count of the ten-count bankruptcy indictment. D’Onofrio, however, still could have received a five-year sentence on the one count and a plea on all ten counts would very likely not have resulted in a longer jail term. Third, appellant argues that D’Onofrio’s presentence report failed to disclose many of D’Onofrio’s criminal activities and, as a result, he received a suspended sentence. As previously mentioned, the timing of D’Onofrio’s sentencing was at appellant’s request. Appellant’s counsel did not ask to see D’Onofrio’s presentence report before the sentencing even though, as Judge Weinstein later stated, the judge might well have been willing to show it to him. Nonetheless, a prosecutor has a duty to reveal matters to the court which are relevant to proper sentence whether or not favorable to the defendant. This includes the duty to reveal a plea bargain. ABA Standards Relating to Sentencing Alternatives and Procedures § 5.3(d)(i)(A) and Commentary (1968). The evidence in the record does not disclose that the prosecutor failed to meet his obligations here. The presentence report contains general information relating to D’Onofrio’s background and finances as well as a description and evaluation of his participation in the bankruptcy scheme. Appended to the presentence report are letters from the SEC and the IRS mentioning their investigations into D’Onofrio’s activities. Indeed, had the presentence report furnished more data, it might have approached the bounds of what might properly have been contained in it. See ABA Standards Relating to Probation § 2.3(ii)(B) and Commentary (1970) (investigations and other involvement in the criminal process short of an adjudication of guilt should be included in a presentence report with care, if included at all, because of danger they will mislead the sentencing authority). Furthermore, as discussed at Point IVA infra, Judge Weinstein was familiar with an FBI report describing some of D’Onofrio’s possibly illicit activities in areas unrelated to the bribery or bankruptcy cases, having decided not to disclose it to the defense prior to the date of D’Onofrio’s sentencing. The only substantial information of which Judge Weinstein was unaware consists of the details of D'Onofrio’s relationship to the Swiss bank accounts. Familiarity with both the bankruptcy and bribery cases, however, certainly must have made the judge well acquainted with D’Onofrio’s Swiss manipulations even if he was not aware of their full extent. Nothing in the record supports ' the contention that D’Onofrio’s sentence would have been different had Judge Weinstein been further aware or that the Government somehow tailored the presentence report to avoid disclosure of information. Fourth, appellant points to the fact that D'Onofrio was not indicted in the bribery case. But there was no evidence that D’Onofrio personally profited from the bribe. When the same argument was presented at the bankruptcy trial Judge Weinstein commented: “[D’Onofrio is] way at the outskirts of the central conspiracy ... it would be insane for the prosecutor to indict people under those circumstances.” Fifth, appellant contends D’Onofrio was not indicted for perjury even though the Government knew that he lied in testimony before the Securities and Exchange Commission. Until D’Onofrio disclosed the bribery scheme, however, on January 6, 1971, there was no evidence to support a perjury charge. Sixth, appellant points to a statement made by D’Onofrio’s attorney during the bankruptcy trial that there was an understanding that D’Onofrio would not have to give information about his Swiss bank accounts if he testified against Pfingst. The statement by D’Onofrio’s attorney, however, in context was only that D’Onofrio was excused from testifying about the Swiss bank accounts if he had justification (such as a self-incrimination privilege). Nonetheless in support of the argument that a less legitimate “understanding” existed, appellant points out that the Government refused to seek a contempt order when, despite Judge Weinstein’s rejection of D’Onofrio’s claim of a fifth amendment privilege, D’Onofrio refused to disclose information as to the Swiss bank account “Gypsy” during the bribery trial. Rather, the court sua sponte ordered D’Onofrio to be held in contempt. The Government’s failure to seek a contempt order is probably explained by the fact that, although it wanted information on “Gypsy,” to seek a contempt order would have undercut its argument that “Gypsy” was immaterial to the bribery charges against Pfingst. If the materiality of “Gypsy” was enhanced Pfingst might well have been granted a mistrial or dismissal because D’Onofrio’s refusal to testify would have made effective cross-examination on a material issue impossible. See United States v. Cardillo, 316 F.2d 606, 610-613 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). The Government’s problem would have been solved had D’Onofrio agreed to testify about “Gypsy” and, in fact, the Government vigorously supported Judge Weinstein’s order of contempt on appeal. Thus, all of appellant’s alleged “facts” which he claims unequivocally establish that an unrevealed understanding was made between the Government and D’Onofrio do not do so. Additionally, two criminal indictments are pending against D’Onofrio in the Southern District of New York for securities law violations, further undercutting any indication of a “deal.” Appellant had necessary latitude in making his insinuations about the D’Onofrio-Government relationship during trial. Despite his allegations here he was entitled to nothing more. While appellant’s claims as to prosecutorial misconduct range from the somewhat meritorious to the frivolous, none constitutes sufficient grounds to reverse appellant’s conviction. We also reject appellant’s argument that the cumulative effect of prosecutorial misconduct requires reversal. Both the pretrial publicity and the prosecutorial “demand” should have been better handled by the United States Attorney. But we find no support for appellant’s insinuations that he was a victim of a conspiracy of the prosecutor’s office. III. Trial Court’s Refusal to Rule in Advance on Scope of Cross-Examination of Pfingst. Appellant contends that the trial court erred when it refused to rule in advance that if appellant testified the Government would be precluded on cross-examination from inquiring into the relationship between appellant and D’Onofrio in certain Swiss bank transactions subsequent to the bankruptcy fraud. Appellant argues that this ruling prevented him from taking the stand which, in turn, was “[t]he single critical fact” that gave rise to his conviction. If appellant had taken the stand without the advance ruling, he argues, refutation of the damage done by cross-examination about the subsequent Swiss bank account dealings would have required revelation of his defense in the upcoming bribery trial. To quote appellant: “Giving a pathological liar like D’Onofrio such an advantage [the advance revelation of the bribery defense] would have enabled D’Onofrio to invent a new and different story for the bribery trial.” Appellant thus claims that the trial court’s refusal to rule in advance was error and that he should be granted a new trial where he can “defend himself.” The fact that appellant would have had to preview his bribery trial defense is unfortunate but was a product of the defense’s own strategy. After all, it was Pfingst who insisted that the bankruptcy trial precede the bribery trial. Be that as it may, this court has often held that while a trial court has discretion to issue an advance ruling on the scope of cross-examination, United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed. 480 (1969), it need not do so, United States v. Cacchillo, 416 F.2d 231, 234 (2d Cir. 1969); United States v. Crisona, 416 F.2d 107, 117 (2d Cir. 1969), cert. denied, 397 U. S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970), even if the refusal to do so prevents a defendant from testifying in his own behalf. United States v. Kahn, 472 F.2d 272 at 281, 282 (2d Cir., 1973). The test for appellate review is whether the trial court abused its discretion in failing to issue an advance ruling. United States v. Kahn, supra, at 282; United States v. Crisona, supra, 416 F.2d at 117. Appellant argues in effect that the trial court did abuse its broad discretion because cross-examination about the Swiss bank accounts would have been based on events subsequent to and dissimilar from the acts of bankruptcy fraud and thus would be “collateral” and irrelevant. He concedes, as he must, that evidence of the nature of the D’Onofrio-Pfingst relationship before and during the alleged bankruptcy fraud conspiracy was admissible, see United States v. Ross, 321 F.2d 61, 67 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963); United States v. Kahaner, 317 F.2d 459, 470-472 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 73, 11 L.Ed.2d 65 (1963), to refute Pfingst’s “only a lawyer” defense. We see no distinction between prior and subsequent acts establishing the nature and quality of the Pfingst-D’Onofrio relationship in this regard. 2 J. Wigmore, supra, § 382 at 321-24; cf. United States v. Chase, 372 F.2d 453, 460-461 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 627 (1967) (similar conspiratorial acts subsequent to original conspiracy admissible against conspirator to show willingness to participate in original conspiracy and intent to advance its purpose even though not admissible against coconspirators whose criminal activities ceased with original conspiracy). Had the acts on which the Government sought to cross-examine been completely irrelevant to the Pfingst-D’Onofrio relationship, cf. United States v. Beno, 324 F.2d 582 (2d Cir. 1963), cert. denied, 379 U.S. 880, 85 S.Ct. 147, 13 L.Ed.2d 86 (1964), appellant’s claim might be in a different posture here. Under the circumstances, however, the trial judge certainly did not abuse his discretion in refusing to restrict the scope of the possible Government cross-examination of Pfingst in advance of Pfingst’s direct testimony. IV. Trial Court’s Rulings Withholding Information From the Defense. Appellant contends that the trial court’s refusal to order disclosure to the defense of three pieces of information constitutes reversible error. We consider each contention separately. A. FBI report dated July 17, 1970. An FBI report of July 17, 1970, deals with the FBI’s first interview with D’Onofrio after he decided to cooperate with the Government. The first page and one-half were made available to defense counsel by the trial court with the Government’s consent since it bore on D’Onofrio’s state of mind in seeking to assist the FBI, albeit in an investigation unrelated to the bribery or bankruptcy case. Judge Weinstein did not order disclosure of the remainder of the report because he found that disclosure would put D’Onofrio in danger of his life. He also found that since the report dealt with an unrelated investigation appellant was not prejudiced by its non-disclosure and at best the material in it was cumulative on the issue of D’Onofrio’s credibility. Following standard procedure, see 18 U.S.C. § 3500(c), the report was sealed but made available to us to consider the correctness of the trial judge’s ruling. We have reviewed the report and conclude that further disclosure might indeed have placed D’Onofrio in danger of his life. We also conclude that the report had no relationship to the appellant whatsoever and that it was of almost no benefit to the defense. We thus reject appellant’s contention that a mistrial was required for its non-disclosure. Cf. 18 U.S.C. § 3500(d) (trial court has discretion to declare a mistrial in the interests of justice when Government refuses compliance with discovery). B. The FBI reports relating to the obstruction of justice investigation. After the bankruptcy indictment both D’Onofrio and appellant were approached separately by a shady character named Sidney Orefice who claimed to be able to “fix” their cases. Appellant and his counsel immediately reported the incident to the FBI and cooperated in the ensuing investigation. D’Onofrio also reported the incident to the Government. At trial defense counsel argued that Orefice’s approach to appellant was a “set-up” attempt by D’Onofrio. The Government consented to turn over to the defense all of the FBI reports on the Orefice matter that contained statements of appellant, his counsel or of D’Onofrio. The Government, however, refused to turn over the reports involving interviews of other witnesses on the grounds that investigation into the matter was still going on. The trial court agreed with the Government’s position, calling the whole affair “collateral” and “a lot of red herrings,” The court and counsel then agreed on a stipulation to the jury describing the approach to both D’Onofrio and appellant and their reporting of it to the Government. Appellant asserts that the failure of the trial court to order disclosure of the rest of the FBI reports on the Orefice investigation was error. We agree with the trial court that the whole matter was collateral to the main issues at trial. Appellant was given the material which most directly bore on D’Onofrio’s credibility. Additionally, the trial court was quite generous in allowing the defense to bring the whole matter to the attention of the jury. Appellant was entitled to nothing more. See United States v. Cardillo, supra, 316 F.2d at 615-616. C. The prosecution memoranda. Appellant asks this court to review the trial court’s determination that the defense was entitled to discovery under the Jencks Act, 18 U.S.C. § 3500, of only portions of two prosecution memoranda. Both memoranda were prepared by Gavin W. Scotti, an attorney for the Department of Justice who assisted the prosecution at trial. We have reviewed the memoranda in camera and have concluded the defense obtained all the discovery to which it was entitled. All of the portions of the memoranda describing D’Onofrio’s interviews with Scotti were disclosed. The non-disclosed portions consist solely of summaries and evaluation of the evidence and a discussion of the legal and practical problems of a prosecution from the Government’s point of view. Stripped of the description of D’Onofrio’s interviews the memoranda were not “statement [s] . . . made by a Government witness ... to an agent of the Government” and discoverable under 18 U.S.C. § 3500. See Saunders v. United States, 114 U.S.App.D.C. 345, 316 F.2d 346, 349-350 (1963), cert. denied, 377 U.S. 935, 84 S.Ct. 1339, 12 L.Ed.2d 299 (1964); United States v. Aviles, 315 F.2d 186, 191-192 (2d Cir.), remanded sub nom., Evola v. United States, 375 U.S. 32, 84 S.Ct. 24, 11 L.Ed.2d 106 (1963), opinion on remand, 337 F.2d 552 (2d Cir. 1964), cert. denied, 380 U.S. 906, 918, 85 S.Ct. 885, 13 L.Ed.2d 794 (1965). V. Absence of the Trial Court. The trial judge had a longstanding invitation to deliver a speech to the Fifth Circuit Judicial Conference on April 27, 1972. He informed counsel early in the trial of this engagement and of the fact that the speech would be delivered in Savannah, Georgia. The trial judge apparently assumed the trial would be over by the day of the speech but events did not bear out his hopes. Jury deliberations began in this case at about 10:30 a. m. on the day before the speech was to be delivered. Remembering the speech date, on the day jury deliberations began defense counsel sought to make arrangements to deal with the trial court’s absence. Apparently, however, he was told in an off the record discussion that no arrangements were necessary. The jury resumed deliberations at 10:30 a. m. on the day of the speech with the trial judge in Savannah. The trial judge made arrangements to return to the courtroom at approximately 2:00 p. m. that day. At 11:00 a. m., however, one of those marvelous notes that only a jury can devise was handed to the Marshal by the jury asking: “What type and what amount of proof and evidence is required to eliminate reasonable doubt?” The note was given to the trial judge’s law clerk. The trial judge, who had made arrangements to be in telephonic communication with his law clerk throughout the morning, was informed of the note at 11:30 a. m. He instructed his law clerk to research some of the points raised by it. He further instructed him to advise counsel of the contents of the note and prepare proposed answers by 2:10 p. m. Counsel was shown the note at 11:40 a. m. and told of the judge’s instructions. Five minutes later, the jury went to lunch. Jury deliberations resumed at 1:45 p. m. Shortly before that time, approximately 1:30 p. m., the Government’s proposed answer to the note was given to the judge’s law clerk. The trial judge, who had worked on an answer to the note during the trip back from Georgia, returned to the courthouse at approximately 2:30 p. m. and was given the Government’s proposed answer. He assumed the bench at 2:35 p. m. At about 2:45 p. m. the defense's proposed answer was received. A colloquy then ensued between counsel and the court. The trial court rejected both his own draft and the Government’s proposal and delivered almost verbatim the defense’s proposed answer to the note at 3:00 p. m. The jury was thus without answer to its reasonable doubt note for just over two hours of deliberation time. Ten minutes after the answer was read, the jury returned its verdict convicting appellant on some but not other counts of the indictment. Appellant first contends that this sequence of events requires reversal of his conviction without any showing of specific prejudice because the absence of the trial court from the courtroom was per se error, because it made him unable to “assert authority” over the situation. We reject the contention that no showing of specific prejudice is required. While delivering a speech in Georgia under the circumstances may have been unwise, Judge Weinstein was able to “assert authority” over the situation by telephone and evidence in the record establishes that the procedure he followed in responding to the jury’s note was no different, except that it was slower, from the procedure he would have followed had he been physically present. Judges, for various reasons, are sometimes physically absent for short periods from the courthouse during jury deliberations. See Jordon v. Bondy, 72 App.D. C. 360, 114 F.2d 599, 605 (1940) (jury deliberates late into night, judge goes home); United States v. Lanni, 335 F.Supp. 1060, 1083 (E.D.Pa.1971) (attendance at a bar association luncheon during jury deliberations). Cf. Heflin v. United States, 125 F.2d 700 (5th Cir.), cert. denied, 316 U.S. 687, 62 S.Ct. 1276, 86 L.Ed. 1759 (1942). While the practice is not to be encouraged, we cannot say in this day and age of modern communication and transportation it is reversible error for the trial court not to be physically present at the courthouse during deliberations for a reasonably short period without some showing of specific prejudice to a defendant. Additionally, however, appellant contends that he was specifically prejudiced by the delay in responding to the jury’s request. A trial judge should, of course, generally provide prompt additional instructions upon request from a jury. ABA Standards Relating to the Function of the Trial Judge § 5.12(a) (ten. draft 1972). Here, the jury deliberated some two hours without an answer. It is difficult to know what effect an earlier response to the broad question on reasonable doubt would have had on the course of jury deliberations. We note again, however, that Judge Weinstein followed his usual procedure in answering the jury’s note and that he properly advised counsel of the note and requested their assistance in answering it. Cf. ABA Standards Relating to Trial by Jury § 5.3(d) (1968) incorporating by reference id. § 4.6(c) and (e). We also note in passing that there are decisions upholding verdicts rendered by a jury even if a requested further instruction is not given at all, in effect saying that a jury can waive a request for further instructions. Jordon v. Bondy, supra, 72 App.D.C. 360, 114 F.2d at 605; United States v. Lanni, supra, 335 F.Supp. at 1083-1086. But here the jury’s question was answered before verdict. While the time formulation of the answer was quite long, defense counsel himself did not submit a proposed answer to the jury’s request until 2:45 p. m., and the question was not without difficulty. Under the circumstances we cannot say that reversible error occurred. VI. Instruction on Inference. During the colloquy on the reasonable doubt question the jury sent in a second note, equally ingenuous, asking: “Can a Juror’s opinion be based on inference? Please explain what part does presumption play.” The court showed counsel the note and requested their comments. Appellant requested a “two inferences” instruction — that if one inference is consistent with innocence and the other with guilt, the jury must draw the one consistent with innocence — in answer to the jury’s note. See, e. g., United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971); Battles v. United States, 388 F. 2d 799, 801-802 & n.3 (5th Cir. 1968). The trial judge properly refused to give this instruction, as this circuit has rejected the “two inferences” rule. United States v. Grunberger, 431 F.2d 1062, 1066 (2d Cir. 1970). The court, after reading the answer to the “reasonable doubt” question quoted in note 8 supra, answered the inference note as follows: Can a juror’s opinion be based on inference? Yes, inference on the evidence before you. To the presumption question, the court answered: There is no presumption in the case except the presumption that I explained to you during the course of the trial, that is the presumption of innocence. I want you to decide the case on the basis of my instructions and not on the basis of any law you think you know from any prior service as a juror. Appellant now objects that the answer to the inference question was “over-simplistic” because it did not explain that inferences of guilt had to convince the jurors beyond a reasonable doubt. Appellant’s argument forgets that his requested answer to the “reasonable doubt” note had been read just seconds before and that the answer to the presumption question reminded the jury of .the presumption of innocence. In any event, the appellant did not object below to the answer to the inference note on the grounds he urges here and that alone is sufficient reason to reject his claim of error. ABA Standards Relating to Trial by Jury, supra, § 4.6(c). VII. Failure to Give a DeSisto Charge. Appellant argues that it was reversible error for the trial court to refuse to charge that D’Onofrio’s prior sworn testimony in other proceedings was admissible not only for purposes of impeachment but as affirmative proof of the facts therein, and cites in support United States v. DeSisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). DeSisto, however, applies only to the special problem of a witness who is called to testify to a fact and denies the fact or knowledge of it although he has testified elsewhere with respect to it. In that situation the party who called the witness has no other way of proving that the witness’s original story is true except to rely on the prior sworn testimony. United States v. Nuccio, 373 F. 2d 168, 172-174 (2d Cir. 1967), cert. denied, 392 U.S. 930, 88 S.Ct. 2285, 20 L. Ed.2d 1388 (1968). Here, D’Onofrio answered all questions relating to the bankruptcy fraud and admitted that his testimony in the prior proceedings was false. DeSisto is thus inapplicable. See generally 3A J. Wigmore, Evidence § 1018 at 996-1007 (1970). Additionally, even if DeSisto were applicable, there was no charge that the jury could not consider D’Onofrio’s prior sworn testimony for all purposes. As such, there would be no prejudice to appellant in denying a DeSisto charge. United States v. Gonzalez-Carta, 419 F.2d 548, 552-553 (2d Cir. 1969). VIII. Marshal’s Communication to the Juror. Appellant’s final contention is that he is entitled to a new trial because a juror was informed by a Deputy United States Marshal that some property may have been stolen from the juror’s car. The jurors knew the courthouse was in what was apparently a crime-prone neighborhood and, in fact, three of the jurors during the trial had complained that while traveling from the subway to the courthouse some men had made abusive gestures toward them. At defense counsel’s request the judge told the jury they could be protected by the Marshal, that similar incidents had happened to judges of the court and that the incident should be put out of their minds in considering the case. During the course of the trial one juror drove her car to the courthouse and left it in an open lot. One day during the trial the lot attendant told her that the car might be stolen if left in the lot after dark. At the end of the first day of jury deliberations, the juror wrote a note to the trial court reflecting her concern that her automobile might be stolen. Judge Weinstein responded with a note that she should give the key and description of the car to the Marshal who would try to put it in the court garage. The court’s note was called to counsel’s attention and defense counsel specifically approved of the court’s disposition of the incident. The Marshal received a description of the car from the juror and located it, but found the driver’s door and glove compartment open. After putting the car in the courthouse garage the Marshal returned to the courtroom. As the jury was leaving for the night the juror asked the Marshal about her car. She was told that the car was safe and in the building, but asked if there was anything of value in the car. She replied that there was nothing of value but there was a makeup case on the car seat. The Marshal confirmed that the makeup case was still there, but stated that the door and glove compartment had been found open. This was the sum and substance of the whole incident. The above facts were found at a hearing held by the trial court at which the Marshal, the court clerk and the juror were called as witnesses. The Government had the burden of persuasion in showing that the communication between the juror and the Marshal was “harmless to the defendant.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954); United States v. Gersh, 328 F.2d 460, 464 (2d Cir. 1964). But there is no requirement, as appellant seems to suggest, that the Government meet its burden in any particular way. Here, the Government did not have to ask any questions at the hearing for the answers to defense counsel’s questions established that the juror-Marshal communication was harmless to the appellant. After the hearing on these issues defense counsel stipulated that the communications with the juror were in good faith. There is not the slightest indication that the lady in question or any other member of the jury was in any way influenced by the incident. Indeed, jury deliberations continued for another day. Appellant’s motion for a mistrial on this ground was properly denied by the trial court. Having reviewed all of appellant’s numerous contentions of error and finding them without merit we would add an additional word. The charges against appellant were of particular public interest, since they involved a man who had been placed in a position of honor dispensing justice. His conviction, just as anyone else’s, must be untainted by unfairness. Appellant was convicted by a jury of twelve mature and thoughtful citizens after a hard fought trial in which his interests were fully protected by skillful counsel. Upon review of the record of the trial we are convinced that the result was reached by procedures that were, all in all, a credit to the jury system. Judgment affirmed. . D’Onofrio was sentenced to three years’ imprisonment, execution suspended, he was placed on probation for two years and fined $10,000. Another co-defendant, James W. Feeney, was granted a severance during trial and, after Pfingst’s acquittal on the three counts naming Feeney, had his case dismissed, on the Government’s motion. . When the closing took place 270 shares of Woodside were issued, 202% or 75% to D’Onofrio, and 67% or 25% to Pfingst, the stubs in the latter’s handwriting. So too, the rights of Marcus to a $100,000 certificate of deposit were assigned $75,000 to D’Onofrio and $25,-000 to Pfingst. On March 21, 1966, $100,000 of W. M. Evans funds were issued to the- two on the same basis; on March 22 $10,600 more were. There were attempted transfers of a smaller amount from the Chenango and High-ground accounts on substantially the same basis. While the evidence was unclear, and hotly disputed, the W. M. Evans stock book lent some substantiation, by no means conclusive, however, to the 75%-25% arrangement. . See note 2 supra. . There was also testimony from D’Onofrio that Pfingst told him that to draw money out of the Woodside account would impair its current asset ratio to a point below the 3-2 level required by the original agreement between D’Onofrio and Pfingst with the survivors of the Evans family. . Rule 8, which tracks the ABA approved Standards Relating to Fair Trial and Free Press § 1.1 (1968), provides in pertinent part: 1. It is the duty of the lawyer or law firm not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which he or the firm is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice. . . . . . 3. From the time of arrest, issuance of an arrest warrant, or the filing of a complaint, information or indictment in any criminal matter until the commencement of trial or disposition without trial, a lawyer or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning: (1) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the accused, except that the lawyer or law firm may make a factual statement of the accused’s name, age, residence, occupation, and family status, and if the accused has not been apprehended, a lawyer associated with the prosecution may release any information necessary to aid in his apprehension or to warn the public of any dangers he may present; (2) The existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement; (3) , The performance of any examinations or tests or the accused’s refusal or failure to submit to an examination or test; (4) The identity, testimony, or credibility of prospective witnesses, except that the lawyer or law firm may annuonce [sic] the identity of the victim if the announcement is not otherwise prohibited by law; (5) The possibility of a plea of guilty to the offense charged or a lesser offense; (6) Any opinion as to the accused’s guilty [sic] or innocence or as to the merits of the case or the evidence in the case. The foregoing shall not be construed to preclude the lawyer or law firm during this period, in the proper discharge of his or its official or professional obligations, from announcing the fact and circumstances of arrest (including time and place of arrest, resistance, pursuit, and use of weapons), the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement, at the time of seizure of any physical evidence other than a confession, admission ar [sic] statement, which is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge, including a brief description of the offense charged; from quoting or referring without comment to public records of the court in the case; from announcing the scheduling or result of any. stage in the judicial process; from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges made against him. [Emphasis original.] . The instruction was as follows: I am allowing that to come in for whatever value you find in it. But bear in mind that w,e prefer to have the original document for obvious reasons because there could be changes between the original and the copy. In addition, we have a problem with respect to this document —I mean this physical document — because we haven’t traced it. And there is a possibility, which you can consider, that during the interim it was changed or modified, or perhaps it wasn’t even the original that was described. But I am allowing it to go into evidence for whatever evidentiary probative force you find it has. . The part of the summation of which appellant complains reads as follows: Mr. Mareheso [defense counsel] talked to you about all the documents and that we had people who were interviewed. But, what do you think would happen when an FBI agent goes to one of the two men, and these are intelligent men; intelligent men, and one of them is a lawyer, he knows what proof is in court. He knows that in a criminal case he can’t be found guilty unless someone proves his guilt to a Jury, of lay people beyond a reasonable doubt? So what do you think happens? What would you expect? . At trial, appellant objected to Scuderi’s presence at the Government table during the trial. The court rejected the application to exclude him, on the grounds that Scuderi was of significant help to the prosecution during trial. See United States v. Pellegrino, 470 F.2d 1205, 1208 (2d Cir. 1972), Appellant does not, apparently, renew his objection on this ground here. . D’Onofrio, recently a fugitive from justice, has now apparently been apprehended in England but has not yet been extradited. . The statement of facts of the incident is drawn from memoranda dictated by the trial judge, his law clerk and the deputy court clerk shortly after defense counsel moved for a mistrial based on the delay in answering the reasonable doubt note. Appellant submitted no contradictory evidence. There is simply no support in the record for the implication in appellant’s brief that he prepared an answer to the note by 11:15 a. m. but was unable to submit it to the court until 2:40 p. m. Furthermore, appellant’s assertion contradicts the statements in the three memoranda that the note was not shown to counsel until 11:40 a. m. No reason appears why appellant could not, as did Government counsel, submit his prepared answer to the trial court’s law clerk had he had it ready at 11:15 a. m. . Another request for instructions was given to the court at approximately this time. The issues this request raises are discussed at Point VI infra. There is no claim made of undue delay in answering this second note. . The trial court charged as follows :• The concept of reasonable doubt is personal to each juror. A reasonable doubt can arise from the evidence in the case and from the lack of it. If, after considering the whole case, a juror has a reasonable doubt as to the defendant’s guilt, such doubt cannot be eliminated by any formula as to the type and amount of evidence in the case. In such a case the juror must find the defendant not guilty. If you have no reasonable doubt, you will find him guilty of any, count. If you have a reasonable doubt, you will find him not guilty of any particular count.
f2d_477/html/0199-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "LIVELY, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	Seanarfis RIVERS, Petitioner and Appellee, v. William LUCAS and the Honorable Henry Heading, Respondents and Appellants. No. 72-1792. United States Court of Appeals, Sixth Circuit. Argued Feb. 9, 1973. Decided April 24, 1973. Dominick R. Carnovale, Chief App. Dept., Asst. Pros. Atty., Detroit, Mich., for respondents and appellants; Frank J. Kelley, Atty. Gen., State of Michigan, Robert A. Derengoski, Sol. Gen., State of Michigan, Lansing, Mich.,-William L. Cahalan, Pros. Atty., Wayne County, Mich., Edward R. Wilson, Asst. Pros. Atty., Detroit, Mich., on brief. Kenneth A. Webb, Detroit, Mich., for petitioner-appellee. Before WEICK, MILLER and LIVELY, Circuit Judges. LIVELY, Circuit Judge. This is an appeal from a District Court order which granted a conditional writ of habeas corpus to Seanarfis Rivers who was in custody of the State of Michigan. The condition is that the prisoner be released unless the State shall reduce the charge against him to “not more than manslaughter.” The opinion of the District Court is reported at 345 F.Supp. 718. Pursuant to Rule 10(d), Federal Rules of Appellate Procedure, the parties filed the following agreed statement of the case: On October 19, 1970, an Information was filed in the Recorder’s Court for the City of Detroit charging Petitioner-Appellee with the offense of Murder in the First Degree in Perpetration of a Larceny (Michigan Compiled Laws os [sic] 1948, 750.316 as amended by PA 1969, No. 331). Petitioner-Appellee was not charged with being the actual killer. On January 19, 1971, Petitioner-Appellee entered a plea of guilty to the offense of Manslaughter, which plea was accepted by the Recorder’s Court. On February 9, 1971, Petitioner-Appellee was sentenced to be committed to the State Correction Commission to serve not less than fourteen years nor more than fifteen years. On June 28, 1971 the Michigan trial court denied Petitioner-Appellee’s Motion to Set Aside Plea of Guilty and for a New Trial and on that same date Petitioner-Appellee filed a Claim of Appeal in the Michigan Court of Appeals. On March 23, 1972, the Michigan Court of Appeals ordered the conviction of Petitioner-Appellee reversed and remanded the cause to the Recorder’s Court for further proceedings. The sole authority cited in support of the Order by the Michigan Court of Appeals was the case of People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972). On April 18, 1972, Petitioner-Appellee filed with the Recorder’s Court a Motion to Quash Information or to Reduce Charge to Manslaughter. This motion was denied by the Recorder’s Court on May 11, 1972. On May 12, 1972 Petitioner-Appellee filed in the Michigan Court of Appeals an Emergency Application for Leave to Appeal from the denial of that motion and for Immediate Consideration and Motion for Stay of that Order and for Immediate Consideration. The Michigan Court of Appeals on May 15, 1972 granted Immediate Consideration and denied both the Stay and Leave to Appeal. On May 12, 1972 Petitioner-Appellee also filed in the Michigan Supreme Court Emergency Application for Leave to Appeal from that Order of the trial court, motion to bypass the Court of Appeals of Michigan, Motion for Immediate Consideration and motion for Stay of Proceedings. On May 18, 1972 the Michigan Supreme Court granted Immediate Consideration and bypass and denied Leave to Appeal and Stay of Proceedings. On May 23, 1972, Petitioner-Appellee filed Application for a Writ of Habeas Corpus in .the United States District Court, Eastern District of Michigan, Southern Division, pursuant to which the Honorable John Feikens on June 14, 1972 ordered that the appellant be released from custody unless the State reduces the charge on the Information to no more than Manslaughter. From the Order of the U. S. District Court, the respondents named therein filed their Notice of Appeal to the U.S. Court of Appeals for the Sixth Circuit on July 3, 1972. On July 13, 1972 Petitioner-Appellee filed a Motion to Set Bond Pending Trial in the Recorder’s Court for the City of Detroit which was denied on July 18, 1972. On July 21, 1972 Petitioner-Appellee filed in the Michigan Court of Appeals Emergency Application for Leave to Appeal from that Order and for Immediate Consideration and to Set Bond. On July 27th the Michigan Court of Appeals granted the Motion for Immediate Consideration and denied the Motion to Set Bond and the Application for . Leave to Appeal. On August 3, 1972 Petitioner-Appellee filed in the Michigan Supreme Court Emergency Application for Leave to Appeal, for Immediate Consideration, and to Set Bond. On August 24, 1972 the Michigan Supreme Court granted the Emergency Application for Leave to Appeal and ordered PetitionerAppellee admitted to bail pending a determination of the instant appeal. The appellants ask .that we reconsider and overrule Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970), wherein we directed that habeas corpus relief be granted a prisoner being held under circumstances similar to those in this case. The facts in the two cases are not exactly parallel in that the petitioner Mull-reed, at the time of his plea, was charged with two offenses in separate counts, and pled guilty to the lesser one; whereas appellee Rivers was charged in a single count with one offense and was permitted to plead to a lesser included offense. In Mullreed this Court held that the constitutional prohibition against double jeopardy would be violated if one who successfully appealed from a guilty plea to the lesser charge were permitted to be tried subsequently on the more serious charge contained in the indictment. The original not guilty plea of Mull-reed to the more serious charge remained in effect at the time his guilty plea to the lesser charge was accepted. The crucial factor on the issue of double jeopardy was held to be “the State’s relinquishment of its rights, or its refusal, to prosecute on count one” (the more serious charge). 425 F.2d at 1099. However, the addition of the second count charging the lesser offense was not essential to the outcome, since the charges arose out of the same occurrence and the lesser offense of unarmed robbery was necessarily included in the charge of armed robbery. In the present case, the charge of manslaughter is a lesser offense included in the charge of murder. Thus the Mullreed rule applies even though appellee Rivers was only charged with one offense. In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the Supreme Court discussed the history and development of the double jeopardy plea. It was pointed out that a defendant can be tried a second time for the same offense following a successful appeal from a prior conviction. This does not constitute double jeopardy, either on the theory that this defense is waived when the convicted person seeks to set his conviction aside, or on the theory that his former jeopardy is continued until all proceedings with respect to the first trial come to an end. He may even receive a more severe sentence on retrial. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The situation is different, however, when the jury has failed to find a defendant guilty on a more serious charge and convicted him on a lesser one. Then, when he is successful in overturning the conviction, he may not be put in jeopardy again for the more serious charge, though he may be tried again on the same, less serious offense, Green v. United States, supra, at 191, 78 S.Ct. 221. This Court held in Mull-reed that for purposes of testing a double jeopardy plea there is no difference between the jury’s refusal to convict on the more serious charge and a court's implicit refusal to do so when it accepts a guilty plea to a lesser included offense. Shortly after Mullreed v. Kropp, supra, was announced, the Supreme Court, per Chief Justice Burger for a unanimous court (with one justice not participating) , rendered its decision in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Adopting the continuing jeopardy theory as described in Green v. United States, supra, the Court held that a jury’s conviction of manslaughter implied an acquittal of the charge of murder and the defendant could not again be subjected to the hazard of a murder conviction following reversal of the manslaughter conviction. The Court emphasized that the prohibition against double jeopardy is not one against being twice punished, but is concerned with the risk or hazard of conviction of an offense of which a person has been acquitted. We affirm that there is implicit in a court’s acceptance of a plea to an included lesser offense a determination that the right to prosecute the defendant on the more serious offense with which he is charged has been relinquished. The effect of the entire transaction, for double jeopardy purposes, is the equivalent of a jury's refusal to convict on the more serious charge. Only if this is true may a defendant seek review of his conviction without being faced with the “incredible dilemma” of choosing between a legal right of appeal and the possibility that success will revive the hazard of conviction of a charge which the prosecution had willingly abandoned in exchange for his plea. Mullreed v. Kropp, supra, at 1102. The continuation principle of jeopardy makes it possible for appellee Rivers to be tried again for the same offense of which he was convicted by his guilty plea (manslaughter), but his successful appeal did not open the way for him to be once again subjected to the risk of a prosecution for murder. The appellants contend that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), overruled this Court’s decision in Mullreed v. Kropp, supra. Santobello dealt with “plea bargaining” and the rights of a defendant where the prosecution reneges on its agreement after obtaining a guilty plea. Since the Supreme Court remanded for consideration by the trial court of two alternative procedures for correcting the error, no consideration of double jeopardy was required. In stating that the defendant would plead anew to the original charge on two counts if the trial court should permit him to withdraw his original guilty plea, the Court did not say, or even intimate, that he could not plead the constitutional prohibition against double jeopardy as a bar to prosecution on the more serious of the two counts. The language of the Supreme Court places no limitation on the nature of the plea which a defendant in such a situation may interpose. The appellants contend that the appellee Rivers did not exhaust his state remedies before seeking federal habeas corpus relief. The steps he has taken in the Michigan Courts are set forth in the statement of the case. The only thing left for him to do in the state courts is to submit to trial on .the murder charge. Since exposure to the risk of conviction is the very thing he is seeking to avoid, this step is not necessary for a complete exhaustion of state remedies where freedom from double jeopardy is the right sought to be preserved. As District Judge Feikens pointed out in his opinion, there is a valid consideration of judicial economy. Even if appellee were tried for murder and found guilty only of manslaughter, a new trial would be necessary, because the second jeopardy on a murder charge would not be harmless error. Price v. Georgia, supra, at 331, 90 S.Ct. 1757. While the Supreme Court of Michigan has not ruled on the critical question in this case, the Court of Appeals of Michigan has consistently refused to follow Mullreed v. Kropp, supra. In the instant case, after the trial court had refused to quash the information or reduce the charge to manslaughter, the Court of Appeals of Michigan denied leave to appeal “for the reason that no persuasive basis therefor is presented to the Court.” Thereafter, the Supreme Court of Michigan granted bypass and denied leave to appeal without giving a reason. The appellee has presented his grievance to the courts of Michigan and they have had an opportunity to adjudicate his claim of a constitutional violation. This is sufficient to satisfy the requirement of 28 U.S.C. § 2254 that every available state remedy shall be exhausted. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The appellants also maintain that since appellee has not been convicted he is not being held “pursuant to the judgment of a State Court” as required by Section 2254. This argument misconceives the nature of habeas corpus, which is an original civil remedy to secure the petitioner’s liberty, not another stage of the previous criminal proceedings. Fay v. Noia, supra, at 423-424, 83 S.Ct. 822. Appellee is being held pursuant to a judgment of the Recorder’s Court of Detroit which denied his motion to quash or reduce the charge to manslaughter. The statute does not require a final judgment of conviction. Furthermore, it was stated in Fay v. Noia, supra, that this statutory requirement is not jurisdictional: “The jurisdictional prerequisite [in the lower federal courts] is not the judgment of a state court ¡but detention simpliciter.” 372 U.S. at 430, 83 S.Ct. at 844. It is also contended by the appellants that the granting of habeas corpus to a state prisoner being held for trial amounts, in effect, to issuing an injunction to stay state proceedings in contravention of 28 U.S.C. § 2283. The cases cited by appellants do not support their argument, and we have found no Supreme Court decision which holds that pretrial habeas corpus relief is the equivalent of an injunction to stay proceedings in a state court. We decline to follow Drury v. Cox, 457 F.2d 764 (9th Cir. 1972), to the extent that it equated the two types of action. The Court has considered the arguments of appellants and the cases cited by them, including Ward v. Page, 424 F.2d 491 (10th Cir. 1970), cert. denied, 400 U.S. 917, 91 S.Ct. 177, 27 L.Ed.2d 157 (1970), and United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971). We continue to adhere to our decision in Mullreed v. Kropp, supra. The order of the District Court is affirmed. . E. g., People v. Harper, 32 Mich.App. 73, 188 N.W.2d 254 (1971), where that Court said: “We hereby express total disagreement with the Mullreed opinion. It ignores the importance of the plea milieu. Compare, Ward v. Page, supra. We agree, rather, with every contention raised on behalf of the State of Michigan in Mullreed and think the Sixth Circuit’s opinion should not and "need not be followed in Michigan. . . . ” 188 N.W. 2d at 258.
f2d_477/html/0204-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "WALLACE, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRI-STATE STORES, INC., Respondent. No. 71-1563. United States Court of Appeals, Ninth Circuit. Sept. 29, 1972. Rehearing Denied June 18, 1973. Joseph C. Thackery, Atty. (argued), Paul J. Spielberg, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Eugene G. Goslee, Acting Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, Region 19, NLRB, Seattle, Wash., for petitioner. George J. Tichy (argued), Spokane, Wash., Lloyd G. Martinson, Moscow, Idaho, Thomas K. Cassidy, of Basset, Donaldson & Hafer, Seattle, Wash., for respondent. Before HAMLEY, GOODWIN and WALLACE, Circuit Judges. WALLACE, Circuit Judge: Pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), the National Labor Relations Board (hereinafter “NLRB”) has petitioned this Court for enforcement of its order issued against Tri-State Stores, Inc. (hereinafter “Company”) on October 1, 1970. The NLRB has ordered the Company to cease and desist from committing unfair labor practices, to offer to reinstate a discharged employee and to bargain with the Union upon demand. We hold the order of the NLRB is to be enforced. The Company’s department store in Moses Lake, Washington, was the situs of the alleged unfair labor practices. It is one of two stores owned and operated as separate corporations by Doris E. Connelly. The other is located in Moscow, Idaho, about 100 miles away, where Connelly has her office and where the administrative functions of both stores are centered. The Moses Lake store had 41 employees at the time of the alleged violations. Prompted by Connelly’s requiring polygraph tests to stem suspected pilferage, some of the Moses Lake employees held a meeting on September 2, 1969, to discuss this and other grievances. A Teamsters Union representative met with them and later contacted a Retail Clerks Union representative who met with 23 employees the following night. At that meeting, 22 signed cards authorizing the Union to act for them, and 6 more signed cards within a week, for a total of 28. When the meetings were reported to Connelly, she sent Terri Clevenger (a management consultant), together with a gentleman business friend, to Moses Lake to deal with the situation. During a meeting with employees on September 6, Clevenger remarked that there were “questions coming up about raises,” said she “wanted [the employees] to be happy,” and asked if they “had anything bothering [them] or that [they] would like to have done.” An employee asked if a five-day work week could be substituted for the six-day week and Clevenger replied that she “didn’t know why [not].” Clevenger and the business friend then returned to Moscow and gave assurances to Connelly that, if Clevenger spent further time in Moses Lake, the employees would be “calmed.” About this time, the Company posted a notice at Moses Lake that the polygraph tests had been postponed. There was also testimony that, on September 9 at a meeting of department managers, Clevenger advised that the doors would be closed if the employees unionized. Pursuant to a discussion in that meeting, all department heads immediately solicited the employees to send letters revoking the prior authorization given by the cards. Some employees were told of the threat to close the store. By the end of the day, 35 employees wrote letters stating they no longer wished the Union to represent them. During the second week in September, employees who worked six days a week were rescheduled to five although they continued to work 40 hours. About three weeks later, however, the Company restored the original schedule. In addition, 19 employees received wage increases in their pay checks distributed some time after the middle of September. All but one of those receiving increases had either written a withdrawal letter or had never signed an authorization. The NLRB affirmed the Trial Examiner’s findings (1) that the Company violated § 8(a)(1) of the Act by questioning its employees concerning their union activities, threatening them with closing the store if they did not cease such activity, soliciting them to withdraw their Union authorization cards and increasing their wages and improving their working hours to induce them to defect from the Union; (2) that the Company violated §§ 8(a)(3) and 8(a)(1) of the Act by discharging employee Ilse Iliff because of her interest in and activities on behalf of the Union; and (3) that the Company violated §§ 8(a)(5) and 8(a)(1) of the Act by refusing to bargain with the Union upon request after the Union had obtained authorization cards signed by a majority of the employees in an appropriate unit. We have reviewed the record as a whole and conclude that there is substantial evidence therein to support the findings of the NLRB. 29 U.S.C. § 160 (e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Company has especially challenged the finding in relation to the discharge of Ilse Iliff. The Company argues that Moses Lake store manager Ehart had an adequate and independent legal basis for the discharge of Iliff. There is clear evidence in the record of Iliff’s insubordination. In front of other employees, Iliff called Ehart a “puppet on a string” and made several outspoken, rather critical, suggestions to Ehart as to how the store should be managed, including a suggestion of pay raises. Iliff also spoke critically of Ehart to her fellow employees and related the “puppet on a string” incident to them. On the other hand, the apparent reason that Iliff called Ehart a “puppet on a string” was that she felt that Ehart did not have enough authority to do anything about employees’ grievances and, therefore, a trip to Moscow by Iliff to speak with Connelly would be necessary. Furthermore, four days prior to Iliff’s discharge the office manager for both stores telephoned Iliff, interrogated her about the Union’s organizational attempts and asked whether she had signed a Union authorization card. Although the office manager denied any knowledge of such a call, it is well-settled that the Trial Examiner has the responsibility of evaluating the credibility of witnesses and the weight to be given their testimony since he is in a position to observe demeanor and other firsthand indications of truthfulness. See NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970), and cases cited therein. Finally, the Trial Examiner and the NLRB felt the timing of Uiff’s discharge significant: she was not fired until two weeks after the “puppet on a string” incident; but the firing occurred on the very day before a meeting of the department managers which she would have attended and at which the subject of Union organizational activity would have been discussed. As we have said before, [t]his court cannot displace the Board’s choice between two fairly conflicting views, even though this court would justifiably have made a different choice had the matter been before it de novo. . . . This deference extends as well to the inferences reasonably drawn by the Board, even though this court might have drawn different ones. NLRB v. Ayer Lar Sanitarium, supra at 48-49. The Company questions the propriety of the NLRB order which directs it to bargain with the Union. The Company conceded the appropriateness of the bargaining unit. The' Union obtained 25 valid authorization cards and there were between 38 and 41 nonsupervisory employees. However, the Company refused to bargain with the Union and filed a petition with the NLRB alleging a bona fide doubt as to whether the Union had a majority. The apparent basis of this refusal was the sending of withdrawal letters by employees subsequent to their authorizations. However, there was substantial evidence of threats, coercion and restraint; and one apparent union sympathizer had been discharged. In addition, Connelly told store manager Ehart that she did not want the store unionized and that he should refuse any demand for recognition. Connelly sent Clevenger to Moses Lake to counsel the employees against unionizing; and it is not denied that Clevenger told employees that Connelly would close the store if they did so. Thereafter, various department managers, acting pursuant to the instructions of Clevenger, importuned the employees to withdraw their authorizations and, in some instances, even drafted the withdrawal letters. In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court in sustaining the NLRB’s authority to issue bargaining orders when certain unfair labor practices have been committed, stated: The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. 395 U.S. at 614-615, 89 S.Ct. at 1940. See also NLRB v. Ayer Lar Sanitarium, supra, 436 F.2d at 51; NLRB v. L. B. Foster Company, 418 F.2d 1, 3-4 (9th Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970). The NLRB found that a bargaining order was needed here because the unfair labor practices were “intended to undermine the Union and were so coercive as to destroy the likelihood of holding a free election among its employees.” Since this finding is supported by substantial evidence, the order to bargain is appropriate under Gissel. The Company interrogated and discharged a suspected Union sympathizer. It raised wages, changed working hours, threatened to close the store, and caused 35 of the 38 to 41 eligible employees to disavow the Union. There is substantial evidence to support the NLRB’s conclusion that: “In such circumstances, it strains credulity for respondent to assert its good faith, particularly when such assertion is predicated upon card revocations which were obtained through its own unlawful conduct.” The Company argues that, even if it has been guilty of the unfair labor practices mentioned, the passage of time has dissipated the effects so thoroughly as to make an order to bargain inappropriate. As we stated in NLRB v. South Bay Daily Breeze, 415 F.2d 360, 367 (9th Cir. 1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970): We recognize that the passage of time brought about by respondent’s conduct may have cooled the organizational ardor that existed in 1965 or, indeed, may have seen the occurrence of substantial changes in the composition of the bargaining unit; but these difficulties are in some measure, the sort that inhere in any orderly system of adjudication, and are in any event not determinative. (Citation omitted.) We have already pointed out the difficulty with the position argued for by the Company: employers would gain a great incentive to refuse to recognize a bona fide bargaining demand in hopes that a delay would terminate the difficulty. See NLRB v. L. B. Foster Company, supra, 418 F.2d at 4. Accordingly, we find that the NLRB’s bargaining order is a reasonable exercise of its discretion and must be enforced in its entirety. . The NLRB’s decision and order are reported at 185 NLRB No. 117 (1970). . The Union involved is Retail Clerks Union, Local 1439, AFL-CIO. . Apparently, out of an abundance of caution, more withdrawal letters were solicited than the number of union cards signed.
f2d_477/html/0208-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MULLIGAN, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	In the Matter of the Arbitration of Controversies between Gerald M. VARLEY, doing business under the tradename and style of Varley Textile Associates, Petitioner-Appellee, v. TARRYTOWN ASSOCIATES, INC., Respondent-Appellant. No. 540, Docket 72-2221. United States Court of Appeals, Second Circuit. Argued March 13, 1973. Decided April 23, 1973. Michael S. Colo, Rocky Mount, N. C. (Lans, Feinberg & Cohen, New York City and Spruill, Trotter & Lane, Rocky Mount, N. C„ of counsel), for respondent-appellant. Daniel Cohen, New York City (Ballon, Stoll & Itzler, New York City, of counsel), for petitioner-appellee. Before HAYS, MULLIGAN and OAKES, Circuit Judges. MULLIGAN, Circuit Judge: This is an appeal from an order and judgment of the United States District Court, Southern District of New York, Charles L. Brieant, Jr., United States District Judge, entered on August 13, 1972, confirming a commercial arbitration award in favor of petitioner, Gerald M. Varley, doing business under the tradename and style of Varley Textile Associates (Varley) against the respondent, Tarrytown Associates, Inc. (Tarrytown) in the sum of $11,000. 346 F.Supp. 331 (1972). Reversed. Varley is a textile consultant who entered into an oral agreement with Tarrytown which agreed to retain his company for a twelve month period at a rate of $1000 per month plus expenses and a per diem fee. Varley reduced the terms to writing in the form of a letter which was mailed to Tarrytown at its home office in Rocky Mount, North Carolina. The letter contained an arbitration clause not previously discussed but accepted by Tarrytown when the agreement was finally executed in North Carolina on March 3, 1971. The clause provided : Any controversy arising under this agreement or breach thereof shall be settled by arbitration pursuant to the rules of the American Arbitration Association. On April 29, 1971 Varley was paid $1000 plus his expenses and Tarrytown advised him that it was terminating the contract. Varley did not agree and on September 23, 1971 submitted the dispute to the American Arbitration Association. On October 20, 1971 Tarrytown advised Varley and the American Arbitration Association that it elected to rescind its agreement to arbitrate under the law of North Carolina which, according to respondent, considers agreements to arbitrate future disputes to be unenforceable and subject to rescission by either party. The arbitration proceeding was held in any event without Tarrytown making any appearance. On May 9, 1972 Varley was awarded $11,000 without interest, in full settlement of all claims. The award was served on Tarrytown and in June 1972, the proceeding below was commenced to confirm the award and for entry of judgment against Tarrytown pursuant to the United States Arbitration Act. 9 U.S.C. § 9. Tarrytown concedes that the law of North Carolina is not applicable and that the United States Arbitration Act creates a national substantive law encompassing all questions of interpretation and construction of arbitration agreements, Coenen v. R. W. Pressprich & Co., 453 F.2d 1209 (2d Cir.), cert. denied, 406 U.S. 949, 92 S.Ct. 2045, 32 L.Ed.2d 337 (1972); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. dismissed, 364 U.S. 801, 81 S.Ct. 37, 81 S.Ct. 27 (1960), if the Federal Act is applicable. The Act is applicable only if the contract evidences a transaction involving interstate or foreign commerce. We agree with the court below that this contract did involve interstate commerce and is within the federal statute. It contemplated that Varley would act as a textile consultant throughout the United States and preliminary discussions evidenced the clear expectation that Varley would evaluate plants and fabrics manufactured /throughout the country. His per diem was fixed at different rates for services in this country and for those outside the United States. Tarry-town’s business was the investment of capital in textile enterprises throughout the country. See Dickstein v. duPont, 443 F.2d 783 (1st Cir. 1971); Metro Indus. Painting Corp. v. Terminal Const. Co., 287 F.2d 382, 387-388 (2d Cir.) (Lumbard, J., concurring), cert. denied, 368 U.S. 817 (1961). Appellant’s relianee on personal service contract cases such as Conley v. San Carlo Opera Co., 163 F.2d 310 (2d Cir. 1947) and Hart v. B. F. Keith Vaudeville Exchange, 12 F.2d 341 (2d Cir.), cert. denied, 273 U.S. 703-704, 47 S.Ct. 97, 71 L.Ed. 849 (1926), is not justified in view of Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972), which rejected the rationale of Federal Baseball Club v. National League of Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465, 26 L.Ed. 898 (1922), upon which our prior decisions were bottomed. It does not follow however that simply because the contract in issue involves interstate commerce, a federal court has jurisdiction to confirm the award and enter judgment. The Act provides that confirmation of an arbitration award is appropriate only where the parties “in their agreement have agreed that a judgment of the court shall be entered upon the award . . .” 9 U.S.C. § 9. There was no such explicit agreement here but only a clause providing for the settlement of controversies by arbitration pursuant to the rules of the American Arbitration Association. While this is sufficient to incorporate the rules into the agreement, Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268 (2d Cir. 1971); AAA Commercial Arbitration Rules § 1, there is nothing in the rules which indicates that the parties thereby consent to the entry of judgment upon an award. Varley relies upon § 39(b) of the Arbitration Rules which provides: Each party to an agreement which provides for arbitration under these Rules shall be deemed to have consented that any papers, notices or process necessary or proper for the initiation or continuation of an arbitration under these Rules and for any court action in connection therewith or for the entry of judgment on any award made thereunder may be served upon such party by mail addressed to such party or his attorney at his last known address or by personal service, within or without the state wherein the arbitration is to be held (whether such party be within or without the United States of America), provided that reasonable opportunity to be heard with regard thereto has been granted such party. We construe this simply as a consent to the service of process which is necessary if a court is to obtain jurisdiction over a non-resident party. See, e.g., Reed & Martin, Inc. v. Westinghouse Elec. Corp., supra, 439 F.2d at 1276-1277; Mulcahy v. Whitehill, 48 F.Supp. 917 (D.Mass.1943). However, to be effective here the parties must have further agreed that judgment shall be entered upon the award. The American Arbitration Association itself recommends the following arbitration clause for insertion in all commercial contracts: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof. This language is persuasive that the Association itself does not consider a mere reference to its Rules sufficient to act as a consent to the entry of a judgment by the Court. In view of the explicit language of § 9 of the Act requiring such agreement and finding none, we have no alternative but to reverse. 9 U.S.C. § 2 provides : A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of sucb a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon sucb grounds as exist at law or in equity for the revocation of any contract.
f2d_477/html/0211-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "WISDOM, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Mack L. BROCK, Plaintiff-Appellee, v. CORAL DRILLING, INC., et al., Defendants-Third-Party Defendants-Intervenors-Cross Appellees. BAROID DIVISION OF NATIONAL LEAD COMPANY, Defendant-Third-Party Plaintiff-Appellant-Cross Appellee, v. SHELL OIL COMPANY, Third-Party Defendant-Appellee-Cross Appellant. No. 72-1892. United States Court of Appeals, Fifth Circuit. April 20, 1973. Rehearing Denied June 15, 1973. Francis Emmet, New Orleans, La., for Baroid Div. of National Lead Co. John C. Theus, Thomas W. Leigh, Monroe, La., for Mack L. Brock. William G. Kelly, Jr., Monroe, La., Gordon F. Wilson, Jr., New Orleans, La., for Coral Drilling Inc. Thomas M. Hayes, Jr., Monroe, La., Frank C. Allen, Jr., New Orleans, La., for Shell Oil Co. Before WISDOM, BELL and COLEMAN, Circuit Judges. WISDOM, Circuit Judge: Once again, we go down to the sea in drilling rigs. This case presents another question concerning the scope of the implied warranty of workmanlike service when measured in light of the indemnity principles of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L. Ed. 133. Mack L. Brock, a roustabout Sieracki seaman working on a stationary drilling rig in the Gulf of Mexico, was injured while unloading deck cargo from a supply boat, the M/V Baroid Rocket. Brock sued the shipowner, who in turn sought indemnity from Brock’s employer, a drilling company. The district court permitted Brock to recover against the shipowner but denied the shipowner’s action for recovery over. We affirm in part and reverse in part. I. At the time of the accident, Mack L. Brock was employed as a roustabout by Coral Drilling Company to perform general labor in the drilling of an oil well on the continental shelf off the Louisiana coast in the Gulf of Mexico. Shell Oil Company had contracted with Coral to drill the well and had agreed to furnish certain supplies, including drilling mud, necessary to the operation. Under the contract, Shell purchased drilling mud from the Baroid Division of National Lead Company to be delivered by Baroid f. o. b. the rig. Coral agreed to furnish all personnel necessary to the operation of the rig, including roustabouts to unload bagged drilling mud from supply boats. Coral was given complete control and supervision over the discharge of supplies. On November 15, 1968, Baroid’s supply boat, the M/V Baroid Rocket, was loaded at the Mayronne Dock in Venice, Louisiana. Captain Hoyt Bergeron, in charge of the vessel, was responsible for instructing the dock hands how to locate and secure the deck cargo, some 500 bags of drilling mud or gel, to stabilize the vessel. The deck cargo was on wooden pallets, with between 35 to 50 sacks per pallet, and was placed as far forward as possible behind the wheelhouse. Although such cargo is sometimes covered with tarpaulins or lashed to the- deck to prevent shifting in heavy weather, the captain determined that this was not necessary. The vessel got under way at 6 p. m. and reached the rig about midnight, tying up port side to, with stern to the wind. During the trip, the weather was rough and the deck cargo shifted considerably. A few of the stacks were leaning, others had fallen to the deck, and some of the fallen sacks were broken. At about 1 a. m., Emery Sonnier, the Coral crew operator and roustabout pusher, assembled Brock and the other members of the roustabout gang to unload the deck cargo. Sonnier directed Brock and another roustabout to descend to the deck of the supply boat to unload the sacked mud. The weather was rough at this time. The seas were running from 6 to 12 feet high and the wind was blowing at 20 to 30 knots. Brock suggested to Sonnier that the weather was too rough to unload. The condition of the deck cargo was visible from the platform, and Sonnier could see that waves were washing over the stern, through the bulwark. Sonnier told Brock, however, that if the boat could tie up, he would unload it. Brock descended to the deck of the vessel to reload the sacks on pallets so that they could be lifted to the platform. Since most of the spilled sacks were toward the stern, Brock placed the pallets there and began restacking. Waves continued to wash over the deck, through the bulwark. While Brock was picking up a sack of drilling mud and placing it on one of the pallets, a heavy wave came over the stern, lifted the pallet, and drove it toward Brock, pushing him back. Still holding the sack, Brock was backed into another pallet of stacked mud, striking his back and part of his leg. After this, Brock continued to work until the unloading operation was completed. On January 14, 1970, Brock initiated suit against Baroid and Shell. Coral later intervened to claim reimbursement from Baroid for compensation paid to Brock under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. Baroid then cross-claimed against Coral and Shell for Ryan indemnity. Shell, in turn, cross-claimed against Coral for indemnity under its contract and against Baroid for breach of its obligation to deliver the goods safely to the rig. On February 4, 1972, the district court rendered its decision. The court found that the proximate cause of Brock’s injury was the unseaworthy condition of the deck of the M/V Baroid Rocket. The unseaworthy condition was caused by Baroid’s improper loading' of the cargo at Venice the day before the accident, coupled with the failure to secure the cargo in any way, and was compounded by the captain’s negligence in mooring the vessel port side to, with stern to seas running 6 to 12 feet, and with knowledge that the roustabouts would have to restack the cargo in those conditions. The court denied Baroid’s claim for indemnity against Coral and Shell, finding that Coral had not breached its warranty of workmanlike service. Baroid appealed. II. At the outset we meet the contention that Brock should have been denied recovery against the shipowner because of Brock’s contributory negligence. The district court found that Brock’s conduct was reasonable in the circumstances. It is clear that Brock was aware of the hazards caused by the condition of the deck and the position of the vessel. He protested that the weather was too rough, but nevertheless proceeded to unload the cargo after the Coral pusher directed him to do so. Baroid suggests that Brock should have refused. We cannot say, however, that the district court clearly erred in finding that Brock’s conduct met the standard of ordinary prudence. F.R.Civ.P. 52(a). Brock relied upon the judgment of the Coral pusher who had experience in such operations. Moreover, Brock’s decision must be evaluated in light of his economic dependence on Coral for future employment and the general principle that liability for failure to comply with safety regulations should be imposed on the party exposing the injured employee to the dangerous condition. Burrage v. Flota Mercante Grancolombiana, 5 Cir. 1970, 431 F.2d 1229. We therefore conclude that Brock was not eontributorily negligent. III. Baroid next contends that it is entitled to indemnity from Coral for breach of its warranty of workmanlike service. A shipowner, of course, has an absolute duty to furnish a vessel and gear reasonably fit for the purposes for which they were intended and is strictly liable for injury resulting from the unseaworthy condition of either. This liability is nondelegable and extends to longshoremen, stevedore employees, and others aboard the vessel. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, Mitchell v. Trawler Racer, 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. In some circumstances, however, a shipowner may be entitled to indemnity from a stevedore company for breach of its warranty of workmanlike service. In the litigation-generating Ryan case the Supreme Court held that a stevedoring company that enters into a service agreement with a shipowner is liable to indemnify the owner for damages sustained as a result of its improper stowage of cargo. The Court reasoned that the essence of the stevedore’s contract was the obligation to perform its work “properly and safely.” “Competency and safety . . . are inescapable elements of the service undertaken.” The Court emphasized that this implied “warranty of workmanlike service” finds its origin in contract, rather than tort, and is “comparable to a manufacturer’s warranty of the soundness of its manufactured product.” 350 U.S. at 133, 134, 76 S.Ct. at 237. In Italia Societa per Azioni Di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732, the Supreme Court, in holding that a stevedore breached its warranty of workmanlike service by supplying latently defective equipment, noted that the Ryan doctrine is premised on the idea that “liability should fall upon the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury. Where, as here, the injury-producing and defective equipment is under the supervision and control of the stevedore, the shipowner is powerless to minimize the risk; the stevedore is not.” 376 U.S. at 324, 84 S.Ct. at 754. Coral contends, however, that the dangerous condition of the vessel’s deck was caused by Baroid’s improper loading of the cargo and positioning of the vessel when, it was moored to the drilling rig. Coral would conclude that indemnity is precluded by Baroid’s breach of its duty of seaworthiness. We disagree. Although a stevedore is not obligated to make an intensive inspection of the vessel, once aware of a dangerous condition, the stevedore may riot ignore it. D/S Ove Skou v. Hebert, 5 Cir. 1966, 365 F.2d 341; T. Smith & Son, Inc. v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745. The shipowner’s breach of the duty of seaworthiness does not provide a license for the stevedore to ignore the consequences of its own actions since the stevedore’s duty is to perform its services properly and safely in the face of known defects. Burrage v. Flota Mercante Grancolombiana, supra. Olin Mathieson Chemical Corp. v. United Stevedoring Division States Marine Lines, Inc., 5 Cir. 1970, 432 F.2d 1234, affirming 317 F.Supp. 1373. In T. Smith & Son, Inc. v. Skibs A/S Hassel, supra, for example, we noted that “defects which are in fact observed cannot be overlooked. If the stevedore has knowledge of a defect it should correct it or require it to be corrected by the ship’s officers.” 362 F.2d 747. Again, in Burrage v. Flota Mercante Grancolombiana, supra, we permitted the shipowner to recover against the stevedore despite the fact that the shipowner had breached its duty to furnish a seaworthy vessel. We stated: “The notion of workmanlike performance certainly encompasses an obligation by the contractor to take notice of those deficiencies and hazards likely to give rise to damage to life, limb, or property and then take requisite action depending on the nature of the relationship of the parties and their contractual obligations, express or implied, either to eliminate or minimize the hazard or to stop work until the situation is corrected.” 431 F.2d at 1232. It is clear, therefore, that the warranty of workmanlike service demands that a stevedore must not continue to work its crew in the face of an unsafe or unseaworthy condition. Rather, it must remedy the situation itself, have the shipowner remedy it, or stop the operation. In the present case, we think that Coral breached its warranty of workmanlike service. The record indicates that Coral’s pusher was aware of the condition of the vessel’s deck. He knew that the sacks would have to be re-stacked and that waves running 6 to 12 feet high were washing over the stern of the vessel. There was no immediate need to unload the cargo. Nevertheless, instead of remedying the situation or requesting the vessel’s captain to remedy it, he decided to proceed with the unloading. In so doing, he brought into play the unseaworthy condition and breached Coral’s warranty of workmanlike service. The district court suggested that Coral should not be held to the same standard of workmanlike service as a stevedore because Coral’s employees were roustabouts and did not possess special expertise in unloading cargo. Thus, the court stated that Coral could rely on the vessel’s captain to inform the roustabouts if it was unsafe to unload the deck cargo. Since the captain was silent, the court concluded that Coral acted reasonably in unloading the deck cargo. We cannot agree with this conclusion. Under the terms of the contract, Coral had complete control and supervision over the unloading of supply boats. It was Coral’s obligation to furnish the crew and supervisory personnel necessary to do the work safely. If the conditions were unsafe for unloading the vessel, Coral was responsible for suspending the operation. Furthermore, both Brock and Coral’s pusher testified that they had experience in unloading supply boats and knew exactly what to do. In these circumstances, holding Coral responsible for the injury resulting from its decision to unload the vessel is consistent with the principle that liability should fall on .“the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury.” Italia Societa per Azione di Navigazione v. Oregon Stevedoring Co., 376 U.S. at 324, 84 S.Ct. at 754. The district court also found that Baroid should be denied recovery under Waterman Steamship Corp. v. Dugan & McNamara Inc., 1960, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 523. In Weyerhaeuser S. S. Co. v. Nacirema Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, the Supreme Court stated, in dicta, that if the stevedoring company “rendered a substandard performance which led to foreseeable liability of petitioner [the shipowner], the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery.” 355 U.S. at 567, 78 S.Ct. at 441 (emphasis added). We have held that “conduct sufficient to preclude recovery” means only conduct on the part of the shipowner which prevents the stevedore’s workmanlike performance. Waterman Steamship Corp. v. David, 5 Cir. 1965, 353 F.2d 660, 665. Southern Stevedoring & Contracting Co. v. Hellenic Lines, Ltd., 5 Cir. 1968, 388 F.2d 267. The district court did not specify what conduct on Baroid’s part prevented Coral’s workmanlike performance. We are likewise unable to find any such conduct. We conclude, therefore, that Weyerhaeuser does not preclude Baroid’s recovery. Baroid also renews its claim for indemnity from Shell. The district court failed to find any negligence on Shell’s part. On the record before us, we cannot say that the district court clearly erred, and we affirm its decision. Finally, in view of our holding that Coral breached its warranty of workmanlike service, we note that Shell is entitled to indemnity from Coral for any costs or attorneys’ fees incurred by Shell in defending the claims brought against it by Baroid. Dow Chemical Co. v. Barge UM-23B, 5 Cir. 1970, 424 F.2d 307; Lusich v. Bloomfield Steamship Co., 5 Cir. 1966, 355 F.2d 770. The judgment of the district court must be affirmed in part and reversed in part. The cause is remanded for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded. . In the Longshoremen’s and Harbor Workers’ Act Amendments of 1972, 86 Stat. 1265, 33 U.S.C. § 901 et seq., Congress recently effected- major reforms in the liability of shipowners, as third parties, to pay damages to longshoremen and others injured while engaged in stevedoring operations. The Amendments provide that the liability of shipowners to Sieracki seamen, that is longshoremen and others who perform work on a vessel that is traditionally performed by seamen, must be predicated on negligence rather than on the no-fault concept of seaworthiness. The purpose of this change in existing law is to place the shipowner, in so far as third party liability is concerned, in the same position as land-based third parties in non-maritime pursuits. Thus, the shipowner will no longer be strictly liable to Sieracki seamen for injuries resulting from breach of its duty to furnish a seaworthy vessel. This approach prevents a shipowner from being liable for injuries which are really the fault of the stevedore. The effect of the Amendments is to eliminate the Ryan doctrine, under which the shipowner could recover against the stevedore for breach of its warranty of workmanlike service. Since the shipowner cannot be sued by a Sieracki seaman on the strict liability theory of unseaworthiness, Ryan indemnity from the stevedore is unnecessary. Furthermore, the Amendments state that contractual agreements requiring the stevedore to indemnify the shipowner for such damages are void as against public policy. See H.R.Rep.No.92-1441, 92nd Cong., 2d Sess. (1972), U.S.Code Cong. & Admin.News 1972, p. 4698. . Brock also named Coral Drilling Company and Cheramie Boat Company as defendants. Baroid had contracted with Cheramie for a captain and crew to operate the M/V Baroid Rocket. Baroid later assumed the defense of Cheramie and agreed to indemnify it for any loss. Brock’s claim against Coral was dismissed. . Shell cross-appealed against Coral to protect its claim for indemnity should Coral later be held liable for breach of its warranty of workmanlike service. . The present case differs from the situation in Ryan in that the party seeking indemnity, Baroid, is not in privity of contract with the party against whom indemnity is sought, Coral. Decisions since Ryan have recognized, however, that privity of contract is not required in order to qualify as a beneficiary of a stevedore’s warranty of workmanlike service. “[T]he obligations which arise from the implied warranty are not limited to the confines of the usual action on contract; the zone of responsibility may extend to parties who are not in direct contractual relationship.” Whisenant v. Brewster-Bartle Offshore Company, 5 Cir. 1971, 446 F.2d 394, 401. See Waterman Steamship Corp. v. Dugan & McNamara, Inc., 1960, 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 and Crumady v. Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed. 2d 413. In Whisenant, a barge owner sought indemnity from a drill pipe testing company whose breach of its duty of workmanlike service had made the barge unseaworthy. We permitted recovery despite the fact that the testing company’s service agreement was not made with the barge owner. In effect, the barge and its owner were viewed as third party beneficiaries of the testing company’s implied warranty of workmanlike service. So it is with the case at bar. Coral was under contract with Shell to control and supervise the unloading of cargo from supply boats. Baroid, as the shipowner, was the third party beneficiary of Coral’s implied warranty of workmanlike service. Waterman Steamship Corp. v. Dungan & McNamara, Inc.
f2d_477/html/0217-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BARRETT, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Jon Randolph FLOYD et al., Defendants-Appellants. Nos. 72-1741 to 72-1752. United States Court of Appeals, Tenth Circuit. April 13, 1973. Rehearing Denied May 31, 1973. Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee. Stephen Jones, Enid, Okl. (Eric J. Groves, Oklahoma City, Okl., and Charles F. Cox, Norman, Okl., on the brief), for appellants. Melvin L. Wulf and John H. F. Shattuck, New York City, for American Civil Liberties Union Foundation, amicus curiae. Before SETH, McWILLIAMS and BARRETT, Circuit Judges. BARRETT, Circuit Judge. The appellants were convicted of going upon Tinker Air Force Base military reservation for the purpose of violating a lawful regulation prohibiting their entry without the permission of the commanding officer in violation of 18 U.S.C.A. § 1382. Section 1382 carries a fine of not more than $500 or imprisonment of not more than six months, or both. On May 4, 1972 the appellants and 75 to 200 others gathered at Gate Two at Tinker Air Force Base in Oklahoma City, Oklahoma to protest the war in Vietnam. A group of between 30 and 40 people crossed the “white line” signifying entrance to the base. They were met by Lt. Col. George Malone who read them the following statement: THE INSTALLATION COMMANDER, COL. JOHN C. HOLLEY, UNITED STATES AIR FORCE, DENIES YOU PERMISSION TO EN-ER THIS MILITARY INSTALLATION OR TO BE PHYSICALLY PRESENT ON ITS PROPERTY. YOU ARE TRESPASSING ON A MILITARY INSTALLATION OF THE UNITED STATES. BY ORDER OF THE INSTALLATION COMMANDER YOU WILL IMMEDIATELY REMOVE YOURSELVES FROM THIS MILITARY INSTALLATION. IF YOU DO NOT IMMEDIATELY COMPLY, YOU WILL BE ARRESTED AND PROSECUTED BY THE FEDERAL AUTHORITIES. YOU ARE ADVISED THAT PURSUANT TO TITLE 18 USC 1382, “WHOEVER, WITHIN THE JURISDICTION OF THE UNITED STATES, GOES UPON ANY MILITARY, NAVAL, OR COAST GUARD RESERVATION, POST, FORT, ARSENAL, YARD, STATION, OR INSTALLATION, FOR ANY PURPOSE PROHIBITED BY LAW OR LAWFUL REGULATION . . . SHALL BE FINED NOT MORE THAN $500 OR IMPRISONED NOT MORE THAN SIX MONTHS, OR BOTH.” (R., Vol. II, p. 212) The Appellant Flower then read a statement to Col. Malone. The group was asked to leave; instead, they sat down in the middle of the street and refused to leave. They were next placed on a bus and taken to Security Police Headquarters where they were photographed. Tinker Air Force Base is one of the nation’s largest military installations, with thousands of civilian employees. Reports had been received by the Base Commander several days before the gathering that a demonstration against the Vietnam War was going to be held on the base. Some of the appellants plead guilty; others were tried by the Magistrate. These 12 appellants were tried by the U. S. District Court. Air Force Regulation 125-37 was promulgated on July 27, 1964 by then Air Force Chief of Staff General Curtis E. LeMay. It established procedures to protect Air Force physical resources. Regulation 125-37 was revised and supplemented several times thereafter. On May 3, 1972 Col. John C. Holley, then Commander of Tinker Air Force Base, supplemented AFR 125-37 by the promulgation of OCAMA-TAFB Supplement 2 which effectively precluded the demonstrators from entrance because they did not qualify as “visitors”. See United States v. Vaughan, 475 F.2d 1262 (10th Cir. 1973). The appellants were convicted under § 1382 of violating Supplement 2. The appellants contend that: (1) the trial court erred in denying them a jury trial; (2) Supplement 2 is void and violates the due process clause; (3) the trial court penalized them for standing trial; and (4) the trial court erred in overruling their motion for judgment of acquittal. I. The appellants contend that they were entitled to a trial by jury because of the seriousness with which a violation of § 1382 is regarded by the community. The District Court ruled against them in United States v. Floyd, 345 F.Supp. 283 (W.D.Okla.1972), holding that a violation of § 1382 is a petty offense which does not entitle the defendants to a jury trial, and further that Article III, Section 2, Clause 3 and the Sixth Amendment of the United States Constitution do not extend to petty offenses. A petty offense is defined in 18 U.S.C.A. § 1(3) as: “Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both . . . ” If an offense is malum in se it may be serious enough to require a jury trial even though it qualifies as a petty offense. District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The offense here is malum prohibitum. Congress has not been silent on this subject as the appellants suggest. It has intended that there be no jury trial for a petty offense. 18 U.S.C.A. § 1(3). If the offense is a petty offense within 18 U.S. C.A. § 1(3) and is not otherwise a serious offense under prior U.S. Supreme Court decisions then a jury trial is not required. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). The reasoning of the District Court is sound. The evidence supports its holding. See United States v. Floyd, supra. The violation of Section 1382 here involved constitutes a petty offense not requiring a trial by jury. II. The appellants allege that TAFB-OCAMA Supplement 2 to AFR 125-37 is void because it was never lawfully adopted. They also contend that Supplement 2 violates the due process clause because it established only policies which cannot be criminally violated and that it is void for vagueness because it failed to announce the acts it forbids. The appellants argue that Supplement 2 is void because it was not promulgated in compliance with the Federal Register Act, 44 U.S.C.A. § 1501 et seq. and the Administrative Procedure Act, 5 U.S.C.A. § 500 et seq. We hold that there is no merit in this argument. Both are, in effect, “notice” statutes intended to protect persons who have no actual notice from in any manner being adversely affected. It is unrealistic to contend that “closed base” commanders charged with the obligation of protecting the national security thereon, cannot adopt regulations effective immediately, even if only orally communicated to the base security personnel, so long as such regulations are thereafter communicated to one who wishes to enter upon the base. Neither the Federal Register Act nor the A.P.A. require publication of Supplement 2 on the facts of this case. In recognition of the needs involving national security, we recently held that once one is within an area where base security is imposed, a search may be conducted without probable cause, and without consent. United States v. Vaughn, supra. The appellants contend that Supplement 2 is void because it was issued in direct violation of the controlling regulation it supplements, AFR 125-37. Paragraph 2 of AFR 125-37 provides in part as follows: Further, the on-base violation of a lawful regulation issued by a base commander may be sufficient to sustain the removal from the base of a person not subject to the UCMJ and to sustain a criminal prosecution of such a person for an unauthorized reentry of the base under 18 USC 1382 even though the base regulation may not have been issued pursuant to 50 USC 797. (Para. 2, AFR 125-37, 27 July 1964) Paragraph 4 of 125-37 announces mandatory steps which must be taken for subordinate regulations to have legal effect. The requirements in paragraph 4 generally pertain to prosecutions of offenses arising under 50 U.S.C.A. § 797 and the offense of re-entry after removal under 18 U.S.C.A. § 1382. The appellants were not charged with the crime which the regulation defines. It is within the sole discretion of the commanding officer of a “closed base” to promulgate rational regulations excluding people from the military installation in the interest of the national security. He has practically exclusive and extensive power to exclude persons from the base in the interest of good order and military discipline. Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971). The 4th Circuit recently held in Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973), that where military reservations are open to the public it is now clear that civilians have an unqualified right to enter these public areas to exercise their constitutional right to freedom of expression. Where the area is open to the public the base commander has no discretion but has a ministerial duty to allow leafletting. However, when the military reservation is a “closed base”, the base commander at Tinker had the authority to determine the degree of control over personnel entering or leaving the base. Para. 6b, AFR 125-37, 27 July 1964. The appellants challenge whether posting a sign outside the confines of Tinker Air Force Base sufficiently conveys actual notice of Supplement 2. The large sign reads as follows: WARNING U.S. AIR FORCE BASE IT IS UNLAWFUL TO ENTER THIS AREA WITHOUT PERMISSION OF THE COMMANDER TINKER AIR FORCE BASE WHILE ON THIS INSTALLATION ALL PERSONNEL AND THE PROPERTY UNDER THEIR CONTROL ARE SUBJECT TO SEARCH (Sec. 21, Internal Securities Act of 1950: 50 U.S.C. 797) To be sure, the sign does not convey actual notice of the entire content of Supplement 2. It was not, however, the only notice that the appellants had that Tinker Air Force Base was a controlled entry installation. They were warned by the sign, the five security guards, and the fence around the installation. In any event there can be no question that the sign and the security guards gave the appellants actual notice that they could enter only with the permission of the base commander. The record is clear that they were informed of his denial of their right of entrance before they entered the base. The appellants argue that Supplement 2 violates the due process clause of the Fifth Amendment to the United States Constitution in that it is void for vagueness, and that it establishes guidelines only, thereby lacking the sufficient enjoinder required of prohibitive regulations. AFR 125-37 grants the base commander the authority to determine the security to be imposed on personnel entering or leaving the base. Paragraph 6b, AFR 125-37, 27 July 1964. Pursuant thereto the Base Commander promulgated Supplement 2 on May 3, 1972. Twenty-five copies of Supplement 2 were sent to the security guards at the gates. The procedures set forth in Supplement 2 prohibit all persons who do not possess proper identification from entering the base. The language is plain. Those who have proper identification may enter the base and those who do not have such identification may not enter the base. Courts do not require the same precision and specificity of standards in military regulations as in criminal statutes. Dash v. Commanding General, Fort Jackson, South Carolina, 307 F.Supp. 849 (D.S.C.1969), aff’d, 429 F.2d 427 (4th Cir. 1970), cert. denied 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971). We agree with the District Court which stated: It is not significant or prejudicial to the Defendants that the Information describes the regulation as one prohibiting the entry upon the military reservation “without the consent or permission of the Commanding Officer,” rather than “without proper identification.” Such language is merely descriptive of the regulations, which speaks for itself. The important fact is that the regulation prohibited entry to certain persons. It becomes a matter of proof as to whether the Defendants were such persons and intended to enter the base knowing that they were so prohibited. (R., Vol. I, pp. 130, 131) III. The appellants allege that the trial court penalized them for exercising their right to stand trial in the District Court. Those who pleaded guilty before the Magistrate were given suspended sentences except for one defendant who received a one-year probation. Those who pleaded not guilty and who were tried by the Magistrate received suspended sentences except for one defendant who received a two-year probation. Of the twelve defendants who were tried in the District Court, the women received probationary terms, while the men received prison terms of from 4 to 6 months plus varying fines. In United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), the Court held that a person may not be punished because he has, in good faith, exercised his right to stand trial, even though his effort proves unsuccessful, and that it is improper to make his sentence more severe because he has done so. There is no evidence in the record to support the application of this rule to these appellants. We have held and now hold that when the sentence is within the limit prescribed by the statute, the length of the sentence imposed is within the discretion of the trial court and will not be disturbed by the reviewing court. United States v. Stidham, 459 F.2d 297 (10th Cir. 1972), cert. denied 409 U.S. 868, 93 S.Ct. 168, 34 L.Ed.2d 118 (1972); Andrus v. Turner, 421 F.2d 290 (10th Cir. 1970); Martin v. United States, 364 F.2d 894 (10th Cir. 1966). The sentences imposed on the appellants were within the statutory limits. IV. The appellants contend that the trial court erred in overruling their motion for judgment of acquittal because the Government failed to prove each essential element of the crime beyond a reasonable doubt. On appeal the evidence is considered in the light most favorable to the Government. United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970). Although the Government conceded that the identification procedure in the early part of the trial did not clearly reflect the names of the appellants, the trial court had an opportunity to observe those persons who were identified during the trial. There was no error. The appellants contend that the motion for a judgment of acquittal should have been granted because the Government presented no evidence of their purpose or intent to enter the Base without permission of the Base Commander. Intent and purpose may be inferred from the facts and circumstances surrounding the case which reasonably tends to demonstrate mental attitude. United States v. Woodring, 464 F.2d 1248 (10th Cir. 1972); Cummings v. United States, 289 F.2d 904 (10th Cir. 1961), cert. denied 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48 (1961). The warning sign posted at the entrance to the Base just north of Gate Two was visible to anyone who walked or drove onto the base. It states that permission to enter is required. The closed Base, evidenced by the guards, the warning sign, and the fence, gave due notice and warning to the demonstrators that they were approaching a military installation involving the national security. Officer Twomey attempted to hold the group back. He told them that they were not allowed on the Base unless they had permission of the Base Commander. Appellant Tom Flowers asked Officer Maddox what would happen if they crossed the “white line”. He was told they would be arrested. Upon entering Col. Malone told them to leave. He read them the warning. In lieu of obeying, they sat down and refused to leave. They carried placards protesting the war in Vietnam. Their intent to enter the base without permission and their intent to demonstrate against the Vietnam war on the Base may be reasonably inferred from these facts. The appellants allege that the Government failed to prove the location and jurisdiction of the Court beyond a reasonable doubt. This contention has no merit. The trial court properly took judicial notice that Tinker Air Force Base is within the Western District of Oklahoma. United States v. Carter, 430 F.2d 1278 (10th Cir. 1970). The trial court did not err in denying their motion for judgment of acquittal. Affirmed. . Supplement 2 reads in part as follows: AFR 125-37, 27 July 1964, is supplemented as follows: 6b.1 ENTRY CONTROL PROCEDURES FOR TINKER AIR BASE: a. This supplement applies to members of the general public as well as Air Force personnel. Personnel with identification other than those identified in b, c and d below are prohibited from entering into Tinker Air Force Base. b. The following personnel identification will be recognized at all perimeter gates for base admittance: . . . c. Subject to the security requirements as determined by the installation commander, the following personal identification may be recognized at Gates 1 and 2 for base admittance: . . . d. Subject to security requirements as determined by the installation commander, personnel with identification other than those described in 6b and c above may be authorized admittance to Tinker Air Force Base under the following procedures : (1) Visitors desiring admittance to Tinker Air Force Base must state the nature of their visit and the person or activity to be visited, to Security Police Division personnel. (a) Statements submitted in accordance with 6b.ld(l) above will be verified by Security Police personnel prior to the issuance of identification or an admittance to base. (b) Monitors for major staff offices, OCAMA, and tenant organizations are authorized to verify visitor’s admittance statements to Security Police Division. Military personnel may verify individual guests as authorized by 6b.l(d) (2) below. (c) Upon verification visitors will be issued proper identification. (OCAMA-TAFB, Supplement 2, AFR 125-37, 3 May 1972) . In general, to have legal effect for various categories of persons, any directive or regulation applying to the protection of USAF physical resources should meet the following requirements: a. For persons subject to the UOMJ, it must: (1) Be issued by order of the base commander. At bases utilizing civilian contractor guards, the authority to issue such directives cannot be delegated to the civilian contractor. (2) Clearly describe, identify, and locate the property or area. (3) State that specific permission of the commander is required to enter or use the particular area or resource. (4) Be posted or otherwise displayed to insure that the individual has constructive or actual knowledge of the directive. b. For persons not subject to the UCMJ, to sustain removal and order not to re-enter under 18 USC 1382, it must: (1) Meet the requirements stated in a (1) through (3) above. (2) Direct removal and forbid re-entry, in the name of the base commander. c. For all persons within the US, its territories and possessions, it must: (1) Meet the requirements stated in a (1) through (3) above. (2) Have been issued by a person designated in DOD Directive 5200.8. (3) Be posted in a conspicuous and appropriate place. For standardization, the display of such a directive at gates of bases or areas will satisfy this requirement. (4) Pertain to one of the subjects listed in 50 USC 797. (5) State that it was issued under the DOD directive and the statute. The notice to the public incident to the issue of the regulation must also contain the same statement. (6) Cover a physical area that is subject to USAF jurisdiction, administration or custody. (Para. 4, AFR 125-37, 27 July 1964) . Closed Base. It will be: (a) Posted with warning signs at all perimeter gates and along the base perimeter. (b) Patrolled internally by air police forces in vehicles. Air police forces will be assigned at perimeter gates, when open, to control personnel and vehicle traffic. (c) Fenced around the perimeter, when practicable. (Paragraph 6(a)(1), AFR 125-37, 27 July 1964)
f2d_477/html/0225-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BRATTON, District Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. Eric MEDINA-FLORES, Appellant. No. 72-1670. United States Court of Appeals, Tenth Circuit. Argued and Submitted Feb. 21, 1973. Decided May 7, 1973. Nathan G. Graham, U. S. Atty., Tulsa, Okl. (Ben F. Baker, Asst. U. S. Atty., with him on the brief) for appellee. Ray H. Wilburn, Tulsa, Okl., for appellant. Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge. BRATTON, District Judge. The appellant was convicted of knowingly and intentionally importing marijuana into the United States and of knowingly and intentionally possessing it with intent to distribute, in violation of 21 U.S.C.A. §§ 952(a), 841(a)(1). Medina-Flores was a passenger in a 1961 Carryall bearing Texas license plates as it approached the toll gate on the Will Rogers Turnpike at Miami, Oklahoma, on April 23, 1972. The driver of the vehicle was Ruben Sanchez-Chavez. The other passengers were Mrs. Sanchez, her baby and a Canadian citizen. A cheek point operated at the toll gate was being manned at the time by Agent Murphy of the United States Border Patrol. After Sanchez-Chavez had paid the toll, Murphy approached the car, identified himself and asked if the car’s occupants were all United States citizens. Sanchez-Chavez responded in the affirmative and identified two of the passengers as his wife and baby. Because Sanchez-Chavez understood Murphy’s question, which was put to him in English, and because Sanchez-Chavez responded in English, the agent was initially satisfied that Sanchez-Chavez was a United States citizen. Agent Murphy found it necessary to address appellant in Spanish in order to elicit a response from him. Medina-Flores then handed the agent a crossing card, which allowed him to enter the United States, and another form which would allow him to be in Texas, New Mexico, Arizona and California. The agent then told appellant to get out of the car, and had him stand at the rear of the vehicle. He next ascertained that the Canadian passenger was legally in this country and then returned to talk again with the driver to see if he could establish whether the driver was guilty of transporting an illegal alien, Medina-Flores. Upon questioning, the driver told the agent that he had picked up Medina-Flores near Dallas. At this point, two other Border Patrol officers arrived, one of whom was coming to relieve Murphy at the check point. One of them questioned Medina-Flores, who told that officer that Sanchez-Chavez had picked him up at Neuvo Laredo, Mexico. Agent Murphy, armed with this conflicting information, asked Sanchez-Chavez to step over to the patrol car, where he asked him to furnish some identification. A draft card was produced, listing height, weight and a facial sear that the agent believed did not correspond to the physical characteristics of Sanchez-Chavez. The agent by now suspected that Sanchez-Chavez might not be an American citizen, and he asked him if he had any other scars or marks. The response was in the negative. No further scars or marks were shown on the draft card profered, but the agent asked Sanchez-Chavez to let him see his hands and arms. The agent intended, by such inspection, to see if there were any marks or scars on Sanchez-Chavez that would show the draft card was not his. Sanchez-Chavez rolled up the sleeves of his shirt, and the agent saw tattoos, scars and puncture marks. Almost simultaneously, the agent became aware that Sanchez-Chavez had a poor complexion and had been eating candy throughout the questioning, two of the marks, he thought, of an addict. It was at this moment that the other officers advised Agent Murphy that Mrs. Sanchez was also an illegal alien. Murphy asked the other officers to look at the arms of Medina-Flores. One of the officers asked him to roll up his sleeves. He complied, and puncture marks on his arms were disclosed. Agent Murphy askéd Sanchez-Chavez when he had last used any narcotics, and Sanchez-Chavez replied that he wasn’t using anything except methadone. In response to the agent’s interrogation, Sanchez-Chavez said that he had no methadone with him and indicated he didn’t know when he would next get any. The three officers consulted together and decided that reasonable grounds existed to search the vehicle for narcotics. The officers had no search warrant. A search of the vehicle began, and a hypodermic syringe was found, as well as a burned bottle cap. During the course of the search, one of the officers noticed that the screws holding the carryall’s paneling had been tampered with and that the entire inside of the vehicle had been repainted. The officers removed the paneling and discovered packages of marijuana. Everyone who had been riding in the vehicle was immediately advised of his or her rights and placed under arrest, except for Medina-Flores, who was already under arrest for being an alien illegally in Oklahoma. He, however, was also advised of his rights after the contraband had been found. The facts above were disclosed at the hearing upon the motion of the defense to suppress the evidence found in the search of the ear. The motion was denied, and the evidence was admitted at trial. On appeal, it is urged that the observation of needle marks upon the arms of Sanchez-Chavez, following the officer’s request that he roll up his sleeves, was an illegal search of his person to which appellant has standing to object. It is further urged that the viewing of appellant’s arms was also an illegal search and seizure. Because of these two actions by the officers, the appellant contends, it follows that the search of the carryall was also wrongful, and the marijuana found should have been suppressed. It cannot be validly argued that the initial detention of the vehicle’s passengers for routine investigative purposes was unreasonable. United States v. Granado, 453 F.2d 769 (10th Cir. 1972); United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); 8 U.S.C.A. § 1324(a). The surveillance of traffic on the turnpike was a routine duty of the officer, and his observation in the vehicle of three persons of Mexican descent furnished appropriate circumstances for his first questions to the vehicle’s passengers regarding citizenship. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Granada, supra; United States v. Saldana, supra. No attempt is here made to justify those events occurring after the initial detention as a border search, undertaken pursuant to 8 U.S.C.A. § 1357(a)(3). The United States concedes that probable cause to believe the vehicle carried narcotics imported contrary to law was required to validate the search of the vehicle. In this connection, it should be noted that the record discloses that the officers were also United States Customs officials and thus not limited to investigate solely for the presence of illegal aliens. United States v. McCormick, 468 F.2d 68 (10th Cir. 1972); United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972); 19 U.S.C.A. § 482. The threshold question presented is whether appellant has any standing to object to the officer’s view of the arms of Sanchez-Chavez. Assuming that what took place amounted to a search of the person of Sanchez-Chavez, appellant has no standing to challenge the legality of such a search. United States v. Humphrey and Mickens, 409 F.2d 1055 (10th Cir. 1969); see United States v. Johnson, 454 F.2d 700 (9th Cir. 1972). On the other hand, the appellant is a “person aggrieved” within the meaning of Fed.R.Crim.P. 41(e), and he has standing to object to the warrantless search of the carryall in which was found the marijuana he stands convicted of importing and possessing. Jones v. United States, 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The record reflects that the search of the vehicle was undertaken after the officers had knowledge that appellant was an illegal alien who stated he had been picked up at Nuevo Laredo, Mexico, and after the driver of the carryall had been discovered to be a narcotics addict who stated he used methadone but had none with him. They were further armed with the knowledge that appellant’s statement about where he had joined the group conflicted with the driver’s statement that he had picked appellant up near Dallas, Texas. Such circumstances gave the officers probable cause to believe that a crime was in the course of its commission and justified the ensuing search of the carryall without regard to the discovery of needle marks on appellant’s arms. United States v. Humphrey and Mickens, supra. It is therefore unnecessary to reach the issue of whether the view taken of appellant’s arms constituted an illegal search of his person. Affirmed.
f2d_477/html/0229-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "HOLDEN, District Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Elton WARREN, Plaintiff-Appellee, v. HUDSON PULP & PAPER CORP., Defendant-Appellant and Third Party Plaintiff-Appellee, v. TREADWELL CORP., Third Party Defendant-Appellant. Nos. 258, 259, Dockets 72-1847, 72-1848. United States Court of Appeals, Second Circuit. Argued Jan. 4, 1973. Decided March 29, 1973. Paul C. Matthews, New York City, for plaintiff-appellee. William F. McNulty, New York City (Hanner, Fitzmaurice & Onorato, New York City, on the brief), for defendant-appellant and third party plaintiff-appellee. Joseph D. Ahearn, New York City (Daniel J. Coughlin, New York City, on the brief), for third party defendant-appellant. Before FRIENDLY, Chief Judge, KAUFMAN, Circuit Judge, and HOLDEN, District Judge. Chief Judge of the District Court for the District of Vermont, sitting by designation. HOLDEN, District Judge: In June, 1965, the plaintiff, a rigger by trade, was employed by Treadwell Corporation, a New York construction corporation, as a boilermaker foreman. He was hired to supervise the construction of two boilers on a project undertaken by Treadwell, in the performance of a construction contract with the defendant Hudson Pulp & Paper Corporation to expand the latter’s industrial plant in Palatka, Florida. This diversity suit was instituted by the plaintiff to recover for permanent damage to his respiratory system caused by the inhalation of noxious and toxic fumes produced in Hudson’s industrial operation adjacent to the construction site. The jury awarded the plaintiff damages for Hudson’s negligence in the amount of $150,000. Judge MacMahon ordered a judgment to be entered in the same amount against Treadwell on the strength of an indemnity provision in its construction contract with Hudson. Hudson appeals from the judgment in the main action, contending that it was not negligent under Florida law. Tread-well appeals from that judgment and from the judgment entered against it in the indemnity action. We affirm both judgments. Hudson owns and operates a kraft paper mill in Palatka, Florida, which produces 950 tons per day of converted products, bag and tissue. In April, 1965, Treadwell contracted with Hudson to complete the expansion of Hudson’s plant. The work covered by the contract between Treadwell and Hudson was performed under the general supervision of J. E. Sirrine Company, Hudson’s architect and supervising engineer for the project. This consultant maintained a staff of approximately twelve men on the site to coordinate the work of the various trades and see that contract specifications were fulfilled. Under the contract Treadwell agreed to supply the materials and labor necessary to the expansion of the plant. Treadwell also agreed to extend the smokestacks of the No. 4 Power Boiler and the No. 2 Bark Boiler at the existing plant an additional 50 feet each. The contract further provided that Treadwell would assume the liability for any damages or injuries which occurred during the project as a result of Hudson’s negligence. The contract provided, however, that the work was to be performed in accordance with a construction schedule prepared for Hudson by the supervising engineer, J. E. Sirrine Company. Elton Warren began work on the Palatka project on June 1, 1965. The work which Warren was assigned was the construction of two new boilers. To accomplish this, Warren and the other workers worked from an outdoor steel framework of the building under construction at heights of 90 to 100 feet. This job site was located some 75 feet from the smokestacks of the No. 2 Bark Boiler and the No. 4 Power Boiler of Hudson’s existing plant and not connected or related to the new boilers under construction. The No. 2 and No. 4 boilers continued in operation during the plant expansion until early September. The No. 2 and No. 4 boilers burned a low grade fuel oil that produced smoke containing sulphur dioxide and carbon dioxide gases. Sulphur dioxide is a toxic gas capable of causing serious lung damage to one who inhales it. The smoke emitted from the stacks enveloped the structural framework where Warren and the other men were working when the wind was blowing in that direction, making it hazardous for the construction workers to remain at work. The smoke made it difficult for the workmen to breathe and caused nausea, sore throats, running noses and watery eyes. At times the men came down to the ground to escape the fumes. These working conditions were not improved nor corrected until Hudson shut down the boilers during the Labor Day weekend. At that time the stacks were lengthened to allow the smoke to pass over the heads of the Treadwell workers. The elevation of the stacks greatly improved the working conditions and substantially eliminated the smoke hazard. From the time he began work at Palatka, on June 1, until Labor Day, the plaintiff suffered from the fumes. He made frequent complaints to the Tread-well general foreman. Each time he was told that the situation would be corrected within a few days. Treadwell, in turn, had been informed in June by the supervising engineer, J. E. Sirrine Company, that a stack extension would be fabricated to enable Treadwell to lengthen the offending stacks. After he stopped work at Palatka, the plaintiff discovered that he had developed a permanent and progressively worsening pulmonary condition which prevented oxygen from diffusing properly into his bloodstream. The cause and extent of the plaintiff’s injury are not questioned in this appeal; only liability is challenged. The Motion to Dismiss At the conclusion of the plaintiff’s evidence, the defendant Hudson moved to dismiss the complaint on the ground that “. . . the plaintiff failed to make out a prima facie case under the law of Florida.” No motion for a directed verdict, as such, was offered by either Hudson or Treadwell. Both appellants, however, join in the claim of error and apparently rely on the motion to dismiss as a motion for a directed verdict. In this context a motion to dismiss in a jury trial may be allowed to do service for a motion for directed verdict under Rule 50(a). C. Wright and A. Miller, Federal Practice and Procedure § 2371. We so regard it for the purposes of this review. In Florida a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. Hall v. Holland, 47 So.2d 889, 891 (Fla.1950); Restatement, Torts 2d § 343. The employee of an independent contractor has the status of a business visitor. Hall v. Holland, supra; Hickory House v. Brown, 77 So.2d 249, 252 (Fla.1955). This was more recently stated in Hamilton v. Armstrong Co., 371 F.2d 139, 140 (5th Cir. 1967). It is settled law in Florida that an owner is under a duty to use reasonable care in maintaining his premises in a reasonably safe condition and to give timely notice or warning of latent and concealed perils known to the owner, or which by the exercise of due care should have been known to him, and which are not known to an invitee or which by the exercise of due care could not have been known to him. This duty is the same whether the invitee be there as the employee of the owner or as the employee of an independent contractor. The evidence presented at the trial established that the responsible officers and representatives of Hudson at the construction site were aware of the presence of sulphur dioxide in smoke produced by the combustion in Boilers No. 2 and No. 4. They knew or should have known the stacks were giving off poisonous fumes and the dangerous consequences which could result from continuing exposure to its toxicity. Hudson’s supervising engineer knew of the drift of the smoke which frequently enveloped the open structural frame where the plaintiff was working. Yet Hudson made no effort to correct the problem and gave no warning to Treadwell’s employees of the danger from the inhalation of the fumes from its stacks. The presence of foreseeable harm, coupled with the defendant Hudson’s ability to arrange Treadwell’s work schedule and its undisputed control of the offending stacks provide all of the necessary ingredients of a prima facie case of negligence under the law of Florida. The defendant’s motion to dismiss the action was properly denied. Instructions to the Jury In submitting the issue of Hudson’s negligence, Judge MacMahon instructed the jury: In determining whether the defendant exercised due care under the circumstances, you may consider what knowledge the defendant had or that it should have had as to the dangerous qualities of the flue gas emitting from its stacks. In this regard, a person who causes gases and fumes to be discharged into the atmosphere, an industrial company like this, has a duty to find out what is in those gases and whether they are noxious before it emits them into the atmosphere. There were no objections by either defendant to these instructions. Both defendants, however, objected to the instructions which immediately followed. The possessor of land, in these circumstances, has an additional duty to the plaintiff, a business visitor, to exercise reasonable care to discover the negligent acts or the likelihood of negligent acts by third persons like Treadwell, who were invited to come onto the property to perform services in connection with the business. One aspect of this duty is that the possessor of the land, Hudson here, must exercise a reasonable, careful supervision of the appliances and the methods used by Treadwell, whom it employed or permitted to carry out on the land an activity directly or indirectly connected with the business use of the premises. Hudson and Treadwell join to challenge this portion of the charge. Without reference to any Florida decisions, the appellants seem to rely on the law of New York, where it is said the safe place to work doctrine is far more extensive than in Florida, citing Watt and Sinclair of Florida, Inc. v. Hunter, 126 Fla. 750, 171 So. 817 (1937). Our concern, however, is with the law where the injury was inflicted. The underlying prerequisite to liability in the landowner is superior knowledge. Rist v. Florida Power & Light Co., 254 So.2d 540, 542 (Fla.1971); Quinnelly v. Southern Maid Sugar Co., Inc., 164 So.2d 240, 242 (Fla.App.1964). The evidence in this case satisfies the demands of the Florida law since Hudson’s officers knew of the chemical components of the combustion which gave off the poisonous fumes. While the plaintiff knew the stacks were disgorging smoke, he did not know that they were discharging poison that would damage lung tissue. In the présence of a known danger, the fact that the dangerous condition was created or partially caused by an independent contractor will not shield the landowner from legal liability. See Peairs v. Florida Publishing Company, 132 So.2d 561 (Fla.App.1961). The duty of reasonable care is a responsibility that cannot be delegated. Florida follows the rule that an occupant of premises who has knowledge of a dangerous situation, even though created by an independent contractor, may incur liability through failure to halt the operation or otherwise remove the danger. Emelwon, Inc. v. United States, 391 F.2d 9 (5th Cir. 1968); Maulé Industries, Inc. v. Messana, 62 So.2d 737 (Fla.1953); Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941). Here Hudson’s supervising engineer was regularly present at the site where Treadwell employees were working. Hudson was in a position to know the methods employed by Treadwell. Being aware of the chemical content of the smoke drifting into the work area, it was also in a position to know the effect that Treadwell’s methods of work might have on the health of the Treadwell workers. On this evidence it was not error to hold Hudson to the exercise of reasonable care in the supervision of its construction project with Treadwell. The Court’s instructions were consistent with the facts and correctly applied the law of Florida. We affirm the judgment for the plaintiff in the principal action. Third Party Action The remaining question for review concerns the judgment - that was rendered for Hudson on its third party complaint against Treadwell. The judgment was ordered by Judge MacMahon on the strength of the evidence presented in the principal action. This followed the court’s binding instructions to the jury. No objection was offered to this method of dealing with the third party claim and it appears to be in keeping with the understanding of the court and counsel. The trial court’s award of indemnity to Hudson is founded on an indemnity agreement contained in the construction contract between Hudson and Treadwell. The indemnity agreement provided that Treadwell, “(t)he contractor shall assume the entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever . . . to all persons, whether employees of the Contractor or otherwise . . . caused by, resulting from, arising out of, or occurring in connection with the execution of the work provided for in the Contract . . . . ” The force and effect of the indemnity agreement are govered by the law of New York. It is the law of that jurisdiction that one party to a contract may agree to indemnify another against the latter’s own active negligence, where that intent is evident from the terms of the contract. Levine v. Shell Oil Co., 28 N.Y.2d 205, 321 N.Y.S.2d 81, 269 N.E.2d 799, 802 (1971). See Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 1220 N.Y.S.2d 962, 177 N.E.2d 925, 926 (1961). Despite the obvious intent of the provision that Treadwell shall indemnify Hudson against Hudson’s active negligence, Treadwell contends that the contract should not be enforced. It states these reasons: (a) It is against public policy to allow a party to receive contractual indemnity for negligence extending over several months; (b) Warren’s injury was caused by Hudson’s intentional wrongdoing, not by its negligence; (c) Hudson should be estopped from enforcing the indemnity agreement. The terms of Treadwell’s undertaking are sufficiently inclusive to justify indemnification, even though it can be said, as the indemnitor claims, that the plaintiff’s injury was caused by Hudson’s active negligence. Treadwell assumed entire responsibility to all persons, whether employees or not, for injuries sustained in the execution of its contract, even if such claims should be based upon the owner’s active negligence. With such a broad undertaking the New York courts hold the indemnitor to his bargain. Kurek v. Port Chester Housing Authority, 18 N.Y.2d 450, 276 N.Y.S.2d 612, 223 N.E.2d 25, 28 (1966). Public policy. Treadwell maintains that this case is distinguishable from Levine v. Shell Oil Co., supra, and other New York indemnity cases, in that Warren’s injury resulted not from a sudden accident, but from a dangerous condition tolerated by Hudson over a period of three months. Levine is not distinguishable on this basis. In Levine, the plaintiff was injured by a gas explosion which, although sudden, resulted from a leak which the indemnitee had knowingly tolerated for a long period of time. Treadwell agreed to indemnify Hudson freely and without reservation. Its undertaking will be enforced according to the intent expressed in the agreement. Intentional wrongdoing. Treadwell’s contention that Hudson was an intentional wrongdoer and thus- is beyond protection of the indemnity agreement is similarly without merit. Tolerance of a known dangerous condition which eventually causes injury is negligent where the party permitting the danger to continue violates a duty owed to the plaintiff. But its neglect is no more than negligence; it is not an intentional wrong. See e. g., Levine v. Shell Oil Co., supra. Estoppel. Finally, Treadwell argues that Hudson should be estopped from enforcing the indemnity agreement because Treadwell refrained from taking action to protect its employees from the smoke in reliance on ' Hudson’s assurances that it would raise the stacks. In New York the doctrine of estoppel operates to prevent a party from receiving a contractual benefit which comes its way because, in rightful reliance upon that party’s word or deed, the other contracting party has changed its position. Metropolitan Life Insurance Co. v. Childs Co., 230 N.Y. 285, 292, 130 N.E. 295, 298 (1921); Triple Cities Construction Co. v. Maryland Casualty, 4 N.Y.2d 443, 448, 176 N.Y.S.2d 292, 151 N.E.2d 856 (1958). It appears from the record that Hudson did, with some frequency, assure Treadwell that it would soon raise the stacks. There is no indication in the record, however, that Treadwell would have taken action to protect its workers, absent these assurances, and no evidence that Treadwell changed its position in reliance on Hudson’s assurances. Even so, Treadwell’s reliance can hardly be justified under its contract with Hudson. Treadwell was not without power to influence the time of the extension of the stacks. According to the construction contract, it was Treadwell’s responsibility to provide and install the necessary materials required'to increase the height of the stacks. It does not appear that Treadwell made any attempt to relieve the smoke hazard nor to fix a date when the stacks could be extended. In this posture the doctrine of estoppel does not aid Treadwell nor excuse its apparent lack of concern for the physical health of its employees. We find no justification in the record to support Treadwell’s final claim that Hudson frustrated the contractor’s ability to perform its undertaking to elevate the stacks. The claim apparently refers to Hudson’s continued operation of its boilers until September. If so, there is no indication that Treadwell requested them to stop their operation any earlier. We hold the trial court correctly entered judgment for Hudson on Tread-well’s indemnity agreement. . The plaintiff originally sued his employer, Treadwell Corp., as well as Hudson Pulp & Paper Corp. At trial, however, he discontinued his action against Tread-well on the ground that the Florida workmen’s compensation law provided his sole remedy against his employer. It was thereupon stipulated that the cross-claim of Hudson against Treadwell be treated as a third-party complaint. . 18. HOLD HARMLESS The Contractor shall assume the entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever (including death resulting therefrom) to all persons, whether employees of the Contractor or otherwise and to all property caused by, resulting from, arising out of, or occurring in connection with the execution of the work provided for in the Contract; and if any person shall make a claim for any damage or injury (including death resulting therefrom) as herein above described, whether such claims be based upon Owner’s alleged active or passive negligence, or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of the Owner, the Contractor agrees to indemnify and save harmless the Owner, his agents, servants and employees, from and against any and all loss, expense, damage or injury that the Owner may sustain as a result of any such claim and the Contractor agrees to assume, on behalf of the Owner, and at his demand, the defense of any action at law or in equity, which may be brought against the Owner upon such claim and to pay on behalf of the Owner, upon his demand, the amount of any judgment that may be entered against the Owner in any such action. The Owner shall have the right to participate in such action. . The Treadwell’s construction contract with Hudson (Def. Hudson’s Exhibit C) provides: “This Agreement has been executed and and entered in New York and the validity, interpertation and performance of the Contract shall be governed by the laws of the State of New York.” . See Footnote 2, supra. . Defendant Hudson’s Exhibit C — the Construction Contract provides: “The scope of the work to be performed by the Contractor is as follows:— 6. Provide and install the necessary materials required to increase the height of Stacks on #4 Power Boiler and #2 Bark Boiler by fifty feet each; . . . ."
f2d_477/html/0236-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "KILKENNY, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. Edward H. INGRAM, Appellant. No. 72-1170. United States Court of Appeals, Seventh Circuit. Argued Oct. 25, 1972. Decided April 10, 1973. Lewis A. Wenzell, San Diego, Cal., for appellant. James R. Thompson, U. S. Atty., William T. Huyck, Robert A. Filpi, Asst. U. S. Attys., Chicago, Ill., for appellee. Before KILEY, KILKENNY and STEVENS, Circuit Judges. The Honorable John F. Kilkenny, Senior Circuit Judge for the Ninth Circuit, sitting by designation. KILKENNY, Circuit Judge: This appeal presents an unusual background. Appellant was convicted on two counts of violating 26 U.S.C. § 4705(a) [sale of narcotics] and on two counts of violating 21 U.S.C. § 174 [dealing in narcotics]. The indictment was returned in April, 1968. In May of the same year, appellant waived a trial by jury and on May 29th, he was convicted on all four counts. Initially, the court attempted to sentence appellant under Title II of the Narcotic Addict Rehabilitation Act of 1966 for a determination of whether he was an addict and likely to be rehabilitated through treatment. On June 10th, the commitment was returned unexecuted for the reason that appellant had sustained two prior felony convictions and was, consequently, ineligible for treatment under the Act. The following June 14th, he was sentenced to imprisonment for ten years on each count, the sentences to run concurrently. Although appellant’s notice of appeal was timely, his motion to proceed in for-ma pauperis was denied in the district court. Later, he filed the same type of motion in this court. Shortly thereafter, the appeal was dismissed. Appellant then filed a 28 U.S.C. § 2255 petition requesting that the sentence be vacated on several grounds, including the claim that he was denied due process by reason of the court's failure to permit him to proceed in forma pauperis. From a denial of this motion, appellant prosecuted another appeal to this court, as a result of which the original sentences were vacated and the cause remanded to the district court for resentencing, so that the appellant might prosecute a direct appeal. Prior to re-sentencing, appellant filed several motions, including a motion for a new trial, a motion for a presentence report and probation and a motion for specifications of his prior convictions. The motions were denied and he was again sentenced to serve a period of ten years on each count, the sentences to run concurrently. From the judgment and resulting sentences, he prosecutes this appeal. FACTS On August 23, 1966, three Federal Narcotic Agents met an informant in a parking lot in Chicago. After the informant was searched and found not to possess money or narcotics, he and one of the agents drove to an intersection in the city where they parked and walked to the entrance of a building. The other two agents.followed in another automobile, parked across the street, where they watched the other agent and the informer enter the vestibule of the building and ring a buzzer. The agent and informer then stepped outside the building. A short time later, appellant leaned out of a third story window and stated that he would be down shortly. Within a few minutes, appellant arrived in the vestibule and was introduced to the agent by the informant. The agent said he wanted a spoon of heroin and he and appellant agreed on a price of $140.-00. The appellant then told the informant and the agent to wait and that he would return with the “stuff” in a pouch in about 45 minutes. He reappeared at about the appointed time under elevated tracks at the east end of the building and called to the agent and the informant. He told the agent to put the money under a rock and pointed to an aluminum foil package on a girder. The agent picked up the package and appellant picked up the money and started walking north through the alley under the tracks. The agent then asked for some more “stuff” and appellant told him to return Friday morning. The three narcotics agents and .the informant then drove to the Federal Building where a preliminary test was performed on the contents of the aluminum foil package. The tests indicated the presence of an opium derivative and a subsequent chemical analysis revealed the presence of heroin in .the powder. On the following Friday morning, the agent returned to the address and rang the same buzzer. Appellant leaned out the window and told the agent to go around to the back and said he would be “down shortly.” About 15 minutes later, the agent met appellant at the rear of the building and handed him $140.00 and in return received from appellant a small aluminum foil package containing a white powder. The other two agents had observed the other agent enter the building and saw appellant lean out the window. When the’ agent walked toward the rear of the apartment, one of the other agents got out of the automobile and stood near the supports of the elevated tracks from which position he observed the meeting between appellant and the other agent. The observing agents continued their surveillance of the building for about an hour and then met the contact agent where the powder was field tested. Later, an analysis of the powder revealed the presence of heroin-hydrochloride. The appellant denied the first meeting and said that he spent the entire day at his sister’s home with her, his brother-in-law and a group of neighbors. None of the latter were called to testify. He admitted the meeting on the following Friday, but claims that he was framed by the informer. He says that the informer visited him early in the morning and persuaded him to sell “Dormin” to a narcotic addict. Appellant claims that he and the informer bought the Dormin at a nearby drugstore. The testimony of the agents and of the appellant was in direct conflict. Obviously, the trial judge believed the testimony of the agents. ISSUES Appellant presents for review the following issues: (1) Adequacy of counsel. (2) Appellant’s eligibility for probation. (3) Constitutionality of the Narcotic Addicts Rehabilitation Act of 1966. (4) Failure to file an information under 26 U.S.C. § 7237(c)(2). ADEQUACY OF COUNSEL Appellant claims that his trial attorney was so incompetent that the trial was nothing more than a farce or a mockery of justice and consequently he was denied due process. He points to five areas in which he claims his counsel’s failures violated his Sixth Amendment rights. (1) First he claims that his attorney should have moved to dismiss the indictment on the ground that it was not returned within a reasonable time after the government was aware of the commission of the alleged crimes. We find nothing in the record which would affirmatively show that appellant was in any way prejudiced by the delay. The fact that the .delay might have been responsible for the failure to locate the informer does not establish the showing of prejudice which is required by United States v. Deloney, 389 F.2d 324 (CA7 1968), cert. denied 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417. Also in point is United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1972). (2) Next appellant complains of the failure of his attorney to learn the identity of the informer. There is no showing whatsoever that the testimony of the informer would have in any way assisted the appellant. Moreover, the record indicates that the prosecution attempted to find the informer, but was unsuccessful. (3) Next appellant argues that his counsel’s failure to seek discovery of appellant’s incriminating statements rendered the convictions constitutionally infirm. He does not argue that the statements should have been suppressed, but suggests that his attorneys should have sought the statements that appellant might be better informed. There is nothing in the record to indicate that he even informed his attorney of the existence of such statements, or that he was in any way prejudiced by the failure of his counsel to ask for their production. For that matter, it would seem that the statements were made only a short time before the trial. Appellant should have remembered the substance of what he told the officers. The record is clear that appellant was fully advised of his Miranda rights. His failure to sign the written form is not controlling where he is otherwise advised. United States v. Crisp, 435 F.2d 354 (CA7 1970), cert. denied 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971). While it might have been better practice to object to the admission of the statements, we recognize that the failure to object could have been a tactical choice on the part of the attorney. He might have noticed something in the statement which was beneficial to his client. His failure to object, on this record, does not rise to an error of constitutional stature. (4) Here, appellant argues that his attorney should have more thoroughly investigated the physical characteristics of the area where the transactions took place. He says .that his attorney should have secured witnesses to confirm his description of the buildings and area and that such evidence would have weakened the testimony of the agents. Although one of the agent’s testimony may have been somewhat ambiguous and in conflict with the appellant’s, the record shows that appellant’s counsel thoroughly cross-examined the agent on what appeared to be the ambiguity. In these circumstances, the value of the testimony of additional witnesses confirming appellant’s viewpoint would be of little, if any, value. (5) Finally, appellant challenges his counsel’s overall professional competence by pointing to the fact that he was not familiar with the provisions of the Narcotic Addict Rehabilitation Act of 1966 and was of the belief .that appellant was eligible for treatment under the Act. It is enough to say that the mistake was not prejudicial and, for that matter, was in favor of appellant. We doubt we should chide appellant’s counsel when the United States Attorney and the trial judge made precisely the same mistake. We find nothing in the record which would indicate that counsel’s overall representation was such as to render the trial a sham or a mockery within the meaning of Wilson v. Phend, 417 F.2d 1197 (CA7 1969) and Sims v. Lane, 411 F.2d 661 (CA7 1969), cert. denied 396 U.S. 943, 90 S.Ct. 378, 24 L.Ed.2d 244. PROBATION Appellant claims that he was entitled to probation by reason of the repeal of 26 U.S.C. § 7237(d) (1964 ed. and Supp. V) by the enactment of the Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, 21 U.S.C. § 801 et seq., the effective date of the latter being May 1, 1971. The recent case of Bradley v. United States, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), resolves the issue against appellant. The district court had no authority to grant probation. NARCOTIC ADDICT REHABILITATION ACT OF 1966 Citing Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), appellant argues that the provision of the Act barring medical treatment to those with two previous convictions is unconstitutional. The distinction between Watson and the case before us is apparent. The Watson decision should be limited to the possession of heroin. Here, appellant was convicted of the sale of heroin. Beyond that, 18 U.S.C. § 4251(f)(2) specifically excludes from eligibility under the Act, those who are convicted of selling narcotics. Watson has been properly limited to its own facts in the well reasoned decisions of Macias v. United States, 464 F. 2d 1292 (CA5 1972) and United States v. Turner, 337 F.Supp. 1045, 1048-1049 (D.D.C.1972), and considerably eroded, if not ignored, in United States v. Fitzgerald, 466 F.2d 377 (D.C.Cir.1972); United States v. Fersner & McElveen, 465 F.2d 605 (D.C.Cir.1972), and United States v. Leazer, 148 U.S.App.D.C. 356, 460 F.2d 864 (1972). The Second Circuit supports this view. Smith v. Follett, 445 F.2d 955 (CA2 1972). Applied to our facts the Act is constitutional. FAILURE TO FILE INFORMATION The United States Attorney concedes that he failed to file an information setting forth the prior convictions as required by 26 U.S.C. § 7237(c)(2). He would excuse his neglect by pointing to the fact that appellant admitted his convictions during the course of .the trial and that the convictions were set forth in an FBI report, which was before the judge prior to sentencing. He supplements this argument by saying that a certified copy of the narcotics conviction has been filed in the record before us on appeal. As we read the statute, its provisions are mandatory. Neither the admission in trial by appellant of his prior convictions, nor the mention of the convictions in the FBI record, nor the certified copy of the prior Federal Narcotics Conviction filed on appeal, can act as a substitute for the specific requirements of the statute. It has been said that the admission by a defendant in a trial of a prior conviction is the functional equivalent of a plea of guilty to a separate charge and, therefore, it should not be accepted unless the accused understands the consequences of the admission. Wright v. Craven, 461 F.2d 1109 (CA9 1972); Cancino v. Craven, 467 F.2d 1243 (CA9 1972). Procedural integrity requires us to remand to the district court with instructions to set aside the sentences, grant the United States Attorney an opportunity to file an information pursuant to the statute and then give appellant an opportunity in open court to affirm or deny that he is identical with the person mentioned in the previous convictions; if any. The lower court may then re-sentence. Otherwise, the judgment is affirmed.
f2d_477/html/0242-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MERRILL, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Brad Simon BABICH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James M. JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John T. SPANN, Defendant-Appellant. Nos. 72-2744, 72-2697 and 72-2698. United States Court of Appeals, Ninth Circuit. April 5, 1973. Rehearing Denied May 8, 1973. Harry E. Claiborne (argued), Oscar B. Goodman (appeared), Las Vegas, Nev., for defendant-appellant Johnson. Douglas G. Lohse (argued), Lohse & Lohse, Reno, Nev., for defendant-appellant Spann. Harry E. Claiborne (argued), Las Vegas, Nev., for defendant-appellant Babich. Lawrence J. Semenza, Asst. U. S. Atty. (argued), V. DeVoe Heaton, U. S. Atty., Las Vegas, Nev., Charles J. Fanning, Asst. U. S. Atty., Chief of Southwest Unit, San Diego, Cal., for the United States. Before MERRILL and KOELSCH, Circuit Judges, and SOLOMON, District Judge. Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation. MERRILL, Circuit Judge: Appellants were convicted of conspiracy to import narcotics. The sole issue on appeal is the sufficiency of an affidavit given in support of a search warrant. The validity of the warranted search is thus brought in question. On August 4, 1971, an agent of the Nevada Department of Fish and Game discovered an airplane burning in a dry lake bed in Lander County Nevada. He radioed his warden, who notified the sheriff of Lander County in Battle Mountain, who, in turn, called his deputy in Austin. The deputy and the warden then joined the Fish and Game agent at the scene and investigated the aircraft. The deputy returned to Austin and notified the Federal Bureau of Investigation and the Federal Aviation Administration. The following day an agent of . the FBI and an agent of the FAA, accompanied by two deputy sheriffs, visited the scene and investigated the aircraft. They followed tracks leading from the scene and about two-and-one-half miles away came upon a deserted camper truck mired in mud. The back door was open and they could see a number of white sacks with Spanish words printed on them. From the interior came a strong smell of marijuana. Exercising admirable restraint, they decided to secure a search warrant. A deputy was left with the truck. The other returned to Austin where he telephoned to the sheriff and district attorney at Battle Mountain, reporting on the results of the investigations of aircraft and truck. An affidavit was then prepared by the district attorney and signed by the sheriff. In reliance on the affidavit a search warrant was issued by the justice of the peace in Battle Mountain. The sheriff returned to the mired truck at about midnight and the following day the truck was searched and marijuana was recovered. The District Court, 347 F.Supp. 157, denied a motion to suppress and following trial and judgment of conviction this appeal was taken. The affidavit given by the sheriff to the justice of the peace read as follows: “George E. Schwin, being first duly sworn, deposes and says on information and belief: 1. Affiant has received reports of large-scale narcotics drops being made in southern Lander County. 2. That on or about August 4,1971, an aircraft was observed burning in a Dry Lake near Grass Valley in Lander County and investigation showed the fire to be of incendiary origin. Investigation also showed a portion of the unbumed part of the aircraft cabin to contain small quantities of what appeared to be a dangerous drug, to-wit marijuana. 3. That the type of aircraft involved had sufficient fuel capacity and carrying capacity to be used for large-scale transportation or importation of marijuana or other illicit drugs, and the quantity of gas in the aircraft fuel tanks indicated that a flight had been made of approximately 1000 miles, which distance is sufficient to represent a flight from Mexico. That the aircraft had been stripped of cargo and tire tracks led from the location on the dry lake where the aircraft had disabled its landing gear. 4. That investigation further showed that the disablement of said aircraft occurred on landing and the tire tracks aforesaid led to a 1960 White International Pickup. Lie. No. WA 0882, 1971 License sticker No. 927641. 5. That earlier reports of a vehicle or vehicles traveling in the area round the time the aircraft was discovered indicated a Washoe County tag. 6. That there is in said vehicle, and apparent from external inspection several bags, plastic, of the sort used to transport marijuana and said bags contain what appears to be Mexican writing thereon. 7. That said bags, if marijuana, would contain approximately 200 pounds of said drug and said drug in that condition emits a characteristic sweet smell such as the odor coming from said pickup. 8. Said pickup and the contents thereof therefore constitute evidence that shows or tends to show that a public offense has been committed or that the above named defendants or others committed a public offense. Wherefore, affiant asks that a search warrant be issued for the above named 1960 White International Pickup and its camper and the environs of the downed aircraft and camper for marijuana or other dangerous drugs, any paraphernalia used in connection therewith and for any . firearms or other equipment used or useful in the distribution and dissemination of dangerous drugs. /s/ GEORGE E. SCHWIN George E. Schwin” Relying upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), appellants attack the sufficiency of the affidavit upon the ground that it is entirely given upon information and belief and fails to disclose the identity of the informant and the basis for a belief that he was reliable. In denying motion to suppress the District Court stated: “I think it is apparent and implied in this affidavit that the information came to this affiant from other law enforcement officers who were engaged in an investigation.” We agree. In United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965), the Court stated: “ * * * upon reading the affidavit as a whole, it becomes clear that the detailed observations recounted in the affidavit cannot fairly be regarded as having been made in any significant part by persons other than full-time Investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court found detail lacking in the affidavit; but at the same time the Court pointed to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), as a case where “A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589 (1969). Here the nature and detail of the disclosures of the “investigation” — as to the incendiary origin of the aircraft fire, as to the nature of the disablement of the aircraft, as to its fuel and carrying capacity, and the quantity of fuel in its tank — all strongly indicate that the investigation was official. Judgment affirmed. . Other issues were argued which we do not find it necessary to reach.
f2d_477/html/0244-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "SIMPSON, Circuit Judge: GOLDBERG, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	Elizabeth Ann DUKE et al., Plaintiffs-Appellees, v. The STATE OF TEXAS et al., Defendants-Appellants. No. 71-2845. United States Court of Appeals, Fifth Circuit. April 20, 1973. Rehearing and Rehearing En Banc Denied June 19, 1973. Crawford C. Martin, Atty. Gen. of Tex., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., Ralph Mann, Asst. City Atty., Denton, Tex., for defendants-appellants. Sylvia A. Demarest, Dallas, Tex., Michael J. Whitten, Denton, Tex., for plaintiff s-appellees. Before GOLDBERG, DYER and SIMPSON, Circuit Judges. SIMPSON, Circuit Judge: This case involves the recurring and complex problem of the narrow circumstances in which a federal court may enjoin ongoing state judicial proceedings. The lower court issued an injunction restraining the enforcement of an existing state court injunctive order which forbade appellees from speaking upon or entering upon the campus of North Texas State University. Duke v. Texas, E.D.Tex., 1971, 327 F.Supp. 1218. Because the proper disposition of this appeal turned, in part, on the long disputed, never settled question of whether the Civil Rights Act of 1871, Title 42, U.S.C., Section 1983, constitutes an express exception to the broad Congressional policy that federal courts shall not enjoin state proceedings, Title 28, U.S.C., Section 2283, we initially withheld adjudication in this case pending Supreme Court review of that question. Caréful study of the Supreme Court’s opinion in Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, constrains us, despite the holding of 'that case, to reverse the judgment below. The facts of this ease are fully set out in the opinion below, 327 F.Supp. 1218 but a brief survey will help delineate the precise issue before us. On February 9, 1971, Herb Ninness, a student at North Texas State University, Denton, Texas, began discussions with appellees, Elizabeth Ann Duke and David Haylon, neither of whom were students at the University, concerning the possibility of appellees speaking on campus at a rally to protest United States military activities in Southeast Asia planned for February 17, 1971. The same day, the North Texas State Student Senate passed a resolution, designated as Bill No. DEM 46, to “support” the rally. On February 11, Ninness told the President’s Cabinet of Student Senate “support” for the rally, and of plans to invite appellees as outside speakers. The Cabinet then denied the request to permit outside speakers on the grounds that the rally was not “sponsored” by the Student Senate or any other recognized campus organization. On February 16, the President of the Student Senate vetoed DEM 46. The Senate then passed a resolution “sponsoring” the rally for the next day, and inviting outside speakers including the appellees to speak at the rally. The Senate President vetoed this second resolution. At the Senate meeting, University Vice President for Student Affairs, William Lindley, discussed the various University regulations governing the use of campus facilities and the presentation of outside speakers. Meanwhile, as events escalated University officials were seeking legal advice concerning ways to control the scheduled demonstration. That evening, appellee Haylon stated in a radio interview that he intended to speak at the rally next day. On the morning of the 17th, a delegation of students appeared before the President’s Cabinet and requested that the demonstration be allowed to proceed despite University rules to the contrary. The University President refused to suspend school rules, but stated that the University regulations applied only to the presence of unsponsored “outside” speakers on campus, not to the discussion of important issues by students alone. The University President then authorized the University Chief of Security Police, Tom Martin, to seek injunctive relief in the state courts. With the assistance of the County Attorney of Denton County, an application for injunctive relief was prepared and presented to Judge Robert Scofield, District Judge of Denton County. Following a brief ex parte hearing, Judge Scofield issued a temporary restraining order prohibiting Mrs. Duke and Mr. Haylon from entering upon the campus of North Texas State University. Meanwhile, the rally had begun at noon, as scheduled. About 12:30 P.M. the sheriff served the temporary restraining order upon Mrs. Duke. Service upon Mr. Haylon was not accomplished at this time. Both plaintiffs subsequently spoke at the rally, Mrs. Duke reading to the crowd from the papers which had been served upon her. The following morning, the sheriff arrested Mrs. Duke and Mr. Haylon for contempt of court. At the same time the temporary restraining order was served on Mr. Haylon. Following a hearing on February 24 and 26 and March 4, 1971 Judge Scofield granted a permanent injunction against Mrs. Duke and Mr. Haylon. Judge Scofield also found Mrs. Duke guilty of contempt for remaining at the rally after service of the temporary restraining order and found Haylon guilty of contempt for entering the University campus during a snowball fight at a later date. On March 26, 1971, Judge Scofield signed the order for the permanent injunction. Meanwhile, appellees Duke and Haylon had sought to invoke the aid of the federal courts. On February 24, 1971 appellees filed the instant action in the lower court alleging that the issuance and enforcement of the state court order was depriving them of their rights to free speech under the First and Fourteenth amendments. The complaint sought federal relief, under Title 42, U.S.C., Section 1983, for alleged deprivations of federal constitutional rights committed by the State of Texas; the lower court did not grant any temporary relief, and service of process upon the defendants-appellants was not completed until after Judge Scofield had orally announced his decision to issue a permanent injunction. The lower court held a series of hearings and conferences, and on May 26, 1971, issued an opinion and order. 327 F.Supp. 1218. The lower court issued an injunction restraining the enforcement of Judge Scofield’s injunction, and declared sections of the Texas Code and North Texas State University Regulations unconstitutional or unconstitutional as applied to plaintiffs-appellees. This appeal is taken from the federal court injunction. DISCUSSION The court in this ease issued its permanent injunction under the purported authority of Title 42, U.S.C., Section 1983 which empowers federal courts to vindicate federal constitutional rights on a broad front. In Mitchum v. Foster, supra, the Supreme Court held that Title 42, U.S.C., Section 1983 is an express exception to the Congressional policy, as expressed in the anti-injunction statute, Title 28, U.S.C., Section 2283, that federal courts shall not grant an injunction to stay proceedings in a state court. The fact that Title 28, U.S.C., Section 2283 does not bar federal injunctions issued under the authority of Title 42, U. S.C., Section 1983 is only the beginning, not the end of our inquiry into the propriety of federal court intervention in ongoing state proceedings such as occurred below. The Mitchum court itself ended with a caveat that the effect of Title 42, U.S.C., Section 1983 upon Title 28, U.S.C., Section 2283 should not conclude our analysis: “In so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases.” 407 U.S. at 243, 92 S.Ct. at 2162, 32 L.Ed.2d at 718. Here, while the lower court correctly anticipated Mitchum’s express exception decision, it acted without the benefit of the Supreme Court’s warning in Mitchum v. Foster, supra. The lower court’s action occurred also without the benefit of our own supervening decision in Palaio v. McAuliffe, 5 Cir., 1972, 466 F.2d 1230, and erroneously concluded that “the strict non-interference doctrine elucidated in Younger and its companion cases is limited to State criminal prosecutions . . .” 327 F.Supp. at 1233. As this Court made clear in Palaio v. McAuliffe, supra, however, “the application of the principles of Younger should not depend upon such labels as ‘civil’ or ‘criminal,’ but rather should be governed by analysis of the competing interests that each case presents.” 466 F.2d at 1232-1233. We iterate that the Younger principles of equity, comity and federalism apply to federal intervention in state “civil” as well as “criminal” proceedings, even where the exercise of First Amendment rights is involved; two of our sister Circuits have so held, Cousins v. Wigoda, 7 Cir. 1972, 463 F.2d 603, application for stay denied, 409 U. S. 1201, 92 S.Ct. 2610, 34 L.Ed.2d 15 (Rehnquist, Circuit Justice); Lynch v. Snepp, 4 Cir. 1973, 472 F.2d 769. In Younger, the Supreme Court made it clear “that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.” 401 U.S. at 45, 91 S.Ct. at 751, 27 L.Ed.2d at 676. This interdiction of federal interference in state judicial proceedings is based on federalism concepts of comity and respect for state functions, op. cit. 401 U. S. at 44, 91 S.Ct. at 750, 27 L.Ed.2d at 675-676. In order to overcome it two express pre-conditions must be shown before relief may be granted to a federal plaintiff. First, the moving party must demonstrate that he will suffer irreparable injury if the federal court stays its hand, and second the moving party must demonstrate that he does not have an adequate remedy at law in the state courts, op. cit. 401 U.S. at 43-44, 91 S.Ct. at 750, 27 L.Ed.2d at 675. Despite determining for itself that the federalism principles of Younger are applicable only to strictly criminal prosecutions, the court below proceeded to apply those two principles to the case at hand: “Thus, plaintiffs Duke and Haylon are subject to a wholesale abridgement of their rights to freedom of speech, press, assembly, and association, which inherently constitutes continuing irreparable injury. The damage suffered by plaintiffs is compounded by the fact that their current inability to communicate fully with their intended audience, North Texas State University students, results in reduced income which, of course, hinders further exercise of the whole range of First Amendment rights. The plaintiffs here are suffering ‘genuine and irretrievable damage.’ . And they are suffering this damage without any adequate remedy at law, as evidenced by the State district court’s refusal to consider the constitutional issues, until the course of the State’s judicial processes have run to conclusion.” 327 F.Supp. at 1234. Was the lower court correct in its application of Younger principles to the facts before it? We address that question. In issuing its temporary restraining order against Duke and Haylon, the state trial court was proceeding under the authority of Article 466a, Vernon’s Ann.Penal Code of Texas, which provides : Art. 466a. Acts calculated to produce injury or damage to property, person or life of another person; injunctive relief. Section 1. Every person who, at a time and place and under circumstances reasonably calculated to produce a clear and present and immediate threat or danger to the physical well-being, property or life of another, knowingly and willfully commits an act, or urges another to commit an act, so calculated and tending to produce injury or damage to the property, person or life of another person, shall be guilty of a misdemeanor punishable by a fine of not more than $2,000, or a jail sentence of not more than two (2) years, or by both such fine and jail sentence. See. 2. In all cases where such actions are threatened, the State by and through its County or District Attorney, may have injunctive relief as an additional sanction against all who are so threatening to commit such unlawful act or acts. Where such actions are threatened in, on, or against any state agency, or property thereof, the Attorney General may institute such proceedings. All such injunctive proceedings shall be in the name of the State of Texas and be guided by the rules of other injunction proceedings. No bond shall be required. Acts 1967, 60th Leg., p. 800, ch. 333, emerg. eff. June 3, 1967. (Emphasis added) Thus, even though the state court issued process which is normally denominated “civil,” that court was in fact granting a remedy which the legislature of Texas had provided as part of a comprehensive scheme for the enforcement of the Texas Penal Code. The fact that the Texas State court was proceeding under a statute which authorizes injunctive relief in aid of the enforcement of the state’s criminal laws brings this ease squarely within the teachings of this Court in Palaio v. McAuliffe, supra. Palaio dealt with the propriety of federal intervention in a Georgia injunctive proceeding which was a civil technique for enforcing Georgia’s criminal prohibition against the distribution of obscene materials. In affirming the denial of federal relief this Court stated that “ . . . when federal anticipatory relief will significantly affect a state’s enforcement — by whatever means — of its criminal laws, then such relief is barred by the strong policy of noninterference, unless the plaintiff can meet the heavy burden of proof that Younger imposes.” 466 F.2d at 1233. In issuing its permanent injunction against Duke and Haylon, to enforce Article 2919j, Vernon’s Ann.Civ.Stat. of Texas and the regulations of North Texas State University, the state trial court may have exceeded the authority conferred by Article 466a, Vernon’s Ann.Penal Code of Texas. But this does not alter our conclusion that the principles of Palaio required the plaintiffs-appellees here to meet the pre-conditions of Younger before being entitled to invoke the aid of a federal court. First, Article 2919j, Vernon’s Ann. Civ.Stat. of Texas, Section 2, note 5, supra, contains a criminal penalty for the violation of the entire statute as well as for the violation of any rule or regulation validly promulgated under the statute, and thus injunctive enforcement of that statute and rules and regulations promulgated thereunder also constitutes injunctive enforcement of state criminal law. Second, and of paramount importance, the state district court had already acquired jurisdiction over the controversy between the parties here by issuance of. its preliminary injunction under the authority of Article 466a, Vernon’s Ann. Penal Code of Texas, before any application was made to the federal district court. It is a time-tested rubric of our federalism that: “Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted ; and this rule applies alike in both civil and criminal cases.” Taylor v. Taintor, 1873, 16 Wall. (83 U.S.) 366, 370, 21 L.Ed. 287, 290. This principle is an integral part of the principles of federalism enunciated in Younger. Its application here dictates that since the state court acquired prior jurisdiction to enforce state criminal law by injunctive remedy, the nature of the state court’s jurisdiction should be viewed as of the time that jurisdiction was assumed. Since the initial and continuing jurisdiction of the state court was to enforce through injunctive relief the criminal laws of the State of Texas, Palaio, requires this Court to determine whether or not plaintiffs here overcame the heavy burdens imposed upon them by Younger — demonstrated irreparable injury and an inadequate remedy at law in the state courts. Younger v. Harris, supra, 401 U.S. at 43-44, 91 S.Ct. at 750, 27 L.Ed.2d at 675. As used in Younger, the concept of “irreparable injury” in the context of federal intervention in state proceedings is a term of art. First, the mere possibility that the state court order might tend to “chill” First Amendment rights is not in itself sufficient to justify federal intervention, Id. at 52-53, 91 S.Ct. at 754, 27 L.Ed.2d at 679-680. Second, Duke and Haylon were required only to assert their federal constitutional rights in a single state injunction proceeding, brought in apparent good faith, to enforce a facially constitutional state statute. As Younger emphasizes, “the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single prosecution.” Id. at 47, 91 S.Ct. at 751, 27 L.Ed.2d at 676-677. Finally, even in the area of First Amendment rights, special circumstances such as bad faith and harassment — circumstances such as those present in Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 — must be present before a federal court may intervene in an ongoing state proceeding. Younger v. Harris, supra, 401 U.S. at 49-51, 91 S.Ct. at 753-754, 27 L.Ed.2d at 678-679, cf. Cameron v. Johnson, 1968, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182. There is no showing on this record of bad faith, harassment, or any other special circumstances which would justify federal intervention in this case. We turn then to the adequacy of Duke and Haylon’s remedies in the courts of Texas. In Texas, a permanent injunction is appealable as a final order, Article 2249, Vernon’s Ann.Civ.Stat. of Texas, see 31 Tex.Jur.2d 326-327. Whatever may have been the impediment to appeal of the initial state temporary restraining order issued against Duke and Haylon, the state district court had issued a final appealable permanent injunction two months before the federal court here issued its order restraining the enforcement of the state court order. Thus, the federal court here intruded itself into the processes of state litigation at a time when an adequate appellate remedy was available in the state courts. Such intrusion was improper as disruptive to the delicate balance between federal and state courts implicit in traditional concepts of comity and federalism. As representative of the dominant partner in the necessary interplay between the two sovereigns, federal courts must be especially sensitive to this balance and assiduous in its preservation. These goals were disregarded in this case. The plaintiffs below made no effort to utilize orderly state court procedures before resort to the federal system. The refusal by the state trial court to consider Duke and Haylon’s federal constitutional claims, see note 4, supra, did not alter the duty to pursue state remedies. Mere errors or mistakes by the state trial court are not special circumstances which justify federal intervention, cf. Lynch v. Snepp, supra, 472 F.2d at 775-776. Other courts have indicated that failure to pursue state appellate remedies is a factor to be considered in refusing federal intervention in an ongoing state civil proceeding, Lynch v. Snepp, supra, 472 F.2d at 775-776; cf. Cousins v. Wigoda, supra, 463 F.2d at 607-608. A party may not invoke the aid of a federal court, alleging that his state remedies are inadequate, without having first tested the sufficiency of those remedies and having found them to be wanting. Stripped to its essentials the situation here is that the plaintiffs below invoked the jurisdiction of a United States district court to review the judgment of a state trial court. In Rooker v. Fidelity Trust Co., 1923, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362, the Supreme Court expressly disapproved any such practice “ — If the constitutional questions stated in the bill actually arose in the cause, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication. Elliott v. Peirsol, 1 Pet. 328, 340, 7 L.Ed. 164; Thompson v. Tolmie, 2 Pet. 157, 169, 7 L.Ed. 381; Voorhees v. Bank of United States, 10 Pet. 449, 474, 9 L.Ed. 490; Cornett v. Williams, 20 Wall. 226, 249, 22 L.Ed. 254; Ex parte Harding, 120 U.S. 782, 7 S.Ct. 780, 30 L.Ed. 824. Under the legislation of Congress, no court of the United States other than this court could entertain a proceeding to reverse or modify the judgment for errors of that character. Judicial Code, § 237, as amended September 6, 1916, c. 448, § 2, 39 Stat. 726. To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original.” 263 U.S. at 415-416, 44 S.Ct. at 150, 68 L.Ed. at 365. The way was open for Duke and Haylon to assert their federal claims through final decision by Texas courts and thereafter to seek review in the United States Supreme Court under the provisions of Title 28, U.S.C., Section 1257. The district court erred in not relegating them to this course. Cf. Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 1970, 398 U.S. 281, 296, 90 S.Ct. 1739, 1748, 26 L. Ed.2d 234, 246; Warriner v. Fink, 5 Cir. 1962, 307 F.2d 933, 936. CONCLUSION As required by the principles of equity, comity, and federalism enunciated by Younger v. Harris, supra, and applied by this Court to state injunctions in aid of state criminal statutes in Palaio v. MeAuliffe, supra, the court below should not have entertained this suit, but should have allowed the then active litigation to progress in orderly fashion through the state courts. The district court upon remand is directed to vacate its injunctive decree and dismiss the complaint. Reversed and remanded. GOLDBERG, Circuit Judge (specially concurring): I concur in the result for the following reasons. Plaintiffs have neither alleged nor proven that available state procedures were inadequate to vindicate their federal constitutional rights and to prevent those rights from suffering irreparable harm. Instead of seeking state court review of the state court’s injunction, and without alleging that state review would have been inadequate to prevent irreparable harm, plaintiffs did, in fact, as the majority points out, obtain in the federal district court what amounts to appellate review of the state court’s action. I do not read the majority’s opinion here, nor the opinion in Palaio v. McAuliffe, nor even the opinions in the Younger v. Harris cases, as prohibiting federal injunctive relief against state judicial proceedings where there is a showing that use of state procedures will be inadequate to protect federal rights, i.e., where irreparable harm would otherwise occur. Indeed, Mitchum v. Foster, decided after Younger v. Harris, expressly recognized the existence of such a remedy. Had these plaintiffs shown that the state procedures for review were inadequate to safeguard their rights, because of delay or for any other reason, I believe federal relief would clearly have been warranted on the facts of this case, and I do not read the majority as saying otherwise. The Younger v. Harris sextet requires at least some showing that if available state procedures are followed, irreparable harm will not be prevented. No such showing was made here. I have no doubt that the state injunction went far beyond the “chilling effect” present in Dombrowski v. Pfister and that First Amendment expressional freedoms were unquestionably frozen here. See Note, 50 Texas L.Rev. 170 (1971). I also have no doubt that a federal remedy would have been appropriate had plaintiffs shown that a thaw could not have been obtained in state court that would have adequately prevented irreparable First Amendment harm from occurring. If that result is not to obtain, the February sextet will have become an orchestra of oppressive proportions. The federal forum continues, as it must, to play a rightful role in the vindication of federal constitutional rights. The First Amendment is still audible, but before the extraordinary remedy of federal intervention in state court proceedings may be invoked, there must be a showing that the federal action is necessary to safeguard those rights. Because such a showing is totally lacking here, I concur in this reversal. . The order of the lower court is in part as follows: Having concluded that federal district courts do have the power to provide equitable and other proper relief, e. g. declaratory judgment, 28 U.S.C.A. §§ 2201-2202, Zwickler, supra [Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444], and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), to redress deprivations in violation of Section 1983 rights, I deem the following to be the appropriate responses to the plaintiffs’ various prayers for relief: (2) The temporary restraining order and the resulting contempt conviction of Mrs. Duke are declared to have been constitutionally invalid. (3) The university’s policies concerning outside speakers are declared to be violative of the First and Fourteenth Amendments. (4) Campus Security Regulation 3g and its source, Article 2919j, are declared to be unconstitutionally vague and overbroad. (5) It is declared that Article 466a was unlawfully and unconstitutionally applied to the plaintiffs in the circumstances of this case. (6) The enforcement by the State of Texas of the permanent injunction against plaintiffs Haylon and Duke, signed on March 26, 1971, by Judge Robert Scofield, is enjoined, from and after this date. It is so ORDERED. SIGNED and ENTERED this 26th day of May, 1971 ' /s/ Wm. Wayne Justice UNITED STATES DISTRICT JUDGE Again excluding contention (1). . The state district court Temporary Restraining Order provided in part: “ * * * it is therefore ORDERED, ADJUDGED and DECREED that defendants be and they are hereby restrained from: ' “(A) Coming onto any of the property owned and controlled by North Texas State University and from coming into any of the buildings or facilities on the campus of North Texas State University; (B) Obstructing the use, enjoyment, ingress or egress of the facilities and buildings of North Texas State University; (C) Committing assault or injuries upon any persons at any of the facilities or on any property of North Texas State University; (D) Damaging or injuring any property whatsoever of North Texas State University; (E) Urging other persons to commit an act calculated intending to produce injury or damage to property, person, or life of other people and insighting [sic] any person to participate in any riot or civil disturbance; (F) Participating in and insighting [sic] mob violence, rioting disturbance and urging other persons to participate in and incite violence, rioting ' and civil disturbance; (G) Disrupting the normal educational and social activity of North Texas State University or urging other persons to commit any act calculated intending to disrupt the normal educational and social activities of North Texas State University.” . Article 466a, Vernon’s Ann.Penal Code of Texas was upheld as constitutional on its face in Locke v. Vance, S.D.Tex.1969, 307 F.Supp 439 (three judge district court). Thus, there can be no suggestion here that the lower court was dealing with a flagrantly and patently unconstitutional statute, a situation which the . Supreme Court in Younger intimated might constitute an extraordinary circumstance justifying federal intervention without a preliminary showing of the bad faith and harassment necessary to constitute irreparable injury. 401 U.S. at 54-55, 91 S.Ct. at 755, 27 L.Ed.2d at 681. . The permanent injunction of the state district court provided in part: “ * * * and the Court being of the opinion that whereas constitutional questions could be raised on appeal and no emergency existed to necessitate a ruling by the Court on any constitutional question, the Court made no ruling relative thereto; and the Court finding that a permanent injunction should issue, the same is hereby issued, and “It is ORDERED, ADJUDGED and DECREED that the Defendants David Haylon and Betty Ann Duke, be, and they are each hereby permanently enjoined from, and that each of them shall desist from coming onto or remaining on any of the property owned and controlled by North Texas State University and from coming into any of the buildings or facilities on the campus of North Texas State University for the purpose of addressing student assemblies or for any purpose without first complying with university regulations . . .” . Article 2919j, Vernon’s Ann.Civ.Stat. of Texas, Repealed by Acts 1971, 62nd Leg., p. 3319, ch. 1024, art. 1, Sec. 3, eff. Sept. 1, 1971, provided in pertinent part: “Section 1. All of the general and criminal laws of the state are declared to be in full force and effect within the areas under the control and jurisdiction of the state institutions of higher education of this state. “Section 2. * * * Any person who violates any of the provisions of this Act or any rules or regulation of any governing board of any state institution of higher education of this state promulgated under the authority of this Act shall upon conviction thereof be punished by a fine of not more than $200. * * * * * “Section 4. It shall be unlawful for any person to trespass upon the grounds of any of the institutions of higher 'education of this state or to damage or deface any of the buildings, statutes, (sic), monuments, memorials, trees, shrubs, grasses or flowers on the grounds of any of the state institutions of higher education. * * * * * “Section 8. The judge of a municipal court or any justice of the peace of any city or county where property under the control and jurisdiction of state institutions of higher education of this state is located is each hereby separately vested with all jurisdiction necessary to hear and determine criminal cases involving violations hereof where the punishment does not exceed a fine of $200. “Section 9. The governing boards of the respective state institutions of higher education or their authorized representatives shall be vested with authority to refuse to allow persons having no legitimate business to enter upon any property under the control and jurisdiction of any state institution of higher education of this state and to eject any undesirable person from said property upon their refusal to leave peaceably upon request. Authority is given to require identification of any person upon the property of any of the state institutions of higher education. "Section 10. Notwithstanding any of the provisions of this Act, all officers commissioned by the governing boards of the respective state institutions of higher education of this state may be authorized and empowered by the respective board to enforce rules and regulations promulgated by the Board. Nothing herein is intended to limit or restrict the authority of each institution to promulgate and enforce appropriate rules and regulations for the. orderly conduct of the institution in carrying out its purposes and objectives or the right of separate jurisdiction relating to the conduct of its students and personnel.” . Texas maintains a distinction between the appealability of a temporary restraining order and the appealability of a preliminary injunction similar to that found in the federal system, compare 31 Tex.Jur. 2d 325-326, 340, with Title 28, U.S.C. Sec. 1292(a)(1). See further Wright, Law of Federal Courts, Second Edition, Section 102, p. 458; Smith v. Grady, 5 Cir. 1969, 411 F.2d 181; Connell v. Dulien Steel Products, 5 Cir. 1957, 240 F.2d 414. . We do not have here a case where federal plaintiffs, prior to bringing their federal action, have in fact exhausted orderly state court trial and appellate procedures and have been refused consideration of their federal constitutional claims. Nor, of course do we have a case where having voluntarily submitted federal constitutional claims to state courts, disappointed litigants seek to relitigate the constitutional issue in a federal court. See Brown v. Chastain, 5 Cir. 1969, 416 F.2d 1012, cert. denied 1970, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 134. . The briefs filed on behalf of the State of Texas state the problem as follows: “No effort was ever made by the complainants to seek any modification or review within the state court system. No appeal was taken. No application was made to the Texas Court of Civil Appeals or to the Texas Supreme Court to seek extraordinary relief. No application was made in the state trial court to try to obtain any alteration, clarification or expanded definitive ruling. " . . . . “It is significant to note again at this point that counsel for complainants made no effort to continue anything in Texas courts. Many further remedies, both legal and equitable, were still available in the trial court, the Texas Court of Civil Appeals (an intermediate appellate court with substantial equitable powers), and in the Texas Supreme Court (the court of last resort within the state and having broad equitable powers).” . 5 Cir. 1972, 466 F.2d 1230. The Palaio decision distinguished and did not question Hobbs v. Thompson, 5 Cir. 1971, 448 F.2d 456, where we stated that “exhaustion of state judicial remedies is not a prerequisite to the invocation of federal relief under section 1983 . . .” 448 F.2d at 461. The question in the instant case is not whether state remedies should have been exhausted as much as it is whether a federal injunction against state proceedings was necessary to protect federal rights. . The six companion cases were Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792. . See generally Fiss, Injunctions at 27-74. . 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705. Holding that 42 U.S.C. § 1983 is an “expressly authorized exception” to the Anti-Injunction Act, 28 U. S.C. § 2283, the Court stated: “The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law ‘whether that action be executive, legislative or judicial.’ Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676, 679. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a ‘suit in equity’ as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights. . . . ” 407 U.S. at 242, 92 S.Ct. at 2162, 32 L. Ed.2d at 717. . The Court in Younger v. Harris, supra note 3, reproduced the language in Dombrowski v. Pfister, infra note 8, that suggests that delay in obtaining appellate disposition may be a sufficient “extraordinary circumstance” justifying federal intervention to prevent irreparable harm: “But the allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.” 401 U.S. at 48-49, 91 S.Ct. at 753, quoting from Dombrowski v. Pfister, 380 U.S. at 485-486, 85 S.Ct. 1116. See also Sedler, infra note 9, at 40-42, 46-56. . Plaintiffs have not alleged or shown that they would encounter any delay whatsoever in obtaining state review of the state court’s injunction. . 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. . Much has already been written regarding the potential impact of the Younger v. Harris cases. See, e. g., Sedler, Dombrowski in the Wake of Younger: The View from Without and Within, 1972 Wisc.L.Rev. 1; Note, 40 Cincinnati L.Rev. 613 (1971); Comment, Federal Injunctive Relief: What Remains after Younger v. Harris?, 60 Ky.L.J. 216 (1971); Comment, Federal Injunctive Relief Against State Court Proceedings: From Young to Younger, 32 La.L.Rev. 601 (1972); Note, 25 U.Miami L.Rev. 506 (1971); Comment, 17 N.Y.L.F. 652 (1971); Note, 1972 Wisc.L.Rev. 257. Compare Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Texas L.Rev. 535 (1970), with Maraist, Federal Intervention in State Criminal Proceedings: Dombrowski, Younger, and Beyond, 50 Texas L.Rev. 1324 (1972). Compare Shevin, Federal Intrusion in State Court Proceedings, 1972 Utah L.Rev. 3, with Gilbert, Questions Unanswered by the February Sextet, 1972 Utah L.Rev. 14. See also Comment, Exceptions to the Anti-Injunction Statute, 21 Am.U.L.Rev. 395 (1972); Comment, Federal Courts: New Limitations on Injunctive Relief, 23 U.Fla.L.Rev. 416 (1971); Note, 18 Loyola L.Rev. 207 (1971); Comment, The Federal Anti-Injunction Statute, 8 Wake Forest L.Rev. 107 (1971); Comment, The Civil Rights Act of 1871 versus The Anti-Injunction Statute: The Need for a Federal Forum, 1971 Wash.U.L.Q. 625. . See generally Kennedy & Schoonover, Federal Declaratory & Injunctive Relief Under the Burger Court, 26 SW.L.J. 282 (1972); Note, Equity on the Campus: The Limits of Injunctive Regulation of University Protest, 80 Yale L.J. 987, 993-1027 (1971). See, also Note, Collateral Attack of Injunctions Restraining First Amendment Activity, 45 So.Cal.L.Rev. 1083 (1972).
f2d_477/html/0255-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MEHAFFY, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	BAUM ASSOCIATES, INC., a corporation, Appellee, v. SOCIETY BRAND HAT COMPANY, a corporation, Appellant. BAUM ASSOCIATES, INC., a corporation, Appellant, v. SOCIETY BRAND HAT COMPANY, a corporation, Appellee. Nos. 72-1253, 72-1256. United States Court of Appeals, Eighth Circuit. Submitted March 13,1973. Decided April 19, 1973. Rehearing Denied May 11, 1973. Richard S. Marx, Clayton, Mo., for Society Brand Hat Co. Charles Alan Seigel, St. Louis, Mo., for Baum Associates. Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and HEANEY, Circuit Judges. MEHAFFY, Circuit Judge. This is a diversity action by a New York corporation, Baum Associates, Inc., against a Missouri clothing manufacturer, Society Brand Hat Company, to recover commissions allegedly due plaintiff for the procurement of customers for defendant. In the district court defendant Society Brand argued that plaintiff’s claims for commissions (1) were barred by the statute of limitations ; (2) were barred by the statute of frauds; and (3) were excessive because they included commissions on an account not actually procured by the plaintiff. The trial court, with The Honorable H. Kenneth Wangelin presiding, heard the matter without a jury and rendered judgment in favor of plaintiff for most of the commissions sought in the complaint. Baum Associates, Inc. v. Society Brand Hat Co., 340 F.Supp. 1158 (E.D.Mo.1972). Defendant has appealed from the judgment in favor of plaintiff, and plaintiff has cross-appealed for recovery of that portion of the commissions not allowed by the district court. For the reasons stated below we affirm the judgment of the district court. The background facts of this case have already been reported in some detail in the district court’s opinion. We will therefore limit our discussion of the facts to a summary of the elements necessary to our decision. The issues presented in this appeal arise out of three separate contracts between plaintiff and defendant. The first contract is a formal written agreement in which plaintiff agreed to solicit McGregor-Doniger, Inc. as a customer for defendant and defendant agreed to pay plaintiff a 60?! commission for each dozen pair of trousers thereafter delivered by defendant to McGregor. The second contract is similar to the first, except that: (1) it involved the solicitation of Campus Sportswear, Inc.; (2) the commission agreed upon was 30^ per dozen; and (3) the agreement was not reduced to writing in a single formal document. The third contract is also similar to the first except that: (1) the contract dealt with the solicitation of Comus, Inc.; (2) the commission was 25?! per dozen; and (3) the contract was not reduced to a single written instrument. The findings of fact of the district court reflect that each of the three customers was solicited and procured by plaintiff for defendant. The trial court also found that defendant manufactured trousers for each of the customers and paid plaintiff commissions on the production until August 1963. On August 13, 1963, however, defendant wrote plaintiff a letter purporting to terminate all of their contracts. No further commissions were paid by defendant to plaintiff after this letter of termination. Plaintiff refused to accept defendant’s attempted termination and on April 2, 1970 filed this action. The first problem presented in this appeal is the selection and application of the appropriate statute of limitations. The parties agree that Missouri law is controlling but they disagree over which Missouri limitation should be applied. In its cross-appeal plaintiff argues that the ten year limitation for actions on written promises to pay, Rev.Stat.Mo. § 516.110(1) (1969), V.A.M.S., should be used. Defendant contends that the five year statute, Rev.Stat.Mo. § 516.120(1) (1969), Y.A.M.S., is applicable. We agree with the district court and the defendant that the five year statute should be applied. The pleadings in the trial court and on appeal clearly indicate that plaintiff’s cause of action is not one upon a written promise to pay as contemplated in the ten year statute. See Martin v. Potashnick, 358 Mo. 833, 217 S.W.2d 379 (1949). Having determined that the five year limitation is controlling, a more difficult problem arises in the application of the statute. Defendant argues that the contracts in dispute were contracts in perpetuity and therefore were terminable at will, or at least after a reasonable time. Superior Concrete Accessories v. Kemper, 284 S.W.2d 482 (Mo.1955). Given this terminability, defendant contends that plaintiff’s cause of action (if it had any) accrued as of the August 13, 1963 letter of termination and was barred five years thereafter. The district court agreed that the defendant was entitled to terminate the contracts at will insofar as they authorized plaintiff to solicit new customers or to service existing accounts for defendant. The court also held, however, that the defendant could not terminate at will the plaintiff’s right to receive a continuing commission on the accounts it had already procured for defendant so long as the defendant enjoyed the ongoing benefit of those accounts. Based upon this reasoning the court held that defendant’s August 13, 1963 letter had no effect on plaintiff’s rights to future commissions on the three disputed accounts and, applying Rev.Stat.Mo. § 516.100 (1969), V.A.M.S., computed the period of limitations on each commission installment from the date the individual installment became due. The result of the district court’s holding was to allow the plaintiff recovery of all commission installments that accrued after April 2, 1965. We agree with the district court’s application of the statute of limitations. We recognize that Missouri, like most other jurisdictions, generally refuses to enforce an obligation in perpetuity. E. g., Superior Concrete Accessories v. Kemper, supra; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (1940). Three considerations, however, persuade us that this general rule is not applicable in the ease before us. First, as a practical matter, the general policy is not violated herd since the parties have agreed that plaintiff will not claim any commissions beyond the date of the filing of the complaint. Second, contractual relationships between businessmen are not abstract matters that are to be judged without reference to the customs and usages of the industry. Although we have found no Missouri cases dealing with textile contract brokerage agreements, other courts, when faced with such questions, have realistically measured the agreements of the parties in light of industry practices and the relative positions of the parties. In this case defendant Society Brand was heavily dependent upon government contracts and was anxiously seeking some means to enter the private od civilian market. Mr. Baum, on the other hand, was a man with several decades of experience in the clothing industry. It is clear that Baum’s efforts in effecting the shift for Society Brand from the government market to the private market was a very valuable service which defendant could not afford to purchase other than on a long-term commission basis. In light of these practical considerations we do not feel that this case is an appropriate one for an automatic application of the general rule against enforcing obligations in perpetuity. Compare, e. g., Zupan v. Blumberg, 2 N.Y.2d 547, 161 N.Y.S.2d 428, 141 N.E.2d 819 (1957), with Annot., 19 A.L.R. 3d 196 (1968). Third, this case falls squarely within the purview of at least two of the rules by which Missouri has qualified its general policy against any enforcement of an obligation in perpetuity. The first rule is that where a contract has been fully performed by one party it cannot be terminated by the other. Union Pac. R. R. v. Kansas City Trans. Co., 401 S.W.2d 528, 534 (Mo.App.1966). In the case before us it is undisputed that plaintiff was only obligated to procure the named account for defendant in order to receive the commissions from that account. The parties agree that plaintiff’s efforts in servicing the accounts after they were procured were relatively minor; and the language of the contracts makes it clear that such efforts were not a condition precedent to plaintiff’s rights to commissions. The second manner in which Missouri has qualified its policy against enforcement of obligations in perpetuity is by construing the agreement with respect to duration in light of the surrounding circumstances and by reasonable construction of the agreement as a whole. Union Pac. R. R. v. Kansas City Trans. Co., supra, at 534. As we have noted above, the parties have stipulated that no commissions will be claimed by plaintiff beyond April 2, 1970. This stipulation obviated the necessity of examining the contracts to see if some period of duration short of perpetuity could reasonably be inferred. We note parenthetically, however, that both the personal nature of the services involved here and the general customs of the clothing industry seem to suggest strongly one or more potential periods of duration short of perpetuity. The last two issues presented in this appeal are basically fact questions and can be dealt with summarily. First defendant argues that the statute of frauds bars recovery of the commissions because none of the writings set forth commission rates for the accounts that would be applicable for the full term of the contracts. We recognize that the Missouri statute of frauds provides that price is an essential element of the writing or writings that make up the contract. E. g., Byers v. Zuspan, 241 Mo.App. 1103, 264 S.W.2d 944 (1954). From a review of the record, however, we are satisfied that price was expressed in the various writings comprising the contracts. We do not agree with defendant that price was left open to be negotiated on each order or reorder. Admittedly the commission rate did vary from time to time, but these variances were also in writing and mutually agreed to by all parties. While the Missouri statute of frauds may require the contract price to be in writing, the statute does not prohibit subsequent written modifications of the price by mutual consent of the parties. The final issue presented in this appeal is whether or not plaintiff actually procured the Comus account and therefore is entitled to commissions on it. The district court specifically addressed this same factual question at the trial level and found that defendant’s argument was built upon a scheme to deprive plaintiff of the commissions it had hitherto received on the Comus account. We have reviewed the record and are convinced that the district court’s conclusion in this regard was supported by substantial evidence. We find also that the other determinative issues in this case present basically factual matters grounded on substantial evidence which is as it should be binding on a court of review. The judgment of the district court is affirmed. . Baum Associates, Inc. is the successor in interest to the original contracting party Baum Mfg. Company. Defendant has challenged the status of Baum Associates as not being the real party in interest. We find this issue frivolous and dismiss defendant’s argument in this regard on the basis of the district court’s opinion. . Society Brand Hat Company is the successor in interest to the original contracting party Apparelcraft, Inc. . “AGREEMENT “Apparelcraft, Inc. agrees to employ Baum Manufacturing Corp. to procure contracts for the manufacture of trousers from McGregor-Doniger, Inc. and its affiliates and/or Brook Mfg. Company of Old Forge, Pa. “Apparelcraft, Inc. agrees to pay Baum Manufacturing Corp. five (50) per pair of trousers on all contracts, orders or reorders procured by either Baum Manufacturing Corp. or Apparelcraft, Inc. from the above two firms and delivered by Appareleraft. “Payment to be due and payable within 10 days after receipt of payment by the customer. Copies of all invoices are to be furnished to Baum Manufacturing Corp. “Baum Manufacturing Corp. will devote only such time as they deem necessary to procure and service business from the above two firms.”
f2d_477/html/0260-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "J. JOSEPH SMITH, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	NATIONAL LABOR RELATIONS BOARD, Petitioner, and New York Telephone Company, Intervenor, v. LOCAL UNION NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent. No. 528, Docket 72-1921. United States Court of Appeals, Second Circuit. Argued March 19, 1973. Decided April 10, 1973. Rehearing Denied June 13, 1973. Edward N. Bomsey, Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Atty., NLRB, Washington, D. C., of counsel), for petitioner. Saul G. Kramer, New York City (Proskauer, Rose, Goetz & Mendelsohn, Edward Silver, Charles R. Held, G. Wallace Bates and William P. Witman, New York Telephone Company, New York City, of counsel), for intervenor. Norman Rothfeld, New York City (Harold Stern, New York City, of counsel) , for respondent. Before SMITH, FEINBERG and MANSFIELD, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: The National Labor Relations Board has petitioned for enforcement of an order against Local Union # 3, International Brotherhood of Electrical Workers, (the “Union”) to cease and desist from violations of the secondary boycott provisions of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (i) and (ii)(B). The Board’s decision, adopting the findings, conclusions, and order of the Trial Examiner, appears at 197 NLRB No. 59, 80 LRRM 1630 (1972). We find substantial evidence in the record to support the order, and enforce. The underlying facts are not in dispute. New York Telephone Company (“Telco”) has for many years subcontracted the jobs of installing telephone wire and cables and fastening certain iron work and terminals in buildings under construction or major alteration to independent contractors. Telco contracted with L. K. Comstock and Co. (“Comstock”), Lord Electric Co. (“Lord”), and J. Livingston and Co. (“Livingston”) to do such work on a number of Manhattan jobsites. The employees of these contractors were represented by Local # 3. Under the usual procedure, the material used by the contractor was delivered to the jobsite by Telco employees, who unloaded it from the trucks. The Local #3 members then would transfer the material to the point of use, and install it. In July of 1971, Telco employees, represented by the Communications Workers of America (“CWA”), went out on strike. Consequently, Telco management personnel were assigned the delivery jobs outlined above. At least during the period prior to August 31, 1971, these deliveries were accepted by the contractors’ employees and installed, although there were apparently one or two instances in which Union members refused to accept or place the materials. On August 31, a luncheon meeting took place between Thomas Van Arsdale, the Union business manager, Peter J. McCall, a Telco representative, Anthony Salerno, Comstock’s telephone superintendent, and John Fenley, Lord’s general superintendent. The instances of non-acceptance of Telco deliveries were discussed. There was a conflict of testimony as to whether Van Arsdale stated that Union members had been instructed not to accept such deliveries, or whether he merely said that such actions were individual acts of conscience on the part of Local # 3 members. The Trial Examiner found it unnecessary to rely upon what was said at the meeting, and did not resolve the dispute. Telco then contracted with independent truckers to deliver the materials to the jobsites; several such deliveries were accepted. On about September 7, however, a telephone conversation took place between Fenley and McCall. McCall was told that Fenley and Salerno had met with Van Arsdale, who informed them that the new delivery arrangement might also lead to difficulties. Again, it was a matter of dispute —which the Trial Examiner did not find it necessary to resolve — whether Van Arsdale stated that Union members had been instructed to refuse deliveries, or whether he simply reported the possibility. On September 9, Local # 3 held its regular monthly membership meeting. In the course of his business report, Van Arsdale discussed the Telco situation, and told the membership that it was his view that when Telco management or independent truckers delivered materials to jobsites, they were acting as strikebreakers. He further stated that “if we were . . to be true to the trade union principles, that there . . . would be no basis for men working under those circumstances.” Van Arsdale emphasized, however, that this was his personal view and that others would have to make up their own minds. Van Arsdale had also made these views known in a number of individual discussions with Local # 3 members. On September 10, a meeting took place between McCall and Van Arsdale. McCall told Van Arsdale that Telco was taking a serious view of any refusals to accept deliveries, and might either bring court action or eliminate the subcontracting system entirely, leaving the installation work to be done by Telco employees. McCall testified that Van Arsdale “said he was sorry but they had taken a Trade Union stand that they could not be in a position of aiding or abetting strike breakers; that he considered such work, such material, deliveries to be strike breaking.” At about the same time, a number of interruptions began to occur on Manhattan projects. On September 9, employees of Comstock on a job at 94th and Park Avenue, and employees of Lord at a job on Madison Avenue, refused to install wire and cable. On September 10, a Livingston foreman, a member of Local # 3, refused to do a job at One Liberty Plaza involving deliveries by management personnel. On the same day, Livingston employees at 1409 Broadway refused to accept deliveries from “strikebreakers.” On September 17, Livingston electricians at 919 Third Avenue refused to install material delivered by Telco personnel. On September 21, Telco filed unfair labor practice charges against the Union. Pursuant to § 10(l) of the Act, 29 U.S.C. § 160(l), the Board’s Regional Director sought a temporary restraining order against the Union’s work interruptions. Such an order was issued by the District Court for the Southern District of New York on October 20, 1971. F.Supp., 80 LRRM 2436. On October 22, Comstock employees refused to install material at the 450 Park Avenue and 94th and Park Avenue jobsites. The District Court then granted a preliminary injunction on October 28, 1971. F.Supp., 80 LRRM 2557. On December 29, 1971, the District Court found the Union in civil contempt and directed it to purge itself. 337 F.Supp. 31 (S.D.N.Y.1971). I. Inter alia, § 8(b)(4) of the National Labor Relations Act makes it an unfair labor practice for a union “(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged m commerce or in an industry affecting commerce, where in either case an object thereof is— * * * * * * (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person. . . .” The overriding purpose of these secondary boycott provisions is to protect “unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Building Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). See also NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). Here, it is clear that Local # 3 members employed by neutral contractors refused to deliver or install materials delivered by other than striking Tel-co workers. The real question is one of fact — did the Union “induce or encourage” such refusals? And, it is a settled principle that this court should accept those findings of fact made by the Board which are supported by substantial evidence, even if we might have reached a different conclusion ourselves. See, e. g., Bedding, Curtain and Drapery Workers Union, Local 140 v. NLRB, 390 F.2d 495, 499-500 (2d Cir. 1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2056, 20 L.Ed.2d 1363 (1968). The Union contends that Van Arsdale’s statements at the September 9 meeting represented only his own personal views, that Union members were explicitly told that they had to make up their own minds, and that no “inducement or encouragement” under § 8(b)(4) could therefore have taken place. But, we have been told by the Supreme Court that “The words ‘induce or encourage’ are broad enough to include in them every form of influence and persuasion.” International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694, 701-702, 71 S.Ct. 954, 958, 95 L.Ed. 1299 (1951). Or, in the more colorful words of Judge Goldsborough, “If a nod or a wink or a code was used in place of the word ‘strike,’ there was just as much a strike called as if the word ‘strike’ had been used.” United States v. United Mine Workers, 77 F.Supp. 563, 566 (D.D.C.1948), aff’d, 85 U.S.App.D.C. 149, 177 F.2d 29, cert. denied, 338 U.S. 871, 70 S.Ct. 140, 94 L. Ed. 535 (1949). There was substantial evidence in the record from which the Board could conclude that Van Arsdale’s remarks constituted the inducement or encouragement prohibited by § 8(b)(4)(i) (B). Van Arsdale was the business manager of the Union, solely responsible for results in the field, who stated at an official meeting that his interpretation of trade union principles required the refusal to handle Telco deliveries. Soon following were a number of such refusals. While it may have been theoretically possible for a Union member to view Van Arsdale’s statements as solely personal, and not the official position of the Union, the exercise is difficult at best. Indeed, Van Arsdale himself seems to have recognized this, for after stating that he had made his views known to individual members on several occasions, the following colloquy occurred : “Q. Mr. Van Arsdale, focusing on the period between August 31st and October 19th — that’s the period prior to the injunction, did you express your views to the members of Local 3 concerning whether they should or should not do the work? Not the local’s views, but yours ? A. How do you distinguish between the local’s views and my views ?” The Board was entitled to find that when Van Arsdale chose the official meeting to make his personal views known, he was “encouraging or inducing” action thereupon, even if the final choice were explicitly left up to Union members. This finding is corroborated by the fact that Union members who refused to handle Telco deliveries were not disciplined, despite the availability of sanctions in both the International Constitution and the Local Bylaws for those causing unauthorized work stoppages. See NLRB v. Local Union # 3, IBEW, 467 F.2d 1158, 1160 (2d Cir. 1972); Local Union # 25, IBEW, 162 NLRB 703, 719-720 (1967), enforced, 396 F.2d 591 (2d Cir. 1968); Local Union # 3, IBEW, 140 NLRB 729, 740 (1963), enforced, 325 F.2d 561 (2d Cir. 1963). The facially equivocal nature of Van Arsdale’s statements cannot in itself preclude the finding of a § 8(b)(4)(i)(B) violation. In NLRB v. Local 294, International Brotherhood of Teamsters, 298 F.2d 105, 106-107 (2d Cir. 1961), we held that a union’s requests for “cooperation” from firms and their employees dealing with a struck trucking concern amounted to a § 8(b) violation. We noted that given the circumstances at hand, such a request was tantamount to encouragement of a secondary boycott. Surely the Board could have found the same here. Similarly, in Truck Drivers and Helpers Local Union #728 v. NLRB, 332 F.2d 693 (5th Cir.), cert. denied, 379 U.S. 913, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964), such statements by a union president as “I can’t tell you anything. You do as you please. You don’t have to handle no scab freight,” and comments by stewards that they would not handle the disputed freight, but that others should make up their own minds were found to constitute § 8(b) inducement. See also NLRB v. District Council of Painters # 48, 340 F.2d 107 (9th Cir.), cert. denied, 381 U. S. 914, 85 S.Ct. 1539, 14 L.Ed.2d 435 (1965) (§ 8(b)(4) violation premised on statements by union representative that struck manufacturers’ materials were “unfair”). Nor does the Trial Examiner’s finding that Van Arsdale had no actual intent to induce or encourage the work stoppages take the statements outside of § 8(b)(4). It is enough that such inducement was the natural consequence of his statements; the Board’s finding that work stoppages actually occurred as a result of the statements makes the proof of actual intent unnecessary. See NLRB v. Local 459, IUE, 228 F.2d 553, 560 (2d Cir. 1955), cert. denied, 351 U. S. 962, 76 S.Ct. 1025, 100 L.Ed. 1483 (1956). II. The Union argues that even if Van Arsdale’s statements are assumed to be “inducement or encouragement,” a number of factors preclude the finding of § 8(b)(4) violations here. First the Union contends that the statements fall within the scope of § 8(c) of the Act, 29 U.S.C. § 158(c), which provides: “(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” Alternatively, the Union argues that if § 8(b)(4) does reach the statements made by Van Arsdale here, it is unconstitutional because of its prohibition against pure speech. Whatever merit these contentions might have in the abstract, they are disposed of by the Supreme Court’s decision in IBEW v. NLRB, supra, 341 U.S. at 703-705, 71 S.Ct. 954. There, the Court held § 8(c) did not protect § 8(b)(4) inducements or encouragements, reasoning that such a construction would gut the effectiveness of the secondary boycott provisions. The Court directly rejected the position, urged by the Union here, that only those inducements and encouragements that amount to a “threat of reprisal or force or promise of benefit” fall within § 8(b)(4), holding instead that § 8(b)(4) reaches every form of influence and persuasion. Id. at 701-702, 71 S.Ct. at 959. The same case also disposes of any First Amendment objections to § 8(b)(4), noting that “prohibition of inducement or encouragement of secondary pressure . . . carries no unconstitutional abridgement of free speech.” Id. at 705, 71 S.Ct. at 960. And, while the Union is correct in noting that the inducement in the Supreme Court case involved picketing and not the “pure speech” presented here, that is a distinction without a difference. The Court noted that: “The remedial function of § 8(c) is to protect noncoercive speech by employer and labor organization alike in furtherance of a lawful object. It serves that purpose adequately without extending its protection to speech or picketing in furtherance of unfair labor practices such as are defined in § 8(b) (4).” (Emphasis added) Id. at 704, 71 S.Ct. at 960. It is thus clear that the Court which rejected First Amendment objections to § 8(b)(4) had “speech” as well as “picketing” inducements in mind. The Union next contends that, in view of the fact that the refusals to accept deliveries were few in absolute number and did not totally halt work on any project, no § 8(b)(4)(i) or (ii)(B) “cessation of business object” was shown. The argument is without merit. The Supreme Court has made it clear that the subsection (B) “cease doing business” requirement may be satisfied by something less than a total halting of operations by the neutral employer. NLRB v. Local 825, Operating Engineers, supra, 400 U.S. at 304-305, 91 S.Ct. 402. Bearing in mind that the issue of what was the object of any inducement or coercion is a factual question, see Bedding, Curtain and Drapery Workers Local 140 v. NLRB, supra, 390 F.2d at 499-500, we are unable to conclude that the Union’s goal here was “so limited” or “the foreseeable consequences of its secondary pressure so slight,” as to foreclose subsection (B) liability. NLRB v. Local 825, supra, 400 U.S. at 305, 91 S.Ct. at 407. See, e. g., NLRB v. Local 830, International Brotherhood of Teamsters, 281 F.2d 319 (3d Cir. 1960) (eight instances of refusals to handle out of thousands of sales sufficient to uphold board findings). Cf. NLRB v. Local 802, Musicians, 226 F.2d 900, 904-905 (2d Cir. 1955) (even unsuccessful attempts at inducement within purview of secondary boycott provisions.) Similarly, the stoppages were neither so isolated nor de minimis in scope so as to give us ground to disturb the Board’s findings of a § 8(b) (4)(ii) threat, coercion, or restraint. We have held in a case involving many of the same parties that a work stoppage alone (a number of which clearly occurred here) may constitute a § 8(b)(4)(ii) threat. NLRB v. Local # 3, IBEW, 325 F.2d 561, 562 (2d Cir. 1963). See also, NLRB v. Highway Truckdrivers & Helpers, Local No. 107, 300 F.2d 317 (3d Cir. 1962) (refusals to handle shipments found to constitute § 8(b)(4)(ii) threats.) Next, the Union argues that since the purpose of the secondary boycott provisions is to protect neutral employers from entanglement in labor disputes not their own, no § 8(b)(4) violation can be found in this case where Tel-co, not the contractors, was the charging party. We disagree. While § 8(b)(4) may be fairly characterized as a protection of neutral employers, Congress has nowhere indicated that charges must be initiated by the third party employer. Indeed, it is the neutral employer, subjected to secondary pressure by the offending union, who may most often be unwilling to go to the NLRB. As the Supreme Court has noted in another context, a “proceeding by the Board is not to adjudicate private rights but to effectuate a public policy.” NLRB v. Marine Workers, 391 U.S. 418, 424, 88 S.Ct. 1717, 1721, 20 L.Ed.2d 706 (1968). Telco was neither a stranger to the conflict here, nor clearly without the “zone of interests” the National Labor Relations Act is designed to serve. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). And, because enforcement of the Act depends “upon the initiative of individual persons,” Nash v. Florida Industrial Commission, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438 (1967), the Supreme Court has reminded us that “there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances.” NLRB v. Marine Workers, supra, 391 U.S. at 424, 88 S.Ct. at 1722. In the absence of any authority to the contrary, we think it would be against this policy of private initiative and free access to impose a restrictive requirement of standing to complain in § 8(b)(4) proceedings. Cf. Bedding, Curtain and Drapery Workers, Local 140 v. NLRB, supra, 390 F.2d at 498 (charging party was primary employer, not neutral employer). III. In a final attempt to avoid the application of § 8(b)(4), the Union seeks to invoke two exceptions to the statutory ' coverage: the “struck work” doctrine and the § 8(b)(4) proviso. For the reasons outlined below, neither defense is applicable here. The “struck work” doctrine recognizes as a primary dispute, and thus without § 8(b)(4), the refusal of union members to do work, even at the site of a secondary employer, “which would otherwise be done by the striking employees of the primary employer.” NLRB v. Local 459, IUE, supra, 228 F.2d at 559. The Union argues that the Board had, previous to the work stoppages here, ordered Local # 3 not to contest Telco’s right to assign installation work to its own employees (Communications Workers of America) and that the Union was complying with the order. See 193 NLRB No. 116, 78 LRRM 1374 (1971) and 197 NLRB No. 137, 80 LRRM 1816 (1972). Thus, had it not been for the CWA strike, the Union argues, the installation work here would have been done by CWA members. Hence, the work is viewed as struck work, and § 8(b) inapplicable. This argument fails for several reasons. First, the NLRB orders about giving installation work to CWA employees are by their own terms limited to projects in Queens. 193 NLRB No. 116 at n. 11, 78 LRRM at 1376 n. 11; 197 NLRB No. 137, 80 LRRM at 1816. There is simply no indication in either NLRB decision that the Manhattan installation work was to be given to CWA members, and thus it is impossible to view Local # 3 employees as doing work that but for the strike, CWA workers would have done. Secondly, even if we assume arguendo that the installation work here might someday be assigned to CWA workers, the “struck work doctrine” remains inapplicable. It is clear from Judge Lumbard’s opinion in NLRB v. Local 459, supra, that the doctrine allows union members to refuse to act as “strike-breakers,” or put another way, refuses to treat as a secondary boycott the refusal to accept the “farmed-out work of a struck employer.” 228 F.2d at 558. Here, the installation work done by Local # 3 members was performed by them for many years before the CWA strike, continued to be performed by them during the strike, and for all the record indicates, appears to have been still performed by them after the end of the strike. This is hardly the situation the “struck-work” doctrine was aimed at — Local # 3 members were clearly not being asked to act as strikebreakers in September and October of 1971. The § 8(b)(4) proviso reads: “Provided, That nothing contained in this subsection [(b)] shall be construed to make unlawful a refusal by any person to enter upon the premises of aijy employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under [the Act].” Thus, for the proviso to be applicable here, the Local # 3 members must be considered as refusing to enter Telco premises when they engaged in the work stoppages. Such a characterization of the Union actions is absurd. It stretches credulity to call the construction projects here Telco premises; indeed, a rational analysis would seem to show that the construction sites were precisely the premises “of his own employer” that are without the proviso. But even if we accept arguendo the shaky “premises” premise, the Union cannot seriously contend that its members “refused to enter” the construction sites. The Union itself recognizes this when it argues that the refusals to handle Telco materials, which were clearly made by workers at the job-sites, did not result in any real cessation of work. Whatever the merits of that contention — which we rejected as an attempt to avoid the subsection (B) “cessation of business object” requirement above — it is obvious that the Union could not even begin to so argue had the Local # 3 members refused to enter the construction sites. To read “refuse to enter” as “refuse to work” or “refuse to handle” would constitute a gross judicial rewriting of the proviso, which is designed to protect workers who refuse to cross primary picket lines at the premises of another employer, a situation clearly not present here. Cf. Truck Drivers Union Local No. 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, 543 (D.C.Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964). IV. Finally, the Union argues that the Board’s order is overly broad, since it prohibits the Union from engaging in prohibited conduct not only with respect to Telco and the contractors involved here, but with respect to “any other employer or person.” While the order is broad, it is well settled that the Board has wide discretion in fashioning remedies. See, e. g., International Association of Machinists v. NLRB, 311 U.S. 72, 82, 61 S.Ct. 83, 85 L.Ed. 50 (1940). In view of the long history of secondary pressures brought by Local # 3 against Telco, see NLRB v. Local # 3, supra, 467 F.2d 1158; NLRB v. Local # 3, 339 F.2d 145 (2d Cir. 1964); NLRB v. Local # 3, supra, 325 F.2d 561, and the fact that the Union has already been found in contempt of court for continuation of its secondary activities here, a broad order was an appropriate exercise of the Board’s discretion. IBEW v. NLRB, supra, 341 U.S. at 706, 71 S.Ct. 954, 95 L.Ed. 1299. Enforced. . Fenley was also a vice-president of Local Union # 3. . Even if we were to view Telco and the contractors as temporarily sharing a common situs at the jobsites, the holding of Grain Elevator, Flour & Feed Mill Workers, ILA, Local 418 v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d 774 (1967) would still make % 8(b)(4) applicable in the absence of on-site picketing by the primary union (CWA).
f2d_477/html/0269-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "TUTTLE, Circuit Judge: SIMPSON, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	Ernest Jackson COTTLE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant. No. 72-1673. United States Court of Appeals, Fifth Circuit. April 23, 1973. Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Ásst. Atty. Gen., Tallahassee, Fla., for respondent-appellant. Morton A. Kesler, Jacksonville, Fla., court appointed, for petitioner-appellee. Before TUTTLE, WISDOM and SIMPSON, Circuit Judges. TUTTLE, Circuit Judge: Ernest Jackson Cottle, appellee herein, was convicted of robbery in the Duval County Criminal Court of Record and on September 14, 1956, was sentenced to serve a term of twelve years in the state penitentiary. He was released on parole on November 28, 1961, and thereafter conducted himself in a manner which the Florida Parole Commission found unobjectionable until April 29,' 1968 when he was convicted in the Recorder’s Court of New Hanover, North- Carolina for public drunkenness. The court imposed the maximum penalty of twenty days for a first such offense, but suspended sentence. On June 12, 1968 Cottle was again convicted in the Recorder’s Court for the same offense and this time he received a twenty day jail sentence pursuant to a North Carolina statute which provides for as much as six months’ imprisonment for a second such offense committed within a year after the first. Insofar as appears from the record, Cottle was not represented by counsel, nor was he advised of any right to appointed counsel, at either of these North Carolina trials. On August 2, 1968 the Florida Parole Commission, in view of the North Carolina convictions, conducted a hearing to determine whether Cottle’s parole should be revoked. With respect to such hearings the state of Florida has provided by statute that: “As soon as practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission in person, and if he desires he may be represented by counsel, and a hearing shall be had at which the state and the parolee may introduce such evidence as they may deem necessary and pertinent to the charge of parole violation.” F.S. § 947.23, F.S.A. (Emphasis supplied). Although thereby permitted to be represented by counsel, Cottle, who was indigent, appeared before the Commission without the benefit of counsel and testified in his own behalf. He denied having committed the parole violations with which he had been charged. The Commission, however, formally revoked his parole, retroactive to July 6, 1968, by order of revocation dated August 6, 1968. Having exhausted his state remedies, Cottle brought this petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. He alleged, first, that the fail-, ure of the state to appoint counsel to represent him at his parole hearing constituted a denial of equal protection, and, second, that parole revocation could not properly be based on the two North Carolina convictions which, he asserted, were procured in violation of his constitutional right to counsel. The district court, 338 F.Supp. 819, upon resolution of the factual issues, concluded that Cottle’s claims were meritorious. The court released Cottle on his own recognizance and ordered that at any subsequent parole revocation hearing Cottle should be afforded the services of counsel and that at such hearing, if any, the judgments of conviction from the North Carolina trials could not be considered by the Parole Commission as evidence (although the underlying facts might be proved by independent evidence). The state of Florida, in behalf of the director of the Florida Division of Corrections, appeals from that judgment. We affirm in part and reverse in part. We consider first whether the Equal Protection Clause of the Fourteenth Amendment to the Constitution requires that the state of Florida appoint counsel for indigent parolees unable themselves to retain counsel to rep^ resent them at parole revocation hearings. This question, of course, arises specifically within the framework of Florida’s legislative scheme pertaining to parole revocation, which, among other things, provides that a parolee, if he desires, “may be represented by counsel” at his parole revocation hearing. We are of the view that inasmuch as such assistance is, by statute, available to those who can afford it, it should likewise be available to those who cannot. In this context we need not undertake to reflect upon the question whether the state of Florida would be obliged, as a matter of due process, to provide for representation by counsel at parole revocation hearings. The Supreme Court has recently had occasion to consider whether the requirements of due process apply to parole revocation proceedings and while it concluded that certain minimal procedures were constitutionally mandated, it did not “reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1971). Nor do we. However, though we reserve decision as to whether the state might be required to provide for representation by counsel at parole revocation hearings, we think nonetheless that, once having provided for retained counsel, the state cannot constitutionally deny the same opportunity to indigents. This conclusion simply restates a well-established principle of constitutional jurisprudence. In Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1955), for instance, the Supreme Court held that a state with an appellate system which made available trial transcripts to those who could afford them was constitutionally required to provide “means of affording adequate and effective appellate review to indigent defendants.” The Court noted, “It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. [citation omitted] . But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” 351 U.S. at 18, 76 S.Ct. at 590. Although this decision arose in a fairly limited context, its fundament is not so limited and has been held to apply to representation by counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962): Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1962). As the Court said in Douglas, “[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf,” while the indigent is left to shift for himself. 372 U.S. at 358, 83 S.Ct. at 817. We note that the Court of Appeals for the Tenth Circuit in Earnest v. Willingham, 406 F.2d 681 (CA 10, 1969) has directly addressed the question which confronts us here and has concluded as we have. In that case the issue was whether the federal parole board, which as an administrative mater permitted the retention of counsel for parole revocation hearings, could refuse to appoint counsel for indigents. The court said, “To pose the question is to answer it for Griffin and its progeny have made it clear beyond doubt that where liberty is at stake a State may not grant to one even a non-constitutional statutory right such as here involved and deny it to another because of poverty.” 406 F.2d at 683-684. While absolute equality between rich and poor is not required by the Constitution, we think that indigent parolees at least are entitled to as adequate a parole revocation hearing as those who have means, and in this respect representation by counsel is likely to be of substantial importance to the poor as well as the rich. The very fact that the Florida legislature has seen fit to permit representation by counsel, at least to non-indigents, we think attests to its efficacy. We agree with the court’s conelusion in Earnest v. Willingham, supra, that “a revocation hearing is no ‘perfunctory formality.’ Nor can it be said that the assistance of counsel at such a revocation hearing is an empty ritual. It may very well spell the difference between revocation and forgiveness.” 406 F.2d at 684. Such valuable service ought not be denied a parolee simply because he is poor. We turn, then, to the second issue raised on this appeal, to wit, whether the Florida Parole Commission, at any subsequent hearing, may consider, as a basis for revocation, the two convictions against Cottle for public drunkenness. To an extent this issue turns on whether or not the recent Supreme Court decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1971), pertaining to the right to counsel in misdemeanor cases, is to be applied retroactively. We conclude that Argersinger is fully retroactive, but that only the second of Cottle’s two convictions falls within its scope and must be excluded from the Parole Commission’s consideration. The Court held in Argersinger that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U.S. at 37, 92 S.Ct. at 2012. Though the Court did not specify whether the decision was to be applied retroactively, the issue not being before it, there are several factors which argue in favor of such application. The starting point is Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), which sets forth three criteria for guiding resolution of the question whether a newly-announced rule of criminal procedure is to be applied retroactively. These are: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” 388 U.S. at 297, 87 S.Ct. at 1970. However, as the Court recently noted in Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1971), “We have given complete retroactive effect to the new rule, regardless of good faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the ‘major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials . . .’ Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971).” Given as an example was the right to counsel at trial established by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Gideon, of course, was held to be fully retroactive by the Court without opinion. See, e. g., Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 81, 11 L.Ed.2d 41, 1963. And, we are unable to perceive any difference in principle between the necessity for counsel at a felony trial and the necessity for counsel at a criminal trial for a lesser offense. As the Court said in Argersinger, “The requirement of counsel may well be necessary for a fair trial even in a petty offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.” 407 U.S. at 33, 92 S.Ct. at 2010. The Court went on to say that the sheer volume of misdemeanor cases “may create an obsession for speedy dispositions, regardless of the fairness of the result,” 407 U.S. at 34, 92 S.Ct. at 2011, and quoted from a study which concluded that “misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.” American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970). We conclude, therefore, that the lack of counsel at a trial for a petty offense or misdemeanor so affects the integrity of the fact-finding process as to require that Argersinger be afforded retrospective application. On that basis it is unnecessary for us, under the reasoning expressed in Williams v. United States, supra, and reaffirmed in Adams v. Illinois, supra, to consider the remaining two prongs of the Stovall test. Notwithstanding this, however, we think, first, that reliance by law enforcement authorities on any rule contrary to that announced in Argersinger should not, in the wake of Gideon, have been very great, and second, that the effect on the administration of justice of a retroactive application of Argersinger will be minimal. As to reliance, we note that the handwriting of Argersinger was on the wall when Gideon was decided in 1962. Although the Court in Gideon dealt with a felony trial, it did not so limit the need of the accused for legal assistance. The Court said: “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 372 U.S. at 344, 83 S.Ct. at 796. Thus, the Court in Argersinger concluded that the rationale of Gideon “has relevance to any criminal trial, where an accused is deprived of his liberty.” 407 U.S. at 32, 92 S.Ct. at 2010. As to the impact of our decision on the administration of justice we feel that the issue is likely to arise only in cases such as this one, e.g., in the context of parole or probation revocation, or in related situations such as that described in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971). With regard to the great bulk of misdemeanor convictions invalidated by retroactive application of the Argersinger rule any issue pertaining thereto will, almost by definition, be moot. Having concluded that Argersinger has retrospective application, we turn finally to the issue raised with respect to the use by the Florida Parole Commission of Cottle’s two North Carolina convictions in a subsequent parole revocation proceeding, if any. Perhaps needless to say, one’s parole cannot be revoked solely on the basis of prior invalid convictions. See State ex rel. Roberts v. Cochran, 140 So.2d 597 (Fla., 1962); Clay v. Wainwright supra n. 9. Thus, the issue here turns on whether either or both of Cottle’s North Carolina convictions were invalid as having been procured in violation of Cottle’s right to counsel under the Argersinger rule. As we have previously indicated, the district court held that neither of Cottle’s two convictions could be considered as evidence by the Parole Commission in a subsequent parole revocation hearing. We are of the view, however, that only the second of Cottle’s two convictions must be excluded from the Commission’s consideration. It is noted that as to the first of Cottle’s convictions, on April 29, 1968, Cottle received a 20 day suspended sentence, but there is nothing in the record to show that Cottle was imprisoned for this conviction. If that is so, then the rule in Argersinger does not apply. The Court in Argersinger made it clear that “no person may be imprisoned . . . unless he was represented by counsel.” 407 U.S. at 37, 92 S.Ct. at 2012 (Emphasis added). Thus, the court concluded, “The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.” at 40, 92 S.Ct. at 2014. (Emphasis added). Inasmuch as Cottle, for all that appears, was not deprived of his liberty when he was convicted the first time of public drunkenness, the conviction is not tainted by reason of the fact that he was not afforded counsel to represent him. However, as to his second conviction, which did in fact result in imprisonment, Cottle was constitutionally entitled to counsel, and, none having been provided, that conviction is invalid and may not be considered by the Parol Commission in any future proceeding to revoke Cottle’s parole. The judgment of the district court is affirmed in part, and reversed in part and remanded to the district court for proceedings in accordance with this opinion. SIMPSON, Circuit Judge (concurring in part in the result, and dissenting in part): Appellee Cottle was released from prison by the State, of Florida on parole. He had not completed his parole when he was convicted for public drunkenness in North Carolina in April and June of 1968. In view of these North Carolina convictions, the Florida Parole Commission conducted a hearing and decided to revoke Cottle’s parole. The majority concludes (1) that Florida denied Cottle his Fourteenth Amendment right to equal protection of the law because Fla. Stat. 947.23, F.S.A., permits a parolee with means to be represented by counsel at a parole revocation hearing but does not provide counsel for indigent parolees, like Cottle unable to afford to employ counsel, citing Griffin v. Illinois, 1955, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899, and Earnest v. Willingham, 10 Cir. 1969, 406 F.2d 681; and (2) that the second North Carolina conviction was unconstitutionally obtained because it violated Cottle’s Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, right to counsel, which the majority holds to be fully retroactive in its application, and, therefore, should not be considered by the Parole Commission in any proceeding to revoke Cottle’s parole. I concur in the result reached that Cottle was unconstitutionally denied counsel at his parole revocation hearing before the Florida Parole Commission, but upon different reasoning than that employed by the majority. I respectfully dissent from the majority holding that on this record the second North Carolina conviction was unconstitutionally obtained. That question is not properly in this case as I read the record before us. I. In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the Supreme Court found that the termination of parole would inflict a “grievous loss” on the parolee and, therefore, the process of termination must be accompanied with some form of procedural due process. Morrissey required that the revocation hearing provide the parolee with . . . an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest tlie violation does not warrant revocation. 408 U.S. at 488, 92 S.Ct. at 2603, 33 L.Ed.2d at 498. To achieve those ends, it held that the parolee must be accorded (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. The Court, however, specifically did not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent. 408 U.S. at 489, 92 S.Ct. at 2604, 33 L. Ed.2d at 499. I would decide the question the Supreme Court left unanswered in Morrissey and conclude that without the assistance of counsel the guarantees provided by Morrissey are of little practical benefit to the prisoner who, particularly the indigent, is often ineffectual, if not incapable, in organizing and presenting the information which should be put before the parole board. Although the parole revocation hearing lacks many of the intricacies of a criminal prosecution, the lawyer’s training and skill are peculiarly tailored to effectively analyze and introduce evidentiary matter bearing on the occurrence or non-occurrence, as well as the significance, of past events, conduct the examination and cross-examination of witnesses, and reveal the mitigating circumstances and subtleties not immediately obvious to anyone but the trained lawyer. Specht v. Patterson, 1967, 386 U.S. 605, 87 S.Ct. 1209, 18 L. Ed.2d 326; United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1087, 1088, vacated as moot, 404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159. Due process is an adequate and more logical ground than the equal protection argument advanced by the majority, but I agree that Cottle on one ground or the other, perhaps both, was entitled to counsel to assist him at his parole revocation hearing before the Florida Parole Commission. II. In Argersinger v. Hamlin, supra, the Supreme Court held that . . . no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. 407 U.S. at 37, 92 S.Ct. at 2012, 32 L. Ed.2d at 538. Since only the second North Carolina conviction for public drunkenness involved incarceration, it is only that conviction, as the majority recognizes, which can arguably involve Argersinger. The majority opinion adopts uncritically the finding of the district judge that Cottle “was not represented at the [North Carolina] trials . . ., solely because of his indigency” and notes that neither below nor here did the state of Florida contest this finding. Supra, Note 2, page 2. The court proceeds from this basis to apply Argersinger retroactively and holds that Cottle was denied counsel because of indigency in the second North Carolina conviction and that this conviction was improperly used against Cottle in his subsequent parole revocation hearing. The district court held no evidentiary hearing. The only facts before it were those developed at the parole revocation hearing. That record wholly fails to show that Cottle was unable to employ counsel during the North Carolina proceedings. To the contrary, he told the Florida Parole Board that he had been receiving a monthly disability income of $100. As to the second North Carolina offense he stated that he planned to live in Wilmington, North Carolina, and did not want to create “any problems” with the arresting policeman whom he felt had been abusing him. “So that’s the reason that I got mixed up in this little affair of saying that I was drunk or public drunk, which this officer — I don’t want to have any trouble because I knew I was going to be living in Wilmington and I didn’t want to get him fired, for that simple reason I didn’t get me a lawyer that morning and get out of all of it. It only costed me about 50 — 50 or 60 dollars, it done the whole job but I didn’t — I didn’t want to do that.” This statement by Cottle himself indicates to me that he could afford counsel at the time of the second North Carolina proceeding. It certainly does not demonstrate indigency. His statement that “it costed” 50 or 60 dollars may refer to the going price for an attorney, or it may refer to the amount that could be expected to be imposed as a fine. He served the 20 days sentence imposed, perhaps to be free from any problems with the officer, but on the basis of his testimony not because he was unable to afford counsel. Cottle’s reason for not retaining counsel was given by him: “ . . .1 didn’t want to have any trouble because I knew I was going to be living in Wilmington and I didn’t want to get him fired, for that simple reason I didn’t get me a lawyer that morning and get out of all of it.” The district judge held no hearing. His finding that Cottle “was not represented . . . solely because of his indigency” was picked up from the brief filed before him by Cottle’s court-appointed attorney. It had no basis in the parole revocation record, the only evidentiary record made in this, case to date. Since Cottle’s lack of counsel at the second North Carolina trial was not shown to be caused by or even connected with indigency, the majority’s holding that Argersinger rights of Cottle were there violated, however sound it may be legally, is totally lacking in factual underpinning. On this record, the question should not be reached. With deference, I dissent from the majority’s holding in this respect. . The statute provides: “If any person shall be found drunk or intoxicated in any public place, he shall be guilty of a misdemeanor and upon conviction or plea of guilty shall be punished by a fine ... or by imprisonment for not more than 20 days in the county jail. Upon conviction for any subsequent offense under this section within a 12-month period he shall be punished by a fine or by imprisonment for not more than 20 days in the county jail or by commitment to the custody of the Commissioner of Correction for an indeterminate sentence of not less than 30 days and not more than six months.” § 14-335, General Statutes of North Carolina. . The trial court found that Cottle “was not represented at the trials . . . , solely because of his indigency.” Neither in the trial court nor here did the state of Florida contest this finding. . In the Notice of Hearing on Parole Violation Cottle was charged with having violated the conditions of his parole in the following respects: “Violated Condition 8 of your Certificate of Parole by failing to live and remain at liberty without violating the law:; in that on April 29, 1968, in the Recorder’s Court of New Hanover County, North Carolina, you received a 20 day suspended sentence for Public Drunk. “Also, on June 12, 1968, in the same court you received a 20 day sentence in the County Prison farm for Drunk, thereby violating Condition 4 which states in part, T will not use intoxicants of any kind to excess.’ ” . The order states that Cottle had violated his parole in the manner described in the Notice of Hearing, supra, n. 3. . The court found that although Cottle had waived the right to an attorney at his revocation hearing, both orally and in writing, such waiver was meaningless inasmuch as Cottle could not in any event have hired an attorney to represent him. The court held that “petitioner waived nothing other than the right to retain private counsel and of the loss of this right he does not complain, since it was worthless to him.” That finding is not here disputed. Moreover, the record is clear that Cottle was not told that he could have counsel appointed for him. . The precise question has apparently not been decided in this circuit. In Shaw v. Henderson, 430 F.2d 1116 (CA 5, 1970), we held that the Sixth Amendment right to counsel and the rationale behind Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), did not apply to a probation revocation hearing where sentencing did not occur during such proceeding. This decision was followed in Woods v. Texas, 440 F.2d 1347 (CA 5, 1971), a case involving parole revocation. However, the ratio decidendi of both of these cases was that the revocation hearings involved were not “criminal proceedings” as the term is constitutionally understood and that, as a consequence, the Sixth Amendment right to counsel did not attach. But see United States v. Bright, 471 F.2d 723 (5th Cir. 1973). Of course, these decisions do not answer the question whether counsel would be required as a matter of due process under the Fifth Amendment. For an opinion tracing the judicial decisions pro and con on the due process issue, see United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (CA 2, 1971). . It cannot be gainsaid that to the parolee faced with possible revocation a great deal is at stake. As the Court said in Morrissey v. Brewer, supra, “. . . the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. . . . By whatever name the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.” 408 U.S. at 482, 92 S.Ct. at 2601. No better example of the importance of the revocation hearing can be imagined than the facts of the case before us. After serving five years in confinement on a 12 year sentence Cottle was released in 1961 on parole. At the time he was arrested on a revocation warrant in July, 1968, for two “drunk” convictions he had less than two months to finish his entire sentence. By the order of revocation he was recommitted to the state penitentiary to serve out the seven years that remained after his 1961 release on parole. . The state argues that to require representation by appointed counsel would unduly slow the administrative processes of the parole system. The short answer to this contention is that if the state is willing to take the time for hearings where retained counsel are permitted to appear, it cannot object to the time consumed in hearings with appointed counsel. . In our recent case, Clay v. Wainwright, 470 F.2d 478 (5th Cir. 1972), we dealt with a somewhat similar question. Clay had had a probationary sentence revoked because he had five convictions of minor offenses in Florida. On account of indigency he had no counsel in the five cases. We concluded that it was not necessary to reach the retroactivity of question then because it had been the law, in this circuit before any of Olay’s convictions that the accused in such a case was constitutionally entitled to aid of counsel. Harvey v. Miss., 5 Cir. 1965, 340 F.2d 263, 271. Here, however, we find no authority for holding that such was the law in the Fourth Circuit. Therefore, we must squarely face the issue. . At a subsequent hearing, of course, Cottle could introduce evidence to refute this assumption, which, if proved, would provide a valid basis for excluding from the Commission’s consideration the fact of his first conviction. . It is noted that at Cottle’s initial parole revocation hearing, the Commission relied on this second conviction, not as evidencing a violation of the law, but as proving a violation of Condition 4 of Cottle’s Certificate of Parole which states “I will not use intoxicants of any kind to excess.” However, there was no evidence before the Commission other than the fact of conviction for public drunkenness to substantiate this conclusion. Since the second conviction was invalid, the Commission, at any future hearing, would have to have evidence independent of the conviction itself in order to make such a finding.
f2d_477/html/0278-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "GEWIN, Circuit Judge: JOHN R. BROWN, Chief Judge, \n CLARK, Circuit Judge, TUTTLE, Circuit Judge, PER CURIAM: TUTTLE, Circuit Judge,", "license": "Public Domain", "url": "https://static.case.law/" }	Robert J. SCARPA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Walter Dunbar, Chairman, et al., Respondents-Appellees. No. 71-1602. United States Court of Appeals, Fifth Circuit. April 2, 1973. Rehearing Denied May 25, 1973. John R. Brown, Chief Judge, concurred and filed opinion. Clark, Circuit Judge, concurred and filed opinion in which Simpson, Circuit Judge, concurred. Tuttle, Circuit Judge, dissented and filed opinion in which Wisdom, Goldberg and Godbold, Circuit Judges, joined. Tuttle, Wisdom, and Goldberg, JJ., also dissented from the denial of the petition for rehearing. Professor Donald Wilkes, Jr., University of Georgia School of Law, Athens, Ga., Professor Issac B. Covington, III, University of Georgia School of Law, Athens, Ga., for petitioner-appellant. John W. Stokes, U. S. Atty., Richard H. Still, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees. Before JOHN R. BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges. GEWIN, Circuit Judge: After affording careful and respectful consideration to the views expressed in the majority panel’s disposition of the instant ease, this court acting en banc reverses the decision of the panel. The district court’s judgment dismissing appellant’s complaint is therefore affirmed. In view of the statement of facts contained in the majority and dissenting panel opinions it is necessary to set forth only brief facts in this opinion. On April 7, 1968, Scarpa entered a plea of guilty in the United States District Court for the Eastern District of New York to one count of a four count indictment, charging him with forging endorsements and uttering stolen United States Savings Bonds in violation of 18 U.S.C. § 495. The trial court imposed the maximum sentence of eight years, however, pursuant to 18 U.S.C. § 4208(a) (2), the judgment provided that Scarpa would be eligible for parole at any time after his incarceration. At the time of his federal conviction, appellant was confined in a New York state prison serving a sentence for attempted robbery and attempted grand larceny. Having completed his state sentence, Scarpa commenced serving his sentence in the United States Penitentiary in Atlanta on July 8, 1969. Approximately three months later, on October 13, 1969, he received his initial hearing before a commissioner of the United States Board of Parole (hereinafter the Board). The Board, after considering the application, denied parole. He subsequently instituted the present action for declaratory relief. He based his claim for relief on the internal procedures and practices of the Board which he asserted denied him due process of law. He further urged that the Board did not follow the applicable regulations which govern its internal procedures because it did not fully investigate all the information he submitted in his application for parole. The district court denied relief without a hearing. Recognizing the importance of “a full, fair hearing and consideration prior to a parole decision,” the court concluded that Scarpa’s complaint did not reveal such deprivations. Additionally, the court held that it was not improper for the Board to place controlling emphasis on Scarpa’s previous criminal record in denying parole. Ultimately, the district court’s judgment was reversed by a divided panel of this court. Assuming, as we must, that the allegations in Scarpa’s complaint are true, the precise issue presented by this appeal is whether he has stated a cause of action upon which a federal court may grant relief. A peripheral issue, and one which is necessarily intertwined with his factual allegations, is whether the ingredients of procedural due process sought by Scarpa are necessary to bring the Board’s procedures within minimal constitutional standards. Before reviewing the precise issues of the instant appeal, we feel that a brief review of the applicable law in this area is helpful. The Board is an independent statutory agency which is granted broad discretionary powers in parole eligibility determinations. We have previously held that: By the language of Title 18 U.S.C.A. § 4203, the Board of Parole is given absolute discretion in matters of parole. The courts are without power to grant a parole or to determine judicially eligibility for parole. United States v. Frederick, 405 F.2d 129 (3d Cir. 1968). Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of the application for parole or to review the credibility of reports and information received by the Board in making its determination. The decision whether to grant parole is a very complicated one. Many factors are necessarily involved in such determinations. The Board’s final determination may be based on any or all of the following: (1) length and seriousness of prior criminal record; (2) family history; (3) marital situation; (4) vocational and professional skills; (5) education; (6) physical condition; (7) living habits in a free community; (8) behavior and progress while incarcerated. The Board possesses the expertise and experience for ascertaining which factors are determinative from the unique situation presented by each applicant. Scarpa alleges that the Board placed undue emphasis on his prior criminal convictions in denying him parole. Additionally he asserts that it did not investigate his marital situation or the job opportunities which would be available if granted parole. Two underlying criteria guide the Board in its decision-making process. First, whether there is a reasonable possibility that the prospective parolee will remain at liberty without violating the law, and second, will such release be compatible with the welfare of society. Parole is an integral part of the rehabilitative process for convicted felons. One’s propensity for criminal conduct is surely a strong indicator in deciding whether parole should be granted. The weight to be given Scar-pa’s criminal history is solely within the province of the Board’s broad discretion in determining parole eligibility. It is not the function of the court to second-guess the outcome of such proceedings or what factors went into- their formulation. We see no reason why the Board should be forced to make a full scale investigation of all the supportive facts used by the prisoner in applying for parole. The Board operates under a tremendous work load. For example in the instant case, even assuming that Scarpa had a stable family and guaranteed employment, it was not unreasonable for the Board to base their ultimate decision denying Scarpa’s parole on his extensive past criminal record. Scarpa’s constitutional challenge is likewise without merit. The specific standards for procedural due process depend upon a “complexity of factors.” The standards of due process may expand or contract depending on the particular governmental activity involved. However, we discern a distinct and controlling difference between a Board eligibility hearing and the cases relied upon by Scarpa to support his constitutional attack. All of the authorities cited by Scarpa concern instances where the government seeks to take action which would presumptively deprive one of goods, rights, or privileges which he already possesses. Each case mandates a hearing before governmental action is initiated which might cause a deprivation. The emerging and underlying principle is clear; once a cognizable benefit is conferred or received, governmental action must not be employed to deprive or infringe upon that right without some form of prior hearing. We are unaware, however, of any authority for the proposition that the full panoply of due process protections attaches every time the government takes some action which confers a new status on the individual or denies a request for a different status. Whether the Board grants parole is a clearly distinguishable exercise of discretion from revoking one’s conditional freedom. The fifth amendment commands that the government shall not deprive one of his life, liberty or property without due process of law. Scarpa is a convicted felon currently incarcerated in prison for his past transgressions. This manifest deprivation of liberty is the result of a due process hearing. The sentencing judge mandated a possible confinement of eight years. Scarpa now attempts to equate the possibility of conditional freedom with the right to conditional freedom. We find such logic unacceptable. If the Board refuses to grant parole, Scarpa has suffered no deprivations. He continues the sentence originally imposed by the court. He does not allege that the Board’s actions were arbitrary, fraudulent, unlawful or without reason, but only that it did not fully investigate his case. We have previously discussed the weakness of this allegation. The courts have repeatedly rejected Scarpa’s contentions. These decisions are based on the realization that the granting of parole is not an adversary proceeding. The Board’s position in this regard was adequately stated in Hyser v. Reed, by Judge (now Chief Justice) Burger: . At this stage the contact between prisoner and Board includes none of the incidents or procedural safeguards which attend a criminal trial because the Board, at this stage, must evaluate the prisoner’s record as a whole to determine whether he is a good risk for parole . Due process rights do not attach at such proceedings. In the absence of evidence of flagrant, unwarranted, or unauthorized action by the Board, it is not the function of the courts to review such proceedings. In sum, we find that Scarpa’s complaint construed liberally both in its factual allegations and constitutional assertions, to be without merit. The procedures adopted by the Board are not manifestly unfair but only evidence an intent to evoke a reasoned determination of whether to grant parole. It may be that Congress in its legislative wisdom will see fit to adopt the procedures here urged, but this we refuse to do by judicial fiat based on some theory of justification through constitutional compulsion. If legislation is adopted, the enactment will very likely set forth appropriate guidelines and standards of judicial review. The judgment of the district court is affirmed. JOHN R. BROWN, Chief Judge, concurring : Although I had entertained a view requiring reversal, I now join in an affirmance largely on the basis of the factors emphasized in Judge Clark’s concurrence. To it I would add that the whole complaint reflected that petitioner was demanding that within about three months of his arrival at the Federal prison, the parole authorities had to make all of the investigations and determinations which might, on Judge Tuttle’s analysis, later be required. The complaint, read with the rosy Conley glasses, asserted that it was an abuse of administrative discretion not to set all these wheels then and there in motion. I think, on the other hand, the District Court was entitled to say that any genuine realistic plan for rehabilitation of a prisoner, whose record included the character of convictions here, should require that the prisoner at least be around for some observation, study and evaluation by prison authorities. Indeed that is the objective behind a § 4208(a) (2) indeterminative sentence. It is easy to say that some character of factual hearing must be had to determine whether these conclusory allegations are supportable. But to apply mechanically procedural rules appropriate to an ordinary damage suit to the situation of prisoner parole problems imperils the parole structure and its beneficent aims. With unrestricted access to the nearest Federal Court and the ease with which denial of broad constitutional claims can be asserted, the prison-parole authorities might have to answer almost daily the complaints of numberless prisoners dissatisfied with the progress or lack of progress with their current requests. Federal Courts must, of course, be open to prisoners. But unless access to a Court is to become an illusion from the judicial system being powerless to act from the sheer volume of such claims, we must be certain when importuned to interfere that the complaint realistically read shows arbitrary action constituting abuse of administrative discretion. The complaint here fails to meet that test. CLARK, Circuit Judge, with whom SIMPSON, Circuit Judge, joins, concurring: The en banc majority does not disagree with Judge Tuttle’s dissenting observation that parole hearings provided to prisoners must comply with the regulations promulgated by the Board, nor does the majority disagree with the Conley v. Gibson principle that the petitioner’s complaint, which stands unchallenged in this dismissal proceeding, governs the application of the law to this case. The difference between the two views is basically factual and to me reconciliation lies in what the whole complaint asserted. A reading of the extensive quotations from Scarpa’s pleading which asserted the fact background of his case (see the original panel opinion in this case, 468 F.2d 31) makes it crystal clear that the Board had before it not just Scarpa’s criminal record, but also a great deal of other information provided by Scarpa in his application for parole and by the Board’s investigative forces. Without reservation, I concur in Judge Gewin’s opinion for the en banc court. TUTTLE, Circuit Judge, with whom WISDOM, GOLDBERG and GODBOLD, Circuit Judges, join, dissenting: With deference, I dissent from the opinion and the judgment of the court. Also, with deference, I must say that I think the difference between the result reached by the majority and that which I believe to be correct arises from a failure of the majority opinion to meet the issues actually raised by Scarpa’s complaint. Since the opinion of the court recognizes, as, of course, it must, that the allegations of Scarpa’s complaint are to be taken as true, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hargrave v. McKinney (5th Cir.) 413 F.2d 320, it seems that there should be little difficulty in stating the issues simply by reading the petition in light of any legal principles that may touch on the rights of an applicant for parole. I regret my inability, in spite of every effort to do so, clearly enough to state the issues in the original opinion written for the court. The result is that the present majority opinion contains several critical statements dealing with Scar-pa’s allegations which I think inadequately state his contentions. (1) The first statement which I think inadequately states the true situation (especially because of Scarpa’s primary contention that the Board acted solely on his record of convictions and did not consider his record while at Sing Sing) is the following: “Having completed his state sentence” (emphasis added). This may or may not be technically a correct statement, but it fails to state that he was paroled from his state sentence in New York. (2) The second impression given by the language of the majority opinion which I think misses the principal basis of Scarpa’s attack is the following: “He further urged that the Board did not follow the applicable regulations which govern its internal procedures because it did not fully investigate all the information he submitted in his application for parole” (emphasis added). Scarpa’s whole case, on the other hand, was based on his contention that the Board did not investigate any of the information submitted by him at all. This is reiterated in his allegations that the Board “predicated their denial of parole with nothing before them except reports from various sources belonging to the Federal Government, solely pertaining to the criminal history of plaintiff”. (3) The third statement that, with deference, it seems to me, misses the real point is this statement in the opinion : “The [trial] court held that it was not improper for the Board to place controlling emphasis on Scarpa’s previous criminal record in denying parole”. What seems to me to be faulty about this statement is that it implies that the trial court was dealing with a record that disclosed a Board proceeding in which several factors (such as those mentioned in the majority opinion) were considered by the Board and the Board then placed “controlling” emphasis on Scarpa’s criminal record. To the contrary, according to the complaint, “the consideration afforded the plaintiff for possible release was predicated solely upon plaintiff’s past criminal record” (emphasis in original). (4) The fourth statement which I think indicates a failure of the court to come to grips with the real issue is the following: “Scarpa alleges that the Board placed undue emphasis on his prior criminal convictions in denying him parole”. Of course, it is true that Scarpa, in different words, alleged that the Board placed undue emphasis on his prior criminal convictions, but the truth is he alleged a lot more — so much more, in fact, that it completely changes the entire issue. He alleges that the Board placed exclusive, sole reliance on his past criminal record — this is quite a different allegation from the one stated in the majority opinion, even though it can be said to be included within the language used by the majority opinion. I would, of course, agree that it is not the court’s province to re-weigh the evidence or re-place the emphasis. The question is whether the Board can fail even to consider anything except the criminal record, and then deny the parole on that alone. (5) Finally, in discussing Scarpa’s constitutional arguments, the majority opinion says: “He does not allege that the Board’s actions were arbitrary, fraudulent, unlawful or without reason, but only that it did not fully investigate his case” (emphasis added). It is difficult to understand the statement that Scarpa did not allege that the Board’s actions were “unlawful” when the short statement of fact at the beginning of the majority opinion says: “He based his claim for relief on the internal procedures and practices of the Board which he asserted, denied him due process of law" (emphasis added). With deference, I would think that an allegation that he had been denied due process would fit within the definition of “unlawful” no matter how narrowly the majority of the court means to use that word. Moreover, while this pro se petitioner did not use the precise word “arbitrary” I would think that the clear statement that the Board failed to carry out its own prescribed procedures would be a sufficient allegation of “arbitrary” action. Then, as to the concluding clause, “but only that it did not fully investigate his case,” I have already pointed out how this is a clearly inadequate statement of Scarpa’s contention. He says that the Board did not truly investigate his case at all, other than reviewing the criminal reports. In sum, I think the issue posed by the majority is not the issue which Scarpa sought to raise at all. I think the issue is whether, when a defendant is given a maximum sentence coupled with the right to have consideration for parole at any time, all as provided under the indeterminate sentence procedures of 18 U. S.C.A. § 4208(a)(2), see footnote 2, majority opinion supra, and he is given a hearing before a parole examiner, the courts have any power to hear a complaint that he has been denied a hearing and will continue to be denied a hearing at which anything will be considered other than his past criminal record. What is most disturbing to me here is that the court affirms a dismissal of this case by a trial court on the bare bones pleadings. The Board filed no denial of the charge that it violated its own regulations in conducting the hearing. It did not deny the allegations that it considered solely the criminal reports. Yet the trial court in granting a motion to dismiss made a factual finding “though the court supports a full, fair hearing and consideration prior to parole decision it cannot say on the facts of this case that petitioner was denied due process”. The court then found facts that appear nowhere in the record. The court merely recited what the regulations require. See 28 C.F.R. § 2.15. What is required by the regulations is precisely what Scarpa alleges did not occur and there is no contradiction — except in the government’s brief. Nevertheless, the trial court made a finding that they did occur. There is nothing to be gained by repeating what was said in the original opinion, Scarpa v. United States Board of Parole et al., 468 F.2d 81, 5th Cir. (1972) as to the danger and cost of judicial time resulting from dismissal under F.R.Civ.P. 12(b), for failure to state a claim, especially where new and possibly constitutional questions are at issue. Byers v. Byers, 254 F.2d 205, 5th Cir. (1958), Public Affairs Associates, Inc. v. Richover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). The vice of the order appealed from is that it appears (and the majority now approves this result) to have laid down broad prohibitions to prisoner complaints about the fairness of a very important part of our system of criminal justice without a record by which the true facts have been developed. It is no answer to say that “the Board of Parole is given absolute discretion in matters of parole,” Tarlton v. Clark, 441 F.2d 384, 385, 5th Cir. (1971). Of course, courts cannot reverse a denial of parole, nor order parole granted, but I suggest that no member of this court would hesitate a second to join in court action invalidating either a regulation, by the Board or a proceeding by it if it were acknowledged that its action was a result of a policy or regulation to the effect that no consideration for parole would be given to any particular class of prisoners or to any person convicted of a particular crime. Such a course of action would be so obviously arbitrary and an abuse of discretion that it would be stopped in a moment. So much, then, for the “absolute discretion” proposition. In point of fact the majority opinion itself does not seem to me to stand on that basis. It stands rather on the proposition that what Scarpa says happened to him (although as I have pointed out above, I think the opinion does not adequately describe what Scarpa says happened) and what he says will continue to happen to him does not raise an issue of abuse of discretion or due process. To the contrary, I think the petition alleges a clear case of abuse of discretion and failure to follow the regulations of the Board itself such as to require that further proceedings be pursued in order to resolve the truth or falsity of Scarpa’s complaint. Moreover, I think the recent thrust of Supreme Court opinions may well indicate that arbitrary and unfair procedures of the Parole Board are subject to court review because of want of due process. See in this connection Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) where the Court in a revocation of parole case said that “parole has become an integral part of the penological system.” The Court also said: “society has a further interest in treating the parolee with a basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” 408 U.S. 471, 484, 92 S.Ct. 2593, 2602. Is not the same reasoning applicable to the manner in which parole applications are to be treated? Cf. Goldberg v. Kelly, 397 U. S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. The distinction drawn by the majority between a hearing to revoke parole and a hearing to grant parole is, of course, a valid one. However, the fact that there is a distinction is still a far cry from saying that while a revocation hearing is subject to due process requirements Morrissey v. Brewer, supra, a parole hearing itself can be conducted in absolute disregard of all due process requirements. The Court in Morrissey said: “Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 [71 S.Ct. 624, 646, 95 L.Ed. 817] (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263 [90 S.Ct. 1011, 1018, 25 L.Ed.2d 287] (1970). The question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972). Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. ‘ [Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” 408 U.S. 471, 481, 92 S.Ct. 2593, 2600. The facts have not been developed in this case. I am convinced that if they are as alleged by Scarpa, then he is entitled to relief. As was stated in the original opinion in the case, I think it inappropriate to attempt to prescribe precisely what relief might be available to him until all of the facts are known. At the very least it seems to me the government should be required to admit or deny the factual allegations in Scarpa’s complaint. Further proceedings would then depend upon the issues drawn. I think the judgment of the trial court should be reversed, as stated in the original opinion and the case remanded for further proceedings as here outlined. ON PETITION FOR REHEARING Before BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RO-NEY, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby DENIED. TUTTLE, Circuit Judge, with whom WISDOM and GOLDBERG, Circuit Judges, join, dissenting: With deference, I dissent from the denial of the petition for re-hearing for the grounds heretofore stated in my dissenting opinion. . See Scarpa v. United States Board of Parole et al., 468 F.2d 31 (5th Cir. 1972). On June 28, 1972, a majority of this court ordered this case to be reheard en banc Id. at 43. . 18 U.S.C. 4208(a)(2) provides: [T]he court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine. . Compare with 18 U.S.C. § 4202 which restricts the Board’s authority to release only after one third of the sentence imposed has been served. . See, Brief for Appellant at 5 (filed May 27, 1971); Appellant’s Amended Reargument of Appeal at Exhibit T (filed January 17, 1972); Appellee’s Supplemental Brief at 2 (filed July 31, 1972). . Scarpa filed Ms complaint in the District Court for the District of Columbia, the situs of the Board. On September 29, 1970, the action was transferred to the United States District Court for the Northern District of Georgia, the locus of appellant’s confinement. See, 28 U.S.C. § 1404(a) and Young v. United States Bureau of Prisons, 125 U.S.App.D.C. 105, 367 F.2d 331 (1966). . See 28 C.F.R. 2.12 et seq. . While Scarpa’s appeal was pending, he received a second hearing before the Board in June, 1971. On the basis of representations by his counsel that he had been accorded a full and fair consideration at the second hearing, the appeal was dismissed for mootness. Scarpa v. United States Board of Parole et al., 453 F.2d 891 (5th Cir. 1971). Subsequently, Scarpa objected to the dismissal, and petitioned this court for a rehearing which was granted. A third hearing by the Parole Board is scheduled for June 1973. Appellee’s Supplemental Brief at 4 (filed July 31, 1972). In the petition for rehearing, Scarpa raised a number of contentions not presented previously. Appellant asserted that he was entitled to: (a) a hearing before an objective and impartial examiner; (b) adequate notice of that hearing; (c) an opportunity to confront and cross-examine witnesses; (d) a right to retained counsel; and (e) written findings of fact and conclusions of law. . See, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hargrave v. McKinney, 413 F.2d 320, 324 (5th Cir. 1969). . See, 18 U.S.C. § 4203. The Board is composed of 8 members appointed by the President with the advice and consent of the Senate. 18 U.S.C. § 4201. . Tarlton v. Clark, 441 F.2d 384, 385 (5th Cir. 1971) cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); Accord, Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Rivers, 118 U.S.App.D.C. 333, 335 F.2d 996 (1964). “Claims that parole was wrongfully denied have been uniformly rejected by the courts. Even those courts that have insisted upon procedural safeguards on parole revocation, are reluctant to extend them to parole granting decision. Courts are even more reluctant to review the merits of such decisions.” President’s Commission on Law Enforcement and Administration of Justice, Task Force Report : Corrections 85 (1967). . 18 U.S.C. § 4203. Release by parole is merely a change in the-nature of the government’s custody of the convicted felon. 1-Iis actions are still closely supervised. The felon’s right to liberty vel non is not therefore at issue in the parole eligibility decision. United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (2d Cir. 1971). . See, Jones v. Salisbury, 422 F.2d 1326 (6th Cir. 1970); Riley v. Perini, 422 F.2d 397 (6th Cir. 1970). See also n. 7 supra. . See, Brest v. Ciccone, 371 F.2d 981, 982 (8th Cir. 1967). . See, Losieau v. Hunter, 90 U.S.App.D.C. 85, 193 F.2d 41 (1951). . The Board processes over 17,000 parole requests a year. Appellee’s Supplemental Brief at 12 (filed July 31, 1972). . Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). . Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (replevin of a debtor’s goods); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole); Goldberg v. Kelly, 397 U.S. 354, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (termination of welfare benefits); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (attachment of a worker’s wages); Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (termination of employment). . See, Thompkins v. United States Board of Parole, 427 F.2d 222 (5th Cir. 1970); Cook v. Willingham, 389 F.2d 769 (10th Cir. 1968). . The Board does not function as an adversary of the felon. The Board has an interest in releasing those who qualify for parole. Judge Mansfield’s explication of the Board’s role and function is particularly instructive in this regard. He stated: The Board’s function is a different one. It must make the broad determination of whether rehabilitation of the prisoner and the interests of society generally would best be served by permitting him to serve his sentence beyond the confines of prison walls rather than by being continued in physical confinement. In making that determination the Board is not restricted by rules of evidence or procedures developed for the purpose of determining legal or factual issues. It must consider many factors of a nonlegal nature, such as psychiatric reports with respect to the prisoner, his mental and moral attitudes, his vocational education and training, the manner in which he has used his recreation time, his physical and emotional health . . . Menechino v. Oswald, 430 F.2d 403, 407-408 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971). . 115 U.S.App.D.C. 254, 318 F.2d 225, 235 (1963), cert. denied sub nom. Thompson v. United States Board of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963). . “Like an alien seeking entry into the United States . . . [the prisoner] does not qualify for procedural due process in seeking parole.” Menechino v. Oswald, 430 F.2d 403, 408-409 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971); Walker v. Oswald, 449 F.2d 481 (2d Cir. 1971); Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972). Likewise, the courts have uniformly rejected the argument that counsel must be provided at parole eligibility hearings. Buchanan v. Clark, 446 F.2d 1379 (5th Cir. 1971), cert. denied sub. nom. Buchanan v. United States, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). Accord, Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10th Cir. 1968). . The opinion is technically correct in saying that Scarpa criticized the Board for not investigating all of the items of information he supplied, but the court misses the point that the crux of his complaint is that it did not consider any of them. . These are: (1) Length and seriousness of prior criminal records. (2) Family history. (3) Marital situation. (4) Vocational and professional skills. (5) Education. (6) Physical condition. (7) Living habits in a free community. (8) Behavior and progress while incarcerated. . Presumably the court meant it would take jurisdiction if the hearing did not measure up to its idea of what is a “full, fair hearing”.
f2d_477/html/0288-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Gustavo RIOS, Plaintiff-Appellant, v. OREGON AUTOMOBILE INSURANCE COMPANY, a corporation, et al., Defendants-Appellees. No. 72-3036. United States Court of Appeals, Ninth Circuit. April 16, 1973. Glenn D. Ramirez, Ramirez & Hoots, Klamath Falls, Or., for plaintiff-appellant. Lee Johnson, State Atty. Gen., John W. Osborn, Sol. Gen., Al J. Laue, Clayton Hess, Asst. Attys. Gen., Charles Paulson, Gerald R. Pullen, Portland, Or., for defendants-appellees. Before MERRILL, KOELSCH and KILKENNY, Circuit Judges. PER CURIAM: This appeal is from an order granting defendants’ motion for summary judgment and dismissing the complaint. We agree with the court below that the section of Oregon’s Workmen’s Compensation Law in question, O.R.S. 656.210(3), is constitutional and is a permissible legislative classification. Appellant complains that farmworkers, and therefore members of racial minorities, are treated differently from other workers under Oregon law. The statute provides, in pertinent part, that workers receive two thirds weekly wages while disabled, with a stated maximum and minimum. Farmworkers are subject to this rule except that their weekly wage base is calculated by taking one fifty-second of the wages earned during the previous twelve months. The difference in treatment reflects the seasonal nature of farm work. In fact, a farm-worker will receive the same benefits as any other worker earning the same annual wage. It may well be that farmworkers generally get lower benefits than other workers because they earn less. But such economic discrimination in social welfare legislation is justified by a “reasonable basis” for the distinction. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). It is permissible for the Oregon legislature to scale workmen’s compensation benefits to wages earned. Affirmed.
f2d_477/html/0289-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "STALEY, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	C. Perry ELTERICH and Ruth R. Elterich, his wife, et al., Appellants, v. The CITY OF SEA ISLE CITY, a municipal corporation, et al. No. 71-1912. United States Court of Appeals, Third Circuit. Argued Sept. 29, 1972. Decided March 26, 1973. Eugene T. Radcliffe, Powell, Davis, Dietz & Colsey, Mount Holly, N. J., for appellants. Carl J. Gregorio, Kisselman, Deighan, Montano, King & Summers, Camden, N. J., for appellees. Before STALEY, VAN DUSEN and MAX ROSENN, Circuit Judges. OPINION OF THE COURT STALEY, Circuit Judge. This is an appeal from the granting of the appellees’ motion for summary judgment. The appellants brought this action in the district court under 42 U.S.C. § 1983 seeking to recover damages on the grounds that the appellees, City of Sea Isle City (“City”) and various city officials had unlawfully appropriated their land and deprived them of its use through what the appellants contend was an arbitrary and unlawful use of appellees’ power. The allegation of unlawful taking was based on events which took place in the aftermath of a damaging storm. The following is an account of those events. Sea Isle City is located on a coastal island separated from the mainland of New Jersey by a bay. On March 6,1962, a severe storm caused extensive damage to most of the island, including property owned by the appellants. When the storm subsided, martial law was declared on the island, and the process of assessing the extent of damage began. After a period of evaluation, the City deemed it necessary to repair a dune line near the island’s coast to protect the City from the effects of future storms. Land owned by the appellants, among others, was chosen as the site for the protective barrier which was constructed by the United States Army Corps of Engineers. At no time after the storm were the appellants permitted to reoccupy their lands. By the time this case came before the district court for a determination of the merits of the appellants’ contentions, the City had acquired the property in question either by condemnation proceedings or by sales under the threat of condemnation. Granting the appellees’ motion for summary judgment, the district court stated that since the rights of the appellants whose property was condemned were adequately protected by the State of New Jersey, a ruling on the validity of the awards would be an unwarranted interference with state court jurisdiction. With respect to the claims of those who sold under threat of condemnation, the court said: “[I]t is a fair assumption that they considered all of those matters at the time that they made the deal.” On appeal, the question presented is whether New Jersey’s condemnation procedure preserved the full measure of the appellants’ property rights under the United States Constitution. There is no question that the mere exercise of eminent domain power does not offend due process, Roberts v. City of New York, 295 U.S. 264, 55 S.Ct. 689, 79 L.Ed. 1429 (1935); Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). Nor, as appellants' brief concedes at page 6, is there any dispute that the City had authority under both the United States Constitution and the New Jersey Constitution to condemn their land for public use. Appellants’ claims under § 1983 relate only to the matter of compensation. On appeal, they contend that they have not been properly compensated for being deprived of the use of their land as a result of the City’s action. They assert that in addition to the market value of the land, they are entitled to the value of its use for the period of time between the taking and condemnation. They also seek to be reimbursed for taxes allegedly paid after the City took possession. All these matters could have been urged in the state condemnation proceedings. New Jersey law provides, as the United States Constitution requires, that an owner whose land is condemned must receive just compensation, U.S. Const. Amends. V and XIV; New Jersey Const.1947, Art. I, ¶ 20; see State of New Jersey v. Burnett, 24 N.J. 280, 131 A.2d 765 (1957). Generally, a sum of money equal to the market value of the land at the time the complaint is filed constitutes just compensation. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934); State of New Jersey v. Cooper, 24 N.J. 261, 131 A.2d 756, cert. denied, 355 U.S. 829, 78 S.Ct. 41, 2 L.Ed.2d 42 (1957); see N.J. S.A. 20:1-9 (1969). Where the taking occurs before the condemnation action and the property decreased in value before the action is commenced, the condemnee is entitled to the value at the taking. State of New Jersey v. Jones, 27 N.J. 257, 142 A.2d 232 (1958). Cf. Klopping v. City of Whittier, 8 Cal. 3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972). New Jersey also recognizes that a condemnee is entitled to be compensated for the value of the use of his land where the condemnor goes into possession without full payment. “ * * * In condemnation proceedings interest is allowed where the condemnor goes into possession without full payment and the owner of the property is deprived not only of his property but of the profits and increments from the use and for this latter deprivation interest is allowable on equitable principles.” New Jersey Highway Authority v. Ellis, 24 N.J. 1, 130 A.2d 601, 604 (1957); State of New Jersey v. Hankins, 63 N.J.Super. 326, 164 A.2d 615 (1960). Similar adjustments are made with respect to taxes paid during the time after the taking. Housing Authority of City of Hoboken v. Segal, 112 N.J.Super. 359, 271 A.2d 439 (1970). The fact that the appellants were deprived of their land before the condemnation took place does not mean their constitutional rights were denied, since compensation is available. See Yearsley v. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940); Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932); Stringer v. United States, 471 F.2d 381 (C.A.5, 1973). No assertion has been made that the appellants have been denied an opportunity to press their claims in the state court. Clearly they had an opportunity. If the appellants were dissatisfied with the awards they received, they had a right to appeal in state court. It is the clear pronouncement of the New Jersey courts that the rights appellants assert here were guarded. The Federal courts do not sit as courts of review over alleged errors of state courts. Landowners Consideration Association v. Montana Power Co., 300 F.Supp. 54 (D.C.Mont.1969); see Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959). Neither were those who sold under threat of condemnation denied any rights. Their opportunity to assert the matters alleged here was given up at the sale they fully accepted. Lastly, we note that the City of Sea Isle City is not a proper party in an action under § 1983. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (C.A.3 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970). The action, therefore, should have been dismissed as to Sea Isle City. We hold that no federally protected rights of the appellants have been violated. The State of New Jersey fully preserved all rights of the appellants in their condemnation proceedings. For the foregoing reasons, the cause will be remanded to the district court with directions that the action against Sea Isle City be dismissed and, in all other respects, the judgment of the district court will be affirmed. . 42 U.S.C. § 1983 provides : “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . Following the storm, a series of ordinances were passed by the governing body of Sea Isle City which dealt with the regulation of land use in the dune area. . While the appellants concede that the laws under which the appellees acted are constitutional, they allege that appellees’ actions under such laws were carried out in a constitutionally impermissible manner. However, damages for whatever injury appellants suffered might have been recovered had they pursued by appeal in the state courts their available state court condemnation remedy. This case does not present a situation where the remedy provided under state law was inadequate or foreclosed. Cf. McGuire v. Sadler, 337 F.2d 902 (C.A. 5, 1964).
f2d_477/html/0292-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "RONEY, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. GREAT AMERICAN DISCOUNT AND CREDIT COMPANY, INC., Defendant-Appellee. No. 72-2177. United States Court of Appeals, Fifth Circuit. April 9, 1973. Richard F. Schubert, Sol. of Labor, Carin Ann Clauss, Donald S. Shire, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., U. S. Dept. of Labor, Atlanta, Ga., for plaintiff-appellant. Frank W. Riggs, John W. Davis, Montgomery, Ala., for defendant-appellee. Before GEWIN, SIMPSON and RONEY, Circuit Judges. RONEY, Circuit Judge: The Government appeals from the District Court’s determination that defendant’s employment agencies are entitled to the “retail or service establishment” exemption in Section 13(a)(2) of the Fair Labor Standards Act. 29 U.S. C.A. § 213(a) (2). We reverse. Not only is this case one of first impression in this Court, but we are told that no other Court of Appeals has addressed the application of the retail or service establishment exemption to employment agencies. Our analysis of the problem causes us to conclude that Congress did not intend to exempt employment agencies from the operation of the Act. Defendant Darrell Walker, president of - the Great American Discount and Credit Company, Inc., is engaged in the business of operating employment agencies under various names and styles in Alabama and Tennessee. These agencies locate, on a local basis and without the assistance of other agencies, suitable employment for clients, who generally pay the placement fee. The service consists solely of introducing the job applicant and the prospective employer. The agencies are independent establishments and, although Walker communicates frequently with all of them, only rarely do they trade information. Having agreed to dismiss the action against the Great American Discount and Credit Company, Inc., the Secretary of Labor proceeded against walker alone. The District Court found that Walker’s interests in the various employment agencies constituted sufficiently unified operation and common control to amount to a single enterprise engaged in commerce under the statutory definition: “[T]he related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units . . . ." 29 U.S.C.A. § 203(r). The Court concluded, however, that Walker’s businesses merited the “retail or service establishment” exemption in Section 13(a)(2), which exempts from the minimum wages and maximum hours requirements of the Act “any employee employed by any retail or service establishment ... if more than 50 per centum of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment . . . has an annual dollar volume of sales which is less than $250,000 . . . .” A “retail or service establishment” is defined in that provision as “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry . . . ." Although the dollar volume of sales of the single enterprise consisting of all of the employment agencies owned by Walker either as sole proprietor or as a partner exceeded $250,000, none of the individual agencies ever exceeded $250,-000 annual gross volume of sales. To obtain the exemption, therefore, Walker need show only that the individual agencies were retail and service establishments within the meaning of the Act. Walker’s claim rests on two arguments: (1) that although an early administrative ruling held that employment agencies were not exempt, a 1949 amendment to Section 13(a)(2) broadened the scope of the exemption to include businesses such as his; and (2) that his businesses meet the statutory requirements because there is industry recognition that its sales are “retail sales or services.” The employer has the burden of proof in establishing facts requisite to an exemption, Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694, reh. denied, 383 U.S. 963, 86 S.Ct. 1219, 16 L.Ed.2d 305 (1966); Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61 (5th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1971), and the exemption provisions are to be narrowly construed against those seeking to assert them, Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). From the beginning, the Fair Labor Standards Act of 1938 provided that retail establishments were exempt from the Act. The Department of Labor’s Wage and Hour Administrator issued in 1941 an interpretative bulletin which characterized “retail establishments” as those businesses selling goods or services to private individuals for personal or family consumption or to businesses or state agencies if at prices and in quantities appropriate to personal or family consumption. The Administrator’s general characterization of “retail establishments” was considered by the Supreme Court in 1946. In Roland Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383 (1946), the Court held inter alia that a business engaged in commercial wiring, electrical contracting for industry, and repair and replacement of electric motors and generators did not constitute a “retail or service establishment.” It was suggested that no sale of any article for business or profit-making use, as opposed to personal consumption, could qualify as a retail sale. See Roland Co., supra, at 673-677, 66 S.Ct. 413; see also Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603 (1946); Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, 90 L.Ed. 786 (1946). In 1949 Congress abrogated this “business use” test by amending the relevant sections of the Act. But Section 16(c) of the amendment expressly provided that any existing “order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the Secretary of Labor . . . shall remain in effect . . . except to the extent that . . . [it] may be inconsistent with the provisions of this Act . . . ,”63 Stat. 920 (1949). The 1941 Interpretative Bulletin had specifically dealt with employment agencies. It is there noted that, although employment agencies perform a service, they “are not in the ordinary ease sufficiently similar in character to retail establishments to be considered service establishments within the meaning of Section 13(a) (2).” (Interpretative Bulletin No. 6, pp. 9-10, issued June 16, 1941, and printed in 1942 Wage and Hour Manual, pp. 334-335). The Government argues that, in Section 16(c), Congress granted its unique imprimatur to the 1941 interpretation which excluded agencies from the exemption. Walker contends, on the other hand, that the 1941 interpretation was premised on the “business use” test, not upon the retail nature of the business, and therefore was inconsistent with the 1949 Amendment. Walker’s position, as employer, is that, by eliminating the business use test, the 1949 Amendment broadened the scope of the Section 13(a)(2) exemption to include businesses such as his, which he contends are recognized as providing “retail” sales and services in the employment agency industry. It was the opinion of the District Court that the exemption clearly applies to defendant’s business practices. The Court found that virtually all the income of Walker’s employment agencies is derived from transactions completed within the states in which they are located. Their service, which the Court referred to as “the location of a job for a customer,” is not for resale. The District Court accepted a distinction between retail and wholesale employment agencies; Walker’s, characterized by some witnesses as retail agencies, which seek to introduce individual employees directly to employers, and those characterized as wholesale agencies, which place large groups of potential employees in contact with other agencies representing potential employers. Thus, the Court found that there is a distinction between wholesale and retail sales or services in the employment agency industry and that virtually all of the defendant’s business is of a retail character. The District Court distinguished employment agencies from the loan companies involved in Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), on the ground that, since the credit business “obviously” is not a “retail or service establishment” and its status was not affected by the 1949 Amendment, the relevant portions of the interpretative bulletin which excluded loan companies from the retail concept should remain in effect. The District Court decided that the reason the Administrator denied the exemption to employment agencies was that their “sale of services” are not “to private persons to satisfy their personal wants.” When Congress abandoned the business use requirement, the Court reasoned, employment services were placed within the exemption. We think the District Court failed to appreciate the threshold “retail concept” test which a business must first meet before the industry characterization of its sales can be considered. The Government correctly argues that it was the failure of employment agencies to meet this test which caused the Administrator to designate them as non-exempt in the 1941 Bulletin and that the elimination of the business use test did not change this fundamental determination. The so-called expert testimony offered here to characterize the service as “retail” resembled that in loan company cases. In Aetna Finance Co. v. Mitchell, 247 F.2d 190 (1st Cir. 1957), the Court found the testimony to reflect nothing more than the disposition (in a more or less rough analogy borrowed from the mercantile field) to refer to small loans to individuals as “retail financing” in contrast to “wholesale” lending institutions which dealt with industry through either buying accounts receivable or financing inventories. Such usage hardly has relevance to the intended meaning of the term “service establishment” as used in § 13(a)(2). 247 F.2d at 193. In Kentucky Finance, supra, a business making small personal loans and purchasing conditional sales contracts from retailers claimed to be an exempt retail or service establishment. The Company offered evidence that the industry regarded its transactions as retail, but the Supreme Court denied the exemption on the basis of explicit discussion in the legislative history which stated that, industry parlance notwithstanding, the retail concept was not applicable to the credit industry. In Idaho Sheet Metal Works, supra, the Supreme Court flatly rejected the “industry usage” standard for the retail concept, and the Court’s conclusive consideration was that reliance on industry parlance “would compel results flatly inconsistent with those Congress explicitly contemplated and might indeed work a major revolution in the Act’s coverage not acknowledged in any legislative statement or report before us.” 383 U.S. at 201, 86 S.Ct. at 745. The Court reasoned that the legislative recital of certain industries, such as telephone, gas, and electric, “demonstrates that not everything the consumer purchases can be a retail sale of goods or services” and that industry usage is not controlling. 383 U.S. at 203, 86 S.Ct. at 746. In Idaho Sheet Metal Works, supra, the Court clearly indicated a two-step process: (1) ask whether the sale of a particular type of goods or services can ever qualify as retail, whatever the terms of the sale; and (2) if — and only if— the answer is affirmative, is it then necessary to determine the terms or circumstances that make a sale of those goods or services a retail sale. 383 U.S. at 202-203, 86 S.Ct. 737. What we are required first to determine, consequently, is whether the retail concept can ever apply to the employment agency industry. Determination of whether a business fits the retail concept is not without difficulty. The Administrator concedes that “[t]here are types of establishments in industries where it is not readily apparent whether a retail concept exists and whether or not the exemption can apply.” 29 C.F.R. § 779.317. In trying to define the characteristics of such an establishment, the regulations acknowledge that a precise line cannot be drawn and exact objective standards cannot be established. 29 C.F.R. §§ 779.312-779.321. In this situation, courts have consistently relied upon the expertise of the agencies established by Congress to administer its statutes. See Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L. Ed.2d 561 (1970); Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). From the inception of the Act, employment agencies have been on the Administrator’s non-exempt list. The language of the administrative regulations supports this classification. Throughout the regulations are numerous references to “the traditional local retail or service establishment,” 29 C.F.R. § 779.315; “establishments which are traditionally regarded as local retail service establishments such as . . . restaurants, hotels, barber shops, [and] repair shops,” 29 C.F.R. § 779.314; and “that a ‘retail concept’ cannot be artificially created in an industry in which there is no traditional concept of retail selling or servicing.” 29 C.F.R. § 779.316. Establishments “not having been traditionally regarded as retail or service establishment cannot under any circumstances qualify as a ‘retail or service establishment’ within the statutory definition of the Act, since they fail to meet the first requirement of the statutory definition.” 29 C.F.R. § 779.316. A comparison of the Administrator’s partial list of establishments lacking a “retail concept,” 29 C.F.R. § 317, with the partial list of establishments whose sales or services may be recognized as retail, 29 C.F.R. § 320, reflects the propriety of placing employment agencies on the non-exempt list. A reading of the Administrator’s attempts to characterize retail businesses buttresses the decision that the term “retail” is not properly applicable to employment agencies: “The term ‘retail’ is alien to some businesses or operations. For example, transactions of an insurance company are not ordinarily thought of as retail transactions.” 29 C.F.R. § 779.316. “Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process. . . . Such an establishment sells to the general public its food and drink. It sells to such public its clothing and its furniture, its automobiles, its radios and refrigerators, its coal and its lumber, and other goods, and performs incidental services on such goods when necessary. It provides the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living. Illustrative of such establishments are: Grocery stores, hardware stores, clothing stores, coal dealers, furniture stores, restaurants, hotels, watch repair establishments, barber shops, valet shops, and other such local establishments.” 29 C.F.R. § 779.318(a). Although courts are not bound by interpretative bulletins, see 29 C.F.R. § 779.8, they provide us with guidance simply because they reflect the position of those most experienced with the application of the Act. See Foremost Dairies, Inc. v. Wirtz, 381 F.2d 653 (5th Cir. 1967), cert. denied sub nom. Home Town Foods, Inc. v. Wirtz, 390 U.S. 946, 88 S.Ct. 1031, 19 L.Ed.2d 1134 (1968). The bulletins persuasiveness depends upon its thoroughness, its consistency, and the validity of its reasoning. Mitchell v. Trade Winds Co., 289 F.2d 278 (5th Cir. 1961). It is evident to us that the Administrator has considered all relevant issues. Although of no more precedential authority than our own District Court, decisions of the only two other courts which have considered this matter have found employment agencies non-exempt. In Schussler v. Employment Consultants, Inc., 333 F.Supp. 1387 (N.D.Ill.1971), the Court had “no difficulty in concluding that an employment agency . . . does not involve what is customarily considered a retail service.” 333 F.Supp. at 1390. In a case cited by the Administrator in his regulations, the New York City Municipal Court held that employment agencies “are not sufficiently similar in character to retail establishments to be considered ‘service establishments’ within the meaning of Section 13(a)(2).” Yunker v. Abbye Employment Agency, Inc., 32 N.Y.S.2d 715, 723 (Mun.Ct.1941). We conclude that the District Court’s decision to include employment agencies within the scope of the exemption contravenes the well established principle that exemptions from the Fair Labor Standards Act “are to be narrowly construed,” Kentucky Finance, supra, 359 U.S. at 295, 79 S.Ct. 756, and limited to those “plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., supra, 361 U.S. at 392, 80 S.Ct. at 456; Schultz v. Instant Handling, Inc., 418 F.2d 1019 (5th Cir. 1969); see Wirtz to Jernigan, 405 F.2d 155 (5th Cir. 1968). Reversed and remanded.
f2d_477/html/0297-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY d/b/a Eugene Good Samaritan Center, Respondent. No. 72-1072. United States Court of Appeals, Ninth Circuit. April 2, 1973. Julius Rosenbaum, Washington, D. C. (argued), Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Robert J. Wiener, Officer in Charge, NLRB, Portland, Ore., Paul J. Spielberg, NLRB, Washington, D. C., for appellant. William D. Brandt, Salem, Ore. (argued), Robert H. Fraser, Luvaas, Cobb, Richards & Fraser, Eugene, Ore., Herbert B. Galton, Portland, Ore., for appellee. Before BARNES, MERRILL, and HUFSTEDLER, Circuit Judges. OPINION PER CURIAM. The Evangelical Lutheran Good Samaritan Society does business in Oregon as the Eugene Good Samaritan Center, a facility which is a “Non-Profit Center for Retired People,” and is licensed by the State of Oregon as a 118-bed “Nursing home and a 30-bed Convalescent Hospital.” The Center is licensed under Medicare, as “an extended care facility.” One of seven one story buildings, denominated “Wing 700,” is recognized as “the extended care facility,” usually housing 20 or less residents (out of the usual 20-130 residents of all wings): The 20 usually come from a hospital, and after recuperation, either go home or go to the nursing home area. The Center has no laboratory, no doctors, and no portable x-ray facilities on the premises; no acutely ill or injured persons are allowed on the premises; nor any surgical or maternity patients. No physician is provided by the Center for any resident; each resident makes his own arrangements for his own personal physician. The Center is administered by the Reverend Frederick Juilfs, and an office manager, one Director of Nursing, one Supervising Registered Nurse, and three additional registered nurses. (These supervise licensed practical nurses, nurses aides and orderlies. The latter work in three shifts interchangeably throughout the Center.) We have for review several questions; the first and most important being: Was the Center an “employer” within the National Labor Relations Act, or was the Center exempt as a non-profit hospital, under § 2(2) of the Act? Originally the Board, in the exercise of its administrative discretion, had declined to exercise jurisdiction over proprietary (profit) hospitals, and nursing homes (either non-profit or proprietary), primarily because of (a) their local nature, (b) the probability that their labor disputes would be regulated by state law, and (c) their insubstantial impact upon interstate commerce. Flatbush General Hospital, 126 NLRB 144 (1960). Seven years later, in 1967, the Board overruled Flatbush, extending jurisdiction to proprietary hospitals with gross revenues of $250,000 per year. Butte Medical Properties, etc., 168 NLRB 266 (1967); and on the same date, exercised jurisdiction over the nursing home industry, if such homes were operated for a profit, and had a gross income of $100,000 per year. University Nursing Homes, Inc., 168 NLRB 263 (1967). Finally, the Board extended its jurisdiction to non-profit nursing homes. Drexel Homes, Inc., 182 NLRB 1045 (1970). In so extending its jurisdiction, the Board found it necessary to contend with various semantic terms — “rest homes”, “homes for the aged”, “retirement homes”, “convalescent homes”, “sanitariums”. It solved its problem by determining it would exercise jurisdiction over operations offering “extended care facilities”; accepting the American Hospital Association’s definition thereof: “an establishment with permanent facilities that include inpatient beds; and with medical services, including continuous nursing services, to provide treatment to patients who require inpatient care but do not require hospital services.” “Hospital Services” are those ordinarily available only in a general hospital, including facilities for surgery, x-ray, laboratory analysis, obstetrics, and related specialized procedures. Wesleyan Foundation, 171 NLRB 124 (1968); Sierra Hospital Foundation, 181 NLRB 869 (1970). The Board determined the appellant was not a hospital within the meaning of § 2(2) of the Act, but was “an extended care facility”. We are bound to accept the Board’s determination if it has a reasonable basis in the evidence, and is not inconsistent with the law. NLRB v. E. C. Akins & Co., 331 U.S. 398, 403, 67 S.Ct. 1265, 91 L.Ed. 1563 (1947). Appellant urges that the Board’s findings support the Board’s ruling, but that the facts do not support its Findings. We hold otherwise. It is true that under the law of the State of Oregon, appellant’s Wing 700 was licensed as a 30-bed “convalescent hospital”, and the other six units as an 118-bed “nursing home.” Reciting the facts hereinbefore listed, and quoting language from Drexel Homes, Inc., supra, the Trial Examiner found “that the Center is similar to the establishment involved in Drexel Homes, Inc.” (judged by the American Hospital Association’s definition (R. 19)), and that it did not supply “general or in most instances any, hospital services.” The Trial Examiner apparently strongly relied on the fact that Respondent had no medical staff, per se, but that each patient, if he or she wished, had a personal physician. “The residents and patients of all seven wings of the Center have social activities and religious services available,” but not doctors nor any care for those “acutely ill.” The Center advertised itself as a center for retired people; that residents may “go and come as you please.” The Examiner found that the patients in Wing 700 “except for being closer to the Registered Nurse in charge of the Center, received the same standard of care as other patients or residents of the Center” (R. 22). He also found that Medicare recognized the necessity at times, after hospital care, of care from an “extended care facility”. Half of the patients in Wing 700 were in this class, and on Medicare. (Board’s Opening Brief, p. 17, note 22). We cannot rule that the Examiner’s findings, in view of the holdings of the cases cited, were not supported by substantial evidence or that they were arbitrary or capricious. We reject the “integral” theory relied on by the Respondent to bring its operation within the hospital exemption, and we affirm the jurisdiction of the Board over the Center’s operations. There is little doubt but that the facts before us demonstrate substantial support for the Board’s findings that the Center interfered with, restrained and coerced its employees, in violation of § 8(a)(1) of the Act. A threatened shut-down of the Center and loss of jobs was threatened by Director of Nursing Moore to two of her nurses (Skinner and Anderson), if they persisted in their union support. Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 618-619, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Nor can we hold, contrary to the Board’s findings, that the licensed practical nurses were supervisors. Garden of Eden Home, Inc., etc., 199 NLRB No. 5 (September 14, 1972). The Board’s Order will be enforced in full.
f2d_477/html/0300-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BUTZNER, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. Ronald Richard FISHER, Appellant. No. 72-1284. United States Court of Appeals, Fourth Circuit. Argued Feb. 6, 1973. Decided April 20, 1973. Richard E. Crouch, Arlington, Va., for appellant. Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., E.D. Va., on brief), for appellee. Before BUTZNER and FIELD, Circuit Judges, and MURRAY, District Judge. BUTZNER, Circuit Judge: Ronald Richard Fisher appeals from a judgment of conviction, entered upon jury verdicts, for failing to report for induction into the armed forces and failing to keep his local selective service board advised of his address. We vacate the judgment and remand the ease for a new trial because Fisher was not afforded his sixth amendment right to effective representation of counsel. Fisher was arraigned on December 17, 1971, and the district court set January 23, 1972 as his trial date. At the arraignment, Mr. Alfred D. Swersky represented Fisher, and Fisher paid him $250 for his services. Fisher could not afford Swersky’s trial fee, so he terminated their relationship following the arraignment. Swersky never advised Fisher that an attorney could withdraw as counsel for a criminal defendant only with permission of the court, and he did not request the court to relieve him of his responsibilities in the case until the morning of trial. Fisher next retained Mr. Joseph L. Duvall to represent him. Duvall accepted the employment even though he had another trial scheduled for the same day. He assured Fisher that if a trial proved necessary, he could have the trial continued. On January 9, 1972, Fisher paid Duvall $1,000 and returned to Ohio expecting Duvall would obtain a continuance. Duvall never entered a formal appearance as Fisher’s counsel, but he met with an Assistant United States District Attorney to try to arrange a dismissal of the charges in exchange for Fisher’s voluntary enlistment in the armed forces. The assistant district attorney, noting that Fisher could not enlist because of a pending Ohio felony charge, refused to consent to dismissal. Duvall sought a continuance from the district court, but it was denied. The day before trial he called Fisher in Ohio and told him to return to Virginia the next morning. That same afternoon the clerk of the district court called Swersky to remind him that he was still counsel of record in the case and that he would have to appear with Fisher. Swersky obtained the file from Duvall that evening and spoke with Duvall about the case. When the case was called for trial, Swersky brought these facts to the attention of the district judge and moved for a continuance. The government did not oppose the motion. The judge, however, censured Swersky for his lack of preparation and ordered him to consult with Fisher for thirty minutes to prepare for trial. Approximately one hour later, the trial began with Swersky as Fisher’s attorney. The jury found Fisher guilty on both counts. The sixth amendment guarantees the right to counsel in federal felony prosecutions. Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Implied in the right to counsel is the right to effective representation, whether counsel is appointed or retained. Powell v. Alabama, 287 U. S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Stokes v. Peyton, 437 F.2d 131, 136 (4th Cir. 1970). Normally, a claim of ineffective counsel should be raised by a motion under 28 U.S.C. § 2255 (1970). United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970). Mandello, however, recognized that there may be cases “where it conclusively appears in the trial record itself that the defendant was not provided ... effective representation.” 426 F.2d at 1023. This is one of those cases. The lack of preparation by defense counsel was explained to the district court before the trial began, and the district judge questioned Fisher, Swersky, and Duvall. The court reporter transcribed this informal hearing before the district court, and the transcript is available for our consideration. In these circumstances, nothing would be gained by postponing consideration of Fisher’s sixth amendment claim. Swersky’s statements to the district court prior to trial demonstrate that he was not prepared to defend Fisher. Both Fisher and Swersky thought that Swersky’s services had been terminated almost a month earlier. Thus, Fisher’s claim is based on an established insufficiency of preparation, not on his counsel’s subjective assertion that he was not prepared for trial. See e. g. Sykes v. Commonwealth, 364 F.2d 314, 315 (4th Cir. 1966). He contends that the Court’s order to proceed to trial after a one hour conference with his attorney denied him the mature and reflective judgment of counsel that is an essential element of effective representation. See Garland v. Cox, 472 F.2d 875, 879 (4th Cir. 1972). The government offers two arguments to rebut the claim that Fisher received ineffective assistance of counsel. First, it asserts that this case was a simple selective service violation that required no more than an hour of preparation. Second, it contends that Swersky’s experience in selective service litigation made the one hour preparation time reasonable. Neither argument is persuasive. The many complex issues that frequently arise in selective service litigation contradict the government’s implicit assumption that these cases involve only easy points of law that can be handled with a minimum of preparation. Failure to report for induction and failure of a registrant to keep his board advised of his current address are both serious offenses, each carrying a maximum sentence of five years imprisonment. A defendant who is subjected to the possibility of incarceration is entitled to have the avenues of defense explored by his counsel during the preparation of the case. See ABA Standards Relating to the Defense Function § 4.1 (Approved Draft 1971). The issues raised on appeal in this court belie the government’s claim that this was an uncomplicated case in which the sketchy preparation disclosed by this record was sufficient. The government itself raised a significant evidentiary problem by introducing testimony showing that Fisher had tried to flee when Ohio officials arrested him on an unrelated assault charge. And paradoxically, while the government insists Fisher was afforded adequate representation, it urges us to disregard a number of assignments of error on the ground that Swersky did not note proper objections. Even if the government were correct in its contention that the case was primarily a dispute over Fisher’s credibility, his defense still could have benefited from adequate preparation. Fisher, claiming that he did not intend to violate the law, testified that he was willing to fulfill his military obligation. He also testified that he could not enlist at the time of trial because he had been charged with a felony in Ohio. He said that he hoped that the Ohio charge would soon be reduced to a misdemean- or, which would make him eligible for enlistment. Obviously, witnesses in Ohio, where Fisher then resided, could have provided much relevant evidence to corroborate his story. Business associates or others who knew him could have offered character testimony that may have strengthened his assertion that he had acted in good faith and had simply been negligent in communicating with his Board. His Ohio attorney, or Ohio prosecuting authorities, could have confirmed any plan to reduce the Ohio charge to a misdemeanor, and the subsequent reduction of that charge indicates that obtaining this evidence was not beyond the realm of possibility. Neither Swersky’s general competence nor his experience in selective service litigation eliminated the prejudice Fisher suffered as a result of the lack of preparation. Swersky’s defense of Fisher during the trial, though aggressive, did not nullify the inevitable prejudice resulting from the lack of advance preparation. Moreover, Swersky’s conduct at arraignment negates any inference that he could prepare the case in an hour. At the arraignment he requested a longer period than one month to prepare because of the complicated nature of some possible defenses available to Fisher. The government also urges that Fisher waived any motion for continuance when he told the district judge that he did not know of any witnesses who could help him and that he was willing to go ahead with the trial. Considered in the light of the trial court’s prior admonition that no continuance would be granted unless a specific need were shown and the court’s intimation that counsel might be assessed the costs of delay, this colloquy did not amount to the “intentional relinquishment . of a known right,” that is required for waiver of the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The inability of Fisher or his counsel to justify a continuance following the brief consultation ordered by the trial court did not cure the basic error in the trial: the failure of trial counsel to devote adequate time for preparation. Indeed, the lack of preparation impaired trial counsel’s effectiveness in explaining the need for a continuance. For example, he made no effort to confer by telephone with Fisher’s Ohio counsel to learn whether Ohio officials would promptly reduce the felony charge to a misdemeanor. Nor did he suggest the need to examine the board’s records to ascertain the order of call. A reasonably prudent attorney would have investigated this defense because Fisher had been declared a delinquent before he was ordered to report for induction. Cf. Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). We conclude, therefore, that the representation Fisher received was not “within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and his conviction must be vacated. We recognize the need — recently emphasized by Federal Rule of Criminal Procedure 50(b) — for district courts to maintain control over their dockets to expedite the trial of criminal cases, and in no way do we approve the failure of Fisher’s lawyers to prepare for trial. We also reaffirm that judges are empowered to insist that counsel be prepared so that trials may be held as scheduled and that trial courts do not lack authority to censure attorneys for dilatory tactics. See ABA Standards Relating to the Function of the Trial Judge §§ 1.4, 3.8, and 7.1 et seq. (Approved Draft 1972). But conviction without effective legal representation is a misplaced sanction for the shortcomings of a defendant’s attorneys. We find no reversible error in Fisher’s other grounds of appeal. The judgment is vacated, and the case is remanded for a new trial. . The Ohio charge was subsequently reduced to a misdemeanor to which Fisher pleaded guilty. . For this appeal, Fisher retained a third attorney, who was not involved in any of the proceedings in the district court and is not associated with either Swersky or Duvall. . Our conclusion is the same whether we apply this circuit’s presumption of ineffective representation following late appointments, Garland v. Cox, 472 F.2d 875, 879 (4th Cir. 1972), or use a “totality of the circumstances” approach. See Rastrom v. Robbins, 440 F.2d 1251 (1st Cir. 1971); Moore v. United States, 432 F.2d 730 (3d Cir. 1970). . The district court properly cautioned the jury that the only part of this evidence that was relevant to the selective service charges against Fisher was the address Fisher gave to the arresting officer. Nevertheless, the assistant district attorney, on cross examination and in final, argument, attempted to bring the full incident to the jury’s attention. This error should not recur when Fisher is tried again. . Fisher had obtained dismissal of another felony charge that was pending at the time he was ordered to report for induction.
f2d_477/html/0304-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PELL, Circuit Judge. FAIRCHILD, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellant, v. Nick SENAK, Defendant-Appellee. No. 72-1431. United States Court of Appeals, Seventh Circuit. Argued Dec. 5, 1972. Decided April 24, 1973. Rehearing Denied June 5, 1973. David L. Norman, Asst. Atty. Gen., Robert A. Murphy, Atty., Civil Rights Division, Department of Justice, Washington, William C. Lee, U. S. Atty., Fort Wayne, Ind., for plaintiff-appellant. Max Cohen, Gary, Ind., for defendant-appellee. Before FAIRCHILD, PELL, and SPRECHER, Circuit Judges. PELL, Circuit Judge. In February 1972, a federal grand jury returned a five-count indictment against Nick Senak, a public defender for Lake County, Indiana. The indictment charged that Senak, while acting under color of law, “willfully and unlawfully exacted and took” money from various persons, thereby willfully depriving those persons of their right under the Fourteenth Amendment not to be deprived of property without due process of law, in violation of 18 U.S.C. § 242. More specifically, notwithstanding his appointment under Indiana law as a “pauper attorney,” by virtue of which he was entitled to governmental compensation, Senak had allegedly exacted fees from a pauper “client” (Count I) and from friends or relatives of other impoverished “clients” (Counts II-V) by threatening inadequate legal representation of those he had been appointed to represent unless the extra sums were paid to him. On March 27, 1972, the district court reluctantly sustained Senak’s pre-trial motion to dismiss the indictment on the ground that the indictment failed to state an offense against the United States. The Government seeks reversal of the court’s order dismissing the indictment. We must, as an initial matter, determine whether the Government is barred from maintaining this appeal. The indictment involved in this appeal is the second against Senak under 18 U.S.C. § 242. An indictment returned in May 1971 had been dismissed by the district court on October 19, 1971, on Senak’s motion. The Government had filed a notice of appeal as to that dismissal but later had moved successfully under Rule 42(b), Fed.R.App.P., to dismiss its appeal. Senak claims that the second indictment is substantially the same as the first one and that “[w]hen the Government abandoned the appeal [of the dismissal of the May 1971 indictment] and the appeal was dismissed for want of prosecution, the judgment of the district court was in effect affirmed and now bars the second indictment on principles of res judicata, collateral estoppel and former jeopardy.” The cases on which Senak relies, including this court’s decision in United States v. Ponto, 454 F.2d 657 (7th Cir. 1971) (en banc), are distinguishable. A federal grand jury may return a second indictment for the same offense when the first indictment has been dismissed or otherwise found defective. United States v. Root, 366 F.2d 377, 383 (9th Cir. 1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967); Buie v. United States, 76 F.2d 848, 849 (5th Cir. 1935), cert. denied, 296 U.S. 585-586, 56 S.Ct. 97, 80 L.Ed. 414 (1936); United States v. Manetti, 323 F.Supp. 683, 690-691 (D.Del.1971). Cf. 18 U.S.C. § 3289. Further, we disagree that the Government’s decision not to pursue its appeal precluded the grand jury from returning another indictment on the same matter. Cf. United States v. Beard, 414 F.2d 1014, 1017 (3d Cir. 1969). Senak was not put in jeopardy; jeopardy is usually held to “attach” at the time trial commences and a jury is impanelled. See United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); cf. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We therefore hold that the second indictment was not barred. Rule 7(c), Fed.R.Crim.P., requires that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense.” “The true test of the sufficiency of an indictment is whether it contains the elements of the offense intended to be charged.” Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932), quoted in United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953). The elements of an 18 U.S.C. § 242 offense are: (1) the defendant’s acts must have deprived someone of a right secured or protected by the Constitution or laws of the United States; (2) the defendant’s illegal acts must have been committed under color of law; (3) the person deprived of his rights must have been an inhabitant of a State, Territory, or District; and (4) the defendant must have acted willfully. See United States v. Jackson, 235 F.2d 925, 927 (8th Cir. 1956). Only elements (1) and (2) are in dispute on this appeal. Senak contends that a public defender is immune from liability under § 242 and that, once he is appointed in a given case, he does not act under color of state law but functions purely as a private attorney. For this proposition, Senak relies on Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), where the question was whether a Pennsylvania county public defender could be held liable for damages in an action brought by a former indigent client who alleged constitutional deprivations under 42 U.S.C. § 1983, the civil counterpart of 18 U.S.C. § 242. The district court there held that the complaint failed to state a claim upon which relief could be granted on the basis that the defendant was not acting under color of state law. On appeal, the Third Circuit decided it need not reach the “under color of any law” question. The court instead held that a county public defender enjoys immunity from liability under the Civil Rights Act. Brown, supra, the one case Senak cites on this issue, is inapposite. The court’s remarks about “color of law” are dicta. Further, an examination of the holding there reveals that the court was concerned with immunity for state judges, prosecutors, and public defenders “for acts done in the performance of [their] judicial function [s] . . . .” 463 F.2d at 1048. The court recognized an exception to immunity where the officials’ acts are clearly outside the scope of the officials’ jurisdiction. Id. Also, the court emphasized certain policy considerations which are irrelevant to the charge in the indictment before us, e. g., the importance of encouraging the officials’' “free exercise of professional discretion in the discharge of pre-trial, trial, and post-trial obligations.” Id. Senak provides neither binding precedent nor persuasive reasons to lead us to conclude that the Government would be unable, as a matter of law, to satisfy the “color of law” requirement. See United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941): “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” See generally Screws v. United States, 325 U.S. 91, 107-111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). At this juncture we do not know, for example, in what words Senak couched his alleged demands for money or what representations he made to the alleged “victims.” Nor do we know all the conditions that attached to Senak’s appointment as public defender, i. e., the duties and ethical conduct required by law of someone assuming such a position. If the indictment is sufficient in other respects, the Government should be given the opportunity to try to establish that Senak acted “under color of . . . law.”. The district court’s objections to the indictment centered on the supposed absence of the “deprivation of a constitutional right” element. Implicit in its discussion, however, were doubts about the “under color of any law” requirement. In the court’s view, to hold that the defendant, by charging a fee, had deprived the named persons of property without due process of law was “to strain that concept well past its breaking point.” The “constitutional deprivation” element of the section 242 offense charged here consists of three concepts: the right to “property,” a “deprivation,” and “due process.” It is clear that the right to acquire, enjoy, own, and dispose of property is protected by the Constitution. Each count of the indictment against Senak referred to the named person’s right to property under the Fourteenth Amendment and specified the form of that property (money) and the approximate amount allegedly taken. Cf. United States v. Konovsky, 202 F.2d 721, 726 (7th Cir. 1953). A more difficult problem is whether Senak’s alleged conduct constituted a “deprivation” under the Constitution. The district court considered that term to import a “taking” in the sense of “a nonconsensual divestiture compelled by legal authority” and reluctantly concluded that the indictment failed to allege such a “taking”: “When the verbiage concerning ‘taking’ and ‘exaction’ is stripped away, all that [the indictment] alleges is a successful demand for money in exchange for the performance of a preexisting legal duty. . . . The fatal defect in the indictment here is that it fails to allege that defendant’s ‘victims’ were ever under any legal obligation to pay the sums demanded. . . [N]o such obligation in fact existed. Unless the defendant’s demands . . . are backed by the power of the state, there is no ‘taking’ in a constitutional sense.” In its prior opinion sustaining the motion to dismiss directed to the first indictment, which opinion was incorporated by reference in the second opinion, the district court stated: “There is no claim that those charged [a fee] were ever under any compulsion, legal or otherwise, to pay. . . .” (Emphasis added.) It would seem obvious that there was no legal compulsion. Senak was being paid by the state and could not have successfully claimed any additional compensation from those he represented, either directly or vicariously. However, that he had no legal right to the money he supposedly collected or that the named “victims” might have asserted a successful defense to a suit by him for payment does not preclude the possibility that Senak “deprived” those persons of their property. See United States v. Barr, 295 F.Supp. 889 (S.D.N.Y.1969); cf. Culp v. United States, 131 F.2d 93 (8th Cir. 1942). It appears to us that reality is ignored to say that there is no compulsion “otherwise” on an impoverished person who has supposedly been provided with legal representation or on his relatives and close friends when they are confronted with a demand from that counsel, ostensibly by virtue of his appointment “backed by the power of the state,” for additional compensation if there is to be adequate representation. The constitutional right to appointed counsel does not contemplate any standard less than adequate representation. We are not here dealing with the inherent variation in legal skills existing fronj lawyer to lawyer. Attorneys appointed to represent indigents, like retained counsel, undoubtedly will possess varying degrees of legal acumen; none, however, should be purposely inadequate. When the matter is baldly put as a choice between adequate representation possibly followed by an acquittal and inadequate representation which could reasonably assure a conviction, the choice is surely of the Hobson variety. The litigant with means can choose his counsel. The pauper cannot, and his constitutional right to appointed counsel has has not been extended to the point of affording him this privilege. That it has not been should be no basis for exposing him to the necessity of trying by some means to gather together funds to compensate the attorney whom he has not selected and who has told him that without those funds he would not be competently represented. Finally, we note that a “deprivation” does not have to be authorized by state law. See, e. g., Catlette v. United States, 132 F.2d 902, 905 (4th Cir. 1943). A defendant must act “under color of . . . law,” but his acts need not have been in compliance with the law. United States v. Wiseman, 445 F.2d 792, 796 (2d Cir. 1971), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 287. The Government claims that Senak’s official position enabled him to perpetrate a scheme of obtaining money to which he was not entitled. His being county public defender allegedly gave him the opportunity to make the demands and clothed him with the authority of the state in so doing. In sum, we think that the district court construed the “deprivation” requirement too narrowly. By emphasizing compulsion and coercion, the district court seemed to suggest that “deprivation” is a taking accomplished without adherence to proper procedures. The term “deprivation” by itself, however connotes neither legality nor illegality. • The portion of the Fourteenth Amendment with which we are concerned in this ease — “nor shall any State deprive any person of life, liberty, or property, without due process of law” - — indicates that the violation of due process standards makes a particular “deprivation” an objectionable, illegal “deprivation.” Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). That is, the Amendment focuses on the means by which the “deprivation” is achieved. The Government argues that “the named victims possessed certain constitutional rights both before and after defendant’s appointment [as public defender] ; specifically, each citizen’s basic, continuing right to use and control his own property until such time as he voluntarily disposes of it . . .or it is taken from him through means consistent with due process standards . . . ." In our opinion, the indictment satisfactorily alleges a violation of that constitutional right. Senak argues by way of conclusion that “[a]t best, the indictment alleges a procedural violation of State law by the defendant.” As we have explained, we find that the indictment does allege a violation of federal rights. Senak’s assertion prompts the recall of Mr. Justice Frankfurter’s challenging words, “The history of liberty has largely been the history of observance of procedural safeguards.” McNabb v. United States, 318 U.S. 332, 347, 63 S.Ct. 608, 616, 87 L.Ed. 819 (1943). We thus disagree with the district court’s assessment that this case does not warrant the exercise of federal jurisdiction. We do, however, understand the court’s apprehension that the Government has opened a Pandora’s box. We have held that the particular indictment before us adequately states an offense under 18 U.S.C. § 242; we intimate no opinion about the sufficiency of other possible indictments under section 242 involving different factual situations. The order dismissing the February 1972 indictment is reversed, and the cause is remanded to the district court for further proceedings consistent with this opinion. Reversed and remanded. FAIRCHILD, Circuit Judge (concurring). While I agree that the instant indictment states an offense against the United States under 18 U.S.C. § 242, the legal theory upon which the indictment is grounded does not, in my view, satisfactorily grapple with the primary “deprivation” effected by defendant’s alleged conduct. The right of indigents to appointed counsel is guaranteed by the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). And, the “essence of this right is the right to effective, competent and adequate representation.” Wilson v. Phend, 417 F.2d 1197, 1199 (7th Cir. 1969). See also, Calloway v. Powell, 393 F.2d 886, 888 (5th Cir. 1968). Thus, if an appointed attorney threatens to provide less than adequate legal services for an indigent defendant unless paid additional sums, he in effect subjects that defendant to a deprivation of his Sixth Amendment rights. It is this subjection of an indigent to deprivation of his Sixth Amendment rights which is the real harm posed by defendant’s alleged conduct. Accordingly, the indictment would be better framed if it focused upon this reality. . 18 U.S.C. § 242 provides in pertinent part: “Whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States . . . [is guilty of an offense.]” . Ind.Ann.Stat. § 4-5716, Burns’ 1968 Repl., IC 1971, 33-9-6-1, authorizes criminal court judges in counties having a population of 400,000 or more to appoint public defenders to defend any poor person accused of the commission of a crime who lacks the means to employ an attorney. If it appears to the judge that a person previously deemed to be a “poor person” has funds to pay for counsel, the county attorney is to sue for recovery of a reasonable sum for the services rendered by the public defender. The sums recovered go into the general county fund. The compensation to be paid pub-lie defenders is determined by the criminal court judges and comes from public funds. § 4-5717, IC 1971, 33-9-6-2.
f2d_477/html/0310-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "STEVENS, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CLEVELAND, Defendant-Appellant. No. 72-1471. United States Court of Appeals, Seventh Circuit. Argued Jan. 8, 1973. Decided April 16, 1973. Rehearing Denied May 7, 1973. Joseph A. Lamendella, Samuel J. Betar, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., William T. Huyck and Ann P. Sheldon, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges. STEVENS, Circuit Judge. Defendant was indicted and convicted on three counts of tax evasion in violation of 26 U.S.C. § 7201. On appeal, he raises numerous issues relating to the sufficiency of the evidence, several evidentiary rulings, the voir dire, the instruction of the jury, and the application of the Jencks Act, 18 U.S.C. § 3500. Only the final point has merit. The prosecution was based on the “net worth” theory of proof. This theory assumes that a taxpayer's increase (or decrease) in net worth plus his nondeductible expenses (less nontaxable receipts, if any) during the tax year should equal his taxable income. If there is a substantial unexplained discrepancy between this figure and the amount actually reported, the inference that taxable income was not reported is sufficient to support a conviction. See Capone v. United States, 51 F.2d 609 (7th Cir. 1931); Guzik v. United States, 54 F.2d 618 (7th Cir. 1931). Although the theory puts the burden of explaining the discrepancy on the defendant, and has other deficiencies, the Supreme Court has approved its use. United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L. Ed. 150. “While we cannot say that these pitfalls inherent in the net worth method foreclose its use, they do require the exercise of great care and restraint. The complexity of the problem is such that it cannot be met merely by the application of general rules. Cf. Universal Camera Corp. v. Labor Board, 340 U.S. 474, 489 [71 S.Ct. 456, 95 L. Ed. 456]. Trial courts should approach these eases in the full realization that the taxpayer may be ensnared in a system which, though difficult for the prosecution to utilize, is equally hard for the defendant to refute . . . Appellate courts should review the cases, bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method that is itself only an approximation.” 348 U.S. at 129, 75 S.Ct. at 132. With this admonition in mind, we turn to the case at hand. I. Sufficiency of the Evidence. The government’s calculations indicate that defendant failed to report $6,064.76 in 1964; $6,744.92 in 1965; and $5,864.-35 in 1966, the three indictment years. By way of contrast, he reported no income in 1964; $102.10 in 1965; and $1,591.04 in 1966. Cleveland argues that close examination of the government’s case reveals that the proven discrepancies were only $909.00 in 1964; no taxable income in 1965 (although he reported $102.10); and $2,839.00 in 1966. The proven discrepancies in 1964 and 1966, he argues, are not substantial enough to support a conviction. 1964 Cleveland claims the government made four errors in its schedules for 1964. First, the government included as an increase in net worth $5,000 received in settlement of a lawsuit, but did not enter the same amount as a liability to his client. There was evidence at trial, however, which showed that Cleveland felt no obligation to pass the money on to his client and in fact had used it for his own purposes. Nor had any attempt to collect it ever been made. Tr. 150. This evidence was sufficient to establish that the $5,000 was income. Rutkin v. United States, 343 U.S. 130, 136-137, 72 S.Ct. 571, 96 L.Ed. 833 (1954); United States v. Wyss, 239 F.2d 658 (7th Cir. 1957). Second, defendant contends he should have been credited $800 on the purchase price of a building (the Foster Avenue building). The closing statement shows a credit of $800 for “6 stoves and 2 refrigerators.” Gov.Ex. 41C, App. 78-79. Defendant’s expert witness testified that this represented “a reduction in purchase price.” Even though we must view the evidence most favorably to the government, for purposes of decision we accept this testimony. Nevertheless, the $800 is immaterial in light of the other evidence of guilt. Third, Cleveland contends that he overstated on his 1964 tax return the interest expense on the Foster Avenue property, thereby creating the impression of additional resources available to defendant during the tax year. The government, however, did not rely on the tax return in its computations. It relied instead on the Liberty Savings and Loan Mortgage payment ledger cards. Gov. Ex. 41. Defendant stipulated to the interest figures contained therein. Gov. Ex. ZZZ. Fourth, the government did not credit defendant for $636 in insurance commissions received by him on his own life insurance policy. Defendant’s own expert witness recognized that the amount was income. Tr. 341-342. Cleveland was not entitled to credit for the sum since it was income. The findings with respect to defendant’s 1964 income are supported by the record. 1965 The primary objection to the government’s computations for 1965 concerns the inclusion of $8,116.99 in a Glencoe Bank checking account in the name of defendant’s wife. Cleveland contends that those funds cannot be traced to him. The Clevelands were married in 1962; they separated in 1965. The account was opened, maintained, and closed in 1965. The evidence showed that Bernice Cleveland had no income during her marriage. Defendant alleges that Mrs. Cleveland brought $30,000 into the marriage. We find no evidence supporting this allegation. The only evidence introduced on the point indicates that she brought roughly $2,000 into the marriage. Tr. 88, 90. The evidence was sufficient to support the inference that the $8,116.99 was income to Cleveland. Appellant also argues that he is entitled to a theft loss on the $8,116.99 because his wife took the money on dissolution of the marriage. There was no theft, however, since defendant gave the money to his spouse for deposit in her separate account. A gift does not entitle one to a theft loss. The evidence on the $8,116.99 and all other elements of the government computation are supported by the evidence. 1966 Defendant contends that the 1966 figures are incorrect because they treat loans from three friends as income. The testimony of the three was quite dubious, and the jury evidently did not believe that the payments totalling $3,925 were loans. In any event, appellant admits a proved unaccounted for difference of $2,839 in a year when he reported only $1,591.04. In view of the fact that this is an amount which was computed without making any realistic allowance for normal living expenses, we cannot accept his contention that the amount is insubstantial. The evidence was sufficient to support the government's calculations for each of the three indictment years. The consistent pattern of income understatement proven in this case is sufficient to support the inference of willfulness. Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150. II. The Admissibility of Evidence. Defendant argues that his objections to certain government evidence were improperly overruled. The objections were grounded on the marital privilege, the Fifth Amendment, and the rule against evidence of unrelated criminal activity. In preparing its case, the government conducted many interviews with defendant’s former wife, Bernice. Although she never testified at trial, defendant sought to suppress all information and leads obtained from her, contending that the interviews violated the marital communications privilege. The trial court refused to hold a hearing on the matter. Although testimony by a government agent as to what a spouse said would be inadmissible in the Fifth Circuit, the rule is otherwise in the Second Circuit. As we stated in United States v. Doughty, we prefer the view of the Second Circuit. See 460 F.2d 1360, 1364 n. 3 (7th Cir. 1972). In any event, no such testimony was given at this trial, and we find no authority for the broad exclusionary rule advocated by defendant. See the Advisory Committee Notes to Rule 504, Proposed Federal Rules of Evidence. At defendant's trial, the government read to the jury portions of the transcript of divorce proceedings involving Cleveland and his spouse, Bernice. That transcript contains numerous admissions by defendant as to his financial condition. Since the government did not read to the jury all relevant portions of the transcript, defendant contends it was permitted to “pick and choose from the taxpayer’s statement” in violation of Holland v. United States, 348 U.S. 121, 128-129, 75 S.Ct. 127, 132, 99 L.Ed. 150. Appellant’s reliance on that portion of the Holland opinion is completely misplaced. That discussion was concerned with the need for corroboration of admissions made to Internal Revenue agents; it had nothing to do with the use of portions of a transcript, the complete text of which is available to both parties. Appellant also raises the Fifth Amendment as a bar to selective introduction of the transcript. He concedes that the entire transcript could have been read to the jury without offense to his Fifth Amendment rights. Since the government chose to read only part of it, he contends that he could not have read additional excerpts to the jury without, in effect, commenting on his failure to testify. We find no merit in this argument. His next point relates to testimony on the $5,000 received by Cleveland in settlement of a lawsuit. The government deemed it income to Cleveland because he had appropriated it to his own use. The evidence supported this conclusion. Defendant properly points out that evidence of past crimes is not ordinarily admissible because of the danger of prejudice. But in this case, defendant strenuously contended that the $5,000 was not income since it belonged to his client. On that issue, evidence that Cleveland defied his obligation to his client and appropriated the money to his own use was properly admitted. The appellant also argues that evidence of understatement of income in pre-indictment years is not admissible. The government had introduced evidence to that effect for 1961, 1962, and 1963 although prosecuting only for 1964, 1965, and 1966. Such evidence is admissible to show the element of willfulness. United States v. Shavin, 320 F.2d 308, 314 (7th Cir. 1963), cert. denied, 375 U. S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273. III. The Voir Dire. The defendant proposed the following question for voir dire: “Would you give greater credence to the testimony of an expert witness employed by the Internal Revenue Service merely because he is an Internal Revenue Service Officer?” Defendant assigns error to the fact that the trial judge, who personally conducted the voir dire, declined to ask the proffered question but instead asked: “Now, I will make this statement to you and I will make it — it applies also to the other eleven prospective members of this jury: In this case there undoubtedly will be evidence furnished by certain witnesses who may, in one respect or another, be employees of the Internal Revenue Service, of the United States Government. There may be other government witnesses. I will make this statement and I will ask you whether or not you think that this is a fair statement. These witnesses would be entitled to no greater or no less credence from the jury than any other witness who may take the witness stand. Would you agree with that?” Supp.Tr. 12. The trial court also instructed the jury to “apply the same standards to the testimony of each expert, whether produced by the government or the defendant.” Tr. 409-410. The judge did not err in refusing to ask the proffered question. IV. Jury Instructions. In a manner similar to his handling of the voir dire, the trial judge refused several instructions offered by defendant on the issue of willfulness; the court gave the standard La Buy instruction. We have examined that instruction as well as those advanced by defendant and conclude that the trial court adequately instructed the jury. See Tr. 395-414. After some twenty hours of deliberation, the court received the following communication signed by the jury foreman: “Judge Decker, in order that the jury arrive at a fair and just decision, we are requesting another clarification of the word ‘willful’ and its significance to this case as it relates to the guilt or the innocence of the defendant Robert Cleveland of the charge as included in the government’s indictment.” In response, the court reread portions of the original instructions describing the nature of the case and defining the term “willfulness.” Tr. 423-425. While the court could have avoided any problem by sending a copy of the complete instructions in with the jury at the start of deliberations as is sometimes done, we are satisfied that the procedure followed in this case did not mislead or confuse the jury. V. Section 3500 Statement. Special Agent Carey testified at length as a government witness. Defendant requested the trial judge to make an in camera inspection of a report Carey had prepared and to order the government to produce that part of the report which “relates to the subject matter of Agent Carey’s testimony.” The judge directed the government to give him the report the following morning, stating that he would “take a look at it.” The next morning, without clearly indicating whether or not he had examined the report, the judge stated that he was “going to adhere to my ruling that no portion of the report comes under a 3500 statement.” The government defends this ruling on alternate grounds: First, that the judge did in fact make the in camera inspection which defendant requested; and, second, that in any event a Special Agent’s Report is not a “statement” producible under the Jencks Act, 18 U. 5. C. § 3500. We are persuaded by appellant’s analysis of the relevant colloquies that the record does not demonstrate that the judge examined the report. The document is not before us and the record contains no finding or other unambiguous comment indicating that the judge did in fact review Carey’s report. A more reasonable interpretation of the transcript is that the judge construed our holding in the second Keig case as establishing a rule for this circuit that a Special Agent’s Report is, as a matter of law, not a “statement” within § 3500. Although the government so interprets Keig, and there is indeed language in the opinion which supports this interpretation, we have concluded that the statute may not be so construed. Two problems which recur under § 3500 must be separately identified. First, is a document which has been prepared by a government witness a “statement” as defined in subsection (e); and, second, if so, is it producible pursuant to subsection (b)? The definition of the term “statement” in subsection (e)(1) — assuming that the plain language means what it says — includes the report of a government agent who testifies as a prosecution witness. It has commonly been so held, and Revenue agents are treated like other government agents who testify at the trial. We must, therefore, conclude that Special Agent Carey’s written report was a “statement.” That conclusion does not necessarily mean that the statement was producible. For the right to production turns on whether the content of the statement “relates to the subject matter as to which the witness has testified” within the meaning of subsection (b). The procedure for answering that question is thoroughly and accurately described in Senior Judge Hastings’ opinion in United States v. O’Brien, 444 F.2d 1082 (7th Cir. 1971), see especially 1086-1087. Suffice it to say here that since Special Agent Carey’s report was a “statement” within subsection (e), subsection (c) of the statute required the judge to make the in camera inspection requested by defendant in order to determine whether any part of the report was producible. Since we cannot be sure this was done, following the procedure set out in O’Brien we vacate the judgment and remand for further proceedings. If the trial judge determines that no part of the report need be produced, he should enter a fresh judgment. Defendant may then have the report sealed and transmitted to this court for review of the lower court’s determination. If, on the other hand, he concludes that production was wrongfully denied, it would then become his duty to accord defendant a new trial. This disposition of the appeal is not necessarily inconsistent with the holding in Keig because the statements there involved were not producible pursuant to subsection (b) unless they related to the testimony of Agent Marici. We do, however, expressly disapprove of the language of that opinion insofar as it may be read to imply that a Special Agent’s Report is not a statement within subsection (e). Judgment vacated and remanded with directions. . There was no precise explanation of why the credit was given. It could, of course, represent payment by the defendant of an obligation of the seller, in which case it would not reduce the purchase price. . United States v. Williams, 447 F.2d 894 (5th Cir. 1971); Ivey v. United States, 344 F.2d 770 (5th Cir. 1965). . United States v. Mackiewicz, 401 F.2d 219, 225 (2d Cir. 1968), cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258. . United States v. Keig, 334 F.2d 823, 825 (7th Cir. 1964). The first Keig opinion is reported at 320 F.2d 634 (7th Cir. 1963). In the first case we reversed and remanded with instructions to the trial court to make an in camera inspection of a Special Agent’s Report. On remand, the trial court found that the statement was not producible and in the second Keig appeal we affirmed that determination. . Subsection (e) reads as follows : “(e) The term ‘statement’, as used in subsections (b), (e), and (d) of this section in relation to any witness called by the United States, means— (1) a written statement made by said witness and signed or otherwise adopted or approved by him ; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. Added Pub.L. 85-269, Sept. 2, 1957, 71 Stat. 595, and amended Pub.L. 91-452, Title I, § 102, Oct. 15, 1970, 84 Stat. 926.” . Subsection (b) reads as follows : “(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to.. produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.” (Emphasis added.) . Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574, rev’g., 276 F.2d 617 (7th Cir. 1960); United States v. Sheer, 278 F.2d 65, 67-68 (7th Cir. 1960); United States v. Berry, 277 F.2d 826 (7th Cir. 1960); United States v. McCarthy, 301 F.2d 796, 797-799 (3rd Cir. 1962); Lewis v. United States, 340 F.2d 678 (8th Cir. 1965); Mims v. United States, 332 F.2d 944, 948 (10th Cir. 1964) (government conceded point). . United States v. O’Connor, 273 F.2d 358, 360-361 (2d Cir. 1959). . We do not preclude the possibility that error which may have stemmed from an understandable reliance on Keig might be harmless if it is perfectly clear that the defense was not prejudiced. See United States v. Aaron, 457 F.2d 865 (2d Cir. 1972). . This comment is, of course, also applicable to the dictum in United States v. Krilich, 470 F.2d 341 (7th Cir. 1972) page 351 n. 18, and to comments in United States v. Lacob, 416 F.2d 756, 761 (7th Cir. 1969), insofar as they so interpret Keig. This opinion has been circulated to all of the active members of the court. No judge has requested that the case be heard en banc. . To avoid a possible dispute over the application of Circuit Rule 23, in the event that Judge Decker shall determine that a new trial is necessary, we direct that all proceedings pursuant to our remand, including such possible retrial, be conducted by Judge Decker.
f2d_477/html/0317-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PICKETT, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellant, v. Harry S. CROSS, Jr., Defendant-Appellee. No. 72-1492. United States Court of Appeals, Tenth Circuit. Argued March 26, 1973. Decided April 27, 1973. Edmund B. Clark, Chief, Appellate Section, Land and Natural Resources Division, Dept. of Justice, Washington, D. C. (Kent Frizzell, Asst. Atty. Gen., Jacques B. Gelin and Dennis M. O’Connell, Attys., Dept. of Justice, Washington, D. C.; James L. Treece, U. S. Atty., Charles W. Johnson, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellant. Willis K. Kulp, Greeley, Colo., for defendant-appellee. Before PICKETT, SETH and MC-WILLIAMS, Circuit Judges. PICKETT, Circuit Judge. The United States brought this action seeking an injunction to prevent Harry S. Cross from constructing a building on its easement over lands upon which the Bureau of Reclamation had constructed and was operating a high voltage electric transmission line. Cross admitted the proposed construction, but denied that it was an encroachment on the rights granted by the easement. The trial court held, on stipulated facts, that the easement couched' in general terms had been, over the years, construed by the parties as permitting such construction and denied the relief sought, 339 F.Supp. 221. Cross’ predecessor in interest, in 1938, granted to the United States “a right of way and easement, together with all rights and privileges incident to the use and enjoyment thereof to construct, maintain and operate a 115 Kv. transmission line over and across” the described lands. At the time of the grant the easement was located over open agricultural lands. Subsequent to the erection of the transmission line the area in which the Cross lots are located was subdivided and became a part of the city of Greeley, Colorado. Since 1950 eight dwelling houses and a gasoline service station have been constructed on lots within the right of way and under the transmission lines. The last of these structures was completed in March 1966. Most of these buildings extend under two or three of the conductor wires. The Cross house extends under only one. The parties agreed that the presence of the Cross house will make inspection of the lines more difficult, make detours of equipment necessary, increase line maintenance cost and increase the delay and expense in the event of a power outage, and, that under certain conditions electric currents could be induced to flow in various metal parts of any structure located beneath a line, thereby causing a hazard to the occupants. Cross made it clear, however, through photographic exhibits and a drawing, that his proposed construction would interfere no more, and possibly less, with the government’s maintenance of the line than any of the existing structures, none of which has ever been challenged by the government as an encroachment on its easement. Moreover, in 1961, the government specifically stated in writing that it had no objection to the construction of the gasoline station. In dismissing the action, the trial court stated: The uses of the land under the transmission line do not prevent the plaintiff from operating and maintaining the line, but such uses have increased the difficulty and cost of maintenance over what it would be if no such uses were made of the land under the line. Yet, at no time since these uses were initiated in the year 1950 until January 1971, did the plaintiff object to such uses as an unlawful interference with its easement rights, or that such uses were incompatible or inconsistent with or constituted an unreasonable interference with the plaintiffs rights under the easement. On the contrary, when one Roth-man, who built a filling station under the transmission line in 1961, (Building L Exhibit 16) wrote plaintiff and asked whether it had objection to the construction of the filling station in that location, was informed by the plaintiff it had none. These facts, together with the fact that the easement grant contains no provision prohibiting the uses made by the owners of the servient estate, leads to the conclusion that both the owners of the servient estate and the plaintiff as the owner of the dominate [sic] estate construed plaintiff's easement as not precluding the use of the servient estate for residential purposes. The issue presented is not one of estoppel or waiver of governmental rights but is whether the proposed construction is an encroachment upon the rights granted by the easement. It is the general law of contracts that in construing ambiguous and indefinite contracts the courts will look to the construction the parties have given to the instrument by their conduct before a controversy arises. The Colorado courts recognize this rule. In Greeley and Loveland Irrigation Company v. McCloughan, 140 Colo. 173, 342 P.2d 1045 (1959), the court says: “Colorado has long recognized the rule that in construing a contract the courts will follow the construction placed upon it by the parties themselves. [Citing cases.]” See also Chevron Oil Co. v. Barlow, 406 F.2d 687 (10th Cir. 1969); 17A C.J.S. Contracts § 325 (1963). The same rule is applicable to easements. With reference to easements, 2 Thompson on Real Property § 385 (Repl.1961) states: The rule is well settled that where a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed. The grant of a way when there is any uncertainty or ambiguity in it may be interpreted by reference . especially to the practical interpretation put upon the grant by the acts of the parties in the use of the easement immediately following the grant. When the grant is ambiguous the construction given by the parties themselves, as proved by the manner in which they exercised their rights under the conveyance, is legal evidence. Gayton v. Lebedina, 158 Cal.App.2d 252, 322 P.2d 285 (1958); Isenberg v. Woitchek, 144 Colo. 394, 356 P.2d 904 (1960); Marden v. Mallard Decoy Club, 278 N.E.2d 743 (Mass.1972); Doody v. Spurr, 315 Mass. 129, 51 N.E.2d 981 (1943); York v. Cooper, 60 Wash.2d 283, 373 P.2d 493 (1962); 25 Am.Jur. 2d, Easements and Licenses § 23 (1966); Annot., 3 A.L.R.3d 1256 (1965); 28 C.J.S. Easements § 91A (1941). The general terms of the easement granted only a right to erect, maintain and operate an electric transmission line over the property. Subject to this grant the owner was free to use the land as he saw fit. Over the years no objection was made to residential use of the right of way. Cross’ construction interferes no more with the government’s maintenance of the line than any of the existing structures. We agree with the trial court that the parties by their conduct have construed the easement to permit residential use of the servient tenement. In an extensive argument in its brief, the government contends that it cannot be deprived of any property right because of acts of government administrative officials or on any estoppel or laches theory. These contentions have no application to the issues here. The government has not been deprived of any property right. It has no more or less than it had at the time of the original grant in 1938. The holding of the court below is that the original grant as construed by the parties permits residential use of the servient estate as proposed by Cross. Affirmed.
f2d_477/html/0319-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BENSON, District Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Plaintiff, v. Sheryl Denise JACKSON, Appellant, Gwendolyn Wilkinson, Appellee, Anna L. Ray, Administratrix of the Estate of Glasco P. Ray, Deceased et al., Defendants. No. 72-1460. United States Court of Appeals, Eighth Circuit. Submitted Feb. 14, 1973. Decided April 20, 1973. Rehearing Denied May 16, 1973. William F. Maurer, Kansas City, Mo., for appellant. Bruce Ricker, Kansas City, Mo., for appellee. Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge. Judge Benson, Chief Judge of the District Court of North Dakota, sitting by designation. BENSON, District Judge. This case comes to us on appeal from a judgment and decree entered June 26, 1972, in the above action brought under Title 28, Section 1335, United States Code, wherein the District Court awarded life insurance proceeds, previously tendered by the insuror, John Hancock Mutual Life Insurance Company, into the court’s registry, to the guardian of Appellee Gwendolyn Wilkinson. One Glaseo P. Ray, (Ray), an employee of the Ford Motor Company, by virtue of his employment, became an insured under the Ford Motor Group Life and Accident Death Insurance Policy No. 17-GCC, issued by the John Hancock Mutual Life Insurance Company, and maintained for the benefit of Ford Motor Company employees. The evidence of coverage was contained in a 29 page certificate-booklet furnished him, which described the Ford Motor Company Employee’s Life and Disability Insurance Program. Ray had the right to name the beneficiary and to change the beneficiary at any time. This was accomplished by filing an application form with the insurance company. On October 28, 1968, Ray completed the application form and named his half sister, Gwendolyn Wilkinson, as beneficiary. On April 25, 1969, Ray attempted to change the beneficiary by completing a.new application form, naming one “Shirley Ray (Wife)”, as beneficiary. Ray died on July 21, 1969, and the proceeds of his coverage under the group policy became payable. Both application forms contained the following printed provision: “I revoke all previous beneficiary nominations, together with any settlement elections and make the above nomination of beneficiary with respect to all insurance provided now or at any time in the future under the above Group Insurance Policies still reserving to myself the privilege of making other and further changes subject to the Policy provisions. If more than one beneficiary is designated, settlement will be made in equal shares to such of the designated beneficiaries (or beneficiary) as survives me, unless otherwise provided herein. If no designated beneficiary survives me, settlement will be made as provided in the policies.” The certificate-booklet. contained, on page 9, information on beneficiary designation as follows: “You have the right to name the beneficiary of your choice, and to change your beneficiary at any time. The beneficiary is that designation you have last made as indicated on the records of the Insurance Company. In the event the last named beneficiary dies before you, or if no beneficiary shall have been named, the life insurance will be paid to your wife or husband, if living; if not living, equally to your surviving children; if none survive, to either your mother or father, or to both equally if both survive; if there are no such survivors, to the executor or administrator of your estate.” Glaseo P. Ray had never married. Although at least two persons by the name of Shirley were shown to have been friendly with Ray, the District Court found the evidence was not sufficient to establish who was the subject of Ray’s second application. The court found the second designation to be void, and applied the doctrine of dependent relative revocation, holding the prior designation of Gwendolyn Wilkinson, as beneficiary, had not been revoked. The appellant, Sheryl Denise Jackson, was found by the court to be the natural daughter of Glaseo P. Ray. She claims a right to the policy proceeds under the provisions of the contingent beneficiary clause contained in the certificate-booklet hereinbefore set out. It is appellant’s position that the District Court erred in applying the doctrine of dependent relative revocation. Appellant submits that the record does not show Ray’s intent in changing the designation, and similarly there is no showing of any dependent connection between the revocation of the first beneficiary and the designation of the second. Under the doctrine of dependent relative revocation, if a testator cancels a will with the present intention of making a new one as a substitute, and the new will is not made, or if made, fails for any reason, it will be presumed that the testator preferred the old will. 57 Am.Jur. Wills § 514. The rule is based on the assumption that the testator revoked the prior will with the express intent of creating a new one. Anno. 62 A.L.R. 1367, 1401, 115 A.L.R. 710, 721. The Missouri Court of Appeals, St. Louis, in Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1077 (1930), early announced that where the beneficiary designation in an insurance policy is questioned, the language of the policy is to be treated as testamentary in character, and should be given the same interpretation as if the instrument were a will. In 1955, the Missouri Supreme Court recognized the doctrine of dependent relative revocation and put forth as a basis for the doctrine, the presumption that had the testator known his second beneficiary designation would become invalid, he would have wished his property disposed of as expressed by his original will. Board of Trustees of Methodist Church v. Welpton, 284 S.W. 2d 580, 584 (Mo.1955). The basic rule of construction to be found throughout the cases and annotations, with regards to giving operative effect to the doctrine is that the testator’s intentions must be ascertained and upheld. The purpose of the doctrine is to give effect to the testator’s true intent. The determination of whether to apply the doctrine turns upon whether the testator’s intention was to revoke the first designation to make effective a new designation or to revoke the first regardless of the effectiveness of the subsequent designation. The doctrine, then, should not be blindly applied in all instances where an invalid beneficiary designation exists. If, by its application, the doctrine would operate to defeat the real intent of the testator, it should not be applied. Mort v. Trustees of Baker University, 229 Mo.App. 632, 78 S.W.2d 498, 501 (1935). This case set out as one indicia of intent the instruments themselves. “. . . The testator’s intention must be ascertained, if possible, from the four corners of the instrument .” An examination of the certificate-booklet and the two beneficiary forms discloses only an intention to change the beneficiary designation. No clear presumption of intent can be ascribed to either the revocation clause or the contingent beneficiary clause. Both of these clauses were standard form phrases that lack the probative value on the question of intent attributed to similar clauses as found in a formal will. There is every probability that a potential insured would not even be aware of the contingent beneficiary provision found on page 9 of the certificate-booklet. The beneficiary designation form and the contingent beneficiary clause seem to be independent of each other. As a consequence, any inferences to be made as to Glaseo P. Ray’s testamentary intent must arise from evidence other than the instruments themselves. Under Missouri law, if the instrument itself is ambiguous, or if the description is imperfect, the court may resort to extrinsic evidence for the purpose of ascertaining the intended meaning. Here, the designation of “Shirley Ray (Wife)” renders both instruments, when read-together, imperfect and ambiguous. “The cases hold that, in the construction of a will, where the purpose is to determine a beneficiary thereunder, it is the primary duty of the court to give effect to the intention of the testator as expressed in his will, if the same is not contrary to law or against public policy, and not to put such a construction thereon as will tend to substitute the court’s own ideas or motions for those of the testator; and that, where any doubt or uncertainty arises as to the testator’s intention, extraneous facts will be admissible to explain the language used, regardless of whether the ambiguity be a patent or a latent one, since the court is entitled to be placed in possession of all available information of the circumstances surrounding the testator when he made the will . . . Of course it must be understood that such extrinsic evidence is admissible, not for the purpose of contradicting or varying the terms of the will, but solely for the purpose of ascertaining the testator’s true intention from the language used . . . (Citations and footnotes omitted). (Emphasis added). Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1078 (1930). In this posture, then, the District Court gave consideration to the surrounding circumstances and conditions existing at the time Glaseo P. Ray executed the second beneficiary form. There was extrinsic evidence before the court that Ray was a heavy drinker; that he was not married at the time of his death, nor had he ever been married; the specific identity of the person designated “Shirley Ray (Wife)” could not be determined; Ray had always been close to his half sister, Gwendolyn Wilkinson, the appellee herein; he had not been affectionate nor had he been close to his daughter, Sheryl Denise Jackson, the appellant; the designation of “Shirley Ray (Wife)” was a manifestation of some sort of mental incapacity. The evidence is sufficient to support the District Court’s conclusion that had Ray known the intended disposition would be inoperative, he would have preferred the prior designation be given effect. The revocation of the first beneficiary designation was conditional upon the validity of the second. The judgment of the District Court is affirmed. . See generally Anno. 24 A.L.R. 750. . See Anno. 24 A.L.R. 750, 62 A.L.R. 1367, 115 A.L.R. 710, 28 A.L.R.2d 521, 95 A.L.R.2d 1256.
f2d_477/html/0323-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "VAN OOSTERHOUT, Senior Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. Tyrone WILKINS, Appellant. No. 72-1656. United States Court of Appeals, Eighth Circuit. Submitted March 16, 1973. Decided April 20, 1973. John S. Steiner, St. Louis, Mo., for appellant. J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge. Sitting by designation. VAN OOSTERHOUT, Senior Circuit Judge. Defendant Wilkins has taken a timely appeal from his conviction by a jury on a charge of bank robbery in violation of 18 U.S.C. § 2113(a) and the resulting sentence of fifteen years imposed, with authorization for early parole pursuant to 18 U.S.C. § 4208(a)(2). Defendant urges he is entitled to a reversal by reason of alleged errors committed by the trial court in the following respects: 1. Denial of motion to suppress confession made by defendant to F.B.I. Agent Lummus. 2. Admission over objection to exhibits 7 and 8, photographs of defendant in the bank at the time of the robbery. 3. Denial of defendant’s motion for judgment n. o. v. and alternate motion for a new trial. We have carefully examined the record and find defendant’s asserted errors lack merit. We affirm the conviction. We will briefly summarize the underlying facts. Three eyewitnesses positively identified the defendant as the person who on April 19, 1972, entered the Mercantile Trust Company in St. Louis, Missouri, and placed a note before the teller Jean Hejlek reading “give me all the money”, and thereby obtained $4100.00 including $500.00 in bait money. A bank official followed defendant out of the bank, observed him get into a car, and provided the police with the license number and a description of defendant’s car. Such information was passed out by police radio. Officers on patrol shortly after receiving the radio message spotted and stopped defendant’s car which met the description and arrested the defendant, and as an incident thereto seized $4100.00 in currency and the “give me all the money” note, all of which were in plain sight. The money recovered included the $500.00 currency which fully conformed to the description thereof on the bank’s bait money list. The Government made a strong case with respect to all essential elements of the offense. Defendant’s defense and his testimony as a witness is that he was a drug user and was the victim of a drug-induced flashback or blackout, and that he had no recollection of any events occurring on the date of the bank robbery, and hence requisite criminal intent was not established. The court held a proper pretrial evidentiary hearing on defendant’s motion to suppress his confession. The testimony of the officers is that the Miranda warnings were given and understood by the defendant, that the defendant stated that he did not want an attorney, and that he would answer such questions as he chose to. There is no proof that any coercion was used. Defendant, after answering some questions, stated in substance that it was rather ridiculous to be questioning him about the bank robbery when it was obvious that he had robbed the bank and they had the money, the ear and him. Defendant’s position and testimony on the suppression issue is that by reason of the drug flashback he had no recollection of any of the events of April 19. Several officers who observed the defendant testified that at the time of the arrest and at the time of the interview which resulted in the confession the defendant appeared to be normal and competent, and that he appeared to understand what was going on, and they observed no symptoms of the defendant being under the influence of drugs. The court on the record made was justified in determining the confession was voluntary and hence admissible. Exhibits 7 and 8 are pictures of the bank interior showing defendant’s presence in the bank leaving the cashier’s cage, carrying a paper sack. Mrs. Hejlek testified that she activated the alarm on the floor of her cage which put into operation two bank cameras. She testified that the pictures offered disclosed what would be seen by the cameras at the time of the robbery and that the pictures accurately portrayed the bank interior and the defendant at the time of the robbery. The accuracy of the pictures portrayed is also vouched for by the bank manager who pointed to a calendar in the pictures showing an April 19 date. Defendant objected to the introduction of the pictures on the ground that no proof was offered that the pictures were taken by the bank cameras and that no one testified that the film was removed from the cameras and that the pictures were produced from such film, and that the photographs should be excluded for lack of proper foundation for their admission. While evidence of the nature set forth in the objection, if available, might be properly offered and eliminate controversy, it is not essential that such evidence be produced when there is reliable evidence that the photographs offered represent what a camera did see at the time of the robbery. Mikus v. United States, 433 F.2d 719 (2d Cir. 1970); United States v. Hobbs, 403 F.2d 977, 978-979 (6th Cir. 1968); see 29 Am.Jur.2d, Evidence § 788. The accuracy of the tendered exhibits with respect to all relevant matters was vouched for by at least two witnesses in a position to judge “whether the proffered photography is an accurate representation of the scene depicted.” Mikus v. United States, supra, 433 F.2d at 725. The trial court on the record made did not abuse its discretion in receiving the photographs in evidence. The trial court committed no error in denying defendant’s motion for judgment n. o. v. based on defendant’s motion for acquittal, on the ground that there is insufficient evidence to support a conviction. Defendant’s principal contention is that the Government did not meet the burden imposed upon it to establish that the defendant had a specific intent to violate § 2113(a) and that he could not have had such intent because of a drug induced blackout. The Goverment, relying on United States v. Porter, 431 F.2d 7 (9th Cir. 1970), contends that specific intent is not an essential element of the crime here charged under the first paragraph of § 2113(a). We need not resolve the issue of whether specific intent to rob the bank is an essential element as the trial court gave an instruction requiring a finding of specific intent. No exception was taken to such instruction. The evidence must of course be viewed in the light most favorable to the prevailing party, here the Government. The lay testimony, particularly in situations where the psychiatric testimony as to incompetency is weak, ordinarily is sufficient to support a finding of specific intent to commit the crime charged. United States v. Leeper, 413 F.2d 123 (8th Cir. 1969). Our examination of the record convinces us that there is substantial evidence to support the finding of specific intent as well as other essential elements of the offense charged. With respect to defendant’s motion for a new trial, we are convinced that defendant has not met the burden resting upon him to show that the trial court abused its discretion in denying his motion. Judgment affirmed. . The instruction reads: “Although a stupor due to the use of a some drug is not alone a defense, the fact that a person may have been in a state of drug induced stupor at the time of the commission of a crime may negative the existence of a specific intent. So evidence that a defendant acted or failed to act while in a stupor due to the use of some drug is to be considered in determining whether or not the defendant acted or failed to act with specific intent as charged. If the evidence in the case leaves the jury with a reasonable doubt, whether because of the degree of his drug induced stupor the mind of the accused was capable of forming or did form specific intent to commit the crime charged, the jury should acquit the accused.”
f2d_477/html/0326-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PHILLIPS, Chief Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	BEER NUTS, INC., Plaintiff-Appellee, v. KING NUT COMPANY, Defendant-Appellant. No. 72-1807. United States Court of Appeals, Sixth Circuit. Argued Jan. 29, 1973. Decided May 2, 1973. Bruce B. Krost, Cleveland, Ohio, for defendant-appellant; Charles R. Rust, Woodling, Krost, Granger & Rust, Cleveland, Ohio, on brief. James R. McKnight, Chicago, Ill., for plaintiff-appellee; Teare, Teare & Sammon, Cleveland, Ohio, of counsel. Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges. PHILLIPS, Chief Judge. This is an appeal by King Nut Company from the granting of summary judgment in a trademark infringement action brought under § 32 of the Lanham Act, 15 U.S.C. § 1114. The District Court held that King had infringed the trademark “BEER NUTS” owned by appellee, Beer Nuts, Inc., a permanent injunction and an accounting were ordered. We affirm. Appellee’s predecessor, Brewster Food Service, registered the trademark in 1955 for its brand of shelled, cooked and salted peanuts, which are sold in the tavern market. Beer Nuts, Inc. has used the mark continuously since its registration. Over the years, King has employed several names to market its brand of similar peanuts. In 1958 the name “KING’S BREW NUTS” was used. Upon discovery of this Brewster contacted King, contending that such a name was an infringement on its trademark. The parties were able to settle this difficulty by entering an agreement on September 15, 1958. That agreement released King from all liability in exchange for King’s promise to refrain from using the name “BREW NUTS” and King’s recognition of Brewster’s ownership and the validity of the trademark “BEER NUTS”. The agreement was concluded by a stipulation that the contract would be perpetual and binding on the parties and their assigns. In 1968 King began to market its peanuts under the name “KING’S BEER NUTS.” Each package also included a picture of an overflowing stein of beer. Beer Nuts, Inc. objected and King agreed to discontinue its use. Then King began marketing its product under the title “KING’S SNACK NUTS”, continuing the use of the picture. Thereupon Beer Nuts, Inc. brought this suit contending that the words “BEER NUTS” and the continued use of a picture of an overflowing stein of beer on the front of King’s packages constituted infringements. The principal defense asserted was that “BEER NUTS” had evolved into a descriptive term causing the trademark to lose its validity. On April 11, 1972, District Judge Don J. Young held that King was estopped by virtue of the 1958 agreement from contesting the mark’s validity. The effect of this holding was to deny King the opportunity to present its defense that “BEER NUTS” was a descriptive term not available for appropriation as a trademark. The court further held that the use of the picture and the name “KING’S BEER NUTS” constituted infringements. Judge Young concluded: “Thus, the only remaining issue before the Court is whether plaintiff is the assignee of Brewster Food Service to the trademark “BEER NUTS.” If plaintiff is, summary judgment will be entered on its behalf . . . .” On June 12, 1972, Judge Young ruled that the plaintiff had demonstrated that it was the assignee of Brewster Food Service and entered summary judgment. King first contends that the 1958 agreement does not preclude the assertion of the defense that the trademark was merely descriptive. We find this argument to be without merit. An assertion that a name is merely descriptive is an attack upon the validity of the trademark. A descriptive mark in appropriate situations will not be recognized as a valid trademark. 8 Callmann, The Law of Unfair Competition Trademarks and Monopolies (3d ed.) §§ 74, 74.2. King next argues that even if the agreement precludes an attack upon the mark’s validity, that agreement should not be.enforced. We recognize that to give effect to such agreements would impede the efficacy of the defense that the words are merely descriptive. It long has been recognized that a mark which is valid and enforceable at one point in time may subsequently evolve into an invalid mark. DuPont Cellophane Co., Inc. v. Waxed Products Co., Inc., 85 F.2d 75 (2d Cir.), cert. denied, 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443 (1936); American Thermos Products Co. v. Aladdin Industries, Inc., 207 F.Supp. 9 (D.Conn.1962), aff’d, 321 F.2d 577 (2d Cir. 1963); Bayer Co., Inc. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921). In the present case, however, we must weigh the public benefit in considering trademark principles in connection with the policy of upholding the law of contracts. In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), the Supreme Court was faced with the task of balancing conflicting contract and patent law policies. The Court held that a patent licensee was not estopped by virtue of having negotiated a license agreement from asserting that the patent was invalid. On its face Lear might appear to be applicable to trademarks, but we believe a closer analysis mandates a contrary result. Generally, courts uphold the contract principle that a contracting party may not repudiate his promises solely because he later becomes dissatisfied with his bargain. In Lear this policy was found to conflict with the patent policy that ideas in general circulation should be available for the public good unless protected by a valid patent. 395 U.S. at 688, 89 S.Ct. 1902. Our patent system awards an inventor exclusive use of his discovery for a limited period of time in return for his granting to the public full disclosure and, at the expiration of his monopoly, the free use of his discovery. This results not only in stimulating inventiveness but also benefits the consuming public when the discovery becomes available at competitive prices. See, Scott Paper Co. v. Marcalus Mfg. Co., Inc., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47 (1945). Where a monopolist is permitted to operate under color of a patent, which is in fact invalid, “. . . the public may continually be required to pay tribute to would-be monopolists without need or justification.” Lear, 395 U.S. at 670, 89 S.Ct. at 1911. This overriding consideration of the public interest led the Lear Court to conclude that patent law must control. The principles underlying the law of trademarks are distinguishable. Trademark protection guards the public from being deceived into purchasing an infringing unwanted product. It further protects the owner’s investment in advertising and quality control which is often considerable. Stahly, Inc. v. M. H. Jacobs Co., 183 F.2d 914 (7th Cir.), cert. denied, 340 U.S. 896, 71 S.Ct. 239, 95 L. Ed. 650 (1950). The premise for the defense of descriptiveness was set forth by Judge Hastie in Telechron v. Telicon Corp., 198 F.2d 903, 906 (3rd Cir. 1952): “The basic reason for refusing, to allow the exclusive appropriation of descriptive words in trademarks is the danger of depleting the general vocabulary available to all for description and denomination of articles of commerce. It is unwise to risk the development of a situation in which those attempting to market their goods will find that they can not use apt normal words or phrases in depicting or characterizing articles because of language preemptions by others. So the legal protection of trademarks is restricted in manner calculated to keep such descriptive words free for all.” Accord, Proxite Products, Inc. v. Bonnie Brite Products Corp., 206 F.Supp. 511, 515 (S.D.N.Y.1962). The defense of descriptiveness also has been upheld on the basis of the public’s right to have a product properly described. Caron Corp. v. Maison Jeurelle-Seventeen, Inc., 26 F.Supp. 560, 562-563 (S.D.N.Y.1938). When the balancing test is employed in the instant situation, we conclude that the public interest in guarding against the depletion of the general vocabulary available for the description of articles in commerce is not so great that it should take precedence over the rule of the law of contracts that a person should be held to his undertakings. Such a decision is far from unique. In E. F. Prichard Co. v. Consumers Brewing Co., 136 F.2d 512, 522 (6th Cir. 1943), cert. denied, 321 U.S. 763, 64 S.Ct. 486, 88 L.Ed. 1060 (1944), this court held that a contract declaring one party to be the owner of a trademark would estop the other party from later contesting the mark’s title. In Peyrat v. L. N. Renault & Sons, Inc., 247 F.Supp. 1009 (S.D.N.Y.1965), it was held that a contract between a trademark registrant and another, which permitted the other party to use the mark, would bind the registrant. King also contends that the District Court erred in determining that the use of the picture of a stein of beer on the front of the King packages constitutes an infringement. The essence of the wrong of trademark infringement is the passing off of the goods of one as those of another. Hemmeter Cigar Co. v. Congress Cigar Co., 118 F.2d 64 (6th Cir. 1941). Under the statute liability is imposed upon those who use a mark likely to cause confusion with a registered mark. 15 U.S.C. § 1114. The test is whether the infringing mark taken as a whole so far resembles the trademark as to be likely to cause a casual or unwary purchaser to mistake it for the original. 118 F.2d at 70. The degree of similarity may be less where inexpensive' goods are involved. This is premised upon the notion that purchasers will pay less attention to the goods they are buying where the goods are relatively cheap. Calimofde, Trademarks and Unfair Competition § 10.24. It is well settled that words and their pictorial representation are treated the same in determining the likelihood of confusion between two marks. Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d 328, 50 CCPA 1325 (1963); Pink Lady Corp. v. L. N. Renault & Sons, Inc., 265 F.2d 951, 46 CCPA 865 (1959). As the picture in the present case is to be given the same effect as the word “beer”, we conclude that the District Court’s determination was correct. King further argues that the District Court erred in failing to compel more complete answers to its .second, third and fourth sets of interrogatories, its requests for admissions, and in failing to permit an amendment to its pleading. The motion to compel answers to the second and third sets of interrogatories was denied for failure to comply with a local rule of court. That rule provided that before a party can seek the court’s aid in discovery, that party must first notify the court of its attempts to resolve the controversy. Since we do not find this rule inconsistent with the federal rules, we hold the District Court’s action was proper. Rule 83, Fed.R.Civ.P.; Joseph v. Norton Co., 273 F.2d 65 (2d Cir. 1959). The fourth set of interrogatories, the request for admissions and the motion for leave to file an amended complaint, were all filed subsequent to the District Court’s April 11, 1972, opinion. The April 11 opinion found King to be an infringer and held Beer Nuts, Inc. entitled to relief subject to its demonstrating that it is the assignee of the Brewster Food Service trademark. On June 12, 1972, a second opinion was issued wherein the court found that the corporation was the legitimate assignee of the partnership and entered its order of summary judgment. We believe that the April 11 opinion had the effect of partial summary judgment. All material issues were resolved except the assignment issue. As these contentions do not relate to the assignment, we must treat these motions as being made after the entry of summary judgment, and as such it was not improper to deny them. Butler v. Pettigrew, 409 F.2d 1205 (7th Cir. 1969); Weiss v. United States, 199 F.2d 454 (2d Cir. 1952), cert. denied, 344 U.S. 934, 73 S.Ct. 504, 97 L.Ed. 718, reh. denied, 345 U.S. 914, 73 S.Ct. 643, 97 L.Ed. 1348 (1953). Finally it is argued that summary judgment is improper because genuine issues of material fact remained. Fed.R.Civ.P. 56. King contends that “BEER NUTS” is descriptive when applied to the products involved in this case. Therefore, it asserts a genuine issue of material fact remains. Since King is precluded from contesting the validity of the trademark, the question of descriptiveness becomes irrelevant. All other contentions made by appellant have been considred and are found to be without merit. Affirmed. . Registration No. 605,905. . Members of the Brewster partnership incorporated Beer Nuts, Inc. in 1960 and assigned their trademark to the corporation. . Rule 2(a) (6) of the local rules for the United States District Court for the Northern District of Ohio provides: “Counsel are encouraged to participate in pre-trial discovery conferences to reduce, in every way possible, the filing of unnecessary discovery procedures. To curtail undue delay in the administration of justice, no discovery procedure filed under Rules 26 through 37 of the Federal Rules of Civil Procedure to which objection or opposition is made by the responding party shall be taken under consideration by the Court, unless the party seeking discovery shall first advise the Court in writing that after personal consultation and sincere attempts to resolve differences they are unable to reach an accord. This statement shall recite those matters which remain in dispute, and in addition, the date, time and place of such conference, and the names of all parties participating therein. It shall be the responsibility of counsel for the party seeking discovery to initiate such personal consultation.” . The proposed amendment attempted to raise a completely new issue involving the equitable concept of “clean hands”; it should therefore be distinguished from a situation where the party attempts to conform the pleadings to the evidence.
f2d_477/html/0330-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PHILLIPS, Chief Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Michael MARION and Sanford Hoskow, Defendants-Appellants. Nos. 72-1751, 72-1752. United States Court of Appeals, Sixth Circuit. Argued Jan. 29, 1973. Decided April 25, 1973. Peter H. Shumar, Detroit, Mich., for appellants; Neil H. Fink, Detroit, Mich., for appellant Marion and Carl Ziemba, Detroit, Mich., for appellant Hoskow, on brief. Harold Hood, Chief Asst. U. S. Atty., for appellee; Ralph B. Guy, Jr., U. S. Atty., on brief. Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges. PHILLIPS, Chief Judge. Michael Marion and Sanford Hoskow, appellants herein, were indicted on October 7, 1970, along with seven others. The indictment charged a conspiracy to utter and publish as true and genuine, false and forged United States Savings. Bonds knowing the same to be false and forged, with intent to defraud the United States, in violation of 18 U.S.C. § 495 and 18 U.S.C. § 371. The jury returned a verdict of guilty as charged, and each appellant was sentenced to three years in the custody of the Attorney General. We reverse. Appellants have assigned several errors. Since we conclude that the District Court erred in failing to include a cautionary instruction in connection with certain comments to the jury regarding the testimony of Eddie Bell, a defendant, who testified as a Government witness, we need not reach the additional contentions. The Government’s case against the appellants rests principally upon the testimony of the accomplice witness, Bell, who originally was indicted along with the appellants. The first evidence presented by the Government tended to be highly incriminatory toward Bell. He therefore entered a plea of guilty before the prosecution rested. This plea was accepted by the District Court. Subsequently, the Government called Bell as a witness. At the time Bell’s plea of guilty was entered, the District Court notified all counsel that the determination whether to bring out the fact of the plea would be left to the attorneys. The first defense counsel to cross examine Bell brought out the fact of the plea. He directed several inquiries as to Bell’s motive to change his plea. The witness replied that he did it for revenge, that his plea was free and voluntary and that he had been promised nothing. Later the attorney for the appellant Hoskow again questioned Bell regarding his plea and received similar answers. This attorney further inquired as to whether the witness considered himself guilty of a crime and received an affirmative response. At that time the District Judge stated to the jury that the plea would not have been accepted had the court not been satisfied that there was some factual basis for it. Later in Bell’s cross examination by the trial counsel for Hoskow, more questions regarding a “deal” with the United States Attorney were asked. This line of questioning continued until curtailed by the court. The District Judge then made a comment to the jury concerning the circumstances and effect of Bell’s plea. These statements are included as an appendix. Important here is the Judge’s statement that he believed the responses to be true that there were no arrangements of any kind and that he would not have accepted the plea had he not believed Bell. Of pivotal significance is the omission to include the cautionary instruction that, regardless of the judge’s opinion, final determination of credibility of the witness is a responsibility reserved to the jury. We conclude that these comments by the District Judge to the jury effectively deprived the appellants of their right to have the credibility of this witness determined by the jury. Generally a trial judge is permitted to comment upon the evidence, including the credibility of witnesses, so long as it is clear that final determination is left to the jury. Hance v. United States, 299 F.2d 389 (8th Cir. 1962). A trial court must be careful to avoid giving the jury the impression that it is bound by the expressed views of the tyial judge on the issue of credibility. Stevens v. United States, 306 F.2d 834 (5th Cir. 1962). In Stevens reversible error was found in the trial judge’s statement that he would not believe a particular witness even under oath. A jury composed of laymen will be greatly influenced by a judge’s opinion of credibility. The problem is compounded where, as here, the opinion is not immediately coupled with a caveat that the ultimate decision is for the jury. In view of our decision, appellants’ motion for bail pending appeal is now moot. The issue of bail pending retrial will be resolved by the District Court. Reversed and remanded. APPENDIX THE COURT: All right. I have been silent long enough on this, and you continue, Mr. Disner, [Trial counsel for the appellant Hoskow] to go back to a matter, and I am going to instruct the jury at this time because of your repeated references to this, going over and over it, what the circumstance was. Ladies and gentlemen, you are trying four cases here, and I want to say at the outset that the fact that Mr. Bell, who is a witness in this case now on behalf of the Government, has pleaded guilty, should not be taken by you in any way that fact that he pleaded guilty, that any of the other defendants are guilty. That can only be made on the basis of the testimony that you have heard from this witness stand, and at the conclusion of the case under the instructions on the law as I give it to you. Having said that, though, I want to go on and say this, and then, Mr. Disner, that will end it. MR. DISNER: I have ended it. THE COURT: Well, you have opened the door, and I think, in fairness to the defendants, the other defendants other than your client, as well as your clients, and to the jury, this statement should be made: No judge, ladies and gentlemen, accepts a plea from a defendant in a case, whether on trial, during the course of trial or before trial, unless the judge is convinced, first, that the plea is voluntarily made. That is to say, that no pressure of any kind, no threats of any kind, no deals of any kind are made in order to get the defendant to make a plea of guilty. A judge must do that in order to protect the person who is making the plea. The judge, moreover, has to satisfy himself that when a witness makes a plea of guilty it is completely voluntary, that he knows what the probable consequences of his plea will be. And, further, when he makes that plea, that there is a factual basis for it. In other words, a person who hasn’t committed a crime cannot come forward and say, “Judge, I want to confess that I committed a crime.” That wouldn’t be good. There has to be in fact a basis for the judge’s belief and that there was a crime committed. In this particular case, since Mr. Bell, during the course of this trial, and as I say, that the record will now show that Mr. Parzen, his attorney during the course of this trial is in the courtroom, for what reason I know not, but that’s neither here nor there. He is entitled as an officer of this court to be here. Mr. Parzen and Mr. Bell requested an opportunity to see me in chambers. I not only saw those two, but that was in the presence of Mr. Page, the. Government’s attorney. And both then and on this record, I asked Mr. Bell whether or not there was any plan, arrangement or any kind of a deal whatever to get him to testify as a Government witness. And he answered me, no. Now, if I had in any way believed that there was such an arrangement, I would not have taken the plea of guilty. Even if I took the plea of guilty, I instructed him that he was under no requirement whatever to appear here as a witness. That just because I had accepted his plea of guilty didn’t require that he now get on the witness stand and testify. And I wanted to say to you, because I don’t want the record to appear any different than that, that Mr. Bell is appearing here completely voluntarily, because he wants to do it, after having been fully advised that he had no requirement to do so, under the circumstances. Now, that is the fact and that’s the end of the examination on that point. . Allowing the jury to believe that the credibility of a prosecution witness already has been resolved is particularly dangerous where the witness is an alleged accomplice. See, Crawford v. United States, 212 U.S. 183, 204, 29 S.Ct. 260, 53 L.Ed. 465 (1909); Hoffa v. United States, 349 F.2d 20, 53 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L. Ed.2d 374 (1966), reh. denied, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967); Williamson v. United States, 332 F.2d 123 (5th Cir. 1964).
f2d_477/html/0333-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "GODBOLD, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	In the Matter of the Extradition of CHAN KAM-SHU, a fugitive from the Justice of the Republic of Liberia. UNITED STATES of America, Appellant, v. Chan KAM-SHU, Appellee. No. 72-2476. United States Court of Appeals, Fifth Circuit. April 6, 1973. John L. Briggs, U. S. Atty., Jacksonville, Fla., Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., Murray R. Stein, John L. Murphy, Chief, Administrative Regulations Sec., Crim. Div., Dept. of Justice, Washington, D.C., for appellant. Emmett A. Moran, Orlando, Fla., court appointed, for appellee. Before JONES, GODBOLD and INGRAHAM, Circuit Judges. GODBOLD, Circuit Judge: This appeal presents two issues in defining the scope and construing the terms of the extradition treaty between the United States and Liberia. First, whether petitioner, a member of the crew of a Liberian flag vessel, who was brought into the United States after allegedly murdering another crew member while the ship was in international waters, is a fugitive from justice within the scope of the Treaty. Second, whether Liberian authorities timely presented a formal requisition for surrender of the petitioner after he was provisionally arrested. The District Court concluded that Liberia had not timely presented the formal request and granted a writ of habeas corpus. We reverse. On January 30, 1972, Chan Kam-Shu, a crew member aboard the vessel Silver Shelton, allegedly fatally stabbed another crew member. The Silver Shelton was then approximately 22 miles off the Atlantic Coast of Florida. The vessel immediately requested assistance from the United States Coast Guard, which instructed the ship to proceed to the mouth of the harbor at Port Canaveral, Florida, approximately two miles offshore. A Coast Guard cutter rendezvoused with the vessel at that location and carried the injured crewman to a hospital. An FBI agent investigating the incident found the crewman dead at the hospital. At the invitation of the Silver Shelton’s captain, the agent went aboard the vessel. He elicited statements from crew members and brought Chan ashore to the local jail. The agent testified that he took Chan into custody because the captain requested assistance in investigating the incident and in detaining the suspect, so the agent arrested Chan for the crime, and because both Chan and the captain requested that Chan be taken ashore, fearing that Chan would not be safe aboard ship after killing the other crewman, who was a popular man aboard ship. The Silver Shelton sailed after guaranteeing the cost of Chan’s air transportation to Hong Kong. The FBI concluded its investigation and transferred custody of Chan to the Immigration and Naturalization Service (INS) which paroled him into the country. He remained in jail from the day he was brought ashore, January 30. The United States notified Liberian authorities of the incident and furnished them the FBI investigation reports. Liberia charged Chan with murder and, by diplomatic note to the United States Department of State on March 27, requested Chan’s extradition to Liberia to stand trial. The U.S. Attorney, under directions from the Justice Department, filed an extradition complaint and requested an arrest warrant in United States District Court on March 31. The District Judge was not satisfied that murder on the high seas was an extraditable offense under the Treaty. He therefore did not issue the arrest warrant until May 8, after receiving an opinion from a State Department legal advisor expressing the view that the offense was extraditable. That same day Chan was arrested and returned to the custody of the U.S. Attorney. He remained in the samé jail. Following the required procedure, on May 22, Liberia delivered to the State Department a duly certified, authenticated, formal extradition request. The request and accompanying documents were forwarded to the U.S. Attorney on June 16. Meanwhile, on June 2, Chan had petitioned the District Court for a writ of habeas corpus. The court held a hearing and on June 16 entered an order granting the writ, quashing the arrest warrant, and releasing Chan to the custody of INS for deportation. The court found that Liberia had not timely produced the formal extradition papers pursuant to Article XI of the Treaty. We granted the United States’ motion to stay the District Court’s order pending this appeal. The District Court decided that March 31 was the “date of commitment” for purposes of the Treaty, and, because Chan was still under arrest two months after that date, ordered him released. We conclude that the “date of commitment” contemplated by the Treaty was not March 31 but May 8, the date Chan was arrested pursuant to the court’s warrant. Therefore, the two month period had not expired prior to Chan’s habeas corpus hearing. Additionally, at argument, this court, sua sponte, raised the question of whether Chan was actually a “fugitive from justice” under the terms of the Treaty. We consider this issue essential- to a proper determination of this appeal and decide that Chan is a fugitive properly extraditable under the Treaty. I Article I of the Treaty provides that the two governments will: . . .deliver up to justice any person who may be charged with, or may have been convicted of, any of the crimes or offenses specified ., and who shall seek an asylum or shall be found within the territories of the other. . 54 Stat. 1733 (1939). In determining whether Chan is a fugitive from justice within the scope of the Treaty, we assume two possible versions of his entrance into the United States: that the FBI agent arrested Chan in United States waters for a crime committed outside United States jurisdiction, and, alternatively, that the captain and Chan requested that Chan be removed from the ship in fear of his safety. The FBI agent was authorized to investigate the incident and take Chan into custody both under the FBI’s general power to arrest and under international principles of jurisdiction. A coastal state may exercise its jurisdiction to arrest a person and conduct an investigation aboard a foreign vessel in its territorial sea upon a request for assistance by the master of the vessel. Restatement (2d), Foreign Relations Law of the United States, § 46(2)(a). On the other hand, if Chan’s removal was based on both Chan’s and the Captain’s request, then the action by the United States authorities was valid under immigration laws. Section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(d)(5)(1970), authorizes the Attorney General, in his discretion, to parole aliens otherwise excludable under that section into the United States for reasons in the public interest. The reasons apparent in this situation, physical protection of Chan and potential extradition, are within the public interest. Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N.Y. 1961), aff’d, 302 F.2d 928 (2d Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 183, 9 L.Ed.2d 124 (1962) (parole for purpose of prosecution in the United States); cf. United States v. Cristancho-Puerto, 475 F.2d 1025 (1973). Additionally, the Immigration and Nationality Act supplies the authority for Chan’s detention by INS. Section 232, 8 U.S. C.A. § 1222 (1970), authorizes observation and examination of an alien to determine admissibility. Section 233, 8 U.S.C.A. § 1223 (1970), authorizes removal from the ship and detention of the alien pending an exclusion decision. See also, United States ex rel. Fink v. Tod, 1 F.2d 246 (2d Cir. 1924), reversed on confession of error, 267 U.S. 571, 45 S.Ct. 227, 69 L.Ed. 793 (1925). Thus we conclude that Chan was lawfully brought into and detained in this country. Next we consider whether Chan is a fugitive within the terms of the Treaty. The courts have long decided that although an individual leaves the jurisdiction in which the crime was committed before the crime is discovered or before charges are brought, he is a fugitive and is extraditable. Application of D’Amico, 177 F.Supp. 648 (S.D.N.Y. 1960); Ex parte Davis, 54 F.2d 723 (9th Cir. 1931); Hogan v. O’Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497 (1921); Whiteman, 6 Digest of International Law 768. Also, the manner of departure from the jurisdiction in which the crime was committed is not determinative of whether the individual is a fugitive. He only need be found in the territory of the asylum jurisdiction. United States ex rel. Eatessami v. Marasco, 275 F.Supp. 492 (S.D.N.Y.1967); Hammond v. Sittel, 59 F.2d 683 (9th Cir. 1932). In analogous situations involving extradition between states, individuals transported out of the requesting state by federal or state authorities and held by those authorities are extraditable. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916); Brewer v. Goff, 138 F.2d 710 (10th Cir. 1943); Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885). Under either version of the manner of his entrance into the United States and despite his detention in this country, Chan was found within the territory of the United States for purposes of the Treaty and he is extraditable. II Secondly, we consider whether Chan was held under arrest beyond the two months allowed by the Treaty. Article XI of the Treaty, in conjunction with 18 U.S.C.A. §§ 3184-92 (1969), provides the procedural framework for extradition of an international fugitive. In the usual case an arrest warrant is sought only after submitting the formal extradition documents to the district court. However, under circumstances which indicate that the individual sought might leave the jurisdiction before formal extradition documents can be obtained, the Treaty contemplates the use of provisional arrest until the formal extradition documents arrive. 18 U.S.C.A. § 3184 (1969) is the authority for United States judicial officers to conduct the requisite proceedings for extradition under a treaty. In this case the United States authorities sought provisional arrest pending arrival of the Liberian documents. The U.S. Attorney, acting in behalf of Liberia, filed a complaint on March 31. On May 8, when the District Judge was satisfied of the complaint’s sufficiency, he issued an arrest warrant committing Chan to the U.S. Attorney. The record indicates that the documents required under the treaty were forwarded to the U.S. Attorney by June 16. The procedural scheme contemplated by the Treaty provides for provisional arrest of a fugitive in order to secure his presence pending a formal surrender request and an extradition hearing. The two-month time limitation is an agreement designed to protect the interests of the asylum country, the fugitive, and the requesting country. It protects the asylum country from needless expense and effort in detaining a fugitive longer than reasonably necessary for presentation of the formal request, it protects the fugitive from indefinite incarceration without formal charges and a hearing, it allows the demanding country time in which to prepare and transmit the formal request. In order to carry out these purposes, we interpret the term “date of commitment” to mean the date on which a fugitive is arrested for the sole purpose of extradition. To define “date of commitment” as commit-' ment for any purpose would confuse the asylum country about the duration of its responsibility for detaining a fugitive and would deprive the requesting country of the certainty of the two-month period in which to formally request extradition. In Jiminez v. Aristeguieta, 311 F.2d 547, 564 (5th Cir. 1964), construing the analogous provision in the United States-Venezuela Extradition Treaty, this court held that the two-month detention period commenced on the date the arrest warrant was executed. Voloshin v. Ridenow, 299 F. 134, 137-38 (5th Cir. 1924) involved the analogous provision in the United States-Chile Extradition Treaty. We held that the period prescribed by that Treaty was measured from the date on which the defendant was arrested on the basis of the complaint. See, Ex parte Reed, 158 F. 891 (D.N.J.1908). Chan’s commitment and detention under parole on January 30 was not a provisional arrest solely for the purpose of extradition. He was an excludable alien held pending whatever future action the Attorney General and the INS deemed proper, including deportation, immigration into the United States, or arrest for extradition. The two-month period from Chan’s date of commitment for the purpose of extradition had not expired and the District Court incorrectly released him. Reversed and remanded. . Chan was a resident of Hong Kong, British Crown Colonies, but his citizenship, British, Chinese, or otherwise, is not clear from the record. The British were notified of the incident, but no official British action appears in the record. . Article II of the Treaty provides : “Persons shall be delivered up according to the provisions of the present Treaty, who shall have been charged with or convicted of the following crimes or offenses: “1. Murder . . . * * * * * “8. Crimes committed at sea: (a) Piracy . . . (b) Wrongfully sinking or destroying a vessel at sea or attempting to do so; (e) Mutiny . . . (d) Assault on board ship upon the high seas with intent to do bodily harm.” 54 Stat. 1733 (1939). The opinion stated that the negotiators of the treaty did not intend to preclude extradition for murder at sea by not including it in the paragraph enumerating extraditable crimes committed at sea, rather they formulated that paragraph for the purpose of adding specific crimes which by their terms are capable of commission only at sea. The District Judge accepted that interpretation of the treaty, and we also find that interpretation persuasive. See, Sayne v. Shipley, 418 F.2d 679, 684 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970). . The pertinent portion of Article XI provides : “The arrest of the fugitive shall be brought about in accordance with the laws of the respective countries, and if, after an examination, it shall be decided, according to the law and the evidence, that extradition is due pursuant to this Treaty, the fugitive shall be surrendered in conformity to the forms of law prescribed in such cases. “The person provisionally arrested shall be released, unless within two months from the date of commitment in the territory of either one of the High Contracting Parties, the formal requisition for surrender with the documentary proofs hereinafter prescribed shall be made as aforesaid by the diplomatic agent or superior consular officer of the demanding government, or, in his absence, by a consular officer thereof. “If the fugitive criminal shall have been convicted of the crime or offense for which his surrender is asked, a copy of the sentence of the court before which such conviction took place, duly authenticated, shall be produced. If, however, the fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed shall be produced, together with the evidence of criminality mentioned in Article I hereof.” 54 Stat. 1733 (1939). . We pretermit the question of whether the provisional arrest under the Treaty was perfected by receipt of the documents by the State Department or whether the Treaty requires that they be filed in district courc. It is unnecessary to consider this question because we find that the “date of commitment” was May 8, which means the two month period had not expired under either filing requirement, and we assume the government will file the extradition documents in district court promptly upon publication of this decision. . If, as the evidence indicates, the incident occurred outside United States jurisdictional waters the United States can not prosecute Chan. Liberia, however, may properly exercise its territorial enforcement jurisdiction. Restatement (2d), Foreign Relations Law of the United States, §§ 20, 28, 32 (1965). . 18 U.S.C.A. § 3052 (1969). . The Attorney General has delegated that authority to the district directors of the INS. 8 C.F.R. § 212.5. No question of procedural irregularity in this regard was raised in this appeal. . Chan asserts that the United States should have deported him to Hong Kong shortly after admitting him to this country. This claim seems to stem from a letter in which the Silver Shelton’s owners guaranteed the cost of Chan’s air transportation to Hong Kong. Section 237(a), of the Immigration and Nationality Act, 8 U.S.C.A. § 1227(a) (1970), requires immediate deportation of excluded aliens unless the Attorney General, in his discretion, concludes that immediate deportation is not proper. Additionally the section requires the owner of the vessel on which the alien arrived to bear the deportation expenses. These statutes placed no affirmative duty on the Attorney General to immediately deport Chan. . Extradition treaties should be construed liberally, but absent a treaty or specific authority in a treaty the United States generally will not extradite a fugitive. Valentine v. United States, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936); Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1912). . Analogously, courts are not deprived of jurisdiction to try an accused if illegal methods were used to bring the individual before the court. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); United States v. Sobell, 244 F.2d 520 (2d Cir. 1957). . See fn. 4, supra. . § 3184 provides a framework for either an arrest warrant based on a complaint stemming from formal extradition papers, or an arrest warrant for provisional arrest pending arrival of the formal extradition documents. . See, Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925). . Despite Chan’s release from provisional arrest and the quashing of the arrest warrant the government could have proceeded immediately with a complaint based upon the official extradition documents, which apparently would be sufficient for another arrest warrant under 18 U.S.C.A. § 3184, and a prompt extradition hearing. The treaty does not provide that all proceedings shall cease, merely that the fugitive shall be released from detention under the warrant and provisional arrest. Karadzole v. Artukovic, 170 F.Supp. 383, 386 (S.D.Cal. 1959).
f2d_477/html/0340-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BUTZNER, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	OLD DOMINION BOX COMPANY, INCORPORATED, a Virginia corporation, Appellant, v. UNITED STATES of America, Appellee. No. 72-2285. United States Court of Appeals, Fourth Circuit. Argued Feb. 6, 1973. Decided April 18, 1973. Edward S. Graves, Lynchburg, Va. (B. C. Baldwin, Jr., and Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, Va., on brief), for appellant. Robert S. Watkins, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., of the U. S., Meyer Rothwacks and Bennet N. Hollander, Attys., Dept. of Justice, and Leigh B. Hanes, Jr., U. S. Atty., W. D. Va., on brief), for appellee. Before BUTZNER and FIELD, Circuit Judges, and MURRAY, District Judge. BUTZNER, Circuit Judge: Old Dominion Box Company, the taxpayer, appeals from a judgment of the district court denying it a refund of income taxes in the amount of $31,796.14 and interest, which it had paid following disallowance by the Commissioner of Internal Revenue of a deduction for a $75,000 charitable contribution to the Dillard Foundation in the fiscal year ending January 1, 1960. Old Dominion claims that it was entitled to the deduction under any one of three theories: (1) the foundation was a qualified charitable organization at the time the contribution was made; (2) Old Dominion was an innocent contributor to the foundation, even though the tax exempt status of the foundation was subsequently retroactively revoked; or (3) the contribution was intended for and did in fact reach the Lynchburg Fine Arts Center, a qualified charity. The jury found against the taxpayer on the first two theories, and the court ruled against it on the third. Perceiving no error, we affirm. I Old Dominion, a Virginia corporation located in Lynchburg, Virginia, is controlled by the Dillard family. In 1959 it sold some of its manufacturing plants and from the profits made a $75,000 contribution to the Dillard Foundation. The deduction for this contribution was disallowed following an investigation of the Dillard Foundation by the Commissioner. The Dillard family created the Dillard Foundation in 1951 to accept donations and disburse funds for charitable purposes, and the Commissioner granted it an exemption from federal income taxes in 1953. Between 1951 and 1963, the foundation made donations in excess of $500,000 to many recognized charities. In 1965, the foundation’s exemption was retroactively revoked because the Commissioner ruled that it had been operated for the benefit of private interests instead of for charitable purposes. The Commissioner determined that the foundation’s dealing in certain securities was a substantial departure from its charitable functions. He took the position that these transactions were designed to enable E. S. Dillard, president of Old Dominion, to claim on his personal income tax returns inflated charitable deductions when he gave some of the securities away. For its part, Old Dominion asserts that the foundation dealt in the securities in the ordinary course of investing funds, a practice permitted to all charitable foundations. The evidence disclosed that in 1954, E. S. Dillard, who in addition to being president of Old Dominion was an officer and director of the Dillard Foundation, acquired all of the claims against the Brown Dynalube Company and all of its outstanding stock from a transferee of Dynalube’s organizers for $1.00. He immediately paid Dynalube $1,828.24 and transferred to the company all of the claims that he had acquired against it. In return, he received Dynalube’s six per cent debentures having a face value of $85,000. Several months later he paid Dynalube $2,500 for another debenture with a face value of $2,500. Thus, he acquired Dynalube debentures with a total face value of $87,500 in exchange for $4,328.24. At the time E. S. Dillard acquired the debentures he intended to give them away instead of selling them. Acting on this intention, between 1954 and 1958 he donated $59,000 in Dynalube debentures to the foundation and $26,000 to a church. He deducted the face value of these debentures as charitable contributions on his personal income tax returns. Beginning in 1956, the foundation disposed of the debentures received from E. S. Dillard by selling them at face value, either to the Massie Construction Company or to the Minor Foundation, which then sold them to Massie. In the meantime, the church sold its $26,000 worth of debentures to Massie or to intermediaries who in turn sold them to Massie. The Massie Construction Company and the Minor Foundation were informally linked to the Dillard Foundation through William T. Minor, Jr. His family established the Minor Foundation and his father-in-law was the owner of the Massie Construction Company. Minor served at one time or another as attorney and accountant for Old Dominion, E. S. Dillard, the Dillard Foundation, the Minor Foundation, the Brown Dynalube Company, and the Massie Construction Company. By September 15, 1959, Massie had purchased at face value the entire $87,500 issue of Dynalube debentures— $85,000 from charities, including the Dillard Foundation, or the transferors of charities, and $2,500 directly from E. S. Dillard. Coincidentally, between 1955 and September 15, 1959, the Dillard Foundation had acquired all of the outstanding six percent debenture bonds of the Massie Construction Company, aggregating $96,350, by ■ purchasing $81,-850 at face value and receiving a donation of a $14,500 bond from E. S. Dillard. Throughout this period, the financial condition of both Dynalube and Massie ranged from marginal to precarious. In August 1959, E. S. Dillard relinquished ownership of Dynalube by giving his stock to the company’s former president. A month later, Massie exchanged its entire holdings of Dynalube debentures, aggregating $87,500, for 875 shares of Dynalube stock. " The Dillard Foundation then traded all of its Massie bonds, having a face value of $96,350, to Massie in exchange for the 875 shares of Dynalube stock and $8,850 in cash. Finally, the foundation donated the 875 shares of Dynalube stock to a church, which in turn sold the stock to the former president of Dynalube for $87.50. II Section 501 of the Internal Revenue Code of 1954 exempts from taxation a foundation organized and operated for charitable purposes. The district court properly instructed the jurors that in order for them to hold that the foundation was not operating for charitable purposes they must find that its trading in Dynalube and Massie securities was a substantial part of its activities or diverted a substantial part of its resources. It submitted the case on the following special interrogatories, which the jury answered in the negative: “1. Did the Dillard Foundation operate at all times during the twelvemonth period ending November 30, 1959 for religious, charitable, and educational purposes? “2. If the answer to question 1 is ‘No,’ was the Dillard Foundation operating for religious, charitable, and educational purposes when the gift of $75,000.00-was pledged on October 30, 1959?” The role played by the foundation in inflating the value of the Dynalube debentures reported by E. S. Dillard as charitable deductions on his personal income tax return amply supports the jury’s finding that during the times pertinent to this case, the foundation was not operating for charitable purposes. The foundation’s substantial non-charitable activities destroyed its entitlement to an exemption, regardless of its other charitable undertakings. Cf. Better Business Bureau v. United States, 326 U.S. 279, 283, 66 S.Ct. 112, 90 L.Ed. 67 (1945). Moreover, the foundation’s exemption cannot be preserved on the ground that its dealings in Dynalube debentures generated income for other charitable gifts. Stevens Bros. Foundation, Inc. v. Commissioner, 324 F.2d 633, 639 (8th Cir. 1963), cert. denied, 376 U.S. 969, 84 S.Ct. 1135, 12 L.Ed.2d 84 (1964); cf. University Hill Foundation v. Commissioner, 446 F.2d 701, 703 (9th Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); United States v. Community Services, Inc., 189 F.2d 421, 425 (4th Cir. 1951). It is, therefore, clear that Old Dominion cannot recover on the ground that the Dillard Foundation was an exempt charity. III The Commissioner in the exercise of his sound discretion may retroactively revoke an exemption. Int.Rev. Code of 1954, § 7805(b); Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184 (1957). The Commissioner, however, has provided by regulation that the charitable deductions of innocent contributors to an organization whose exemption has been forfeited will not be retroactively disallowed. Treas. Reg. § 1.503(e)-1 (1958); Rev.Proc. 64-25, 1964-1 Cum.Bull. 694. In this case, the Commissioner’s ruling revoking the foundation’s exemption expressly limited its retroactive effect to protect innocent contributors, but it stated that this would not preclude disallowance of deductions made by contributors who were aware of the foundation’s activities. Answering a special interrogatory, the jury found that Old Dominion was not an innocent contributor at the time that it pledged the $75,000 to the foundation. This finding, we conclude, is amply supported by the evidence. D. H. Dillard, chairman of Old Dominion’s board, E. S. Dillard, the company’s president, and W. C. Pritchett, its vice president for finance, were all officers and directors of the foundation. William T. Minor, Jr. served as attorney and accountant for both the company and the foundation. E. S. Dillard and Pritchett played an active role in the foundation’s Dynalube-Massie transactions, and E. S. Dillard was the direct beneficiary of these activities. D. H. Dillard died before this case was tried, and there is no direct testimony concerning his knowledge. The evidence disclosed, however, that during the time the foundation was dealing in Dynalube and Massie securities, he closely followed the foundation’s day to day operations and no significant action could be taken without his approval. From this the jury could infer that he, too, was aware of the activities that led to the revocation of the foundation’s exemption. Invoking familiar principles of agency, Old Dominion argues that its officers’ knowledge of the foundation’s affairs cannot be imputed to the company because they were not acting within the scope of their employment while engaged in the foundation’s business. This issue raised a factual question, which the trial court submitted to the jury with appropriate instructions. The jury’s rejection of Old Dominion’s position is amply supported by the record. Old Dominion and the foundation were related by more than interlocking directorates. The officers of the foundation used the company’s facilities to transact the foundation’s business, and they performed services for the foundation on company time. The jury was entitled to infer that Old Dominion acquiesced in and approved the participation of its officers in the foundation's work. Because of the jury’s finding, Old Dominion is not entitled to take advantage of the exception the Commissioner made for innocent contributors in the revocation ruling. IY Old Dominion’s third ground for recovery is based on the government’s concession during the trial that the company’s contribution, though made to the foundation, was intended by the company for the Lynchburg Fine Arts Center, an admitted charity, and that the foundation transmitted the contribution to the Center. We do not reach the merits of this claim, for, in agreement with the district judge, we hold that it is barred as untimely. Old Dominion’s claim for refund stated: “The disallowance in the tax year ended 1/1/60 of $75,774.69 of charitable contributions made by the taxpayer to Dillard Foundation, Inc. was improper for two reasons: First, the donee was a qualified charitable entity, and, second, the taxpayer innocently made its contributions in good faith in reliance on the donee’s charitable status.” The company’s complaint originally was based on the two theories set forth in this claim. While the suit was pending in its pretrial stages, but after the period of limitations for an administrative refund claim had run, the company amended its complaint to allege: “4A. The contribution of $75,000 was intended by the plaintiff for and was duly received by Lynchburg Fine Arts Center, Inc., which was at all relevant times a charitable corporation within the meaning of said Section 501(c)(3), contributions to which were deductible for Federal Income Tax purposes.” Before instituting an action to recover taxes, a taxpayer must file a claim for refund setting forth the grounds for recovery. Despite the omission of any reference to the foundation as a conduit for the contribution to the Fine Arts Center in its administrative claim for refund, Old Dominion insists that it has complied with the Code. It asserts that its orginal claim was adequate to make the Commissioner aware of the theory set forth in its amended complaint for the following reasons: the original claim stated that the gift was made to a qualified charity; the foundation’s practice was not to retain donations, but merely to serve as a conduit to qualified recipients; on audit, the Commissioner had all of the documents relating to the transactions at his disposal; these documents established that the donation was intended for and did in fact reach the Lynchburg Fine Arts Center, which is a qualified charity. Moreover, Old Dominion contends that its amended complaint was sufficient to present the issue because the amendment did not vary the theory of recovery, but simply specified the facts in greater detail. The cases interpreting the requirement of a timely claim for refund do not support Old Dominion’s position. In United States v. Andrews, 302 U.S. 517, 524, 58 S.Ct. 315, 319, 82 L.Ed. 398 (1938), the Court said: “Where a claim which the Commissioner could have rejected as too general, and as omitting to specify the matters needing investigation, has not misled him but has been the basis of an investigation which disclosed facts necessary to his action in making a refund, an amendment which merely makes more definite the matters already within his knowledge, or which, in the course of his investigation, he would naturally have ascertained, is permissible. On the other hand, a claim which demands relief upon one asserted fact situation, and asks an investigation of the elements appropriate to the requested relief, cannot be amended to discard that basis and invoke action requiring examination of other .matters not germane to the first claim.” Applying this rule, we recently held in Sappington v. United States, 408 F.2d 817, 819 (4th Cir. 1969): “A claim seeking refund upon one asserted fact situation may not be amended out of time so as to require an investigation of matters not germane to the original claim . While an amendment which only makes more definite matters already within the Commissioner’s knowledge is permissible, the fact of specification of the original claim tends to confine the administrative investigation to that issue.” The principles stated in Andrews and Sappington govern this issue. The original claim for refund was not general. It specified that the foundation was a qualified charity and that the taxpayer was an innocent contributor. It contained no mention of the Fine Arts Center and no suggestion that Old Dominion was relying on the theory that the foundation served only as a conduit to pass the contribution to an exempt organization. Indeed, the record supports the opposite inference, because the facts alleged in the amendment were inconsistent with the original claim which named the foundation as donee. For this reason it is apparent that the amendment was an impermissible shift to a new and different ground. United States v. Garbutt Oil Co., 302 U.S. 528, 531, 58 S.Ct. 320, 82 L.Ed. 405 (1938). Nor can Old Dominion prevail simply because the records documenting the purpose of the contribution were examined by the agent who audited the claim. The agent testified that although the documentary evidence pertaining to the contribution was available, its significance as a basis for Old Dominion’s claim was not apparent to him. Furthermore, during the course of his audit no representative of either the foundation or the company explained the pertinence of the records to the claim, and he did not learn of the conduit theory until just before trial. The Commissioner, through his agents, cannot be expected to formulate from raw facts a taxpayer’s unarticulated claim. Cf. Stoller v. United States, 444 F.2d 1391, 1393 (5th Cir. 1971). Old Dominion urges that the failure of the government to oppose amendment of the complaint constitutes a waiver of any objection to the amendment’s basis . for recovery. We reject this contention for two reasons. First, because, as we have previously held, the amendment constituted a new ground for recovery, no officer of the government could waive the statute of limitations. See United States v. Garbutt Oil Co., 302 U.S. 528, 533, 58 S.Ct. 320, 82 L.Ed. 405 (1938). Second, the amendment was made to paragraph 4 of the complaint, which dealt only with factual matters. Paragraph 10, which set forth the grounds for recovery, remained unamended. When the government learned that the amendment was a ground on which Old Dominion sought recovery, it moved to strike the amendment because it varied from the claim for refund. It is, therefore, clear that the government’s conduct did not constitute a waiver. The judgment of the district court is affirmed. . The Commissioner had previously ruled that E. S. Dillard could not deduct the face value of the debentures which he gave to charity in 1954 and 1955 because sales of the debentures by the charities were not arms length transactions and did not establish fair market value. The Tax Court, after redetermining the value of the debentures, affirmed the Commissioner’s ruling. E. S. Dillard and Jean T. Dillard, 1961 T.C.Mem. 30, 1961 P-H Tax Ct.Mem. ¶ 61,030. . Int.Rev.Code of 1954, § 501(c)(3) describes an exempt organization: “Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.” Taxpayers are entitled to deduct contributions to exempt charitable foundations by virtue of Int.Rev.Code of 1954, § 170(a)(1), which provides: “There shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year . . ." Int.Rev.Code of 1954, § 170(c) (2) describes a qualified charity: “For purposes of this section, the term ‘charitable contribution’ means a contribution or gift to or for the use of— . . . . . “A corporation, trust, or community chest, fund, or foundation— (A) created or organized in the United States or in any possession thereof, or under the law of the United States, any State or Territory, the District of Columbia, or any possession of the United States; (B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals; (C) no part of the net earning of which inures to the benefit of any private shareholder or individual; and (D) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation. “A contribution or gift by a corporation to a trust, chest, fund, or foundation shall be deductible by reason of this paragraph only if it is to be used within the United States or any of its possessions exclusively for purposes specified in subparagraph (B).” . On the merits, Old Dominion relies on Faulkner v. Commissioner, 112 F.2d 987 (1st Cir. 1940). In response, the government asserts that Faulkner is distinguishable on its facts and that the result urged by Old Dominion would negate the provisions of § 170(a) (1) and (e). . Int.Rev.Code of 1954, § 6511(a) sets forth the limitations period for filing a claim for refund: “Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.” The Commissioner has expanded on this requirement in Treas.Reg. § 301.6402-2 (b)(1) (1954): “No refund or credit will be allowed after the expiration of the statutory period of limitation applicable to the filing of a claim therefor except upon one or more of the grounds set forth in a claim filed before the expiration of such period. The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof . . . ” Old Dominion made the final payment of the assessment on October 1, 1965. The claim for refund was filed with the Commissioner on September 21, 1967, and the complaint was amended to set forth the new grounds on July 5, 1972. . Int.Rev.Code of 1954, § 7422(a) provides that “[n]o suit . . . shall be maintained . . . for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed . . . until a claim for refund or credit has been duly filed . . .” See Treas. Reg. § 301.6402-2 (1954).
f2d_477/html/0347-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Abraham Joseph Neal RHODES, who now uses the name Abraham J. Rosenberg, Plaintiff-Appellant, v. BUREAU OF PRISONS et al., Defendants-Appellees. No. 72-3419 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 27, 1973. Abraham J. Rosenberg, pro. se. Roby Hadden, U. S. Atty., Tyler, Tex., Charles E. Myers, Asst. U. S. Atty., Beaumont, Tex., for defendants-appellees. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: This is an appeal from an order of the district court dismissing a civil rights action filed pursuant to 42 U.S.C. § 1983 seeking injunctive relief and damages. We affirm, but for reasons somewhat different from those assigned below. Appellant, a prisoner incarcerated in the Federal Correctional Institution at Texarkana, Texas, filed his complaint in the United States District-Court for the District of Columbia. He sought an injunction against the Bureau of Prisons and the warden at Texarkana, in connection with their alleged interference with his mail and his right to communicate with the courts. The case was transferred on motion of respondents to the court from whence this appeal was taken. Prior to the order of transfer, the appellant had notified the court of his transfer from Texarkana to Eglin Air Force Base. After the order of transfer he filed in the transferor court an amended complaint seeking $25,000 damages from each named respondent. This amendment is a part of the record which was transmitted with the case to the transferee court. The case was then dismissed. We agree that the claim for injunctive relief was rendered moot by appellant’s transfer out of the district. See Russell v. Henderson, 5 Cir. 1973, 475 F.2d 1138. However, the fact that appellant is no longer confined in the district does not affect his standing to seek damages in connection with the alleged wrongdoings. Culp v. Martin, 5 Cir. 1973, 471 F.2d 814. Nevertheless, standing is of no avail to appellant. Although the district court erroneously dismissed the damage claim as moot, we do not deem it necessary to remand the case for further proceedings since, as a matter of law, appellant has failed to present any legal basis upon which he could recover under 42 U.S.C. § 1983. See Roots v. Callahan, 5 Cir., 1973, 475 F.2d 751 [No. 72-3589, March 20, 1973]; Norton v. McShane, 5 Cir. 1964, 332 F.2d 855, 862; Bethea v. Reid, 3 Cir. 1971, 445 F.2d 1163, 1164; Williams v. Rogers, 8 Cir. 1971, 449 F.2d 513, 517. Affirmed.
f2d_477/html/0349-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "FEINBERG, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. John C. KIFFER et al., Appellants. No. 576, Docket 72-2263. United States Court of Appeals, Second Circuit. Argued Jan. 30, 1973. Decided April 18, 1973. Alan Scribner, New York City (Aaron Jaffe and Hubert M. Cunniffe, New York City, Jerome Karp, Brooklyn, on the brief), for appellants. Robert Clarey, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee. Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges. FEINBERG, Circuit Judge: Appellants John Kiffer, James Kehoe and Robert Harmash mount a broadside attack on the constitutionality of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“the Act”), 21 U.S.C. § 801 et seq., as it applies to marihuana. Appellants were arrested in December 1971, while in possession of approximately two tons of marihuana stored in a warehouse, part of which Kiffer was in the process of delivering by truck to a police informant. All three were indicted for possession of marihuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy, in violation of 21 U.S.C. § 846. They were tried in October 1972 before Judge Leo F. Rayfiel and a jury in the United States District Court for the Eastern District of New York. Kiffer and Harmash were convicted on both counts, and Kehoe was convicted on the possession count. Appellants make two claims — that the criminalization of marihuana is unconstitutional and that, even if this is not so, the classification of marihuana as a Schedule I controlled substance, 21 U.S. C. § 812(c), Schedule 1(c) (10), is irrational and arbitrary. As indicated below, the first issue is not before us in the broad form presented. What is before use is the question whether there is a constitutional right to sell marihuana in large quantities, obviously for profit. As to that, we answer no. As to appellants’ second argument, we hold that Congress has not acted irrationally. For these reasons, we affirm the judgments of conviction. I Before considering the merits of the constitutional arguments, we must deal with a preliminary question. The Government urges that appellants be precluded from challenging either the inclusion of marihuana under the Act or its Schedule I classification because they have failed to exhaust an available administrative remedy. The remedy adverted to is a procedural feature of the Act added, presumably in part, because the state of scientific knowledge regarding the effects of many of the substances controlled is far from definitive. The Act covers a large number of substances, each of which is assigned to one of five schedules; this statutory classification determines the severity of possible criminal penalties as well as the type of controls imposed. However, under section 811 of Title 21, the Attorney General is empowered to add substances to, or remove substances from, the coverage of the Act, as well as to transfer substances between schedules, all based upon findings that the statutory criteria warrant such modification. Proceedings preliminary to such changes “may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary [of Health, Education, and Welfare], or (3) on the petition of any interested party.” 21 U.S.C. § 811(a). See 21 C. F.R. §§ 308.41-.48. Prior to such a proceeding, the Attorney General is required to obtain an evaluation from the Secretary of Health, Education, and Welfare (HEW), whose recommendations as to “scientific and medical” questions are binding upon the Attorney General. 21 U.S.C. § 811(b). Thus, if new information indicates that the original classification was incorrect or is no longer justified under the statutory criteria, an interested party can, at least in theory, seek a reconsideration of the coverage or classification. Citing the expertise of the Attorney General and of HEW and the need for effective enforcement of the drug laws, the Government stresses that appellants have not used this imposing corrective mechanism; the Government urges that appellants should therefore be estopped from attacking either the constitutionality of including marihuana as a controlled substance at all or the reasonableness of its classification in Schedule I. We put to one side the obvious rejoinder that the administrative agency (here HEW and the Attorney General acting in concert) does not have the power to declare the Act unconstitutional. Whatever weight such an argument might have in the usual case, timely and successful use of this administrative remedy would have obtained for appellants the very relief they seek from us — a declaration either that marihuana should not be subject to the Act or that it should be covered only in another schedule carrying lesser penalties. Nevertheless, we reject the Government’s argument for two reasons. First, there is some doubt whether appellants in fact have an administrative remedy at the present time. The procedures just described for controlling and classifying must be read in conjunction with 21 U.S.C. § 811(d), which applies to any substance that the Single Convention on Narcotic Drugs, March 30, 1961, [1967] 18 UST 1407, T.I.A.S. No. 6298 (ratified by United States in 1967), requires to be controlled. The Director of the Bureau of Narcotics and Dangerous Drugs — the Attorney General’s designated agent for this purpose, 28 C.F.R. § 0.100 — has taken the position that marihuana is covered by the Convention, see 18 UST at 1410-11, 1559; as a consequence, he has refused to reconsider the marihuana classification pursuant to a petition of an interested party. 37 Fed.Reg. 18097-98 (1972), appeal pending sub nom. National Organization for the Reform of Marijuana Laws v. Ingersoll, Civil No. 72-1854 (D.C. Cir.). Petitioners in that case are vigorously asserting that the Director is in error. We take no position as to that, but it appears now that the administrative route for these appellants would at best provide an uncertain and indefinitely delayed remedy. Second, even assuming the existence of a viable administrative remedy, application of the exhaustion doctrine to criminal cases is generally not favored because of “the severe burden” it imposes on defendants. McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). The burden would be particularly harsh in this case, as appellants’ remedy is now so uncertain. Having disposed of this preliminary question, we turn to the arguments addressed to the constitutionality of the statute. II Any court asked to undertake review of the multifarious political, economic and social considerations that usually underlie legislative prohibitory policy should do so with caution and restraint. In this case, the challenged legislation incorporates conclusions or assumptions concerning an array of medical, psychological and moral issues of considerable controversy in contemporary America. Indeed, as a recent perceptive study suggests, “Marijuana, in fact, has become the symbol of a host of major conflicts in our society, each of which exacerbates any attempt at a rational solution to the problem.” J. Kaplan, Marijuana — The New Prohibition 3 (1970). This should serve as a reminder that in most instances the resolution of such sensitive issues is best left to the other branches of government. Reflecting this judgment, courts usually review challenged legislative acts with the understanding that they are presumed valid and will be so found unless it is shown that the statute in question bears no rational relationship to a legitimate legislative purpose. E. g., Williamson v. Lee Optical, Inc., 348 U.S. 483, 485-488, 75 S.Ct. 461, 99 L.Ed. 563 (1955); United States v. Carolene Products Co., 304 U.S. 144, 152-154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The only eases that require a stricter standard of review are those that involve an infringement of a right explicitly enunciated in the Constitution or otherwise recognized as fundamental. E. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 505-514, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). See United States v. Carolene Products Co., supra, 304 U.S. at 152-153 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234. To invoke this stricter scrutiny in this case, appellants assert the existence of a fundamental “right of the individual to control of his own body and to indulge in private in what may be. condemned in public or deemed immoral or unacceptable to society at large.” In support of this proposition they cite the Supreme Court decisions in Griswold v. Connecticut, supra, and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), respectively invalidating convictions for use of contraceptives and for private possession of obscene materials. These cases are of little assistance to appellants. Whatever may be the merits of a claim to a protected right by one who is prosecuted for the private possession or use of marihuana, appellants are not in that position. They stand convicted, not of simple possession or use of marihuana, see 21 U.S.C. § 844(a), but rather of possession of two tons of it with intent to distribute, and of conspiracy to do so. Thus, analogies to the holdings of Griswold and Stanley are inappropriate. Far more comparable are those decisions holding that, notwithstanding Stanley’s protection of the ultimate consumer of obscene material, the Government may prohibit the commercial importation or mail distribution of pornography. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Since there is no colorable claim of a fundamental constitutional right to sell marihuana — even partisans of the old economic due process analysis might blush at that notion — appellants must establish that prohibition of commercial distribution of marihuana lacks any reasoned justification. They have not succeeded in doing so. Appellants rely principally on the testimony of Dr. Lester Grinspoon, an associate clinical professor of psychiatry at Harvard Medical School and specialist in psychoaetive drugs. Dr. Grinspoon testified at a post-trial hearing before Judge Rayfiel on the question of the constitutionality of the marihuana prohibition. In addition, it was stipulated that five other experts would have supported Dr. Grinspoon’s conclusions, which were, in brief, that marihuana is neither physically nor psychologically harmful to most users and not particularly susceptible of abuse, and that those few who might suffer ill-effects through over indulgence probably have personality disorders that would lead them to abusive use of whatever drugs they might succeed in obtaining. In response, the Government submitted an affidavit of Dr. Forrest Tennant of the Department of Psychiatry of the School of Medicine, University of California at Los Angeles, who reported that use of high-grade marihuana by volunteers in a study in which he is engaged “often” induces psychotic episodes. Dr. Tennant recommended against legalization at the present time. While acknowledging the need for reform of the present marihuana laws, Dr. Tennant indicated that legalization would be inappropriate until (1) an easily applied blood or urine test is developed to detect intoxicated drivers, (2) more is learned about the differences between marihuana and hashish, and (3) a system of eontrols is established to keep marihuana and other harmful substances out of the possession of minors. On this limited record we are certainly not prepared to conclude that Congress could not reasonably decide that legalized commercial distribution of marihuana would pose a threat to the health of the American public. Moreover, recent discussions of this issue suggest that the present state of knowledge of the effects of marihuana is still incomplete and marked by much disagreement and controversy. Compare, e. g., Bartimo, Marijuana, 30 Fed.B.J. 343 (1971), with Trachtenberg & Paper, Marijuana: A Further View, 31 Fed.B.J. 258 (1972). Thus, although it is apparently generally accepted that most users do not suffer any significant ongoing harm, at least some — perhaps predisposed to such episodes — are reported to suffer severe temporary trauma, as Dr. Tennant reported in this case. See Marihuana: A Signal of Misunderstanding, The Official Report of the National Commission on Marihuana and Drug Abuse 72 (Bantam ed. 1972); Bartimo, supra, at 344-45, 347-48. Moreover, the long-term physical and psychological effects are as yet unclear. Thus, in testifying before Judge Rayfiel, Dr. Grinspoon acknowledged that a recent article in a British medical journal had “asserted that marijuana led to brain damage.” Although Dr. Grin-spoon indicated that this “was not a credible article,” he agreed that “the effect of marijuana regarding brain damage is not known.” Similarly, the first report of the National Commission on Marihuana and Drug Abuse (the Shafer Commission), referred to above, upon which appellants heavily rely, stated: The Commission reemphasizes its concern about the small minority of heavy, long-term marihuana users who are exposed to a much greater relative risk of impaired general functioning in contemporary America. . we must state that a significant increase in the at-risk population could convert what is now a minor public health concern in this eountry to one of major proportions. See J. Kaplan, supra, at 156, 180-183; Bartimo, supra, at 345-46. It is true that the rationale for the criminalization of marihuana has shifted over time. See Bonnie & Whitebread, supra note 9, at 1012-16, 1055-57, 1061-62, 1071-74, 1126-27, 1162 (first explained, inter alia, by fear that drug would induce violent criminal conduct, insanity and even death, then by concern that it would serve as a stepping stone to harder drugs, and finally by apprehension as to its- short- and long-term physical and psychological effects). This, however, does not negate the possibility that the justification now principally relied upon may have some merit. An argument might perhaps be made that in the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the actions of one individual may threaten the well-being of others. See id. at 1149-55. While such an analysis would bring into question the prohibition against private possession and use of marihuana, see, e. g., People v. Sinclair, 387 Mich. 91, 131, 194 N.W.2d 878, 895-896 (1972) (opinion of Kavanagh, C. J.), that issue is not before us. In any event, such an argument does not undermine the authority of the Government to prevent some from aiding or inducing others to commit acts detrimental to their own health. The first report of the Shafer Commission accepted this very distinction. That report referred to the 1970 statute involved here and recommended that neither possession of marihuana for personal use nor casual distribution of small amounts of marihuana not for profit be an offense, although marihuana possessed in public would remain contraband subject to summary seizure and forfeiture. But the report made absolutely clear that these were the “only . . . changes in federal law” recommended. See Marihuana: A Signal of Misunderstanding, supra, at 191. This dual approach to the control of marihuana has since been reaffirmed by the Shafer Commission in its second and final report, Drug Use in America: Problem in Perspective, supra note 7, at 224-25. See also J. Kaplan, supra, at 315-30. Appellants also argue that marihuana is much less harmful than tobacco and alcohol; the legal availability of the latter substances, they say, proves the irrationality of singling out marihuana for criminal penalties. Our knowledge is not sufficient for us to accept or reject appellants’ initial premise. But even if it is correct, see J. Kaplan, supra, at 263-310 (as to alcohol), this does not render the statute here unconstitutional. If Congress decides to regulate or prohibit some harmful substances, it is not thereby constitutionally compelled to regulate or prohibit all. It may conclude that half a loaf is better than none. See McDonald v. Board of Election Commissioners, 394 U.S. 802, 809-811, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Williamson v. Lee Optical, Inc., supra, 348 U.S. at 489, 75 S.Ct. 461. In sum, although one cannot read the thorough first report of the Shafer Commission without agreeing that there is an “extensive degree of misinformation about marihuana as a drug” and a need, in the words of the report, to “demythologize” and to “desymbolize” it, the question before us is a narrow one. It is whether it can fairly be said that Congress acted irrationally in prohibiting the commercial distribution of marihuana. We believe that the answer to that question is no. Therefore, appellants’ constitutional attack upon that portion of the statute must fail. Accord, United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972). III Appellants’ second argument is that the statutory assignment of marihuana to Schedule I, together with such concededly dangerous narcotic drugs as heroin, is arbitrary and unreasonable in light of the criteria for classification established by the statute and what is known about the effects of these substances. As already noted, the Act established a series of five schedules and listed a number of criteria based upon which the various controlled substances were each assigned by Congress to one of the schedules. See 21 U.S.C. § 812.- The criteria concern potential for abuse, currently accepted medical uses, and possible physical or psychological dependency effects. The severity of the statutory sanctions for drug distribution and related offenses is regulated by the schedule in which the drug in question is found, with the most severe penalties attaching to Schedule I and II drugs and the least severe to those in Schedule V. 21 U.S.C. § 841(b). Appellants attack their sentences as the product of an irrational system of drug classification. They assert that the statutory penalties are not justified because scientific evidence shows that marihuana is not nearly as dangerous as heroin, and they suggest that marihuana should be classified, if anywhere, in Schedule V. Congress listed marihuana in Schedule I principally on the recommendation of HEW, which urged “that marijuana be retained within Schedule I at least until the completion of certain studies now underway to” determine the physical and psychological dependency effects of the drug. See H.R. Report, supra note 3, at 4579, 4629-30. Apparently the potential for abuse and the absence of significant medical value were the determining grounds for placement of marihuana in the first schedule. See 116 Cong.Rec. 797 (daily ed. Jan. 28, 1970) (remarks of Sen. Hruska). Although we are in no position at this time and on this record to determine whether marihuana would be listed most appropriately where it is or in some other category, we can conclude that the current statutory arrangement is not so unreasonable or arbitrary as to endanger the validity of the sentences imposed on appellants. The reasonableness of the provisions in question is grounded on two considerations. As indicated in Part II of this opinion, there is a body of scientific opinion that marihuana is subject to serious abuse in some cases, and relatively little is known about its long-term effects. Congress was advised by HEW that determination of the seriousness of these potential hazards would require further study, and in the meantime Congress was certainly not precluded from taking a cautious approach. It is apparently true that there is little or no basis for concluding that marihuana is as dangerous a substance as some of the other drugs included in Schedule I. But the focus of appellants’ attack is on the penalty provisions accompanying the schedule, and in this respect Congress has made a significant distinction. The penalties for possession of a Schedule I substance with intent to distribute differ substantially depending upon whether the substance in question is classified as a narcotic drug. Marihuana is not so classified. See 21 U.S.C. §§ 802(16), 812(c), Schedule 1(c) (10). Consequently, the maximum penalty for possession of it with the requisite intent is five years in prison and a $15,000 fine, compared with a possible 15-year sentence and $25,000 fine for similar possession of such Schedule I and II drugs as heroin and cocaine. See 21 U.S.C. §§ 841(b)(1) (A), (B). In view of these disparities in the statutory sanctions and the ongoing dispute regarding the potential effects of marihuana, we cannot say that its placement in Schedule I is so arbitrary or unreasonable as to render it unconstitutional. Moreover, a final observation is appropriate. The provisions of the Act allowing periodic review of the control and classification of allegedly dangerous substances create a sensible mechanism for dealing with a field in which factual claims are conflicting and the state of scientific knowledge is still growing. The question whether a substance belongs in one schedule rather than another clearly calls for fine distinctions, but the statutory procedure at least offers the means for producing a thorough factual record upon which to base an informed judgment. True, the position taken thus far by the Attorney General’s designate (the propriety of which is now being litigated), see Part I supra, has halted this procedure at the outset for marihuana. But the very existence of the statutory scheme indicates that, in dealing with this aspect of the “drug” problem, Congress intended flexibility and receptivity to the latest scientific information to be the hallmarks of its approach. This, while not necessary to the decision here, is the very antithesis of the irrationality appellants attribute to Congress. Judgments of conviction affirmed. . Harmash was sentenced to three and a half years in prison, Kiffer to three years, and Kehoe to two and a half years. In addition, each received a special parole term of three years and was fined $2,500. . For further discussion of the schedules, see Part III infra. . Section 811(c) lists eight factors that should be considered in deciding whether to control, decontrol, or transfer a substance. Like the criteria in § 812 governing the classification of the controlled substance, see note 14 infra and accompanying text, these principally concern possible dangers and current knowledge of the effects of the substance. See H.R. Report No. 91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4602-03 (1970). . Section 811(d) provides: If control is required by United States obligations under international treaties, conventions, or protocols in effect on the effective date of this part, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section. See H.R. Report, supra note 3, at 4603; 21 U.S.C. § 812(b). . The hearing and Dr. Grinspoon’s testimony were also directed to appellants’ alternative argument that the statutory classification of marihuana under 21 U.S. C. § 812 as a Schedule I drug is unreasonable. See Part III infra. . Three were identified as physicians associated with medical schools, one as a sociologist, and one as a professor of law. The last is Professor John Kaplan of Stanford Law School, author of Marijuana — The New Prohibition, which is cited in the text of this opinion. . The results of the most recent studies concerning the effect of marihuana on driving ability are briefly summarized in Drug Use in America: Problem in Perspective, Second .Report of the National Commission on Marihuana and Drug Abuse 184-85 (1973). These studies appear to support Dr. Tennant’s concern about this matter. . Marihuana: A Signal of Misunderstanding, supra, at 113. . The absence of hard evidence of long-term ill effects is not necessarily a result of there not being any, but may simply reflect the practical obstacles to controlled scientific observation and measurement. See J. Kaplan, supra, at 156; Bonnie & Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 Va.L.Rev. 971, 1102-04 (1970). . One observer has pointed out, in regard to the question of whether marihuana is safe enough to justify legalization: How much scientific evidence should be required before a drug is considered harmless is an open question. Popular standards seem to vary with the drug being considered. Some people, who on the basis of scant evidence have satisfied themselves that marijuana is relatively harmless, demand that insecticides and other mundane chemicals be subjected to strict and prolonged examination before they can be legally marketed. Schneyer, Book Review, 24 Stan.L.Rev. 200 n. 4 (1971). . The constitutionality of laws prohibiting the possession of marihuana for personal use has been the subject of a number of recent judicial opinions. See, e. g., United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969) (both upholding such laws); People v. Sinclair, supra (law held invalid, though no consensus as to grounds; opinions suggest, inter alia, cruel and unusual punishment, irrational classification and invasion of personal liberty); State v. Kantner, 53 Haw. 327, 493 P.2d 306, cert. denied, 409 U.S. 948, 93 S.Ct. 287, 34 L.Ed.2d 218 (1972) (law upheld, but dictum in concurring opinion that “right to the ‘enjoyment of life, liberty and the pursuit of happiness’ includes smoking of marijuana,” id. at 312; dissenting opinions assert criminalization violates due process and right of privacy). We intimate no view as to whether an argument of uneonstitutionality advanced by a defendant charged with private possession would require stricter scrutiny than here applied or yield a different result. For a thoughtful discussion of this issue, see Bonnie & Whitebread, supra note 9, at 1125-55. See also Drug Use in America: Problem in Perspective, supra note 7, at 247-49. . For approval of the distinction proposed by the Shafer Commission between continued prohibition of commercial distribution and legalization of possession for personal use, see Buckley, The Spirit of the Law, XXIV National Review 1348 (1972). It is noteworthy that the Act itself distinguishes between commercial possession or distribution of marihuana on the one hand and possession for personal use or gratuitous transfers of small amounts on the other. Persons who are convicted of possession without intent to distribute or of distribution of a small amount without remuneration are subject to a prison term of up to one year and a maximum fine of $5,000. 21 U.S.C. §§ 841(b)(4), 844(a). In contrast, commercial possession and distribution are punishable by imprisonment for as much as five years and a maximum fine of $15,000. 21 U.S.C. § 841(b)(1)(B). . Marihuana: A Signal of Misunderstanding, supra, at 210. . Thus, for example, the criteria for Schedule I are: (A) The drug or other substance has a high potential for abuse. (B) - The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. 21 U.S.C. § 812(b)(1). . Thus, appellants argue that marihuana is less harmful than barbiturates, which are listed in Schedule IV. See, e. g., People v. McCabe, 49 Ill.2d 338, 344, 275 N.E.2d 407, 411 (1971) (per curiam). This reasoning may be persuasive, but it is not undisputed. See “Marijuana and Society,” statement by the Council on Mental Health and the Committee on Alcoholism and Drug Dependence of the American Medical Association, quoted in J. Kaplan, supra, at 187 (cannabis found to be more potent than the barbiturates). . Appellants do not suggest that their sentences violate the constitutional guarantee against cruel and unusual punishment. See, e. g., United States v. Lozaw, 427 F.2d 911, 917 (2d Cir. 1970). But cf. People v. Sinclair, supra, 387 Mich. at 131, 148, 194 N.W.2d at 895, 904-906 (opinions of Kavanagh, C. J., & Brennan, J.).
f2d_477/html/0357-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "O’SULLIVAN, Senior Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Claude KILPATRICK, Defendant-Appellant. No. 72-1521. United States Court of Appeals, Sixth Circuit. Argued Dec. 4, 1972. Decided April 17, 1973. Hughie Ragan (Court Appointed), Jackson, Tenn., for defendant-appellant. Glen Reid, Jr., Asst. U. S. Atty., Memphis, Tenn., Thomas F. Turley, Jr., U. S. Atty., Glen Reid, Jr., Asst. U. S. Atty., Memphis, Tenn., on brief, for plaintiff-appellee. Before PECK, Circuit Judge, and CECIL and O’SULLIVAN, Senior Circuit Judges. O’SULLIVAN, Senior Circuit Judge. Claude Kilpatrick appeals from his conviction upon jury trial of unlawful possession of untaxed distilled spirits— “moonshine” — in violation of 26 U.S.C. § 5604(a)(1). He was sentenced to the custody of the Attorney General for a period of nineteen months, one month to be served in an institution with the remainder of the sentence suspended. Appellant raises the following issues: 1. Insufficiency of the evidence. 2. Failure of District Judge to submit to jury defense of entrapment. 3. Impropriety of V. S. Attorney calling a witness, knowing such witness would assert his Fifth Amendment rights. 4. Improper argument of United States Attorney. 1. Insufficiency of the evidence. Appellant’s arrest and conviction was the product of an extensive undercover operation by special and regular employees of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service. Included in such activities was the actual setting up of a moonshine still in the County of Wayne, Tennessee. The agents and one James Earl Stricklin a known “moonshiner” who was unaware that his coadventurers were government agents, began the manufacture of the illegal whiskey in a barn on the premises owned by one of the government’s special employees. A flourishing business was apparently carried on, with Stricklin and one of the special employees sharing in the profits. One of such special employees was also paid a daily wage and received a substantial bonus for his allegedly good performance. The offense of which appellant was charged and convicted was the purchase of five gallons of such illegally manufactured moonshine. On the day of the charged offense, Stricklin directed his associates to load some twenty-five gallons of their product and to join him in selling the same. They drove to the home of appellant. Stricklin and the appellant conducted the negotiations which led to appellant’s purchase of five gallons of the whiskey. The record contains no reason why Stricklin considered Kilpatrick a likely purchaser — nothing to show Kilpatrick was a known handler of moonshine. Stricklin asked if appellant had any liquor for the winter. Appellant replied “he had been selling a little bonded.” The worth of this remark as corroboration of Kilpatrick’s criminal purpose does not appear except as the witness— one of the special government employees —thereafter attributed significance to it by saying that the “little bonded” is regular government tax-paid “whiskey just usually sold in dry counties, and not out of the liquor store.” Upon objection, the District Judge admonished the jury that they were to consider only the offense charged. Upon argument to the jury, the United States Attorney commented upon the foregoing evidence as follows: “* * * and Mr. Stricklin asked Mr. Kilpatrick: ‘Do you have any whiskey for the winter?’ And he answered: ‘No, I’m just selling a little bonded whiskey.’ Bonded whiskey, of course, is labeled (legal) whiskey, taxed whiskey, and Mr. Kilpatrick made this statement, and this, ladies and gentlemen, that is, the statement is, an admission on his part, it is an admission of interest. It is, in my opinion, a confession that he knew that this whiskey was moonshine whiskey; that Mr. Stricklin was there in the business of — .” (Emphasis supplied.) Stricklin’s above inquiry was followed by a conversation between him and Kilpatrick in which Kilpatrick was asked if he wanted some liquor. “[A]nd he [Stricklin] was wanting ten dollars a gallon for it, and they argued back and forth * * Kilpatrick held out for a price of nine dollars a gallon. Stricklin capitulated and accepted the nine dollars. The whiskey — five gallons in one gallon glass jugs — was unloaded and, at Kilpatrick’s direction, was put down “at the end of the house, across the road, in a junk pile, in a refrigerator.” The agent present at the transaction was asked how he knew that the contents of the jugs was whiskey. He responded, “We made it, sir.” Such is, indeed, direct evidence. Without assigning how it would be relevant here, appellant asserts that most all of the victims caught in the government net, including Stricklin, were acquitted upon trial. It is said that, “Out of five different cases and the trial of at least 13 persons who went to trial, this defendant in this one case was the only one convicted.” This gratuitous assertion, made for the first time on appeal, has no support in the record. The government does not challenge such a statement and is not required to do so. It would be irrelevant, even if true. In the brief here, appellant is referred to as an “aged, sick man.” Other than a reference to him as an elderly gentleman, there is no evidentiary support for counsel’s above description of him. An “aged, sick man” might excite a jury’s sympathy, but would not excuse criminal conduct. If all of the foregoing is true, it might be said of the government’s quite elaborate operation that “the mountain labored and brought forth a mouse.” (Poetic license!) We test the government’s evidence by the familiar rule that it and the legitimate inferences to be drawn therefrom are to be considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). We find it sufficient to have warranted submission of defendant’s guilt to the jury. 2. Entrapment. Defendant did not take the stand to tell whether he did or did not do the acts charged to him. Ordinarily an admission that an accused did the acts which he claims were induced by entrapment is a necessary ingredient of such a defense. United States v. Lamonge, 458 F.2d 197, 201 (6th Cir. 1972); Ortega v. United States, 348 F.2d 874 (9th Cir. 1965). We need not place total reliance on such rule as there is no evidence of any undue persuasion of defendant to buy and possess the moonshine delivered to him. The District Judge correctly refused to submit entrapment to the jury. 3. Prosecution calling Stricklin as a witness. Appellant charges prejudice in the prosecution calling Stricklin to the stand, knowing he would exercise his Fifth Amendment rights. In the contest, we find no reversible error resulted. Inasmuch as Stricklin had been identified as the one who conducted the illegal transaction with appellant, the prosecution’s case would be seriously prejudiced by a failure to offer him as a witness. Following Stricklin’s refusal to answer, the District Judge carefully admonished the jury, “You will not take the witness’ invocation of his Fifth Amendment right in any fashion with respect to the guilt or innocence of this defendant.” In United States v. Compton, 365 F.2d 1 (6th Cir. 1966), we said: “Government counsel need not refrain from calling a witness whose attorney appears in court and advises court and counsel that the witness will claim his privilege and will not testify. However, to call such a witness, counsel must have an honest belief that the witness has information which is pertinent to the issues in the case and which is admissible under applicable rules of evidence, if no privilege were claimed.” 365 F.2d at 5. Certainly Stricklin had information “pertinent to the issues.” We do not find bad faith on the part of the United States Attorney. b. Improper argument to the jury. Defendant did not take the stand. In arguing to the jury, the United States Attorney said, inter alia: “* x x j think it is fairly evident, is very evident, that Mr. Kilpatrick did have possession of this whiskey, under the law he did have, and under the facts of this case he is guilty beyond a reasonable doubt of possessing this whiskey, and I ask you ladies and gentlemen to give very much thought and consideration to your duty as jurors — You have got a tough job, x x x jjy j0b is not so tough, x x x All Mr. Ragan [defense counsel] has to do is to come up here and put forth all proof and evidence and witnesses that he can to try to prove his man innocent — .” (Emphasis supplied.) Upon objection by defense counsel, the United States Attorney conceded that his argument was error and the District Judge gave an instruction that, “ * * * the burden is upon the government to prove the case and the defendants are not required, unless they see fit, to put on any proof or evidence, and no inference in the law is to be drawn of any statement of counsel. Counsel of the defendant is not required to put on any proof.” The United States Attorney concluded his argument with the following: “That is your duty. By the same token, when there is enough evidence you have to convict him and I do believe that, considering all of the reasonable inferences in this case, you will have no trouble in doing just that.” No objection was interposed by defense counsel to this conclusion, but we recite it as part of the total context of the trial. We believe that it could be read as expressing the U. S. Attorney’s personal belief that defendant was guilty. We find no case which forbids such conduct in cases tried in the Federal Courts, but such has been condemned by state courts. In People v. Bigge, 297 Mich. 58, 297 N.W. 70 (1941) Justice Boyles, speaking for the Supreme Court of Michigan, said: “It is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty. However, it is not error for a prosecutor to argue from the testimony that the defendant is guilty and to state what evidence convinces him and should convince them of such guilt.” 297 Mich. at 68, 297 N.W. at 74. The American Bar Association 1970 report by its Advisory Committee on the Prosecution and Defense Functions, says under Argument to a Jury: “(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to * * * the guilt of the defendant.” There was no evidence that Kilpatrick had been a handler of moonshine; there was no direct evidence that he knew that the whiskey offered for sale by Stricklin was unstamped, illegal moonshine. We have said that a jury could infer knowing and willful violation of the law by him. It is not at all inconceivable, however, that but for the prosecutor’s embellishment of the record and his improper argument, a jury might indeed have given Kilpatrick the benefit of a reasonable doubt as to whether he had knowingly entered into the charged illegal conduct. The writer is not an advocate for any further advances by the federal courts in extending tender care to those accused of crime, and would not joiti in establishing a rule making such expression by a prosecutor impermissible conduct. We consider it only as background to be considered with the U. S. Attorney’s admittedly wrong assertion that it was the burden of Kilpatrick to prove his innocence. We have earlier set out the assertion by a prosecution witness that Kilpatrick’s reference to selling “a little bonded” meant an activity whereby such “bonded” whiskey was “usually sold in dry counties, and not out of the liquor store.” Except for this inference there was no evidence that Kilpatrick had been a law violator. We do not announce a categorical holding that the prosecutor’s statement that it was the responsibility of defendant’s counsel to “come up here and put forth all proof * * * . that he can to try to prove his man innocent” was the equivalent of commenting upon Kilpatrick’s failure to take the witness stand. It comes sufficiently close, however, to persuade us that it, with the other occurrence at the trial commented upon above, denied Kilpatrick a fair trial. The District Judge did a creditable job in seeking to erase the prejudice that was visited upon Kilpatrick by the occurrences reviewed above. We have spoken on the sometime insufficiency of cautionary instructions. United States v. Rudolph, 403 F.2d 805, 806 (6th Cir. 1968). And see, of course, the relevant discussion in Bruton v. United States, 391 U.S. 123 at page 129, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Notwithstanding the able efforts of the District Judge, we believe that, in total, the foregoing trial events denied Kilpatrick a fair trial. Reversed and remanded for a new trial.
f2d_477/html/0361-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "DYER, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	William F. COLE, Plaintiff-Appellant, v. CHEVRON CHEMICAL COMPANY-ORONITE DIVISION, Defendant-Appellee, MECHANICAL CONTRACTING ENGINEERS, INC., and Liberty Mutual Insurance Company, Third Party Defendants-Appellees-Appellants. No. 72-1025. United States Court of Appeals, Fifth Circuit. April 23, 1973. Rehearing and Rehearing En Banc Denied June 19, 1973. George J. Kambur, Clark A. Richard, New Orleans, La., for plaintiff-appellant. Lloyd C. Melaneon, New Orleans, La., for Chevron Chemical Co. John V. Baus, New Orleans, La., for Mechanical Contracting Engineers, Inc., and Liberty Mutual Ins. Co. Before GEWIN, GOLDBERG and DYER, Circuit Judges. DYER, Circuit Judge: Two questions are presented on appeal in this Louisiana-based diversity case: (1) whether the work that Mechanical Contracting Engineers, Inc., performed for Chevron at its plant in Belle Chase, Louisiana, was, as a matter of law, part of Chevron’s “trade, business, or occupation” for the purposes of establishing coverage under § 6 of the Louisiana Workmen’s Compensation Statute, La. Rev.Stat.Ann. § 23:1061; and (2) whether in Louisiana, an indemnity agreement that does not expressly specify the indemnitor’s intent to indemnify for the indemnitee’s own negligence is enforceable where the damage is caused by the concurrent negligence of the indemnitee and indemnitor, rather than by the sole negligence of the indemnitee. We affirm in part and reverse in part. Mechanical was hired by Chevron to do general welding and pipe fitting work at its Belle Chase plant. The job primarily consisted of cutting and removing old pipes, valves,-gratings, and other refinery paraphernalia to make way for construction of additional facilities and installation of new equipment. In February 1968 Cole, a welder employed by Mechanical for the Chevron job, was injured during the course of his employment at the Belle Chase plant. He sued Chevron under the general negligence law of Louisiana for damages he sustained as a result of his slipping and falling in a puddle of oil while he was helping a fellow employee carry a heavy piece of steel grating. The puddle was comprised of both “old” and “new” oil; the new oil was spilled when Mechanical’s welders cut pipes containing the oil, but the old oil had been left from Chevron’s earlier operations. Cole contended that Chevron was negligent in that it breached the duty it owed him as a Mechanical employee to remove old oil from the floor before Mechanical began working in the area and that Chevron’s firewatcher breached his duty to clean up the spilled new oil. Chevron countered that it was Cole’s “statutory employer” within the meaning of La.Rev.Stat.Ann. § 23:1061 and that therefore Cole’s exclusive remedy for his injury was workmen’s compensation since under Louisiana law a workman cannot maintain a tort action against his statutory employer. La. Rev.Stat.Ann. § 23:1032. In response to Cole’s claim, Chevron also asserted a third-party complaint against Mechanical and its insurer, Liberty Mutual Insurance Company, on the basis of a written indemnity agreement between Chevron and Mechanical for the work being performed by Mechanical when Cole was injured. Prior to trial Chevron filed a motion for summary judgment supported by affidavits; the motion was granted and the suit dismissed. On appeal, this Court reversed that judgment and remanded the cause for trial on the merits because material factual issues remained to be tried. Cole v. Chevron Chemical Co., 5 Cir. 1970, 427 F.2d 390. In so holding the Court pointed out that: In cases such as Arnold v. Shell Oil Company, 5 Cir., 1969, 419 F.2d 43, and Allen v. United States Fire Insurance Company, 222 So.2d 887 (La.Ct.App.1969), the factual picture of the principal employer’s business operations, and of the part the activity in issue played in those operations, was well defined. Here, on the other hand, the picture of Chevchem’s operations at its Oronite Division Plant is not clear. That Chevchem is engaged in the production of petro-chemicals derived from hydrocarbons is not conclusive of the issue whether all types of welding work performed at its Oronite Division Plant — demolition and construction work, as well as “repair” and “maintenance” work — are part of the “regular operations” at the Plant. Further factual development is necessary. . . . 427 F.2d at 394. On remand, Cole’s suit against Chevron was tried in two parts. The first day of testimony related only to the issue of whether Chevron was the statutory employer of Cole. This issue was submitted to the jury; it determined that the work for which Chevron contracted with Mechanical was not part of Chevron’s “trade, business, or occupation.” After the second phase of the trial was completed on the following day, a special verdict was rendered. The jury found that Cole was injured, that his injury was caused by the negligence of Chevron, that Cole was not contributorily negligent, and that he was entitled to damages of $67,500. Subsequently, Chevron filed a motion for a judgment notwithstanding the verdict and alternatively for a new trial. The district court granted the motion for a judgment N.O.V. and conditionally granted a new trial, contingent on the judgment N.O.V. not being affirmed on appeal. In the meantime, Chevron’s indemnity action against Mechanical was tried without a jury, and the district court, 334 F.Supp. 263, held that Chevron was entitled to indemnification because Mechanical had been concurrently negligent in that it had a contractual obligation to keep “a competent man in the immediate vicinity .. . . to supervise the work” and its personnel failed to call the spillage of new oil to the attention of Chevron’s firewatcher. Reasoning that Cole’s injuries were therefore caused “directly or indirectly” (the words of the indemnity agreement) by Mechanical, the court concluded that Mechanical was bound to indemnify Chevron for any damages that it might owe Cole as well as for its costs of defense, which were stipulated to be $6,915. This appeal by Cole on the statutory employer question and by Mechanical on the indemnity issue ensued. Was the Work Performed by Mechanical and Cole Part of Chevron’s “Trade, Business, or Occupation”? Section 6 of the Louisiana Workmen's Compensation Statute, La. Rev.Stat.Ann. § 23:1061, provides that any person (referred to as a principal) who contracts out work which is a part of his “trade, business, or occupation” is liable for workmen’s compensation to any of the contractor’s employees who are injured while engaged in such work to the same extent as if the contractor’s injured employee were one of the principal’s own employees. In other words, under certain circumstances, the principal is considered to be the statutory employer of the independent contractor’s employees for the purpose of establishing coverage under the Workmen’s Compensation Statute. The purpose of this provision is to prevent the principal from evading his workmen’s compensation responsibility by interposing an independent contractor between himself and employees who are actually utilized in performing a part of the principal’s “trade, business, or occupation.” Cole v. Chevron Chemical Co., 5 Cir. 1970, 427 F.2d 390, 392; Arnold v. Shell Oil Co., 5 Cir. 1969, 419 F.2d 43, 46. Section 23:1061 benefits the employees of the contractor when the contractor is financially impoverished, because the principal may be held liable for their workmen’s compensation. “On the other hand, when the contractor is able to fulfill his compensation responsibilities, the provision operates to limit his employees to the maximum benefits payable under the Workmen’s Compensation Statute, since the principal, as their ‘statutory employer,’ is, like the contractor, immunized from tort liability to the employees by the exclusive-remedy provision of that act. La.Rev.Stat.Ann. § 23:1032.” Cole v. Chevron Chemical Co., supra at 392-393. The standard for determining whether a given activity performed by an independent contractor is part of a principal’s “trade, business, or occupation” is, to a degree, dependent upon the factual context of the ease. The Louisiana courts in the early cases of Seabury v. Arkansas Natural Gas Corp., 1930, 14 La.App. 153, 127 So. 25, and Dandridge v. Fidelity & Casualty Co., La.App.1939, 192 So. 887, applied a two-pronged test based on business necessity and employment of similar workers. However, keeping in mind the policy that workmen’s compensation law should be liberally construed regardless of whether the employer or employee is the party asserting coverage, the Louisiana courts in Turner v. Oliphant Oil Corp., La.App.1940, 200 So. 513; Thibodaux v. Sun Oil Co., La.App.1949, 40 So.2d 761; Doucet v. W.H.C., Inc., La.App.1968, 212 So.2d 267; and Allan v. United States Fire Insurance Co., La.App.1969, 222 So.2d 887, retreated somewhat from this two-pronged test. In these cases, the courts held that the fact that the principal did not have any employees engaged in a similar activity was not controlling where the work contracted out was so necessary to the principal’s operations that, if it were not performed by the independent contractor, the principal would have to hire workers of its own to perform the task. In Arnold v. Shell Oil Co., supra, the Fifth Circuit was confronted by an analogous factual situation. An employee of an independent contractor was injured while repairing a Shell heater-treat-er, which is a device used to separate sand and salt water from freshly mined oil. Shell had no workers employed on this job and, in fact, had always contracted out its heater-treater maintenance work. It was undisputed, however, that the proper functioning of the heater-treater is necessary to the efficient operation of an integrated oil company, because the salt water and sand would corrode the pipeline if not removed before pumping the oil to the refinery. Based on these facts, the Court held that Shell was the injured employee’s statutory employer as a matter of law, concluding that to determine if an activity is part of a principal’s “trade, business, or occupation” for purposes of Louisiana’s Workmen’s Compensation Statute, the proper test is “whether the particular activity is essential to the business.” In so holding, the Court relied heavily on the rationale of the latter line of Louisiana cases that under such circumstances, the “fact that the employer or the industry as a whole always contracts out the activity is not controlling.” 419 F.2d at 50. Likewise, the panel of this Court that ^originally considered the case sub judice when it was on appeal from the entry of summary judgment pointed out that similarly not controlling is the fact that the principal hires employees of his own to do work related to the activity being performed by the contractor’s employees. “Instead, the decisive factors are the nature of the activity being contracted out, the nature of the principal employer’s business, and the relationship between the particular activity and the broader business operation.” Cole v. Chevron Chemical Co., supra at 394. Although the employment of similar workers is not controlling, where a principal in fact acts as his own general contractor or has a number of his own employees regularly performing a task substantially similar to the activity which he contracts out, the principal thereby affords a definite indication that the work engaged in by the contractor’s employees is part of his own trade or business. See La.Rev.Stat.Ann. § 23:1061, comment at 489-490; cf. Lutz v. Long-Bell Lumber Sales Corp., La.App.1934, 154 So. 645. See also Horrell v. Gulf & Valley Cotton Oil Co., 1930, 15 La. App. 603, 131 So. 709. Indeed, in the recent case of Doss v. American Ventures, Inc., 1972, 261 La. 920, 261 So.2d 615, the Louisiana Supreme Court held that American, the owner-lessor of a building that was nearly destroyed by a hurricane, was liable for workmen’s compensation to the injured employee of a contractor hired to rebuild the structure, on the ground that American was engaged in the construction business when the employee was injured since, at the time of the injury, American was acting as its own general contractor for the project. See also Gray v. Louisiana Power and Light Co., La.App.1971, 247 So.2d 137, where the court held that, because LP&L acted as its own general contractor in erecting towers for power transmission lines, it was the statutory employer of an injured worker employed by a sub-contractor hired to construct the foundation on which to erect the towers. In the present case, the general welding and pipe fitting work that Chevron hired Mechanical to do and that Cole was performing when injured was part of a complex plan of expansion and renovation which Chevron established soon after the Belle Chase plant was opened in 1943 and which proceeded rather continuously over the following 26 years, dependent only on economic activity. Over 100 tanks, innumerable pipes, and various types of other equipment for producing petro-chemicals were added, and the value of the plant was increased some 25 times. Significantly, the expansion of the Belle Chase facilities was always directly supervised by Chevron itself. The company employed a full-time maintenance crew of 35 men, each of whom was trained as welders and pipefitters and cross-trained as carpenters and electricians. Depending upon the size of a particular project and the workload of the maintenance crew at the time, Chevron would either have its own staff do the construction and renovation work, or it would contract out part or all of the work. However, even when the work was contracted out, Chevron acted as its own general contractor. Chevron’s engineers prepared the blueprints, planned the schedule for each project, coordinated the work schedules among the various projects, and' as the work progressed on each project intermittently made quality control tests. Below, the district court granted a judgment N.O.V. in favor of Chevron on the basis that there was no substantial evidence to support the jury’s verdict. The proper standard for granting a directed verdict or judgment N.O.V., and for reviewing the granting or denial of such motions on appeal, has been exhaustively explained in Boeing Co. v. Shipman, 5 Cir.1969, 411 F.2d 365, 374-376. Basically, granting the motions is proper when, viewing all of the evidence and all of the reasonable inferences that can be drawn therefrom most favorably toward the party opposed to the motion but without weighing the evidence or inferences and without determining the credibility of the witnesses, the facts and legitimate inferences point so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary decision. Applying these principles to the instant case, we determine that the granting of Chevron’s motion for a judgment N.O.V. by the district court was proper. The uncontroverted evidence conclusively established that a number of Chevron’s full-time employees were regularly engaged in the same type of work as being performed by Mechanical and Cole, that Chevron had been in the process of modernizing and expanding its Belle Chase facilities on a continuous basis for over a quarter century, that throughout this period Chevron had as a matter of course acted as its own general contractor for the work which its own maintenance crew did not have the time to handle, and that Mechanical was but a sub-contractor on this project. Thus, as in Owen v. Kaiser Aluminum and Chemical Corp., 5 Cir.1969, 417 F.2d 303, it is clear that La.Rev.Stat.Ann. § 23:1061 applies. Moreover, unlike the sugar refinery in Moak v. Link-Belt Co., La.App.1970, 229 So.2d 395, the evidence here shows that Chevron could not have continued to operate its business indefinitely without completing the expansion and renovation work undertaken by Mechanical. The uncontroverted testimony of the operations manager of the Belle Chase plant, Mr. Estopinnal, which was the only relevant evidence regarding the necessity or essentiality of Mechanical’s work for Chevron, was to the effect that, although Chevron presumably would have been able to continue its operations at the plant for the time being without the work being done, the modernization and expansion of the Belle Chase plant would somehow have been finished — even if Mechanical had refused to perform under the terms of the contract — because the work was essential to the plant’s continued efficient and competitive operation. In short, we agree with the district court that there was no substantial evidence to support the jury’s finding that the work which Mechanical was hired to do was not part of Chevron’s “trade, business, or occupation.” Even when the record is viewed in the light most favorable to Cole, the evidence that Chevron is Cole’s statutory employer is completely overwhelming; we cannot conceive how reasonable men could reach a different conclusion. Contractual Indemnity The only other issue on appeal, involving Chevron’s third-party complaint against Mechanical, is whether under Louisiana law indemnity is owed when the indemnitee is wholly or partially at fault and the indemnity agreement fails to expressly require indemnification for accidents resulting from the indemnitee’s negligence. A careful review of the relevant Louisiana cases convinces us that indemnity is not owed in such a situation. The pertinent contractual provision between Chevron and Mechanical was: General Liability: CONTRACTOR shall indemnify and save COMPANY harmless from and against any and all loss, damage, injury, liability, and claims thereof for injuries to or death of persons, and all loss of or damage to property of others, resulting directly or indirectly from CONTRACTOR’S performance of this contract. Based on a finding of concurrent negligence on the part of both the indemnitor, Mechanical, and the indemnitee, Chevron, the district court held that Chevron was entitled to indemnity under the agreement. Since Mechanical’s negligence partially caused Cole’s accident, the court reasoned that his consequent injuries were embraced by the phrase “resulting directly or indirectly from CONTRACTOR’S performance.” We disagree. Louisiana law is clearly to the effect that the failure of the parties to refer expressly to “negligence” in an indemnity contract is evidence of the parties intention not to provide indemnification for the indemnitee’s negligent acts. Bagwell v. South Louisiana Electric Co-op Assoc., La.App.1969, 228 So.2d 555; Arnold v. Stupp Corp., La.App.1967, 205 So.2d 797; see Plantation Pipeline Co. v. Kaiser Aluminum and Chemical Corp., La.App.1969, 222 So.2d 905; Elephant, Inc. v. Hartford Accident & Indemnity Co., La.App.1968, 216 So.2d 837; Brady v. American Insurance Co., La.App.1967, 198 So.2d 907. The parties’ clear and unequivocal intent to indemnify against damages caused solely by the indemnitee’s own negligence must be expressly articulated by specific reference to “negligence.” Otherwise, the presumption is that the indemnification is applicable only to vicarious responsibility of the indemnitee resulting from negligent acts of the indemnitor. Bagwell v. South Louisiana Electric Co-op Assoc., supra; Arnold v. Stupp Corp., supra; Garsalitz v. Olin Mathieson Chemical Corp., 5 Cir.1970, 429 F.2d 1033; and Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir.1969, 412 F.2d 1011. Compare Jennings v. Ralston Purina Co., La.App.1967, 201 So.2d 168. These same precepts and presumptions are equally applicable where the damage is caused by the concurrent negligence of the indemnitee and indemnitor, rather than by the indemnitee’s sole negligence. In the recent case of Strickland v. Nutt, La.App.1972, 264 So.2d 317, which involved a finding of concurrent negligence and an indemnity agreement remarkably similar to the one in the case sub judice, the Louisiana court specifically rejected the district court’s decision below in the present case, Cole v. Chevron Chemical Co., E.D. La.1971, 334 F.Supp. 263, and denied indemnity. We reject the proposition that indemnity contracts should be interpreted differently depending on whether the indemnitee is solely negligent or there is concurrent negligence on the part of both indemnitee and indemnitor. We are aware of the case of Cole v. Chevron Chemical Company-Oronite Division, 334, F.Supp. 263 (U.S.D.C., E.D.La.1971) wherein the Federal District Judge indicated that the holding of Jennings v. Ralston Purina Co., 201 So.2d 168 (La.App.2d Cir.1967) and Arnold v. Stupp Corp., 205 So.2d 797 (La.App.1st Cir.1967) were applicable only where there was sole negligence on the part of the indemnitee. We agree rather with the language of the U.S. Fifth Circuit Court of Appeals in Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684 (1970) that, “Although in Batson-Cook [Bat-son-Cook Co. v. Industrial Steel Erectors, 5 Cir. 1958, 257 F.2d 410] the indemnitor was not negligent and the damage was caused solely by the negligence of the indemnitee, the rule requiring specificity of the intent to indemnify for the indemnitee’s own negligence is equally applicable in situations where, as here, the concurring negligence of the indemnitee and indemnitor causes the damage. See United States v. Seckinger, 5 Cir.1969, 408 F.2d 146, reversed on other grounds 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (October 13, 1969).” We are of the opinion that the above language sets forth the better rule for interpreting indemnity agreements and that the Courts of this state should adopt that rule. . 264 So.2d at 323. Accordingly, because the jury found that Cole’s injuries were proximately caused by Chevron’s negligence and since the indemnity agreement does not use the talismanic word “negligence” or otherwise make unequivocally clear the parties’ intent to indemnify for injuries caused, in part or in whole, by the negligence of the indemnitee, we conclude that Chevron is not entitled to recover under the indemnification provision of the contract. The district court’s judgment N.O.V. in favor of Chevron is affirmed. The judgment of the district court that Mechanical must indemnify Chevron for its costs of defense and for any damages owed to Cole as a result of the injuries he sustained at the Belle Chase plant in 1968 is reversed with directions to enter judgment for Mechanical. Affirmed in part and reversed in part. . La.Rev.Stat. § 23:1061 provides: Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.
f2d_477/html/0369-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BARRETT, Circuit Judge. MURRAH, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	In the Matter of James George STAFOS, Bankrupt-Appellant, v. Laurence M. JARVIS, Trustee in Bankruptcy, Appellee. No. 72-1495. United States Court of Appeals, Tenth Circuit. Argued and Submitted Jan. 12,1973. Decided April 30, 1973. Rehearing Denied May 31, 1973. Thomas E. Joyce, Kansas City, Kan. (Wash H. Brown, Kansas City, Kan., on the brief), for appellant. Gerald T. Elliott, Kansas City, Kan. (Robert M. Kaplan, Kansas City, Kan., on the brief, Schnider, Shamberg & May, Kansas City, Kan., of counsel), for appellee. Before MURRAH, SETH and BARRETT, Circuit Judges. BARRETT, Circuit Judge. James George Stafos filed a voluntary petition in bankruptcy on December 24, 1970, listing unsecured debts of $612,-132.06 which he had incurred as a self-employed broker-distributor and packager of truck farming produce. He claimed as exempt homestead property, inter alia, a 13.2 acre tract of land in Wyandotte County, Kansas, acquired by him and his wife, Reva, who is not a party to this proceeding, in 1945 as joint tenants, with right of survivorship. Stafos, his wife and children have continually resided on the property since 1945. In his petition, Stafos estimated the value of the property at $35,000.00. With some minor exceptions, the property has been used as the family home and for farm crop income. Reva Stafos has been actively engaged in the farm operations on the acreage and some 60 acres of adjacent leased acreage. Stafos testified that they did about $200,000.00 “worth of business” from the farming operation in 1971. Stafos relied upon the provisions of Article 15, § 9 of the Kansas Constitution and K.S.A. § 60-2301 in support of his contention that the entire 13.2 acres is exempt. The language contained in the above cited statute is identical to the language contained in Article 15, § 9. Until March 1, 1966, the acreage was located outside the limits of any incorporated city or town. On that date, by ordinance enacted in accordance with the then applicable law, the 13.2 ácres was annexed to the city of Kansas City, Kansas. Neither Stafos nor his wife consented to the annexation, nor is there any evidence that they were movants in respect thereto. No portion of the acreage has been platted. The Trustee in Bankruptcy filed his report on March 4, 1971, allowing Stafos one acre to be set aside as his exempt homestead, which is to include his family home out of the total 13.2 acres, value unknown. Stafos objected and a hearing was held before the Referee in Bankruptcy on March 18,1971. One Rex Vickers, a real estate expert, testified that on that date the Stafos acreage was part of the “Muncie Industrial Area” zoned “J” for heavy industry and that considerable industry had already located in the immediate vicinity. He further testified that part of the Stafos acreage had been previously used as an office building constructed by Miller Construction Company, now occupied and used as a salvage yard at a monthly rental to Stafos of $140.00. He also testified with respect to a building used by Fouts Trucking Company. In his expert opinion “the whole area there gives the complexion of an industrial site and an industrial area; not a farm.” He would not classify the acreage as rural land, but rather as urban industrial land of a minimum value of $10,000.00 per acre. He did acknowledge that when he viewed the acreage the only major visible use being made thereof was farming. Harry Duckers, County Agricultural Agent, testified that the Stafos’ have continually farmed the land since 1948. On January 24, 1972, the Referee filed his Order, with detailed findings and conclusions, approving the Trustee’s Report and denying Stafos’ objection. From that Order Stafos filed his petition for review before the presiding United States District Judge, Honorable Earl E. O’Connor. The Court entered its Order on May 19,1972, fully adopting the Referee’s findings and conclusions. It held that annexation reduced Stafos’ homestead to one acre. It is from that Order that this appeal is taken. Stafos contends here, as he did below, that the federal courts should abstain because the homestead exemption issue decided in In The Matter of Stafos, Bankrupt, 354 F.Supp. 299 (D.Kan.1972), has not been decided by the Kansas state courts and that the Kansas courts are the best judges of the Kansas Constitution. We have no argument with these contentions, per se. 11 U.S. C.A. § 24 allows bankrupts the exemptions prescribed by state laws at the date of filing. In Re Cummings, 413 F.2d 1281 (10th Cir. 1969), cert. denied Sears, Roebuck & Co. v. Horton, 397 U. S. 915, 90 S.Ct. 918, 25 L.Ed.2d 95 (1970). While a state procedure in the nature of a Declaratory Judgment action was available to the Trustee after Stafos filed his homestead claim (K.S.A. § 60-1701 et seq.), this does not detract from the fact that the federal district court had exclusive jurisdiction of the subject matter. In Re Cummings, supra; Texaco, Inc. v. Pruitt, 396 F.2d 237 (10th Cir. 1968). While dictum and therefore not directly controlling, we note that the following language from Sarahas v. Fenlon, 5 Kan. 592 (1870) has not been repudiated by subsequent Kansas decisions : [H]e [the owner] could hold but one acre as a homestead, exempt from execution, no matter whether it was worth $10 or $10,000, or whether it was used for farming purposes or was covered all over with palatial residences. One acre is all that is exempt as a homestead under the Constitution. If he lived on that part in the city, that acre would be his homestead, and the residue of the city property, as well as his land in the country, would be subject to forced sale under execution. This is the plain letter of the Constitution; . . . 5 Kan. 592 at 596. The decision of the federal trial court as to the law of the state where he is sitting will be accepted on appeal unless clearly erroneous. Industrial Indemnity Company v. Continental Casualty Company, 375 F.2d 183 (10th Cir. 1967). Certainly Sarahas v. Fenlon, supra, weighs heavily in favor of the trial court’s application of Kansas law. One court has held that in the absence. of ascertainable state court interpretation, the bankruptcy court must construe the statute and determine its application. Doethlaff v. Penn Mut. Life Ins. Co., 117 F.2d 582 (6th Cir. 1941), cert. denied 313 U.S. 579, 61 S.Ct. 1100, 85 L.Ed. 1536 (1941). In addition, the rights of creditors have been held in “limbo” awaiting resolution of this exemption issue for more than two years. This case does not present all of those “special circumstances” dictating the imposition of abstention- as in Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), and Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943). Stafos alleges that the trial court erred, as a matter of law, in adopting the findings and conclusions of the Referee. He contends that a farming homestead is exempt from forced sale under any process of law and cannot be alienated without the joint consent of husband and wife even though it was annexed to the City without depriving him of due process of law in violation of the Fourteenth Amendment to the -Constitution of the United States. He alleges that he had a vested interest in the 13.2 acres as a farming land homestead within the meaning of the Kansas Constitution prior to the passage of the City Ordinance incorporating the 13.2 acres because he and his wife owned the property as joint tenants. • The test of our review is prescribed under Rule 52, Fed.R.Civ.P., as required by 11 U.S.C.A. § 47(b) and Bankruptcy Gen.Order 36, 28 U.S.C.A., which specifically provide that the United States Courts of Appeal shall exercise appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in the form and manner of an appeal in civil actions, including Rules of Civil Procedure for the District Courts. The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether “on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). The same rule applies in cases involving constitutional rights. Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972). If a trial court adopts a Referee’s findings and conclusions, they are thereby adopted and approved as its own. Earhart v. Callan, 221 F.2d 160 (9th Cir. 1955), cert. denied 350 U.S. 829, 76 S.Ct. 59, 100 L.Ed. 740 (1955). Under Bankruptcy General Order 47, 28 U.S.C.A., the Trial Court is bound to accept the Referee’s findings of fact unless they are clearly erroneous. Moran Bros., Inc. v. Yinger, 323. F.2d 699 (10th Cir. 1963). The “clearly erroneous” rule does not apply on questions of law or on mixed questions of fact and law. See cases cited in 9 Wright & Miller, Federal Practice and Procedure: Civil §§ 2588, 2589; Wright, Law of Federal Courts, 2nd Ed., § 96. However, in our Circuit it is settled law that the views of a Federal Distriet Judge, who is a resident of the state where the controversy arose in a case involving interpretations of the law of that state, carry extraordinary persuasive force on appeal, if the Court of Appeals is not aided in its consideration by either administrative interpretation or judicial expression from state courts. Hardberger and Smylie v. Employers Mutual Liability Insurance Company of Wisconsin, 444 F.2d 1318 (10th Cir. 1971); Hamblin v. Mountain States Telephone and Telegraph Company, 271 F.2d 562 (10th Cir. 1959); Bradshaw v. Superior Oil Co., 164 F.2d 165 (10th Cir. 1947). The Referee and the Trial Court relied on the weight of case authority in limiting Stafos to a one-acre homestead exemption which must include the “home” or “residence” of the family, by specific reference to the general rule set forth in 40 C.J.S. Homesteads § 58: While there is authority to the contrary, in most jurisdictions where the question has been raised it has been held that, even without the owner’s consent and against his wishes, the limits of a city, town, or village may be extended so as to include what was formerly a rural homestead and to afford the owner only the amount available as an urban homestead. Where the mere fact that land lies within the boundaries of the city, town, or village, is not regarded as necessarily stamping it with the character of urban property for homestead purposes, as discussed supra § 53, it is necessary, in order that the owner shall lose the right to a rural homestead and be restricted to the right to an urban homestead, that the land, in addition to being embraced within the extended municipal limits, shall be otherwise actually impressed with an urban character. . We specifically concur with the findings of the Referee and Trial Court that although the Stafos acreage remains unplatted, that neither the Kansas Constitution nor statutes require that the land incorporated be platted or laid out for urban purposes in order to be impressed with urban character. There is substantial evidence supporting the finding that the character of the Stafos acreage is urban and that his homestead should be limited to one acre after annexation. Nothing expressed in the Kansas Constitution, Article 15, § 9, K.S.A. § 60-2301, or the Kansas decisions which we have reviewed in detail convince us that the trial court committed error. United States v. Jones, 229 F.2d 84 (10th Cir. 1955). Affirmed. MURRAH, Circuit Judge (concurring specially): I readily concur in the ultimate result reached in this case but I am unable to agree with the reasoning by which my brethren reached that result. In my view the lawsuit is more simply stated and decided, and I am, therefore, constrained to briefly state my views. When the bankrupt acquired his 13.2 acres of land, it was outside the city limits of Kansas City, Kansas. He was living on the land as his homestead and truck farm when it was annexed and brought within the city limits, and was so using it when this proceeding was commenced, although the land had been zoned for urban industrial use. He claimed all of the 13.2 acres as his homestead exemption. The referee and the trial court allowed only one acre under the provisions of the Kansas constitution and statute, which provide that “[a] homestead to the extent of one hundred sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, ' . . . .” In his brief the bankrupt concedes that the referee correctly stated the question involved, as follows: “Did the extension of the city limits, annexation and incorporation of the entire tract of 13.2 acres into the city of Kansas City, Kansas, subsequent to the ownership and occupancy of the entire tract as a homestead by the bankrupt and his family outside the limits of an incorporated town or city, limit the homestead exemption to one acre?” The bankrupt answers that the extension of the city limits to include his homestead did not operate to “eliminate” or “alienate” his homestead rights in the 13.2 acres. His argument is not entirely clear, but, as we read it, it is twofold: (1) the land continued to be occupied and used for farming purposes, and was, therefore, exempt as farming land, although incorporated within the city limits and zoned for urban industrial use; and (2) any other construction of the Kansas constitution and laws would operate to deny him Fourteenth Amendment due process. Indisputably the bankrupt is entitled to claim a homestead exemption prescribed by the law of the State of Kansas, but the power of the city to annex the property, even without the consent of the owner, is unquestioned. The question is, as the referee stated, whether inclusion in the city limits can be said to reduce the quantity of the homestead rights from 13.2 acres to one acre. As thus reduced the homestead admittedly remains inviolate. The homestead provisions of the Kansas constitution and statutes came on for consideration before the Supreme Court of Kansas about one hundred-years ago in Sarahas v. Fenlon. In that case the lands claimed as a homestead exemption were partly within and partly without incorporated city limits. The lands within the city limits were sold on execution, and the question reaching the Supreme Court was whether the husband-wife owners could claim the city property as their homestead exemption. The Supreme Court held that they could not claim any of the city property as their homestead, simply because they did not live on it. But the court did not stop there. It went on to say that “even if the claimant lived on that part of the land within the city, he could hold but one acre as a homestead, exempt from execution, no. matter whether it was worth $10 or $10,000, or whether it was used for farming purposes or was covered all over with a palatial residence. One acre is all that is exempt as a homestead under the constitution. If he lived on that part in the city, that acre would be his homestead, and the residue of the city property as well as his land in the country would be subject to forced sale under execution. This is the plain letter of the constitution; it cannot be enlarged by construction or made plainer by argument.” As far as we can find this unequivocal dictum has never been repudiated or challenged in any court since its pronouncement. After canvassing the legal effect of the use to which the land was put on the quantity of the exemption, the referee finally concluded that regardless of the value, the use or the zoning classification, the Kansas constitution controlled, and that it meant just what it said, to wit: Since at the time of bankruptcy the 13.2 acres were within the limits of an incorporated city, only one acre was exempt as a homestead. I agree that the mandate of the constitution is too clear for mistake or debate. In this view there is no justification whatsoever for abstention. This is a Meredith case, not a Kaiser Steel case. But even if there was any room for interpretation the word of the Kansas judge, recently of the Supreme Court of that State, is quite good enough for me. See United States v. Hershberger, 475 F.2d 677 (10th Cir., filed Mar. 13, 1973). Beyond stating the point there is no argument in the brief on the due process question and I will leave it there. . Article 15, § 9 provides in pertinent part: A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife: . . .
f2d_477/html/0375-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MANSFIELD, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	INMATES OF ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants, v. Nelson A. ROCKEFELLER et al., Defendants-Appellees. No. 596, Docket 72-1450. United States Court of Appeals, Second Circuit. Argued March 21, 1973. Decided April 18, 1973. Robert L. Boehm, New York City (Morton Stavis, William M. Kunstler, Center for Constitutional Rights, Michael Rattner, David Scribner, New York City, of counsel), for plaintiff s-appellants. Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for the State defendants-appellees. T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for S. D. New York, Michael D. Hess, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, H. Kenneth Schroeder, Jr. Before SMITH, FEINBERG and MANSFIELD, Circuit Judges. MANSFIELD, Circuit Judge: This appeal raises the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly have violated certain federal and state criminal statutes. Plaintiffs in the purported class suit, which was commenced in the Southern District of New York against various state and federal officers, are certain present and former inmates of New York State’s Attica Correctional Facility (“Attica”), the mother of an inmate who was killed when Attica was retaken after the inmate uprising in September 1971, and Arthur 0. Eve, a New York State Assemblyman and member of the Subcommittee on Prisons. They appeal from an order of the district court, Lloyd F. MacMahon, Judge, dismissing their complaint. We affirm. The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York, the State Commissioner of Correctional Services, the Executive Deputy Commissioner of the State Department of Correctional Services, the Superintendent at Attica, and certain State Police, Corrections Officers, and other officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers (one of whom is named) intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, see Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison. The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor to supersede the District Attorney of Wyoming County and, with a specially convened grand jury, to investigate crimes relating to the inmates’ takeover of Attica and the resumption of control by the state authorities, see Inmates, supra at 16 and n. 3, “has not investigated, nor does he intend to investigate, any crimes committed by state officers.” Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them. With respect to the sole federal defendant, the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs’ federal civil rights, 18 U.S.C. §§ 241, 242, and he has thereby failed to carry out the duty placed upon him by 42 U.S.C. § 1987, discussed below. As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to “prosecute the defendants forthwith,” and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed the federal offenses defined by 18 U.S.C. §§ 241 and 242. The latter statutes punish, respectively, conspiracies against a citizen’s free exercise or enjoyment of rights secured by the Constitution and laws of the United States, see United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and the willful subjection of any inhabitant, under color of law, to the deprivation of such rights or to different punishment or penalties on account of alienage, color, or race than are prescribed for the punishment of citizens, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Federal jurisdiction over the claim against the state defendants was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and over the claim against the United States Attorney on the mandamus statute. 28 U.S.C. § 1361. Venue in the Southern District of New York was predicated on 28 U.S.C. §§ 1391(b), 1392(a). The motions of the federal and state defendants to dismiss the complaint for failure to state claims upon which relief can be granted, Rule 12(b)(6), F.R.Civ.P., were granted by Judge MacMahon without opinion. We agree that the extraordinary relief sought cannot be granted in the situation here presented. Standing At the outset, we must note that the Supreme Court’s recent decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to which the attention of the parties in this case was not drawn prior to argument, raises the preliminary question of whether plaintiffs have a sufficient “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to confer standing upon them to invoke the judicial process. In Linda R.S. the mother of an illegitimate child sought to attack as unconstitutionally discriminatory the application of a Texas criminal statute prohibiting the willful refusal of “any parent” to support his or her child on the ground that it was enforced by the state, as a result of state court interpretation of the statute, against married but not unmarried fathers. Holding that she lacked standing, the Supreme Court, in a majority opinion by Justice Marshall, observed: “The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 752, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." 410 U.S. at 619, 93 S.Ct. at 1149. The broad reach of this language would, at first blush, appear to preclude the plaintiffs here from seeking to contest the nonprosecution of third parties they accuse of criminal conduct. However, the present case is in some respects distinguishable from Linda R.S. Unlike the mother there the inmates here might be said to have sustained or be immediately in danger of sustaining direct personal injury as the result of nonenforcement of the criminal laws against the accused state officers. See 410 U.S. at 619, 93 S.Ct. 1146; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). They allege that at least some of them suffered direct physical injury at the hands of those they seek to have prosecuted and that if the state officers accused of criminal conduct are not prosecuted, such conduct will continue. Thus a more immediate and direct danger of injury resulting from nonenforeement is presented here than in Linda R.S., where the Court stressed that the only result of the relief sought by the illegitimate child’s mother would be the jailing of the child’s father, not the support of the child. Where a successful prosecution, however, would serve to deter the accused from harming the complainant rather than merely supply a penal inducement to perform a duty to'provide assistance, the complaining person does show a more direct nexus between his personal interest in protection from harm and the prosecution. But in the present case this rationale in support of standing assumes that injunctive relief, which we conditionally authorized in Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 22-25, restraining physical-abuse, torture, beatings or other forms of brutality, or threats of such conduct, is ineffective to protect the plaintiffs from harm. It may also be argued that since 37 inmates have been indicted for crimes relating to the events at Attica in September 1971, without any indictment having been filed against any of the accused state officials, the complaint alleges a sufficient threat of selective and discriminatory prosecution of the plaintiff inmates to meet the standing requirements discussed in Linda R.S. v. Richard D., supra. On the other hand, the challenge in the present case is not to any criminal statute, as construed, but to the failure of the prosecuting authorities to enforce the criminal laws against a particular group of individuals. Thus in order to determine whether plaintiffs have standing to sue we would be required to resolve troublesome questions. However, we need not decide the issue of standing because we believe that even if they may properly present their claims for judicial resolution, they seek relief which cannot, in this case at least, be granted either against the state or federal prosecuting authorities. The Insufficiency of the Complaint (1) Claim Against the United States Attorney With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of 18 U.S.C. §§ 241 and 242. Federal mandamus is, of course, available only “to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. And the legislative history of § 1361 makes it clear that ordinarily the courts are “ ‘not to direct or influence the exercise of discretion of the officer or agency in the making of the decision,’ ” United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made. E. g., Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, rehearing denied, 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 (1966); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967). This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, see Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 24 (and cases there cited), serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963), affd. sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970). The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine. “Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.” United States v. Cox, supra 342 F.2d at 171. Accord, Pugach v. Klein, supra 193 F.Supp. at 634; Moses v. Kennedy, 219 F.Supp. at 764-765; Peek v. Mitchell, supra 419 F.2d at 577-578. Although a leading commentator has criticized this broad view as unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, K. C. Davis, Administrative Law Treatise § 28.16(4) at 982-990 (1970 Supp.), he has also recognized, as have most of the cases cited above, that the manifold imponderables which enter into the prosecutor’s decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision. In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming “superprosecutors.” In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor’s file may serve to protect the accused’s reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor’s file and the grand jury’s minutes, notwithstanding the secrecy normally attaching to the latter by law. See Rule 6(e), F.R.Cr.P. Nor is it clear what the judiciary’s role of supervision should be were it to undertake such a review. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive ? What evidentiary standard would be used to decide whether prosecution should be compelled ? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases ? What collateral factors would be permissible bases for a decision not to prosecute, e. g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws ? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13 Law & Contemp.Prob. 64 (1948). With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court? These difficult questions engender serious doubts as to the judiciary’s capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court’s decision to compel prosecution for the U.S. Attorney’s decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, see Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise. Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing in 42 U.S.C. § 1987 that the United States Attorneys are “authorized and, required to institute prosecutions against all persons violating any of the provisions of [18 U.S.C. §§ 241, 242]” (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word “required” as it appears in § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in the general direction in 28 U.S.C. § 547(1) (“each United States attorney, . shall — (1) prosecute for all offenses against the United States; . . . ” (emphasis supplied)) and in other statutes in particular areas of concern, e. g., 33 U.S.C. § 413 (“it shall be the duty of United States attorneys to vigorously prosecute all offenders” of certain provisions of the Rivers and Harbors Act when requested to do so by the appropriate officials). See also 45 U.S.C. § 152 (Tenth). Such language has never been thought to preclude the exercise of prosecutorial discretion. See Bass Angler’s Sportsman’s Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 345-346 (E.D.Tenn. 1971). Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F.Supp. 762, 765 (D.D.C.1963), aff’d. 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that “considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action.” See also Peek v. Mitchell, supra. Nor do we find the legislative history of § 1987 persuasive of an intent by Congress to depart so significantly from the normal assumption of executive discretion. In re Upchurch, 38 F. 25, 27 (C.C.N.C.1889), relied upon by plaintiffs, held only that a United States commissioner had the power under § 1987 to appoint a person other than the marshal, or one of his deputies, to execute process. It may well be that the legislative background of § 1987 would compel a reading that Congress intended that federal marshals have no choice but to execute warrants issued pursuant to that section, since it also provided for criminal penalties for those who refused to do so and for the appointment of other persons to execute warrants and make arrests. No such conclusion can persuasively be drawn with respect to the exercise by United States Attorneys of prosecutorial discretion, especially in the absence of any similar statutory deterrent against their failure or refusal to prosecute. See Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1306-07 and n. 46 (1965). Thus, we do not read § 1987 as stripping the United States Attorneys of their normal prosecutorial discretion for the civil rights crimes specified. It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. Cf. Powell v. Katzenbach, supra, 359 F.2d at 235; Note, supra at 1305. (2) Claims Against the State Officials With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts. Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dept.), leave to appeal denied, 8 N.Y.2d 750, 201 N.Y.S.2d 765, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed. 2d 68 (1960). Yet the federal district court is asked to compel state prosecutions and appoint an “impartial” state prosecutor and state judge to conduct them, as well as to require the submission of a plan for impartial investigation and prosecution of the alleged offenses, on the basis of 42 U.S.C. § 1983, in the context of a continuing grand jury investigation into criminal conduct connected with the Attica uprising, supra n. 1, and where the state itself on September 30, 1971, appointed a Special Commission on Attica which has now published its findings. The very elaborateness of the relief believed by plaintiffs to be required indicates the difficulties inherent in judicial supervision of prosecutions, federal or state, which render such a course inadvisable. Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that “the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising.” But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state’s investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise. The only authority supporting the extraordinary relief requested here is the Seventh Circuit’s recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had “systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional rights.” Id. at 392. They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court’s dismissal of the complaint, a divided panel concluded that a state judge, while not subject to suit for damages under § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney’s quasi-judicial immunity from suit for damages when performing his prosecutorial function, id. 468 F.2d at 410, “does not extend to complete freedom from injunction,” id. at 411. Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of “periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints.” Id. at 415. However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court’s decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. See id. at 415. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views. The order of the district court is affirmed. . The State has pointed out that the special Wyoming County grand jury has already handed down 37 sealed indictments and has not yet completed its investigation. On oral argument, however, the Assistant Attorney General observed that none of the indictments handed down thus far concerns any state officer and, of course, that there is no assurance that further indictments will be forthcoming. . See note 3 infra. . As originally filed, the complaint also . sought a declaratory judgment against defendants Rockefeller, Oswald, Dunbar, Maneusi, and other defendants named in the complaint, declaring them to be “unfit to administer Attica Correctional Facility and the prison system of New York,” and an order permanently enjoining these state officials from further administration of the prison system and placing the entire system, including the facility at Attica, into federal receivership. The United States Magistrate for the Western District of New York, Edmund Maxwell, was also named as a defendant in the complaint. Prior to the hearing on the motions to dismiss, however, plaintiffs consented to the dismissal of that portion of the complaint which requested such relief and to the dismissal of Maxwell as a defendant. . “§ 1987. Prosecution of violation of certain laws “The United States attorneys, marshals, and deputy marshals, the commissioners appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense.” . Attica: The Official Keport of the New York State Special Commission on Attica (1972).
f2d_477/html/0383-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Paul Louis HARRELSON, Defendant-Appellant. No. 72-3630 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 4, 1973. David C. McCord, Dallas, Tex., Selwyn S. Webber, Odessa, Tex., court appointed, for defendant-appellant. Frank D. McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiffappellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Appellant, Paul Louis Harrelson, brings this appeal from his conviction on two counts of conspiring in violation of 18 U.S.C. § 371 to violate 18 U.S.C. § 2314 by causing stolen goods and forged securities to be transported in interstate commerce. Although the briefs filed on appellant’s behalf purport to raise at least eight separate points of error, when the repetitive, redundant, and rephrased points are combined, we have before us only four distinct issues. . We find each of these to be without legal merit, and we affirm. First, appellant argues that the trial judge committed reversible error when she denied his motion for continuance, which was filed only three days before the trial was set to begin. We cannot agree. Although we are mindful that continuances must, in the interests of justice and fair play, be granted in many circumstances the general test on appellate review is whether the trial judge committed an abuse of discretion in granting or denying the motion for continuance. See, e. g., United States v. Vicars, 5 Cir. 1972, 467 F.2d 452, 455; United States v. Gower, 5 Cir. 1971, 447 F.2d 187, 190, cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88. We find that no such abuse occurred here. Appellant alleged as grounds to support his motion the hospitalization of his “lead counsel,” the refusal of the prosecution to cooperate in discovery, and the general unpreparedness of his other retained attorneys. The District Judge conducted a lengthy hearing on these matters, specifically found that “most of the statements made in this Motion are completely untrue,” and concluded that (1) the hospitalized attorney had in fact never accepted employment by appellant, (2) appellant’s “other” retained attorneys provided adequate counsel, and (3) the prosecution was not obstructing discovery. We have studied the transcript of that hearing and we find plenteous evidence from which the trial judge could permissibly have made these findings. We note, for example, that one of appellant’s attorneys had been retained eight weeks before trial and had filed various motions on his behalf and that another attorney had been on the case for at least one week. In the Vicars case, supra, we found no abuse of discretion in denying an eleventh hour request for continuance filed six days before trial. Under the circumstances outlined above, we are unable to perceive any abuse in the denial of this motion for continuance. Second, appellant insists that the trial judge committed prejudicial error when she “forced” him to proceed to trial with counsel not of his own choosing. When the ease was called for trial on the scheduled day, appellant appeared in the company of the two attorneys discussed above. Appellant again requested a continuance and claimed that he had no trial counsel. The able District Judge thereupon appointed both of the previously-retained counsel to represent appellant and proceeded to trial. We have only recently had before us a case presenting remarkably similar facts. In United States v. Sexton, 5 Cir. 1973, 473 F.2d 512, the operative facts were as follows: “On June 15, 1972, Sexton’s attorney petitioned the court to be discharged as court-appointed counsel in the case. On the same day Sexton filed a general motion for continuance on the ground that his newly retained counsel was to be engaged in another trial on the day prior to the date set for trial and thus would not have adequate time to prepare a defense. The Court issued an order denying the petition to discharge counsel as well as the defendant’s motion for continuance . . . Trial of the ease was commenced on June 20, 1972 and a jury verdict of guilty was returned on the following day. This appeal timely followed.” Affirming Sexton’s conviction, we said, “We hold that the trial court’s denial of Sexton’s motions did not deprive him of any constitutional right. While it cannot be disputed that the Sixth Amendment to the Constitution grants an accused in a criminal prosecution an absolute unqualified right to have the assistance of counsel for his defense, it does not necessarily follow that his right to a particular counsel is absolute and unqualified. United States ex rel. Baskerville v. Deegan, 2 Cir., 1970, 428 F.2d 714, cert. denied, 1970, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188. Sexton’s freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the courts or to interfere with the fair administration of justice. United States v. Terry, 5 Cir., 1971, 449 F.2d 727. “Here it cannot be said that Sexton was denied ample opportunity to secure counsel of his choice [T]he defendant had sixty-eight days to contact and retain an attorney’s services. Nor can it be argued with any seriousness whatsoever that Sexton’s court-appointed counsel was ineffective . . . ” The instant appeal is governed by the quoted portion of the Sexton case, and we perceive no error in the trial court’s proceeding to trial as it did. See also United States v. Abshire, 5 Cir. 1972, 471 F.2d 116. Third, appellant urges that the evidence adduced below is insufficient to support the verdict of the jury. The duty of an appellate court when presented with a sufficiency of the evidence point is clear: “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704. See also Lacaze v. United States, 5 Cir. 1968, 391 F.2d 516, 519-520; Rodriguez v. United States, 5 Cir. 1967, 373 F.2d 17. We have here fulfilled our obligation to study all of the evidence adduced below, and we are convinced that the quality and quantity of the direct testimony, coupled with the inferences that may reasonably be drawn therefrom, exceeds the minimum from which a jury could reasonably find appellant guilty beyond a reasonable doubt. Finally, appellant urges that the court below erred in instructing the jury regarding “accomplice testimony.” Appellant’s concern is apparently that the trial judge failed to advise the jury which witnesses were, as a matter of law, accomplices. We find, however, that the learned judge did instruct the jury that “An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent.” The judge then instructed the jury on the weight and effect to be given to the testimony of alleged accomplices. The precise charge given below was also used in United States v. Easterly, 5 Cir. 1971, 444 F.2d 1236, 1239-1240, where we found the instruction adequate, and we can perceive no prejudice to appellant by the trial judge’s failure to mention which witnesses were accomplices. Appellant did not request an expanded or more specific instruction, see Rule 30, Fed.R.Crim.P., and as Easterly made clear, “We cannot put the district court in error for refusing to give an instruction when none was requested and no apparent prejudice resulted.” Id., 444 F.2d at 1239. Affirmed. . Appellant operated a bail bond business in Dallas, Texas. A combined total of fifty-eight overt acts in furtherance of the conspiracy were charged in the two-count indictment, which included allegations that appellant systematically induced and coerced some of his bail bond customers to join him in disposing of stolen goods and forged securities. . Appellant apparently “discharged” these attorneys immediately after the denial of his motion for continuance.
f2d_477/html/0386-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "KOELSCH, Circuit Judge. ELY, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Joe Charles WALTERS, Defendant-Appellant. No. 72-2360. United States Court of Appeals, Ninth Circuit. April 16, 1973. Rehearing Denied May 29, 1973. Laurie S. Harris (argued), Deputy, Federal Public Defenders, Los Angeles, Cal., for defendant-appellant. Earl E. Boyd, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before BARNES, KOELSCH and ELY, Circuit Judges. KOELSCH, Circuit Judge. Joe Walters appeals from a judgment convicting him of robbery of a national bank by force and violence [18 U.S.C. § 2113(a)]. During the early afternoon of Thursday, January 25, 1972, two men entered the Food Stamp Center department of the Security National Bank in Los Angeles, and committed the robbery with which this appeal is concerned. After one of the two robbers — the evidence as to which one is not clear — disarmed the bank guard at gunpoint, both proceeded to the tellers’ cages and filled their pockets with money before fleeing. Unfortunately for the robbers, they were soon identified and arrested. Shortly before the robbery, a passerby had noticed a green Buick automobile park in the vicinity of the Bank. Her attention was attracted by the unconventional garb of the driver, who was wearing a large “floppy” brown hat and black shirt, and of the passenger, who had donned a woman’s red wig. Deeming them “suspicious” characters, she wrote down the Buick’s license number and, a few moments later, observed them run back to the vehicle and drive away at high speed. That evening police officers and agents of the F.B.I., using the information gained from the automobile license number, went to the house of Zelma Shyne, the Buick’s owner. The officers’ knock on the front door of the house was answered by Zelma’s nine-year-old son who, after asking the officers whether they were “from juvenile,” went down a hall to the rear of the house, apparently to notify his mother. However, he left the door ajar and the officers, looking in, saw Walters enter the front room. Since he answered the description of one of the robbers, the several officers immediately entered with drawn guns and, while three of them detained Walters there, the others proceeded to the rear of the house looking for the second suspect. He wasn’t there but in a bedroom they found Zelma, her uncle and her mother standing nearby. Zelma told the officers that she had let Walters use the Buick earlier that day. She also stated that Walters, upon his return, had given her a considerable sum of money, which she produced from under the pillow of her bed and handed to an officer. The officers then continued their inquiry and asked whether Walters had also given her a hand gun that afternoon. In response, she drew out a nickel-plated pistol, but the officers expressed no interest in it, perhaps because the only gun which either robber had displayed during the robbery was a dark-colored snub-nosed revolver. Zelma then produced such a revolver from under her mattress. Walters was formally arrested without further ado. On the way to the police station, the officers questioned Walters, following a Miranda warning given by F.B.I. Agent Chamberlain. He gave several stories, all of them exculpatory. He explained that he had loaned the Buick to one Floyd Masterson that day and that Masterson had given him the money, including the two marked bills found upon his own person, and the revolver which he had given to Zelma. Throughout his questioning, he denied any complicity in the robbery. The officers immediately went to Masterson’s apartment and arrested him. They found one of the stolen bills on his person and in the search of his apartment, pursuant to a search warrant, they also found a woman’s red wig, a large floppy brown hat, and the bank guard’s gun. (1) The first paragraph of the one-count indictment charged both Walters and Masterson with bank robbery with force and violence, as defined in 18 U.S. C. § 2113(a), but the second paragraph added the 18 U.S.C. § 2113(d) provision to the charge against Walters. The result was that Masterson stood charged with “simple” bank robbery, while Walters was accused of the more aggravated, or subsection (d), form of the same offense, because of the use of a dangerous weapon. Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed. 2d 670 (1961). During the government’s case in chief the court, on motion of the district attorney, for reasons that need not be discussed, dismissed the subsection (d) portion of the charge against Walters. Walters now contends that such dismissal constituted an impermissible' amendment of the indictment. The Fifth Amendment, in express language, makes the bringing of indictments the exclusive province of the grand jury. Any amendments to an indictment must be made by the grand jury alone. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). However, the action taken by the court in this case did not encroach upon the prerogative of the grand jury at all. Here the court simply withdrew a portion of the charge as laid; the offense remained the same, but the degree was reduced. See Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926); Thomas v. United States, 398 F.2d 531 (5th Cir. 1967). (2) Zelma was a witness for the prosecution. Because she was convalescing from recent surgery, she was permitted to testify out of order, as the government’s second witness, before any proof of the robbery or of Walters’ participation in it was presented. The dark-colored snub-nosed revolver, which she gave the officers at her home, was thus conditionally admitted into evidence as Exhibit 3-A, upon her identifying it as the gun given her by Walters on the day of the robbery. Subsequently the government put on considerable proof, not only to establish the corpus delicti, but also tending to prove that Walters was an active participant in the commission of the robbery. When the government rested, the court entertained Walters’ motion, among others, to strike from evidence the gun, which had been only conditionally admitted. That motion was denied. Walters vigorously contends that the court’s admission of the gun into evidence, and the denial of his motion to strike, was prejudicial error. He stresses the fact that neither the bank guard nor any other eyewitness to the robbery was able to identify Exhibit 3-A as a gun used during the robbery. On this basis, he argues that the gun was irrelevant because not connected to the commission of the robbery, and that it served only to impermissibly show his bad character. He relies on Moody v. United States, 376 F.2d 525 (9th Cir. 1967). In Moody we held irrelevant, and prejudicially erroneous, proof that the accused kept a revolver in his car. Moody involved a charge of smuggling narcotics and, as we noted, a revolver “could only be regarded by the jury as indicating that the appellant was a bad man engaged in a criminal enterprise, who might shoot anybody who attempted to frustrate the illegal importation of heroin, although in the circumstances of [that] case the presence of the loaded gun was not relevant to any matter which the jury was called upon to decide.” 376 F.2d at 532. But Moody affords Walters no comfort. The commission of the offense in Moody did not involve the use of force. Here it did. A gun lacked relevance in Moody because it was not related to the crime of smuggling. But that is not true of the crime of robbery. In robbery force, or a threat of force, is essential. Obviously a gun is a useful instrument for a robber. Professor Wigmore points out: “As a general principle, then, the existence * * * of the physical * * * means to do an act is admissible as some evidence of the possibility or probability of the person’s doing * * * it.” 1 Wigmore, Evidence, § 83 (3rd ed. 1940). And Mr. Wharton, in his work on criminal evidence, writes: “It is also relevant to show that the defendant owned or had access to any article with which the crime was or could have been committed. * * * The possession by the defendant of a weapon or instrument of crime is relevant although there is no evidence that it was used in the commission of any particular crime, but there must be evidence that some crime was committed.” Wharton, Criminal Evidence, § 203 (12th ed. 1955). Nor is the proposition confined to text writers. Thus, in State v. Montgomery, 175 Kan. 176, 261 P.2d 1009 (1953), the Supreme Court of Kansas observed that: “The books are full of eases holding that where an accused is identified as having been at or near the scene of a crime about the time of its commission evidence showing that he owned, possessed or had access to any articles with which the crime was or might have been committed is competent.” (Citations omitted). 261 P.2d at 1011. And in People v. Powloski, 311 Ill. 284, 142 N.E. 551 (1924), the Supreme Court of Illinois, answering an argument that the court erred in admitting an unidentified gun into evidence where the charge was robbery, declared: “[i]t is competent to prove that an accused, when arrested, possessed a weapon or tools suitable for the commission of the crime charged, even if no claim is made that the tools or deadly weapon was actually used in committing the crime.” 142 N.E. at 553. More recently the Second Circuit, in reviewing a robbery conviction, has had occasion to consider and reject this same argument: “Direct evidence of such possession would have been relevant to establish opportunity or preparation to commit • the crime charged, and thus would have tended to prove the identity of the robbers, the only real issue in this trial, [citations omitted].” United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66. See also, United States v. Fisher, 455 F.2d 1101 (2d Cir. 1972). (3) Walters may not complain of the court’s refusal to grant his pretrial motion to order excluded at trial any evidence of. his prior state robbery conviction. He did not take the stand, and that conviction was never offered in evidence. As this court has recently held: “In electing not to take the witness stand, [the defendant] waived any objection regarding the admissibility of evidence concerning [his] * * * prior convictions.” United States v. Murray (9th Cir. 1973) (Slip opinion at 24). (4) Walters’ remaining contentions lack any evidentiary support. The record plainly shows that the money and gun obtained from Zelma at her house were voluntarily given to the officers. Zelma so testified. They were not the product of a search. The record similarly reveals that the officers fully advised Walters of his Miranda rights before questioning him. Thus, the statements which he made to the officers were not rendered inadmissible. The judgment is affirmed. ELY, Circuit Judge (concurring): I concur in the majority’s opinion. The only troublesome question involves the admission into evidence of a pistol not proved to have been used in the robbery. The majority correctly quotes from United States v. Ravitch, 421 F.2d 1196 (2d Cir. 1970), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). I think it desirable, however, to emphasize another portion of the Second Circuit’s language in that opinion. It reads: “Notwithstanding the relevance of the guns and the ammunition, the trial judge would have been justified in excluding them if he decided that their probative value was outweighed by their tendency to confuse the issues or inflame the jury.” 421 F.2d at 1204. This qualifying language is significant. It more completely announces the proper and desirable standard, conferring upon our district judges the power to exercise reasonable discretion to the end that an accused not be unnecessarily or unfairly prejudiced. I have no reason to believe that my Brothers object to this recognition of the power of our district judges in that respect. . However, Masterson’s girl friend, Mary Jane Williams, who appeared at trial as a witness for the government, testified that both Walters and Masterson were together at the latter’s apartment shortly before the time of the robbery, that they left together, and reappeared approximately an hour later.
f2d_477/html/0390-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "ALBERT V. BRYAN, Jr., District Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. John Russell KARNAP, Appellant. No. 72-2000. Untied States Court of Appeals, Fourth Circuit. Argued Feb. 8, 1973. Decided April 20, 1973. Harvey M. Cohen, Huntington, W. Va., court-appointed (Naomi W. Cohen, Charleston, W. Va., on brief), for appellant. Wayne A. Rich, Jr., Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and BRYAN, District Judge. ALBERT V. BRYAN, Jr., District Judge: Complaining that hearsay evidence was admitted against him and that he never received the order to report for induction, the defendant appeals his conviction on both counts of a two-count indictment charging (1) that he wilfully and knowingly failed to report for an Armed Forces physical examination, and (2) that he similarly failed to report for induction. 50 U.S.C. App. § 462. We affirm on both counts. At his trial the evidence introduced by the United States included the classification questionnaire, Form 100, from the defendant’s Selective Service file on which were the entries “Did not report” on January 4, 1970, and February 1, 1970. These entries followed other notations indicating that the defendant was mailed a notice to report on the first date for a physical examination and on the second date for induction. In addition, two documents were introduced from the Selective Service file, one entitled Physical Examination List and the other designated Delivery List, on each of which appeared an “X” mark opposite the defendant’s name in the column headed “Failed to Report.” The witnesses who testified as custodians of the records concededly had no knowledge as to their truth, and the defendant objects to their introduction on the ground that they were hearsay. The question is whether these documents were properly introduced as substantive evidence of guilt either under the Federal Shop Book Rule, 28 U.S.C. § 1732, or as official government records under 28 U.S.C. § 1733. The X marks on the Delivery List and on the Physical Examination List were not made in the office of the' Selective Service Board, but rather by an Army officer at the examining station where the defendant was supposed to report. A copy with the notations thereon was then returned to the Selective Service Board, kept in its file and maintained by that board in the ordinary course of business. Apparently the information on the classification questionnaire was based on the entries placed on the two lists. Selective Service files have generally been held admissible as public documents under 28 U.S.C. § 1733. Penor v. United States, 167 F.2d 553 (9th Cir. 1948); United States v. Ward, 173 F.2d 628 (2nd Cir. 1949); United States v. Borisuk, 206 F.2d 338 (3rd Cir. 1953); Pardo v. United States, 369 F.2d 922 (5th Cir. 1966). Technically the notations were not made by an employee of the local board in the ordinary course of the board’s business, but were made by an Army officer stationed at the examination station; however, the documents on which they appeared were received and kept in the ordinary course of the local board’s business. United States v. Harris, 446 F.2d 129, 131 (7th Cir. 1971). When viewed as statements made in the routine of the Army officer’s business these records would be admissible under 28 U.S.C. § 1732. United States v. Burruss, 418 F.2d 677 (4th Cir. 1969), does not dictate a contrary result. There the government sought to introduce the report of a police officer which contained the statement that certain automobiles, the subject matter of the criminal charge involved, had been stolen. This statement was based on information obtained from the owners of the cars. This is distinguishable from the instant case in that it is reasonable to infer that the third party here, the Army officer, was “acting routinely, under a duty of accuracy, with employer reliance on the result, or in short ‘in the regular course of business.’ ” Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 803(6), Advisory Committee’s Note, 56 F.R.D. 183, 308. If the Army officer who made the entry is considered an ad hoc official of the Selective Service System as set forth in LaPorte v. United States, 300 F.2d 878, 881 (9th Cir. 1962), then the documents are viewed as official statements and are admissible under 28 U.S.C. § 1733. United States v. Holmes, 387 F.2d 781 (7th Cir. 1968). Admissible under either section, they make out a prima facie case of the defendant’s failure to report and where, as here, there is no evidence to the contrary, they are sufficient to establish that as a fact. Defendant’s second ground of appeal is that because there is no evidence that he ever received actual notice of the induction order, he cannot be convicted of wilfully and knowingly failing to report for induction as charged under Count II. The facts necessary to determine this question are as follows: On June 15, 1969 the defendant advised the local Selective Service Board that his address would thereafter be 203 Green Oak Drive, Huntington, West Virginia. On or about September 24, 1969, he wrote the board that his address “while at N. Y.U. is: ... 2207 University Ave., Bronx, N. Y.” On March 16, 1970, he again wrote the board that “My present local address while attending New York University is . 1920 Osborne Place, Apt. 2C, Bronx, N. Y.” On December 16, 1970, the local board sent out two (2) copies of SSS Form 223 (Order to Report for Physical Examination) — one of these copies was sent to 1920 Osborne Place in New York and the other to the West Virginia address. The former was returned with the notation, “Return to Writer, Moved, Left No Address,” while the latter, addressed to 203 Green Oak Drive, Huntington, West Virginia, was delivered and the receipt, on which had been stamped, “Deliver to Addressee Only,” was returned signed by the defendant. On January 12, 1971, the local board mailed out its Form 252 (Order to Report for Induction) but this time sent only one copy, that going to the West Virginia address, by registered mail, return receipt requested, with the same notation of “Deliver to Addressee Only.” This notice directed the defendant to report for induction on February 1, 1971, but it was returned to the board as “Unclaimed” on February 1, 1971. 32 CFR § 1641.3 establishes the effect of mailing a notice to the “last reported” address. It provides as follows: “It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him. The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him of the contents of the communication, whether he actually receives it or not.” The advice to the Board on March 16, 1969 that the defendant’s address would be 1920 Osborne Place, New York “while attending New York University” was, by its very terms, notice of a temporary address. There was no indication that the West Virginia address was not still his permanent address. When mail addressed to the New York residence was returned with the notation that the defendant had “Moved, Left No Address” while mail sent at the same time was being received personally by the defendant at the West Virginia address, it was apparent that the temporary stay, at least at that address, was terminated. It would have been useless for the board to send later notices to New York. The West Virginia address was, in fact, the defendant’s “last reported” permanent address. In United States v. Bowen, 414 F.2d 1268 (3rd Cir. 1969), 32 CFR § 1641.3 was declared invalid because, as the jury was instructed by the trial court in that ease, the regulation created an irrebuttable presumption that mail sent was received. We need not decide that, however. The district court here, in its charge to the jury, made no mention of any presumption nor was any reference made to the regulation. The essential elements of the offense, including the requirement of knowledge and intent, were properly included in that charge. Unaided by any presumption the jury found the existence of these elements. Indeed, appellant does not argue that the regulation is invalid. He argues only that it required that notice be sent to the New York address, a point which we have already treated. Both he and the government view the presumption as rebuttable. We share that view; and, so viewed, the regulation passes muster on due process grounds. It has been suggested that the return of the notice marked “unclaimed” rebutted the presumption; however the notice was sent to the address reported by the defendant as the one where mail would reach him. Mail had reached him there four (4) weeks earlier. From these circumstances the trier of fact could infer and find absent some explanation, that “unclaimed” was because of defendant’s own conduct, and that the defendant should not be allowed to complain of lack of notice. We have examined the other claimed errors including the district court’s charge, or lack of it, relating to the documents admitted in evidence and the method by which the district court arrived at the length of the sentence imposed and find them to be without merit. Affirmed.
f2d_477/html/0393-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Joe SUMMERVILLE, Defendant-Appellant. No. 72-3789 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 17, 1973. William P. Johnson, Carrollton, Ga., for defendant-appellant. John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Joe Summerville, his wife Evelyn Lue Summerville, and their daughter, Betty Lue, were convicted by a jury of possessing and transporting 105 gallons of nontaxpaid whiskey in violation of 26 U.S. C.A. § 5604(a)(1). Joe Summerville appeals his sentence of two years in the custody of the Attorney General on two grounds: (i) that the whiskey was discovered through an illegal search and the evidence produced by it should have been suppressed and (ii) that his sentence was unduly influenced by the introduction of his prior record, some of the items thereon being erroneously reported as convictions when they were not. Finding both contentions without merit, we affirm. Search The record indicates that the government agents had received a tip regarding Mr. Summerville. They were told that “there was supposed to be some liquor either brought to the Summerville residence or there was someone going to leave the residence and go and pick some up.” On the strength of this tip from a “reliable informant” the agents conducted a stakeout of the Summerville residence (which is also apparently the location of the appellant’s business) beginning at 11:00 p. m. of the night of July 2, 1972. At about 4:15 a. m. on July 3, 1972, from their vantage point across the road from the house, the agents observed a light come on and some movement on the premises. A few minutes later they saw three persons enter a 1963 white Ford automobile and drive off. They followed this vehicle for a while, using a “leapfrog” technique where two vehicles alternate following the suspect car in order to avoid detection by those under surveillance. At one point, the officers lost sight of the Summerville car. One agent testified that when the vehicle had originally left the family house, it was riding with its trunk higher in the air than was normal for that make of car. After losing sight of the car, the agents later found the vehicle again about 40 minutes later. This time, the vehicle was riding low “as if it were weighted down.” The agents pulled the car over and approached it. One agent who approached the car testified that he could smell the aroma of “moonshine whiskey” emanating from the car. After all three occupants were out of the car, an agent shined his flashlight into the back seat and rear floorboard of the car. He saw a number of clear plastic, one-gallon jugs there. Subsequently, the car was searched at the agents’ headquarters and some 105 gallons of illicit whiskey were uncovered— 33 one-gallon jugs in the back seat and floorboards of the car, and 72 one-gallon jugs in the trunk. Summerville’s chief contention is that, based on the informant’s tip, the government agents had probable cause to secure a warrant at the time of the stakeout of his home and that since they failed to obtain one then, the subsequent discovery of the whiskey in the vehicle was an unconstitutional search and should have been suppressed. We cannot agree with this. The agents had not sufficient information upon which to justify the issuance of a warrant by a detached magistrate. All they knew was that appellant might come into possession of some moonshine sometime in the near future. There were no details indicating the method or circumstances under which the crime would occur. There were no objective facts corroborating the story, save the knowledge of one Alcohol, Tax and Firearms Division agent that “ever since I have been here in Newnan for approximately three years I have received information that Mr. Summerville was bootlegging moonshine whiskey.” This was not sufficient evidence to put before a magistrate during the afternoon and evening hours of July 2, 1972. More was needed. Spinelli v. United States, 1968, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Whiteley v. Warden, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Bailey v. United States, 5 Cir., 1967, 386 F.2d 1, 3; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Only when the tip was corroborated by some objective or tangible evidence could the agents justify a search. Aguilar v. Texas, supra. As it happened though, the point at which this independent and corroborative evidence was observed was when the defendant (and his family members) were in the very vehicle which was searched. It is now reasonably settled that a search of a vehicle which has the capacity to convey its occupants and possible contraband contents to a place of refuge from a warranted search, may be searched without a warrant provided there is “probable cause” to suspect the commission of a crime or the possession of contraband. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Brown, 5 Cir., 1969, 411 F.2d 478; Williams v. United States, 5 Cir., 1968, 404 F.2d 493. Clearly this was the case here. The agents who had “tailed” the suspect car could not reasonably halt the car at any time prior to that which they did. They had observed the car “riding high” with its rear end jacked up on special supporting springs prior to the time they lost sight of the car. Later, when they regained contact with it, the car seemed to be heavily weighted down. This fact in connection with the tip now presented sufficient probable cause to halt the vehicle, to search for illicit whiskey, without a warrant. Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327; Gonzales v. Beto, 5 Cir., 1970, 425 F.2d 963; Davis v. Smith, 5 Cir., 1970, 430 F.2d 1256, 1260. See also, Clay v. United States, 5 Cir. 1956, 239 F.2d 196. No warrant was required since the occupants of the car might reasonably be expected to move the car to a place of hiring or dispose of the suspected contraband. Carroll v. United States, supra. The actual search of the vehicle' was properly conducted. The agents smelled whiskey from five to ten feet away and saw sitting on the back seat, plastic jugs of the type they knew to be commonly used by the local rumrunners. Thus we conclude the search was legitimately based on probable cause and was conducted at a point when no warrant was needed due to the location of the contraband in a readily movable vehicle. Appellant’s contention that the agents had to seek a warrant many hours earlier based on the informant’s tip simply has no foundation in fact, or precedent in law. Sentence Appellant’s contention that his sentence was unduly influenced by his prior record is simply without merit. The hearing on sentencing was conducted about two weeks after the trial. It takes up 15 pages of the record. A careful reading of the report of that hearing clearly reveals that: (i) the defendants were adequately represented by Counsel, (ii) each was given a chance to speak up and in fact, Mr. and Mrs. Summerville each did have exculpatory statements to make in their own behalves, (iii) Counsel for appellant vigorously challenged the accuracy of Mr. Summerville’s record, (iv) the trial court recognized the inaccuracies and agreed to take into account only those convictions which were acknowledged as valid, and (v) the trial judge based his sentence primarily on his perception that Summerville had used his wife and 18 year old daughter as decoys in the illegal operation. Accordingly, we find there is neither an action based upon misinformation, nor an abuse of discretion. Affirmed. . From the transcript of the October 20, 1972 hearing where appellant challenged the sufficiency of the probable cause for the search. . Transcript of the October 20, 1972 hearing at p. 40. See footnote 1, supra. . The jury evidently chose not to believe Mrs. Summerville’s statement that she knew of no whiskey in the car nor could she smell any there. Trial transcript page 161. . The sentence was two years in the custody of the Attorney General. 26 U.S.C.A. § 5604 provides for jiunishment by imprisonment for up to five years and fines of up to $10,000 for each offense. The sentence imposed was certainly far from the maximum. . We quote from a portion of the trial judge’s statements in passing sentence on the defendant: * * * !¡: * “In the case of Mr. Joe Summerville, I will only take into consideration the conviction, the 1939 conviction, driving under the influence, and the 1965 conviction of possession and transportation of whiskey in Carroll County, Georgia, in passing upon his sentence. “What is of more significance to me than his past record is the manner in which this crime was committed and the manner in which he used his family in order to commit the crime. I have no respect or I can’t tolerate any man who would use his family, especially a seventeen-year-old girl, seventeen years old at that time, drive around in the middle of the night carrying a load, carrying 105 gallons of whiskey. Appears to me very strongly, after I heard the evidence in this case and all the testimony in the case, that this — he was using his wife and his daughter more as a sham or decoy to keep anybody from stopping him from carrying whiskey. Otherwise, why in the world would any man, who had any other lawful business at that hour of the morning, 3:00 or 4:0O or 5:00 o’clock in the morning, be out with his family driving around. “The evidence is pretty clear on that. It’s almost undisputed. And that’s the most serious thing in this ease.” (Emphasis supplied).
f2d_477/html/0397-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "TUTTLE, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Willard BROXSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee. No. 72-2675. United States Court of Appeals, Fifth Circuit. May 3, 1973. Lewis F. Ray, Jr., Pensacola, Fla. (Court Appointed), for petitioner-appellant. Robert L. Shevin, Atty. Gen., Raymond L. Marky, Andrew W. Lindsey, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellee. Before TUTTLE, GODBOLD and MORGAN, Circuit Judges. TUTTLE, Circuit Judge: This habeas corpus case is before this court for the second time. Broxson, the habeas corpus petitioner and appellant herein, in 1963 pled guilty to five counts of an information charging him with robbery and he was sentenced to concurrent terms of six months to twenty years imprisonment. He is currently incarcerated at Raiford State Prison in Florida, his parole from the 1963 sentence having been revoked. Once in 1964 and again in 1966 Broxson applied to a United States District Court in Florida for a writ of habeas corpus which both times was denied without hearing. In his second such petition he alleged (1) that he was illegally arrested without a warrant, and that his home and automobile were illegally searched; (2) that there was an unreasonable delay in taking him before a committing magistrate; (3) that following his arrest he was held incommunicado for a period of several days during which time he was coerced into signing a confession; (4) that he was denied an attorney of his choice and had inadequate time to prepare his defense; and (5) that he was afforded ineffective assistance of counsel. The district court concluded that these allegations had been raised and determined in the prior habeas corpus proceeding and refused to consider them anew. Broxson appealed to this court (Broxson v. Wainwright, 372 F.2d 944 (C.A. 5, 1967)) and we characterized the issue involved as follows: “The threshold question, given the fact of a guilty plea, is whether the plea of guilty was voluntarily and understandingly made. Thus the sole question presented on this appeal is whether Broxson’s allegations form such a contrary basis as to warrant reversal for a hearing on the question of whether the pleas of guilty were coerced. All of the other errors asserted occurred prior to the pleas and may not now form the basis for collateral relief until and unless the pleas of guilty are set aside.” We concluded that the allegations in the petition, taken separately or in sum, were insufficient to impugn the pleas of guilty, and on that basis refused to remand the case for a hearing. It is noted that each of Broxson’s allegations in this earlier petition related to events precedent to his pleas of guilty and since none was jurisdictional in nature, any objection relative thereto was waived by entry of the pleas. Busby v. Holman, 356 F.2d 75 (C.A. 5, 1966). We have carefully studied the record of the case and the only allegation in Broxson’s prior petition which might arguably be said to have impugned the validity of the guilty pleas is his statement that just prior to the entry of such pleas “the petitioner and three alleged co-defendants was (sic) all taken into a small room to consult with the lawyer, that during these proceedings one of the interrogating officers was present while the lawyer was to be discussing the defendants’ case, that the attorney and officer talked in private before the lawyer came on into the room, that the attorney only advised the petitioner and his co-defendants to finish pleading guilty . . .” This allegation, we think, fell far short of raising a substantial question as to whether Broxson was coerced into entering his pleas of guilty. However, in his present petition Broxson squarely raises an issue of fact with respect to coercion. He avers, among other things, that “the pleas of guilty of the petitioner were not freely and voluntarily made but was (sic) predicated upon . . the belief instilled in the petitioner that he would be shot and killed; that his wife and sister would be seriously harmed and sexually molested ; and that his children would be adopted out by the police and the welfare department if he did not cooperate and plead guilty.” Moreover, with reference to the events transpiring immediately prior to his entry of the guilty pleas Broxson makes additional allegations of fact, not present in his earlier petition, to wit, that his court appointed attorney “failed to obtain the petitioner privacy while- conferring with the petitioner and the other defendants, in that he allowed a police detective, Tommy Ray, who was the investigating officer of the petitioner’s case, and the officer had threatened to shoot and kill the petitioner if he did not plead guilty, and during the pretrial conference the police officer used coercements (sic) on the petitioner, and thwarted the petitioner from obtaining advice from the court appointed attorney . . On the basis of the foregoing we conclude that Broxson has raised in his present petition an issue not heretofore raised, i. e., whether his pleas of guilty were coerced, which entitles him to a hearing on the merits of his application for writ of habeas corpus. See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 decided April 12, 1973. Accordingly, the case is remanded to the district court for a hearing and further proceedings not inconsistent with this opinion.
f2d_477/html/0399-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "\n PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Larry SMITH, Defendant-Appellant. No. 72-1728. United States Court of Appeals, Eighth Circuit. Submitted March 16, 1973. Decided April 12, 1973. Rehearing Denied May 4, 1973. Murry L. Randall, St. Louis, Mo., for appellant. Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee. Before MATTHES, Chief Judge, ROSS and STEPHENSON, Circuit Judges. PER CURIAM. Larry Smith appeals from his conviction, after a trial to the court, of knowingly possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. We affirm the judgment of conviction. The firearm in question is an unserviceable Thompson submachine gun. There is no challenge to the proof of possession by Smith, but rather, he bases his appeal from his conviction on two points: First, that the welded receiver of the gun was not a firearm within the meaning of the National Firearms Act, and therefore was not required to be registered, and secondly, that the Government did not prove that Smith had knowledge that the inoperative gun had to be registered. 26 U.S.C. § 5861(d) provides in pertinent part that it is unlawful “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record;” 26 U.S.C. § 5845(a) states that “firearm” as used in the Act includes machinegun; and 26 U.S.C. § 5845(b) defines machine-gun as follows: “The term ‘machine-gun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The key question in the first issue raised by the appellant then becomes whether or not the machinegun in question could be “readily restored to shoot, automatically . . . . ” Since the trial court did not make a specific finding in this regard, we remanded with the request that a finding be made as to whether or not the machinegun could be readily restored to shoot automatically as provided in 26 U.S.C. § 5845(b). The trial court then made the requested finding as follows: “The sole evidence on the issue as to which our findings are directed is that given by Robert J. Scroggie, a firearms enforcement officer with the Alcohol, Tobacco, Firearms Division of the United States Treasury Department. He testified, and we find, that the gun was registered [to a former owner] as an unserviceable Thompson submachine gun, the registration form stating that the barrel was filled with metal. This statement indicated to Scroggie that the barrel was welded so that the weapon was not in fireable condition. “There were two welds in the gun which obviously was, when manufactured, ‘designed to shoot.’ The barrel of the gun was welded closed at the breech and was also welded to the receiver on the outside under the hand-guard. Scroggie testified that there are two possible ways by which the firearm could be made to function as such. The most feasible method would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole so that the same or another barrel could be inserted. To do so would take about an 8-hour working day in a properly equipped machine shop. Another method which would be more difficult because of the possibility of bending or breaking the barrel would be to drill the weld out of the breech of the barrel. “The term ‘readily restorable to shoot’, as used in Section 5845(b) is not defined, so that whether a firearm is capable of being ‘readily restorable to shoot’ is a matter of judgment. In view of the object of the statute and the context of the legislation as a whole, we find as a fact that the gun in question is capable of being ‘readily’ restored to shoot automatically even though the process of restoration would require a working day for that purpose.” We have examined the record, including the transcript of the testimony of agent Scroggie, and conclude that the proof relating to the restoration of the machinegun is exactly as described by the trial court and that this constituted “substantial evidence, taking the view most favorable to the Government, to support the fact determination by the trial court. ...” See United States v. Rischard, 471 F.2d 105, 107 (8th Cir. 1973). We conclude, therefore, that the trial court correctly determined that the machinegun in this case could be readily restored to shoot automatically and that it was required to be registered. Smith’s second allegation relating to the necessity of alleging and proving knowledge that Smith knew the gun had to be registered is likewise without merit. The Supreme Court has specifically held that the Act “requires no specific intent or knowledge that hand grenades were unregistered. It makes it unlawful for any person ‘to receive or possess a firearm which is not registered to him.’ By the lower court decisions at the time that requirement was written into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm. See Sipes v. United States, [8th Cir.] 321 F.2d 174, 179, and cases cited.” United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971). Smith surely could not have felt that the machinegun in question was not a “firearm” in view of the fact that he had concealed the weapon under a shed back of his trailer and asked the sum of $300.00 for it. He finally sold it for $175.00. Under these circumstances, he can hardly claim that he thought it to be completely useless as a weapon and contrary to allegations of Smith’s counsel, the rationale of United States v. Freed, supra, is controlling. In that case, the Supreme Court noted: “They [hand grenades] are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, [42 S.Ct. 301, 66 L.Ed. 604] where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act. We say with Chief Justice Taft in that case: ‘It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business- of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Id., at 253-254, [42 S.Ct., at 302-303].” Id. at 609-610, 91 S.Ct. at 1118. Cf. United States v. Wiley, 72-1516 (8th Circuit, April 20, 1973); Bryant v. United States, 462 F.2d 433, 435 (8th Cir. 1972); United States v. Crow, 439 F.2d 1193, 1195 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). For the reasons hereinbefore set forth we affirm the judgment of conviction.
f2d_477/html/0402-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BAZELON, Chief Judge: MacKINNON, Circuit Judge PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	The CITIZENS ASSOCIATION OF GEORGETOWN, INC., Appellant, v. ZONING COMMISSION OF the DISTRICT OF COLUMBIA et al. The CITIZENS ASSOCIATION OF GEORGETOWN, INC. and the Committee of 100 on the Federal City, Appellants, v. ZONING COMMISSION OF the DISTRICT OF COLUMBIA et al. Nos. 72-2103, 72-2174. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 11, 1973. Decided Feb. 6, 1973. Judgment May 8, 1973. Roberts B. Owen, Washington, D. C., with whom William D. Iverson, Washington, D. C., was on the brief, for appellant in No. 72-2103 also argued for appellant in No. 72-2174. Louis P. Robbins, Asst. Corporation Counsel for the District of Columbia, with whom C. Francis Murphy, Corporation Counsel, Richard W. Barton and David P. Sutton, Asst. Corporation Counsels were on the brief, for appellee, Zoning Commission of the District of Columbia. Joseph M. Fries, Washington, D. C., with whom Charles R. ' Donnenfeld, Washington, D. C., was on the brief, for appellee, Georgetown-Inland Corporation. Whayne S. Quin, Washington, D. C., with whom Norman M. Glasgow, John J. Carmody, Jo V. Morgan, Jr., and Charles J. Steele, Washington, D. C., were on the brief, for appellee, Maloney Concrete Co. Franz M. Oppenheimer and Peter S. Craig, Washington, D. C., were on the brief for appellant in No. 72-2174. Before BAZELON, Chief Judge, and WRIGHT and MaeKINNON, Circuit Judges. BAZELON, Chief Judge: This case involves the zoning of the Georgetown waterfront, an area of approximately 96 acres bordered by the Potomac River, M Street, N.W., Key Bridge and the Rock Creek Parkway. Since zoning began in the District of Columbia in 1920, this area has been zoned for commercial and industrial uses. But the area seems about to undergo substantial changes and it is that possibility that brought this case before us. I The National Capital Planning Commission (NCPC), the professional planning agency for the District of Columbia, is charged with preparing a comprehensive land-use plan for the District. In 1969, the NCPC adopted a plan which, in part, called for the waterfront area to be devoted to low-density residential and parkland uses. In 1971, the President called for immediate action to insure the preservation of the waterfront and, in response, on January 26, 1972, the NCPC and the District of Columbia contracted with a group of private planners for a $270,000 study of the Waterfront to prepare a development program implementing the NCPC’s recommendations for the area. In the interim, however, the intervenors in this suit announced plans to build major new commercial centers in the area which would be permitted by the present zoning. Seeking to ward off the threat to implementation of the comprehensive plan posed by new commercial development on the waterfront, the appellants herein petitioned the Zoning Commission to adopt an interim amendment to the Zoning ordinance, preventing major construction not in conformance with the NCPC’s 1969 Comprehensive Plan recommendations until the completion of the pending study. When the Zoning Commission failed to respond, the appellants brought suit for mandamus to compel action by the Commission in the District of Columbia Court of Appeals. That court found that it did not have the power to provide the requested- relief since the Zoning Commission’s action was not reviewable as a “contested case” under the District of Columbia Administrative Procedure Act. Finally, on June 29, 1972, the Zoning Commission did adopt an emergency amendment to the Zoning Regulations to preserve the status quo in the waterfront area until hearings could be held on the appellants’ proposal for a two-year interim amendment downzoning the area -to prevent its commercial development until the ongoing study was completed. Hearings were held in August of 1972 and testimony was given favoring adoption of the interim amendment by the NCPC, its planning consultants and several citizen groups. The Zoning Advisory Council also supported the proposal. Opponents of the proposed down-zoning included the intervenors, Georgetown-Inland and Maloney Concrete, as well as the Washington Metropolitan Board of Trade and a number of corporate and individual owners of property in the affected area. On October 4, the Zoning Commission revoked its emergency order and declined to adopt the proposed interim amendment. Appellants then filed suit in federal District Court challenging the Commission’s order on the grounds that: 1) the Commission acted unlawfully in rejecting the recommendation of the NCPC; and 2) the Commission’s action was arbitrary and unreasonable. The District Court denied appellants’ motions for a temporary restraining order on October 12, and for a preliminary injunction on October 25. On November 9, this court entered an order restraining construction of the planned new commercial centers in the Waterfront area pending the District Court’s final decision. On November 20, the District Court granted appellees’ motion for summary judgment and on November 24, this court issued an order, in effect, reinstating its restraining order of November 9. The District Court’s grant of summary judgment was on the grounds that: 1) “The NCPC Comprehensive Plan is advisory only and not binding on the Zoning Commission,” and that 2) there was no showing that the Zoning Commission’s action was “arbitrary or unreasonable.” The instant appeal is from that decision. II The Zoning Commission of the District of Columbia is entrusted with the authority to adopt and amend zoning regulations which, among other qualifications, must “be made in accordance with a comprehensive plan.” 5 D.C.Code § 413 (1967). The National Capital Planning Commission (NCPC) is required to “prepare, adopt and amend a comprehensive plan for the National Capital and made related recommendations to the appropriate developmental agencies [and to] serve as the central planning agency for the Federal and District Governments ... in order to advise as to consistency with the comprehensive plan. . . .” 1 D.C.Code § 1001 et seq. (1967). The NCPC is further empowered to “make a report and recommendation to the Zoning Commission of the District of Columbia on proposed amendments of the zoning regulations and maps as to the relation or conformity of such amendments with the comprehensive plan of the District of Columbia.” 1 D.C.Code § 1008(a) (1967). Appellants suggest the requirement that the Commission’s zoning regulations be “in accordance with a comprehensive plan” is a reference to the comprehensive plan that the NCPC is charged with preparing. But the courts of this jurisdiction have repeatedly held that term “comprehensive plan” in 5 D.C.Code § 413 is not synonymous with the comprehensive plan referred to in the National Capital Planning Act of 1952, 1 D.C.Code § 1001 et seq. The requirement that the Zoning Commission adopt zoning regulations in accordance with a comprehensive plan rather refers to the Commission’s obligation to zone on a uniform and comprehensive basis. We cannot therefore accept appellants’ contentions that the Zoning Commission was bound to follow the recommendation of the NCPC or that it may override that recommendation only by showing a compelling public interest in doing so. Ill In reviewing the action of the Zoning Commission, we consider only whether “in denying the application [the Commission] was arbitrary and capricious, [i. e. its decision had] no substantial relationship to the general welfare." Although the Commission’s actions are entitled to a presumption of validity, it must “put forward, or the court [be] otherwise able to discern, some basis in fact and law to justify the action as consistent with reasonableness.” The Commission’s challenged decision offered no reasons. The court in a case as complex as the one before us is hesitant to extrapolate the required basis from the record before the Commission without the benefit of the Commission’s expertise and guidance. We therefore order the Zoning Commission to file a statement of the reasons for its decision within 45 days. We neither express nor intimate any position on the merits by this holding. Two strands of doctrine apply to our review of administrative agency decisions. The first is the presumption of validity of .an agency’s actions. An agency such as the Zoning Commission is expected to apply its expertise in making decisions like the one before us and courts should not attempt to substitute their judgment for that of the agency to whose discretion those decisions have been committed by Congress. Second, respect for an agency’s expertise does not eliminate the need for judicial review of agency actions, and inherent in that albeit limited power of review is the need for an agency to spell out its reasoning. As Justice Harlan said in the Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968): The court’s responsibility is not to supplant the Commission’s balance of [competing] interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors. Judicial review of the Commission’s orders will therefore function accurately and efficaciously only if the Commission indicates fully and carefully the . . . purposes for which, it has chosen to act. The case for requiring a statement of reasons from an administrative agency is a persuasive one. Those reasons may be crucial in order for the court to know what the agency has really determined, hence what to review. Courts ought not to have to speculate as to the basis for an administrative agency’s conclusions ; nor can a court “assume without explanation that proper standards are implicit in every act of agency discretion.” And, when faced with a complex problem, having widespread ramifications, like that before us today, a court should surely have the benefit of the agency’s expertise. Finally, the articulation of reasons by an agency — for itself and for the public — does afford a safeguard against arbitrary and careless action and is apt to result in greater consistency in an agency’s decisionmaking. It is true that the Zoning Commission is a quasi-legislative body and is not required to support its legislative-type judgments with findings of fact. But, as the District of Columbia Court of Appeals has noted, there are important elements of a non-legislative nature to the Commission’s decisions. And there are important distinctions between our review of the Zoning Commission and our review of the acts of a legislature. Thus, while the legislative character of the Commission’s decision may take it outside the strict application of Chenery, the Commission may still be required to state reasons for its decisions. Reasons differ from findings in that reasons relate to law, policy, and discretion rather than to facts and even where findings are not required, a disclosure of an agency’s reasons is often desirable. Not only are the arguments for a general requirement of reasons clearly applicable to the actions of the Zoning Commission but the facts of this case make all the more compelling the need for an articulation of reasons by that agency. The District of Columbia Administrative Procedure Act (DC-APA) expressly imposes such a requirement in “contested cases”. That, of course, does not bar imposing a requirement of stated reasons in the present context. On the contrary, the legislative history of the DC-APA indicates Congress assumed that we would construct such a requirement or believed that the courts already had. That act was meant only to prescribe minimum procedures. Before the DC-APA was passed, the District Court in Donovan v. Clark held that even though the Zoning Commission’s decisions are legislative in character, the court’s limited power of review could only be properly exercised when that agency set forth the reasons for its decision. In the Committee reports on the DC-APA, the following observation was made in regard to that holding: The Donovan decision reaffirmed and applied an elemental principal of fair administrative procedure so far as appeals from the decisions of the Zoning Commission . . . are concerned. Second, if the recommendation of the NCPC, the District’s professional planning agency, had been adopted here, we would, of course, have that agency’s report to provide us both with some explanation of the Commission’s action and the benefit of the expertise that we now seek from the Commission. But, in this case, the Commission rejected the NCPC’s recommendations, clearly distinguishing it from Gerstenfeld v. Jett. Finally, we must realize that lurking in the shadows of this case is an issue not raised by the parties but, in a different form, before this court in another case. That case involves the question of whether a recommendation of the NCPC, a federal agency, to the local Zoning Commission must be accompanied by an environmental impact statement. That issue is not before the court today, but it is appropriate to take note of the strong and pervasive congressional interest in environmental protection. As the National Capital Planning Commission has noted: In view of the unique federal presence at the seat of government, a special effort should be made by the Federal and District of Columbia Governments in the National Capital Region to implement the National Environmental Policy Act of 1969. Such a special and continuing effort in this region could well serve as a demonstration for the entire Nation. * * * * * * Although the declaration of a national environmental policy in Section 101 of the National Environmental Policy Act of 1969 would appear to include actions by the District of Columbia Government, the provisions of sections 102 and 103 which are directed to all agencies of the Federal Government [and require the preparation of environmental impact statements], do not apparently apply to actions of the District of Columbia Government unless federal financial assistance is involved in individual District projects. The various activities of the various District agencies and departments do, in fact, affect the quality of the environment in both the District of Columbia and the National Capital Region as a whole and should, therefore, also meet the objectives and policies of the . . . Act. (emphasis added) Where, as here, the potential environmental effects of the Commission’s decision are substantial, it must at least consider the environmental issue to fulfill its public interest mandate. The judgment as to environmental impact is a determination of policy committed to the discretion of the Commission alone; and where the Commission has struck a balance between environmental and other factors, we will not reverse its decision simply because we would have attached different weights to the competing interests at stake. Without a statement of reasons, however, we cannot know whether or not that assessment has, in fact, been made. The Zoning Commission, without undue delay and within 45 days of this judgment, shall provide to the public and to the court a statement of the reasons for its challenged decision. The injunctive relief ordered by this court on November 24, 1972, will remain in effect pending a decision on the merits. It is so ordered. MacKINNON, Circuit Judge (concurring) : To my mind, the strongest ground for requiring the statement of reasons is that it is impossible to determine from the order of the Zoning Commission whether it denied the motion for interim zoning after full consideration of the merits of that request, or because it concluded it was beyond the legal authority of the Commission to freeze construction in the manner requested, or for other reasons. JUDGMENT PER CURIAM. The background of these appeals is outlined in our opinion herein dated February 6, 1973. At that time we stated: “In reviewing the action of the Zoning Commission, we consider only whether ‘in denying the application [the Commission] was arbitrary and capricious, [i. e. its decision had] no substantial relationship to the general welfare.’ * * *” (At 407.) At that time also, we remanded the cases to the Zoning Commission for “a statement of the reasons for its challenged decision.” (At 407.) These reasons are now before us, and we cannot say that the Commission acted arbitrarily and capriciously in arriving at its decision. Under the circumstances, it is ordered and adjudged by this court that the judgment of the District Court appealed from in these causes is hereby affirmed. . Presently the Georgetown waterfront area is zoned CM-2 (heavy commercial and light manufacturing, District of Columbia Zoning Regulations § 6101.1) and M (general industry, District of Columbia Zoning Regulations § 6102.1). . 1 D.C.Code §§ 1001-1013 (1967) ; see part II of this opinion, infra. . National Capital Planning Commission, Elements of a Comprehensive Plan for the National Capital Adopted by the Commission Through September 30, 1969. . Address of President Richard Nixon, April 7, 1971. . Maloney Concrete Company announced plans for its Dodge Center development in September of 1971 and Georgetown-Inland Corporation announced its plans to build a similar project in March of 1972. . On March 26, 1971, appellant, Citizens Association of Georgetown, filed a petition with the Zoning Commission for “down-zoning” of the waterfront. The petition was denied without a hearing on October 28, 1971. That decision has not been challenged. . Citizens Ass’n of Georgetown v. Washington, 291 A.2d 699 (D.C.App.1972). Subsequently, a similar suit for mandamus was brought in the federal district court but was dismissed as moot after the Commission acted on June 29. . 1 D.C.Code § 1510 (providing for review of “contested cases”) and § 1502(8) (Supp. V 1972) (defining “contested cases”); see Capitol Hill Restoration Society v. Zoning Commission, 287 A.2d 101 (D.C.App.1972). . District of Columbia Zoning Commission, Order No. 48 (June 29, 1972). This amendment downzoned the area to an B-J classification (residential-row dwelling, District of Columbia Zoning Regulations § 3104.1), under which the intervenors’ projects would not be permitted. See note 5, supra. Such emergency action is authorized by 1 D.C.Code § 1505(c) (Supp. V 1972); see Salyer v. McLaughlin, 100 U.S.App.D.C. 29, 31, 240 F.2d 891, 893 (1957); Citizens Ass’n of Georgetown v. Washington, 291 A.2d 699, 702 (D.C.App. 1972). . The Zoning Advisory Council, which is charged with reporting on all proposed zoning amendments is made up of representatives of the NCPC, Zoning Commission, and the Commissioners of the District of Columbia (now the D.C. Council), all of whom must be “experienced in zoning practice.” 5 D.C.Code § 417 (1967). . District of Columbia Zoning Commission, Order No. 51 (October 4, 1972). . Citizens Ass’n of Georgetown v. Zoning Commission No. 72-2103, D.C.Cir. (Order of Nov. 9, 1972). . Citizens Ass’n of Georgetown v. Zoning Commission, C.A. 2034-72 (D.D.C. November 20, 1972). . Diedrich v. Zoning Commission, 129 U.S.App.D.C. 265, 393 F.2d 666 (1968); Lewis v. District of Columbia, 89 U.S.App.D.C. 72, 74, 190 F.2d 25, 27 (1951); Capital Properties, Inc. v. Zoning Commission, 229 F.Supp. 255, 258 (D.D.C. 1964). . 3 Anderson, American Law of Zoning, § 17.15 at 310 (1968); D. Hagman, Urban Planning and Land Development Control Law, § 23 at 53-54 (1971); 2 Yokley, Zoning Law and Practice (3d ed.) § 11-3(d) (1965). . The legislative history of the relevant statutes clearly supports our construction. By the time the predecessor of the NCPC was created, in 1926, the District of Columbia Zoning Commission was already in existence. The House report on the bill establishing the new planning agency indicates that the committee heard testimony suggesting that the local zoning commission be bound by the planning agency’s comprehensive plan. The committee rejected that suggestion but reported out a bill requiring members of the zoning commission to “adhere in principle” to the plan. H.Rep.No.204, 69th Cong., 1st Sess. (1926). The Senate struck that language with a clearly expressed intent to make the plan purely advisory to the zoning commission. S.Rep.No.364, 69th Cong., 1st Sess. (1926). The House ultimately agreed. Conference Report, H.Rep.No.964, 69th Cong., 1st Sess. (1926). There is no indication in the legislative history of the 1938 Zoning Act, Act of June 20, 1938, 52 Stat. 797, that Congress had any intention of reversing itself in regard to the relationship between the Zoning Commission and the planning agency. See sources at note 14, supra. And, it, seems clear that Congress did not mean to disturb the relationship between the two agencies, in regard to local zoning in general, in passing the 1952 National Capital Planning Act. H.Rep. No.2164, 82d Cong., 2d Sess. (1952). . Shenk v. Zoning Commission, 142 U.S.App.D.C. 267, 440 F.2d 295 (1971) and sources collected at 142 U.S.App. at 269, 440 F.2d at 297. . Shenk v. Zoning Commission, 142 U.S.App. at 269-270, 440 F.2d at 297-298. . The entirety of the Commission’s order is set out below: The Zoning Commission of the District of Columbia, having met in executive session, hereby ORDERS that: 1. Emergency Order No. 48, effective June 29, 1972, relating to the Georgetown Waterfront Area, is hereby terminated. 2. After public notice and hearing of Z. C. Case No. 72-5, proposals for interim zoning of the Georgetown Waterfront Area, the Commission determines that it will not adopt either proposal. District of Columbia Zoning Commission, Order No. 51 (dated Sept. 28, 1972, issued Oct. 4, 1972). . See Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 406, 379 F.2d 453, 460 (1967). But cf. Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 87-88, 439 F.2d 584, 597-598 (1971). . See Airline Pilots Assoc., Int’l. v. CAB, 154 U.S.App.D.C. --, at-, 475 F.2d 900, at 906 (1973); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1971); WAIT Radio v. FCC, 135 U.S.App.D.C. 317, 320, 418 F.2d 1153, 1156 (1969). . See, e. g., Great Lakes Screw Corp. v. NLRB, 409 F.2d 375, 379 (7th Cir. 1969); Austin v. Jackson, 353 F.2d 910, 911 (4th Cir. 1965); Northeast Airlines, Inc. v. CAB, 331 F.2d 579, 586 (1st Cir. 1964). . Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 84, 439 F.2d 584, 598 (1971). . Brawner Bldg., Inc. v. Shehyn, 143 U.S.App.D.C. 125, 136, 442 F.2d 847, 858 (1971); F. W. Means & Co. v. NLRB, 377 F.2d 683, 687-688 (7th Cir. 1967). . Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 84, 439 F.2d 584, 598 (1971). . Shenk v. Zoning Commission, 142 U.S.App.D.C. 267, 269, 440 F.2d 295, 297 (1971). . See Capitol Hill Restoration Society v. Zoning Commission, 287 A.2d 101 (D.C.App.1972) (even though the Zoning Commission is a quasi-legislative body, its actions may be subject to the “contested case” provisions of the D.C. Administrative Procedure Act). It is also interesting to note that the Model State Administrative Procedure Act, on which the DC-APA is based, does aver to the need for a statement of reasons in rule-making. Uniform Law Commissioners’ Revised Model State Administrative Procedure Act § 3 in 1961 Handbook of the National Conference of Commissioners on Uniform State Laws at 210. . Unlike a legislature, the Zoning Commission is not directly responsible to the voters. In the District of Columbia the electoral responsibility of the Zoning Commission is particularly attenuated, since the Zoning Commission is made up entirely of Presidential appointees, responsible to the executive branch of the federal government and not to the people of the District of Columbia, whose lives are so vitally affected by their decisions. Accordingly, we cannot realistically expect the political process to act as a check on the Commission’s actions. Also, in contrast to Congressional acts, there is no legislative history from which we could discern the purpose for the Commission’s actions. In certain circumstances an NCPC report might serve a function roughly analogous to that of a legislative committee report, but, since the Commission rejected the NCPC’s recommendation in this instance, we do not even have the benefit of that guidance. . SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); cf. Chae-Sik Lee v. Kennedy, 111 U.S.App.D.C. 35, 38, 294 F.2d 231, 234 (1961). . Today’s decision, requiring a statement of reasons in the zoning context, is not a novel one. In Brawner Bldg., Inc. v. Shehyn, 143 U.S.App.D.C. 125, 136, 442 F.2d 847, 858 (1971), we said, in reviewing an exercise of power delegated to the Board of Zoning Adjustment by the Zoning Commission, that our “determination of the merits should await the guidance of the Board’s expertise and reasoning.” See also, cases collected at 2 Yokley, Zoning Law and Practice (3d ed.) § 15.17 (1965). . See, e. g., K. Davis, Administrative Law Treatise § 16.12 at 476 (1953). . See e. g., Saporiti v. Zoning Board, 137 Conn. 478, 482, 78 A.2d 741, 743 (1951): cf. K. Davis, Administrative Law Treatise § 16.00 (Supp.1970) (the requirement of reasons should not be limited to formal proceedings; it should extend to all determinations, unless the inconvenience is likely to outweigh the probable benefits). . Citizens Ass’n of Georgetown v. Washington, 291 A.2d 699 (D.C.App.1972), construing 1 D.C.Code § 1501 et seq. (Supp. V 1972). . S.Rep. No. 1581, 90th Cong., 2d Sess. (1968) at 9. . 222 F.Supp. 632 (D.D.C.1963). . S.Rep. No. 1581, 90th Cong., 2d Sess. (1968) at 5; accord, H.R.Rep. No. 202, 90th Cong., 1st Sess. (1967) at 3. . 126 U.S.App.D.C. 119, 374 F.2d 333 (1967). . McLean Gardens Residents Ass’n v. National Capital Planning Commission, No. 72-2000 (D.C.Cir. filed Oct. 21, 1972). . National Capital Planning Commission, Guidelines for the Protection and Enhancement of Environmental Quality in the National Capital Region, Aug. 6, 1972, 1 ELR 46034. . Chae-Sik Lee v. Kennedy, 111 U.S.App.D.C. 35, 38, 294 F.2d 231, 234 (1961).
f2d_477/html/0411-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "SPOTTSWOOD W. ROBINSON, III, Circuit Judge: BAZELON, Chief Judge", "license": "Public Domain", "url": "https://static.case.law/" }	Manual de J. GOMEZ et al., Appellants, v. Jerry V. WILSON, Chief of Police, et al., Appellees. No. 71-1484. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 13, 1972. Decided March 23, 1973. Nancy Pyeatt, Washington, D. C., with whom Ralph J. Temple, Washington, D. C., was on the brief, for appellants. David P. Sutton, Asst. Corp. Counsel, C. Francis Murphy, Corp. Counsel, District of Columbia, Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellees. Before BAZELON, Chief Judge and McGOWAN and ROBINSON, Circuit Judges. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: For the third time in four years we are confronted with an appeal in litigation commenced more than five years ago to prevent District of Columbia police from interfering with appellant’s nocturnal strolls on public thoroughfares in the city. Now for the third time, we are compelled to adjudicate the appeal without achieving a full resolution of appellant’s grievances on the merits. And for the third time we find that we must remand the case to the District Court to enable further proceedings there. I Appellant’s lengthy odyssey through' the courts was precipitated in 1967 when he was twice stopped and questioned by police officers while walking in the vicinity of Dupont Circle late at night. On both occasions the officers filled out so-called vagrancy observation forms and informed appellant that if he was' further observed in the area he would become subject to arrest. Appellant sought legal advice and subsequently commenced suit in the District Court for declaratory and injunctive relief. He sought specifically a declaration of his right to walk or be in public places while sober and well-behaved, and an injunction restraining police intrusion upon that right. He also sought expunction from police records of the vagrancy observations which had been made and a declaration that the District’s general vagrancy statute was unconstitutional in toto. The District Court, sua sponte, dismissed the action on several grounds. On the first appeal, we vacated the dismissal and remanded to the District Court for further proceedings. On the remand, the District Court again dismissed on the ground that the ease was rendered moot by our intervening decision in Ricks v. District of Columbia (Ricks I), wherein we held three subsections of the general vagrancy law unconstitutionally vague, and by the discontinuance of police observations under the impugned subsections in response to that decision. On the second appeal, we vacated that dismissal and remanded for the proceedings we had envisioned on the first. The case was then heard on the merits, and appellant was awarded a part of the relief sought in his complaint. The District Court’s order enjoins the police from interfering with appellant’s right to walk or be in any place in the District of Columbia while sober and well-behaved, and requires elimination from police records of all references to the vagrancy observations made of him. Since there is no appeal from so much of the District Court’s action, we have no occasion to examine its propriety. Appellant now attacks the court’s order because in some respects the relief it afforded fell short of the goals set by his complaint. Two errors are alleged: first, that the District Court should have treated the case as a class action and granted relief accordingly; and second, that the court should have held unconstitutional the subsections of the vagrancy statute which were not in issue in Ricks I. For reasons now to be stated, we are unable to decide either of these questions, but instead must remand the case to the District Court once again. II In the five years which have elapsed since this litigation began, both the law and police policies governing on-the-street stopping and questioning of citizens have undergone substantial modification. Ricks I invalidated portions of the District’s general vagrancy statute and its companion, Ricks v. United States (Ricks II), portions of the District’s narcotic vagrancy statute. Since these decisions, a plethora of police regulations pertaining to street investigations have been issued. Among them are. traffic and pedestrian “spot check” procedures, which appellant contends are merely the old vagrancy observation measures in new guise. In May, 1968, the Supreme Court addressed the problems raised by police investigatory stops and accompanying searches in Terry v. Ohio and related eases, and established standards to harmonize on-street inquiries and protective frisks with the Fourth Amendment. In response to Terry, the Metropolitan Police Department has issued a nine-page set of guidelines to assist its officers in complying with the constitutionally-mandated requirements. And more recently this court, in Hall v. United States and Long v. District of Columbia, has dealt with claims of unlawful police interference with the prerogatives of citizens to carry on their activities in public places undisturbed. It is against this backdrop of changing law and practice that appellant has here renewed his request for class-action relief and a declaration of unconstitutionality of the remaining sections of the general vagrancy statute. But the record before us is bottomed solely on two incidents which occurred more than five years ago in the milieu of legislative and administrative policy of that day. Given the massive developments intervening since appellant experienced the difficulties alleged in his complaint, we cannot base the determinations he seeks on such a thin foundation. Two episodes of such vintage hardly generate, simply on their own, a realistic prospect of future repetition, either as to appellant or others. Quite plainly, they do not suffice as a predicate for an injunction in favor of a class. Even more speculative, in view of current police practices claiming newer sources of authorization, is any potential link between the general vagrancy statute and any further difficulties which appellant or others may encounter. Neither the District Court nor this court is at liberty to decide constitutional questions posed hypothetically. Such decisions, rather, are to be rested upon a record which supplies factual support far more adequately than the one now before us does. Nevertheless, in the midst of all the change in the law and its implementation by police, one circumstance allegedly remains unaltered. Appellant asserts that he is still a target of police harassment while taking his walks at night. At oral argument his counsel informed us that since the District Court issued its last order, there have been two occasions on which he was stopped and interrogated by police, and that on at least one of these a written notation of the incident was made by the officers. In support of his plea for a greater measure of relief than he was awarded in the District Court, appellant has presented to this court a third-party affidavit alleging that other citizens have been subjected in recent months to detention and questioning on the streets. On the heels of these charges is a disturbing concession by appellees’ counsel that the present police spot-check procedures permit citizens to be halted and quizzed even in circumstances under which Terry does not purport to authorize intrusion. Since this new information was brought to light after this case had left the District Court, it is outside the record on appeal. We think, however, that it constitutes enough of a showing to entitle appellant to an opportunity to update his lawsuit as a predicate for possible further relief. As a part of our appellate jurisdiction, we .are empowered to “remand the cause and . . .require such further proceedings to be had as may be just under the circumstances.” This broad authorization clearly encompasses remands for the purpose of renovating the pleadings and taking additional evidence; and, once appellant is again in the District Court, he will be free to appropriately supplement his complaint. That may include allegation of recent incidents, joinder of additional parties and, of course, presentation of such legal contentions as may be indicated. After suitable response by appellees, the District Court will be in position to hear any meritorious claims forthcoming, and to expeditiously resolve them — individually or as a class — on a concrete basis. We are mindful of the hardships imposed on parties where, as here, the wheels of justice grind so slowly that they may appear to hardly turn at all. Justice that is both swift and sure is the millennium and must remain increasingly the goal of us all. Yet it sometimes happens, however regrettably, that speed in adjudication must to some extent yield to quality of adjudication. The case before us demands such a yielding to enable a sound evaluation of appellant’s contentions in the context of current police investigatory methods and their precise impact upon him and others. To that end we must remand the case to the District Court for further proceedings. Of course, it is for appellant to determine the tactical course he wishes to pursue, and we intimate no view on the merits of any controversy ensuing. Ill One other aspect of this litigation merits discussion. The power of the District Court to entertain appellant’s suit has not been challenged, but the jurisdictional foundation upon which the court proceeded is unclear. Of three bases averred in appellant’s complaint, one is inefficacious, another is unsustained and the third, though serviceable in this litigation, is no longer available to would-be litigants. The record contains no express jurisdictional determination nor does it indicate that, beyond the jurisdictional grounds alleged in the complaint and contested in appellees’ answer, the parties have addressed the question. Since the jurisdiction of a federal court is an ever-present concern, the problem deserves more attention than it has received. We put aside at once appellant’s claim of jurisdiction under 28 U.S.C. § 1343(3). Evidently appellant has theorized that the incidents he complained of gave rise to a cause of action under 42 U.S.C. § 1983 which was cognizable in the District Court by virtue of Section 1343(3). But very recently, in District of Columbia v. Carter, the Supreme Court held that no right to sue under Section 1983 is generated by action of the District of Columbia or its representatives. Our reading of Carter in light of the common origin and objectives of the two sections, convinces us that Section 1343(3) does not furnish a federal forum for the case at bar. We look next to 28 U.S.C. § 1331(a) —the general federal-question provision —which vests in the district courts jurisdiction of civil actions in which the matter in controversy “arises under the Constitution, laws, or treaties of the United States” and exceeds $10,000 in principal “sum or value.” We are satisfied that appellant’s complaint spelled out a controversy arising under the Constitution, and consequently that Section 1331(a) conferred jurisdiction if the required amount were involved. Our difficulty, however, is that on the record before us we cannot be'sure that the amount prerequisite was really at stake. To be sure, appellant formally aD leged that the amount in controversy exceeded the statutory minimum, but appellees denied that allegation in their answer and the matter was dropped at that point. The record is barren of any further effort by the parties to either establish or disestablish this jurisdictional element, and of any determination by the District Court on that score. Where the call for federal-question jurisdiction under Section 1331(a) is meritorious, the task of demonstrating the propriety of the invocation is not particularly onerous. The complaint need only show that in good faith he advances a nonfrivolous claim necessitating an application of federal law and having a value meeting the statutory specifications. When the action solicits damages, the amount sued for is deemed to have been fixed in good faith so long as it is not clear to a legal certainty that no recovery could satisfy the statutory standard. Somewhat more is demanded when an injunction or other equitable relief is sought, though hardly more than the definitive valuation which a clear-cut presentation would entail. But when, as here, a formal allegation of jurisdictional amount — albeit one sufficient from a pleading standpoint — is controverted, a factual issue emerges and the burden of establishing jurisdictional amount is thrust upon the claimant. We do not doubt the amenability of the right asserted by appellant to pecuniary valuation of a type acceptable for purposes of Section 1331(a). The trouble here is that the demonstration which appellant was summoned to make is nowhere to be found in the record. We do find, however, an adequate jurisdictional base, irrespective of the amount truly in controversy, in the provisions of D.C.Code § ll-521(a)(l) which were in force when appellant’s suit was instituted in the District Court. Those provisions gave the Dis-trict Court “original jurisdiction of all . . . civil actions between parties, where either or both of them are resident or found within the District,” save where “exclusive jurisdiction is conferred by law upon other courts in the District.” The record shows amply the required residency, and we think the exclusivity requirement was met also. We are mindful that, when appellant brought his suit, the District of Columbia Court of General Sessions possessed “exclusive jurisdiction of civil actions ... in which the claimed value of personal property or the debt or damages claimed does not exceed the sum of $10,000, exclusive of interest and costs.” That does not affect the conclusion we reach because appellant’s goal was equitable relief of a type which the Court of General Sessions could not award. While that court undoubtedly possessed some equitable powers, it has long been settled that they were confined to controversies which fell within its statutory grant of jurisdiction. So, although the Court of General Sessions had such equitable powers as were necessary to enable it to fully exercise the jurisdiction conferred, those powers were incidental and limited to just that, and not primary or more general than the exigencies of the jurisdictional exercise required Appellant did not seek recovery of any “personal property or” any “debt or damages,” He sued, rather, for declaratory and injunctive relief to protect a fundamental personal right. It is clear that the Court of General Sessions lacked authority to entertain that suit and that, by the same token, the District Court acquired jurisdiction under Section ll-521(a)(l) when the complaint was filed. And notwithstanding the subsequent repeal of that section, the jurisdiction it conferred over this litigation subsists today. The ease is remanded to the District Court for such further proceedings in harmony with this opinion as appellant may be inclined to initiate. So ordered. BAZELON, Chief Judge (concurring in part and dissenting in part): I agree that this case should be remanded for further proceedings. But, I object to the court’s apparent failure to recognize our obligation to seek the earliest possible resolution of this more than five year old law suit by providing some guidance for the District Court’s consideration. Otherwise, the delay may take its toll in the deprivation of basic constitutional rights, the exacerbation of friction between the police and the ghetto community, and the loss of the courts’ credibility. I There is clearly substantial evidence to support the District Court’s finding that “presently vagrancy observations [the police practice originally complained of] result from ‘spot check’ observation forms.” The court today does not say otherwise; it accepts the District Court’s findings as “impregnable” because not challenged on appeal. The history of the “spot check” procedure makes it quite clear that it is but the vagrancy observation of old, with name and form number changed, but the same unconstitutional standard. In response to this court’s Ricks decisions, the police department issued the so-called Layton memorandum of February 17, 1969. That document, dealing in part with vagrancy observations, said: [T]he arrest policies announced herein do not preclude an officer from observing persons engaged in suspicious activity in a public place and from approaching those persons and making inquiry. ... In those circumstances where a person refuses to identify himself or does not give a reasonable explanation of his conduct, the officer should make an accurate and detailed record of the person’s physical description and ottw er significant characteristics, clothing worn and the explanations furnished. (Emphasis added) The “spot check,” in contrast, began its existence as a traffic enforcement device, to be employed with a view towards “detecting persons operating without a valid driving license.” However, after the Supreme Court decided Terry v. Ohio, the “spot check” underwent a major transformation in both purpose and scope. The new purpose was described in police department communications as follows: Effective use of this new PD 725 spot check form in recording suspicious persons ... in our area can be an invaluable aid in assisting in this District’s effort to control crime and identify and apprehend offenders. Another police communication, certainly reminiscent of the Layton memorandum, further explains the expanded use of spot checks: The traffic check form currently in use shall also be used for stopping and checking suspicious persons on foot. Members shall take the person’s name, nickname, date of birth, address, location of stop, general physical description and description of clothing worn, (emphasis added) Most importantly, the spot check procedure authorized the stopping of pedestrians under the same vague standard— mere “suspicion” — as the earlier vagrant cy observations. It seems clear that spot cheeks are but another way of implementing the policy of the Layton memorandum. II The District Court correctly determined that spot checks are an unconstitutional police practice, a conclusion the court today characterizes as “impregnable”. The District Judge properly rejected the Government’s assertion that because a person who is stopped has an unspoken right to continue walking and ignore a policeman’s inquiries, he has not been seized. The memoranda describing the practice themselves cast doubt on the accuracy of the government’s suggestion. And the Supreme Court in Terry held that the stop stage of an encounter is coextensive with a seizure, hence within the purview of the 4th Amendment. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. As the trial judge perceptively observed, when a policeman stops and questions a person, the officer’s “uniform, badge and all other indicia of his power as a law enforcement authority” compel an obedient response. The person is surely “restrained.” In Terry and related cases the Court also carefully defined by what standards a police officer’s intrusion on an ordinary citizen’s privacy would be constitutionally permissible. Those cases held that an officer must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” In contrast, spot cheek stops are authorized on mere suspicion. The Supreme Court of Pennsylvania recently struck down that state’s similar vehicle spot check procedure. Although noting that such stops may serve a law enforcement purpose, the court declared them unconstitutional under the Terry test. The court warned that if the police were allowed to stop automobiles without being able to “point to specific and articulable facts”, they could intrude on “basic constitutional rights on the basis of subjective prejudices.” The government admitted at oral argument in this ease that the spot check does not meet Terry standards. Accordingly, the District Court properly found that police interferences with the appellant’s late night walks pursuant to a mere “suspicion’ standard were unconstitutional and the court’s injunction restrained the police from stopping Gomez under the guise of either a vagrancy observation or spot check. III I turn now to the question of remedy. We have said that the District Court found Gomez had been the victim of unconstitutional police action. The question that court must face on remand is whether this conduct is sufficiently widespread to sustain class action relief. It is important to note that we are not here faced with the mere assertion of a solitary isolated incident, as we were in Long v. District of Columbia, where the court observed: In [Gomez] there was an official, publicly adopted policy . . . under attack. There was no question that the procedures objected to occurred regularly and would occur again in the future. The President’s 1967 Crime Commission suggested that the courts recognize “the importance of the administrative policymaking function of [the] police” and “take appropriate steps to make this a process which is . articulate and responsive to external controls appropriate in a democratic society.” Likening the police policymaking function to that of an administrative agency, the Commission called on the courts to develop judicial remedies that would “require the law enforcement agency to articulate its policy and to defend it, and if the challenge is successful to change the policy.” The Commission specifically referred to the need for such an articulation and review of police policies about street investigative stops. The American Bar Association has also focused on the need for providing positive guidance to the police, “rather than concentrating solely on penalizing improper police conduct,” as by application of the exclusionary rule. The ABA Report specifically approved of “injunctive actions to terminate a pattern of unlawful conduct,” The class action injunctive suit is one means by which the police can be required to identify, articulate, and defend, as well as be afforded an opportunity to change, their official policies and practices. The class action, by its very nature, focuses on the broad policy rather than the individual incident. Hence, it provides the kind of positive guidance suggested by the ABA and the kind of remedy called for by the Crime Commission. But, it can only be a workable remedy if there is not an intolerable burden on a petitioner to demonstrate the widespread scope of application of an articulated police policy. It is illogical, if not irrational, to require a plaintiff to establish that the five thousand men and women of the Metropolitan Police Department are doing what they have been instructed to do. Rather, where a petitioner shows that a police practice, as described in official communications or regulations, is unconstitutional, the burden of going forward should shift to the police on the question of whether the application of the practice is widespread. IV The already lengthy history of this litigation indicates that it may yet be far from over. As to the interim period, the record suggests the propriety of a preliminary injunction against spot checks not meeting Terry standards. The appellant has not requested relief pendente lite; but, on remand, the District Court may properly entertain a petition for such relief. The requirements are as follows: 1) the party in whose favor the relief is to run must make a strong showing that he is likely to ultimately prevail on the merits ; 2) there must be a danger of irreparable injury; 3) to be balanced against the extent to which the relief would harm the other party; and 4) the court must determine where lies the public interest. As to the likelihood of appellant’s success on the merits, it is already clear that the spot check procedure does not meet the test articulated in Terry. The issue on remand is the proper scope of relief. The official police documents describing spot checks and the affidavits of the appellant and other citizens who have been subjected to unlawful street stops and interrogations, if accurate, would support the conclusion that the spot check procedure is sufficiently widespread to justify an injunction in favor of the class suggested by appellant. But those affidavits were not before the District Court nor were they properly before this court. The District Court should also consider to what extent its limited relief has been effective to protect the appellant. Evidence has been proffered to us that the appellant himself has been stopped twice more since the entry of that order. Thus the question arises whether the rights of appellant or any individual can be adequately protected without protecting those of the public generally. It is hardly likely that the appellant is the only person being stopped and interrogated pursuant to the unconstitutional spot check procedures. “[O]nce [an unconstitutional practice] is found, . . . the court must order ... it discontinued [and its] decree may not — either expressly or impliedly — authorize [its continuation] against others.” The District Court will also have to determine whether there is a danger of immediate and irreparable injury. It may find that if preliminary relief is not granted, no protection will be afforded the public from these unconstitutional street stops pending this litigation — since whatever permanent injunctive or declaratory relief is ultimately granted will have only prospective effect. The court could thus measure the cost of its delay in terms of the infringements on the constitutional rights of all those citizens who, in the months or years before this case reaches its long overdue conclusion, will be illegally detained by the police. The value of the resultant loss of constitutional rights is neither easily measurable nor, as a practical matter, fully compensable in dollars and cents. The court may not ignore what might be lost by the government should a preliminary injunction issue. Courts certainly should not involve themselves unnecessarily in police matters and should consider the degree to which proper activity and discretion may be curtailed by the preliminary relief. But if unconstitutional street stops are widespread, the police would properly be enjoined from undertaking them at all in the future. And if spot checks not meeting Terry standards are not widespread, what is lost by a narrowly drawn order restraining an uncommon practice ? The final element to be weighed by the District Court is the public interest. In this inquiry, I do not think the court can ignore who the appellant and his lawyer are. The appellant is a poor man and a member of a racial minority. The President’s 1967 Crime Commission observed that police field interrogations are directed predominantly at and often conducted indiscriminately among that very class of citizens. As a result, the Commission warned, street stops are a major source of friction between police and minority groups, creating resentment of the police in the urban ghettos. It would surely seem in the public interest to minimize such friction by at least insuring that street stops are carried out in a way consonant with Constitutional guarantees V The guarantees of the Constitution exist for. all men, rich and poor alike. But to say that such rights exist for all men is only meaningful if both rich and poor have the means to secure them. Since appellant is a poor man, he could not himself afford the crippling cost of this extended litigation. He would not be before the courts today were it not for the voluntary representation of the American Civil Liberties Union, whose resources, it now appears, may be insufficient for the burdens imposed by the courts. The court has a moral as well as a legal obligation to be mindful of these matters in considering this case. Nonetheless, the court today - is sending appellant back to the District Court once more without meaningful relief and without any guidelines for that court’s consideration of an appropriate remedy. The court is, in effect, sending appellant back down to the bottom of the hill that he began climbing five long years ago, and instructing him to begin anew. In my view, the District Court should be instructed on remand to consider the affidavits presented to us, as well as other matters, in accordance with some guidance from us for the determination of appropriate interim relief. VI The complaint in this case has been before the courts for more than five years. The police have been defending on the ground that their spot check procedure is proper. It may then well be that they have been engaging in that practice every day, all day long, while the complaint is unresolved. Since we piously refrain from expediting the solution, we are part of the problem. What credibility do we then have in urging the victims of police misconduct to rely on the courts — not on the streets — to redress their grievances? . Our earlier decisions in this case are Gomez v. Layton, 129 U.S.App.D.C. 289, 394 F.2d 764 (1968), and Gomez v. Wilson, 139 U.S.App.D.C. 122, 430 F.2d 495 (1970). . See Hall v. United States, 148 U.S.App.D.C. 42, 48-49, 459 F.2d 831, 837-838 (en banc 1972); Ricks v. District of Columbia (Ricks I), 134 U.S.App.D.C. 201, 212-214, 414 F.2d 1097, 1108-1110 (1968); Ricks v. United States (Ricks II), 134 U.S.App.D.C. 215, 219-220, 414 F.2d 1111, 1115-1116 (1968). . A more detailed account of appellant’s two encounters with the police is found in the District Court’s opinion on the second remand, Gomez v. Wilson, 323 F.Supp. 87, 92 (D.D.C.1971). . D.C.Code §§ 22-3302 to 22-3306 (1967). This statute is to be distinguished' from the District’s narcotic vagrancy law, D.C. Code § 33-416a (1967). . Gomez v. Layton, supra note 1, 129 U.S.App.D.C. at 291, 394 F.2d at 766. . Supra note 2. . Only subsections (1), (3), and (8) of D.C.Code § 22-3302 (1967) were declared invalid. 134 U.S.App.D.C. at 214, 414 F.2d at 1110. Subsection (2) had previously been repealed. Act of June 29, 1953, ch. 159, § 209, 67 Stat. 97. This left subsections (4), (5), (6), (7), and (9) still standing. . Gomez v. Wilson, supra note 1, 139 U.S.App.D.C. at 125, 430 F.2d at 498. . Gomez v. Wilson, supra note 3, 323 F.Supp. at 93. . Appellees do not cross-appeal the injunction against them or the direction that the vagrancy observations be expunged. These unappealed portions of the District Court’s order have thus' become final, and we are without jurisdiction" to reconsider them. Fed.R.App.P. 4(a); Hodgson v. United Mine Workers, 153 U.S.App.D.C. 407, at 413, 473 F.2d 118 at 124 (1972); Weedon v. Gaden, 136 U.S.App.D.C. 1, 5, 419 F.2d 303, 307 (1969); Lord v. Helmandollar, 121 U.S.App.D.C. 168, 170, 348 F.2d 780, 782 (1965), cert. denied, 383 U.S. 928, 86 S.Ct. 929, 15 L.Ed.2d 847 (1966). Consequently, we have no occasion to probe the validity of the District Court’s decision on those aspects of the litigation, or the factual findings or legal conclusions underlying it. But see separate opinion, post pp. 423-424 et seq. So much of the court’s decision, right or wrong, is now impregnable, and for our purposes we fully accept it as such. . See note 7, supra. . Supra note 2. . 134 U.S.App.D.C. at 217, 414 F.2d at 1113. . These include (a) a memorandum dated February 17, 1969, from the Chief of Police to members of the force, which discontinued vagrancy observations and arrests in certain instances but condoned the practice of questioning and reporting on “persons engaged in suspicious activity (b) a memorandum dated December 19, 1969, to Second District police regarding utilization of a traffic check system to stop and report on motorists “in suspicious circumstances(c) a memorandum dated January 13,1970, to Second District officers regarding utilization of the traffic check procedures to stop “suspicious persons on foot;” and (d) a memorandum dated June 12, 1970, to Second District police regarding utilization of a form to record observations of vehicles and “all suspicious persons found loitering about this area.” . The “spot check” form is to be filled out on all suspicious vehicles and persons with such information as the location, date and time of the observation and the name, address and description of the individual observed. The vehicular spot check was sustained in Palmore v. United States, 290 A.2d 573, 580-584 (D.C.App.1972), but that case is now undergoing review by the Supreme Court. 409 U.S. 840, 93 S.Ct. 66, 35 L.Ed.2d 79, 41 U.S.L.W. 3158, 3183, 3429, 3456. . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). . Terry v. Ohio, supra note 16, 392 U.S. at 20-27, 88 S.Ct. 1868; Adams v. Williams, supra note 17, 407 U.S. at 145-156, 92 S.Ct. 1921. . In describing these guidelines in Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927 (1972), the court said: The guidelines provide that in order to stop an individual an officer must have a “reasonable suspicion” that the person is committing, has committed, or is about to commit any felony or misdemeanor prosecutable by the U.S. Attorney. . . . The procedures stress that stops should not be used to harass citizens and there are a number of limitations designed to curb the use of investigatory stops. Id. at 931. . Supra note 2. . Supra note 19. . In Hall, we reversed a conviction predicated on possession of narcotics seized upon the accused’s arrest under one of the subsections of the District of Columbia narcotic vagrancy statute, D.C. Code § 33-416a (1967), which had been held unconstitutionally vague in Ricks II, supra note 2, because conduct ostensibly within the purview of that subsection does not ipso facto establish probable cause for the arrest. In Long, we affirmed a District Judge’s refusal to convene a three-judge court, and his dismissal of a constitutional challenge to D.C.Code § 4-140a (Supp. IV 1971) and 18 U.S.C. § 3501 (a)-(c) (1970), which stemmed from a stop and frisk in a jewelry store. . Long v. District of Columbia, supra note 19, 469 F.2d at 932, 934. . E. g., Thorpe v. Housing Authority, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); Longshoremen’s Int’l v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 98 L.Ed. 650 (1948); United Pub. Workers v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 91 L.Ed. 754 (1947). . United States v. Petrillo, 332 U.S. 1, 12, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 210-213, 55 S.Ct. 187, 79 L.Ed. 281 (1934); City of Hammond v. Schappi Bus Line, 275 U.S. 164, 171-172, 48 S.Ct. 66, 72 L.Ed. 218 (1927); Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-549, 44 S.Ct. 405, 68 L.Ed. 841 (1924) . These incidents are claimed to have taken place on June 8, 1972, and in August, 1972. . Appellant alleges that on June 8, 1972, one of the officers wrote something on a card during their conversation with him. . And, exercising our authority to judicially notice the record in other litigation in this court, see Craemer v. Washington, 168 U.S. 124, 129, 18 S.Ct. 1, 42 L.Ed. 407 (1898); Butler v. Eaton, 141 U.S. 240, 243-243, 11 S.Ct. 985, 35 L.Ed. 713 (1891); Zahn v. Transamerica Corp., 162 F.2d 36, 48 n. 20 (3d Cir. 1947), we have scrutinized affidavits of still other citizens recounting similar experiences. Appellant’s Petition for Rehearing and Suggestion for Rehearing En Banc, at 415, Long v. District of Columbia, supra note 19. . 28 Ü.S.C. § 2106 (1970). . See Wells Fargo & Co. v. Taylor, 254 U.S. 175, 182, 41 S.Ct. 93, 65 L.Ed. 205 (1920); Rogers v. Lion Transfer & Storage Co., 120 U.S.App.D.C. 186, 187, 345 F.2d 80, 81 (1965); Mauro v. Packard Motor Car Co., 215 F.2d 590, 592 (3d Cir. 1954); Routzahn v. Brown, 95 F.2d 766, 769 (6th Cir. 1938); United States Cartridge Co. v. Powell, 186 F.2d 611, 614 (8th Cir.), cert. denied, 341 U.S. 936, 71 S.Ct. 855, 95 L.Ed. 1364 (1951). . See Byrd v. Blue Ridge Rural Elec. Co-operative, 356 U.S. 525, 540, 78 S.Ct. 893, 2 L.Ed.2d 953 (1968); United States v. Shotwell Mfg. Co., 355 U.S. 233, 243, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957); Willing v. Binenstock, 302 U.S. 272, 277, 58 S.Ct. 175, 82 L.Ed. 248 (1937); Rogers v. Lion Transfer & Storage Co., supra note 30, 120 U.S.App.D.C. at 187, 345 F.2d at 81; Alabama Polytechnic Institute v. District of Columbia, 102 U.S.App.D.C. 83, 86, 250 F.2d 408, 411 (1957). . “Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.” Fed.R.Civ.P. 15(d). . E. g., McHenry v. Ford Motor Co., 269 F.2d 18, 25 (6th Cir. 1959); Howard v. Jennings, 141 F.2d 193, 195 (8th Cir. 1944); Schempp v. School Dist. of Abington Township, 195 F.Supp. 518, 519 (E.D.Pa.1961). . E. g., Griffin v. County School Bd., 377 U.S. 218, 226-227, 84 S.Ct. 1226, 12 L.Ed. 2d 256 (1964); United States v. National Screen Serv. Corp., 20 F.R.D. 226, 227-228 (S.D.N.Y.1957). Griffin v. County School Bd., supra, is especially instructive. The school board was one of four involved in the decision in Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), wherein the Court held state-imposed racial segregation in public schools unconstitutional and directed the issuance of orders requiring the admission of students to such schools on a racially nondiseriminatory basis. The school board, however, closed the county’s public schools and refused to reopen them, and participated in a plan assisting attendance at private schools operated for white children only. A supplemental complaint was thereafter filed in the original action charging use of state funds to support segregated schools and seeking an injunction compelling the reopening of the public schools. In sustaining the propriety of that procedure, the Court said: Rule 15(d) of the Federal Rules plainly permits supplemental amendments to cover events happening after suit, and it follows, of course, that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice. 377 U.S. at 227, 84 S.Ct. at 1231. . See note 32, supra. See also United States v. L. D. Caulk Co., 114 F.Supp. 939, 941 (D.Del.1952); Ebel v. Drum, 55 F.Supp. 186, 188 (D.Mass.1944); Slavenburg Corp. v. Boston Ins. Co., 30 F.R.D. 123, 126 (S.D.N.Y.1962); Kraushaar v. Leschin, 4 F.R.D. 144, 145 (E.D. Pa.1944). . The separate opinion, post pp. 425-426 et seq. While agreeing that a remand is necessary, asserts that we should facilitate the completion of this litigation by offering guidance to the District Court. Because we do not adopt the exposition the opinion makes, it accuses us of impairing the credibility of the court. The only substantial “guidance” which the opinion volunteers, however, consists of a discussion of the feasibility of a preliminary injunction against spot checks pending conclusion of the remand. We would not presume to instruct experienced counsel or a trial judge more than thirty years on the bench as to the well known criteria for granting such injunctions. Moreover, appellant already has a permanent injunction affording him individually every bit of the protection asked in his complaint, and obviously has also the prerogative of charging any violation of that injunction as a contempt of court. To be sure, a preliminary injunction, if granted, would ban spot cheeks temporarily while the proceedings continue, but it would not bring about the ultimate determination on the merits any sooner. Nor, despite the substantial amount of “guidance” proffered, do we find any suggestion in the separate opinion that would shorten the dispositional process one whit. We cannot imagine a. more serious threat to the court’s credibility than a promise that hardly could be fulfilled. . The complaint invoked jurisdiction pursuant to 28 U.S.C. §§ 1331(a), 1343(3) (1970), and D.C.Code § 11-521 (a)(1) (1967). . See text infra at notes 43-46. . See text infra at notes 45-57. . See text infra at notes 58-70. . E. g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Louisville & N. R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); King Bridge Co. v. Otoe County, 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623 (1887); Mansfield, C. & L. M. Ry. v. Swan, 111 U.S. 379, 382-383 (1884). . Since each of the two previous appeals in this case was from a pretrial dismissal of the action by the District Court, see text supra at notes 5-8, we have had no previous call to scrutinize the District Court’s jurisdiction. . “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . . .” 28 U.S.C. § 1343(3) (1970). . “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983 (1970). . 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (U.S.1973). . Id. at 4131. . “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331(a) (1970). . Appellant’s claim invoked the Fourth Amendment’s safeguard against unreasonable seizures of the person, e. g., Terry v. Ohio, supra note 16, 392 U.S. at 8-9, 88 S.Ct. 1868, and the Fifth’s protection against deprivation of liberty of movement without due process of law, e. g., Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). . The Supreme Court has admonished that “in suits against federal officers for alleged deprivations of constitutional rights, it is necessary to satisfy the amount-in-controversy requirement for federal jurisdiction.” Lynch v. Household Finance Corp., 405 U.S. 538, 547, 92 S.Ct. 1113, 1119, 31 L.Ed.2d 424 (1971). The federal courts have for the most part adhered to this rule. See Wolff v. Selective Serv. Local Bd. No. 16, 372 F.2d 817, 826 (2d Cir. 1967); Spock v. David, 469 F.2d 1047 (3d Cir. 1972), at 8; McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973), at 6; Goldsmith v. Sutherland, 426 F.2d 1395, 1397 (6th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 353, 27 L.Ed.2d 270 (1970); Giancana v. Johnson, 335 F.2d 366, 369 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S.Ct. 718, 13 L.Ed.2d 702 (1965); Stinson v. Finch, 317 F.Supp. 581, 586 (N.D.Ga.1970); Boyd v. Clark, 287 F.Supp. 561, 564 (S.D.N.Y.1968), aff’d without reaching the jurisdictional question under § 1331(a), 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969). No difference in principle results merely from the fact that appellant’s suit was against District officials since no more for that suit than for one against federal officers was there general federal jurisdiction in the circumstances presented. The need to meet the jurisdictional amount requirement in § 1331(a) suits to vindicate fundamental rights has been aptly described as “an unfortunate gap in the statutory jurisdiction of the federal courts,” Wolff v. Selective Serv. Local Bd. No. 16, supra, 372 F.2d at 826, and some commentators have argued for its abolition in such cases. See American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 172 (1969); C. Wright, Federal Courts § 32, at 110 (2d ed. 1970); Currie, The Federal Courts and the American Law Institute (Part II), 36 U. Chi.L.Rev. 268, 295 (1969). See also Note, The Constitutional Implications of the Jurisdictional Amount Provision in Injunction Suits Against Federal Officers, 71 Colum.L.Rev. 1474 (1971). . Baker v. Carr, 369 U.S. 186, 199, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Bell v. Hood, 327 U.S. 678, 681-682, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Chasis v. Progress Mfg. Co., 382 F.2d 773, 776 (3d Cir. 1967) ; Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 (5th Cir.), cert, denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967) ; Stanturf v. Sipes, 335 F.2d 224, 227 (8th Cir. 1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed .2d 567 (1965). . Although the value of certain rights may be difficult o'f precise measurement, that difficulty does not make the claim nonjusticiable under Section 1331(a). Spock v. David, supra note 49, at 8. Absolute certainty as to the amount is not essential ; it suffices that there is a present probability that the damages or the right sought to be protected meet the statutory requirement. Friedman v. Machinists Int’l, 95 U.S.App.D.C. 128, 130, 220 F.2d 808, 810, cert. denied, 350 U.S. 824, 76 S.Ct. 51, 100 L.Ed. 736 (1955). . St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Gillentine v. McKeand, 426 F.2d 717, 720 (1st Cir. 1970); Arnold v. Troccoli, 344 F.2d 842, 845 (2d Cir. 1965); Spock v. David, supra note 49, at 8; Fireman’s Fund Ins. Co. v. Railway Express Agency, 253 F.2d 780, 782 (6th Cir. 1958). . For a discussion of how the amount in controversy may be determined where injunctive relief is sought, see Tatum v. Laird, 144 U.S.App.D.C. 72, 76 & n. 6, 444 F.2d 947, 951 & n. 6 (1971), rev’d on other grounds, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). See also C. Wright, Federal Courts § 34 (2d ed. 1970); W. Barron & A. Holtzoff, Federal Practice and Procedure § 24, at 111-113 (Wright ed. 1960). Some courts compute the amount on the basis of the value to the plaintiff of the right he seeks to protect. See, e. g., Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 126, 36 S.Ct. 30, 60 L.Ed. 174 (1915). Others look to the pecuniary result to either party which the judgment would produce. See, e. g., Ronzio v. Denver & R. G. W. R.R., 116 F.2d 604, 606 (10th Cir. 1940). This is the preference of Professor Wright, see C. Wright, Federal Courts § 34, at 119 (2d ed. 1970), and the rule we favor. Tatum v. Laird, supra, 144 U.S.App.D.C. at 76 & n. 6, 444 F.2d at 951 & n. 6. . See, e. g., Jaconski v. Avisum Corp., 359 F.2d 931, 934 (3d Cir. 1966); Yoder v. Assiniboine & Sioux Tribes, 339 F.2d 360, 362 (9th Cir. 1964). . McNutt v. General Motors Acceptance Corp., supra note 41, 298 U.S. at 189, 56 S.Ct. 780; Buck v. Gallagher, 307 U.S. 95, 102, 59 S.Ct. 740, 83 L.Ed. 1128 (1939); Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936). . There is considerable disagreement as to whether a valuation is possible where basic civil rights are at stake and the claim is for equitable rather than financial redress. At one end of the spectrum are the courts which have held that such rights are incapable of monetary valuation, and thus that no jurisdiction lies under § 1331(a). See Goldsmith v. Sutherland, supra note 49, 426 F.2d at 1398; Giancana v. Johnson, supra note 49, 335 F.2d at 369; Boyd v. Clark, supra note 49, 287 F.Supp. at 564. On the opposite end are courts and judges espousing the view that some rights are so fundamental that their inherent worth must be equal to any amount set for jurisdictional purposes. See Giancana v. Johnson, supra note 49, 335 F.2d at 371 (dissenting opinion); West End Neighborhood Corp. v. Stans, 312 F.Supp. 1066, 1068 (D.D.C.1970); Cortright v. Resor, 325 F.Supp. 797, 809 (S.D.N.Y.), rev’d on other grounds, 447 F.2d 245 (1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); Boyd v. Clark, supra note 49, 287 F.Supp. at 568 (dissenting opinion); Murray v. Vaughn, 300 F.Supp. 688, 695-696 (D.R.I.1969). The source of much of the discord in this area is the oft-quoted statement in Justice Stone’s opinion in Hague v. CIO, 307 U.S. 496, 529, 59 S.Ct. 954, 970, 83 L.Ed. 1423 (1939), that “[tjhere are many rights and immunities secured by the Constitution, of which freedom of speech and assembly are conspicuous examples, which are not capable of money valuation, and in many instances, like the present, no suit in equity could be maintained for their protection if proof of the jurisdictional amount were prerequisite.” We are constrained to point out here that this declaration represented the view of only two members of the Court, a view which was diametrically opposed by other members. Id. at 507-508, 59 S.Ct. at 960 (opinion of Justice Roberts). The statement has never been adopted by a majority of the Court in any subsequent case, and its efficacy became the more doubtful when the Court recently concluded that “the dichotomy between personal liberties and property rights is a false one.” Lynch v. Household Finance Corp., supra note 49, 405 U.S. at 552, 92 S.Ct. at 1122. With the remarkable expansion of remedies in damages to enable redress of invasions of an incalculable variety of personal interests, monetary valuation of fundamental civil rights seems hardly impossible today. Surely it was not impossible in this case. Compare Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L. Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 684-685, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Pinkerton Nat. Detective Agency v. Stevens, 108 Ga.App. 159, 132 S.E.2d 119, 124 (1963); Lukas v. J. C. Penney Co., 233 Or. 345, 378 P.2d 717, 721 (Or.1963); Cullen v. Dickenson, 33 S.D. 27, 144 N.W. 656, 658 (1913). By our analysis, the value which a particular right may command in a given case is a different question from its susceptibility to any pecuniary valuation at all. As a matter of pure logic, the ability to attach a money value to a right is not necessarily the ability to assign it a value satisfying the jurisdictional requirement of § 1331(a). In Hague v. CIO, supra, three members of the Court felt that asserted rights of free speech and assembly had to meet the jurisdictional-amount test, and two others that it was impossible for them to do so. 307 U.S. at 507-508, 529-531, 532, 59 S.Ct. 954. The continuing undifferentiated application of that test and the assimilation of personal and property rights hardly signals an imminent departure from that aspect of Hague. See Lynch v. Household Finance Corp., supra note 49, 405 U.S. at 542, 546-552, 92 S.Ct. 1113. On the contrary, only recently this court adhered to the Hague approach. Tatum v. Laird, supra note 53, 144 U.S.App.D.C. at 74-76, 444 F.2d at 949-951. So notwithstanding a deep-seated feeling that price-tagging of fundamental human rights is dangerous business, we realize that any automatic finding of the required amount in controversy just because such rights are in issue may be a more simplistic solution than § 1331(a) will tolerate. Moreover, we find it hard to believe that demonstration of jurisdictional amount is a difficult undertaking where the right asserted is truly basic. At least for the time being, then, we will cling to the middle course which permits complainants in suits under § 1331(a) for injunctive relief against federal and District officers to allege and show that the value of the rights sought to be protected exceeds the required jurisdictional amount. Compare Wolff v. Selective Service Local Bd. No. 16, supra note 49, 372 F.2d at 826 and Spock v. David, supra note 49, at 8. . Compare Hague v. CIO, supra note 56, 307 U.S. at 507-508, 59 S.Ct. 954. . “Except in actions or proceedings over which exclusive jurisdiction is conferred by law upon other courts in the District, the United States District Court for the District of Columbia, in addition to its jurisdiction as a United States district court and to any other jurisdiction conferred by law, has all the jurisdiction possessed and exercised by it on January 1, 1964, and has original jurisdiction of all . . . civil actions between parties, where either or both of them are resident or found within the District. . . .” D.C.Code § 11-521(a)(1) (1967). . See note 58, supra. . Now the Superior Court of the District of Columbia. D.C.Code § 11-901 (Supp. V 1972). . “In addition to other jurisdiction conferred upon it by law, the District of Columbia Court of General Sessions has exclusive jurisdiction of civil actions, including civil actions against executors, administrators and other fiduciaries, in which the claimed value of personal property or the debt or damages claimed does not exceed the sum of $10,000, exclusive of interest and costs, as well as of all crossclaims and counterclaims interposed in all actions over which it has jurisdiction, regardless of the amount involved.” D.C.Code § 11-961(a) (1967). . See Klepinger v. Rhodes, 78 U.S.App.D.C. 340, 341, 140 F.2d 697, 698, cert. denied, 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568 (1944); Sheherazade, Inc. v. Mardikian, 143 A.2d 512, 514 (D.C.Mun.App.1958). . Paley v. Solomon, 59 F.Supp. 887, 888 (D.D.C.1965); Sheherazade, Inc. v. Mardikian, supra note 62, 143 A.2d at 514; Psarakis v. Dukane, Inc., 84 A.2d 543, 544 (D.C.Mun.App.1951); Thomas v. Marvins Credit, 76 A.2d 773, 774 n. 1 (D.C.Mun.App.1950). . Brewer v. Simmons, 205 A.2d 60, 63 (D.C.App.1965); Villacres v. Haddad, 184 A.2d 634, 636 (D.C.Mun.App.1963); Paton v. District of Columbia, 180 A.2d 844, 845 (D.C.Mun.App.1962); Friedman v. District of Columbia, 155 A.2d 521, 522 (D.C.Mun.App.1959); Sheherazade, Inc. v. Mardikian, supra note 62, 143 A.2d at 514. . Thus, the Court of General Sessions possessed jurisdiction of an action to have a trust impressed upon funds amounting to $1,980 or alternatively for a money judgment, see Klepinger v. Rhodes, supra note 61, but not of an action by property owners to cancel a special tax assessment for paving improvements, see Patón v. District of Columbia, supra note 64, or a suit for an injunction against the assertion of a lien on property for an unpaid water bill and to restrain the delivery of a tax deed for the property, see Friedman v. District of Columbia, supra note 64. . See note 61, supra. . See text supra at notes 62-66. Compare Tatum v. Laird, supra note 53, 144 U.S.App.D.C. at 75 n. 5, 444 F.2d at 950 n. 5 and Peoples v. United States Dept. of Agriculture, 138 U.S.App.D.C. 291, 294, 427 F.2d 561, 564 (1970). . See note 62, supra. . District of Columbia Court Reorganization Act of 1970, Pub.L. No. 91-358, § 111, 84 Stat. 475 (1970). . D.C.Code § 11-501(1) (Supp. V 1972). . Gomez v. Wilson, 323 F.Supp. 87, 90 (D.D.C.1971). . Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097 (1968); Ricks v. United States, 134 U.S.App.D.C. 215, 414 F.2d 1111 (1968). . Memorandum Regarding Vagrancy . . . Observations and Arrests, Metropolitan Police Dept., Feb. 17, 1969, Joint App. at 241-243. . Memorandum Concerning Traffic Law Enforcement, Metropolitan Police Dept., Nov. 3, 1964, Joint App. at 275; see Second District Memorandum No. 237, Dec. 19, 1969, Joint App. at 277-278. . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . Second District Memorandum No. 230, June 12, 1970, Joint App. at 280-281. It is clear from the record that the other Districts in the Metropolitan Police Dept. use Form PD 725 in the same way. Joint App. at 264. . Second District Memorandum No. 14, Jan. 13, 1970, Joint App. at 282. . While there are distinctions between the arrest procedures following vagrancy observations and spot checks, those differences are irrelevant here, since we are concerned only with the initial stop and interrogation. The “spot check” does, however, involve a different question than the Police Dept.’s “stop and frisk” policies at issue in Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831 (1972) (en banc); Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927 (1972); or the lengthy guidelines referred to by the court, supra, at 415. . 392 U.S. at 16, 88 S.Ct. at 1877. But cf. Id. at 19, 88 S.Ct. 1868. If the pedestrian’s right to walk away were clearly articulated, the question of whether there was a seizure would, of course, be more difficult. But that is not the procedure at issue. Nor is the application of the spot check procedure on either a random basis or to vehicle stops involved in this case. For a discussion of vehicle spot checks, see United States v. Robinson, 153 U.S.App.D.C. 114, 141, 471 F.2d 1082 (1972,) (en banc), at 1109 (separate opinion of Chief Judge Bazelon). . Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L. Ed.2d 917 (1968). Adams deals only with whether a Terry stop can be based on the tip- of an informer. It does not liberalize the Terry standard as described herein. See Long v. District of Columbia, 152 U.S.App.D.C. 187, 95, 469 F.2d 927, 935 (1972) (Wright, concurring). . 392 U.S. at 21, 88 S.Ct. 1868, 1880. The Terry standard was later characterized by Mr. Justice Marshall as follows: [The] police officers . . . must have specific facts from which they can infer that an individual is engaged in criminal activity. . Adams v. Williams, 407 U.S. 143, 158, 92 S.Ct. 1921, 1929, 32 L.Ed.2d 612 (1972) (Marshall, J., dissenting). This articulation of the Terry standard provides a marked contrast to the statement of a District police officer as to his understanding of the standard for making a pedestrian spot check : Anyone that acts in a suspicious manner or draws my attention to them for whatever incident it might be, . well just a person of suspicious nature [may be stopped]. Deposition of Officer John Ferguson, Joint App. at 203, 210-211. . Commonwealth v. Swanger, 300 A.2d 66 (Sup.Ct., Pa.1973). . If the court did not find that the spot check was an infringement on the appellant’s constitutional rights it could not have purported to enjoin the police from stopping him in the course of a spot check. Clearly, however, the District Court does enjoin the police from stopping Gomez in the course of either a spot cheek or vagrancy observation as long as he is sober, well behaved, and in conformance with the law. . Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927, 933 (1972). . The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Police at 18 (1967). . Id. at 32. . Id. at 185-186; see note 28, infra, and accompanying text. . American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to The Urban Police Function (Approved Draft, 1973) at § 5.1, in 12 Crim.L.Rep. 3133 (1973). . The ABA did, however, vote its disapproval of legislation aimed at curtailing the application of the exclusionary rule. 12 Crim.L.Rep. 1077 (1973). See note 29, infra. . Standards Relating to The Urban Police Function, note 18, supra, at § 5.3. . See discussion at 428, infra. . See, e. g. Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111 (1969); District 50, United Mine Workers of America v. International Union, United Mine Workers of America, 134 U.S.App.D.C. 34, 412 F.2d 165 (1969). . Court’s opinion, supra, at 416 n. 26-28; affidavits submitted in support of a motion for rehearing and suggestion for rehearing en banc in Long v. District of Columbia, No. 71-1072 (D.C.Cir. Dec. 4, 1972); Daugherty v. United States, 272 A.2d 675 (D.C.C.A.1972) (appellant stopped on mere suspicion). . The affidavits recounting these events are again outside the record on appeal but may be submitted to the District Court in support of the motion for preliminary injunctive relief. . Potts v. Flax, 313 F.2d 284, 289 (5th Cir. 1963). . As the Supreme Court observed in Terry, 392 U.S. at 13-14, 88 S.Ct. at 1876, the exclusionary rule may not be effective protection in this context, since it is: . . . powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal. . . . The wholesale harassment by certain elements of the police community, of which minority groups . . . frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. . See, e. g., Lankford v. Gelston, 364 F.2d 197, 202 (4th Cir. 1966) (explaining why money damages are an inadequate remedy for police misconduct). . The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Police 183-185 (1967); see Terry v. Ohio, 392 U.S. 1, 14-15 n. 11, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Lankford v. Gelston, 364 F.2d 197, 204 (4th Cir. 1966); Tiffany, McIntyre & Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure, Encouragement and Entrapment 47-48 (1967). . By decreasing the incidence of police misconduct through . suits like the one before us, we may also alleviate the burden of the oft criticized exclusionary rule. Class action injunction suits against police misconduct thus appear to be one step towards a “workable remedy” suggested by the Chief Justice in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 421, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, Chief Justice, dissenting). . It is too well known for doubt that the resources of the ACLU do not permit the kind of far flung investigation which the history of this litigation seems to envision. And, according to recent reports, OEO legal assistance for the vindication of guaranteed rights is about to be withdrawn. See, e. g., Washington Post, February 17, 1973, Al col. 1. . See Boddie v. State of Conn., 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). . See notes 23 and 24, supra, and accompanying text.
f2d_477/html/0428-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "WILKEY, Circuit Judge: \n FAHY, Senior Circuit Judge, SPOTTSWOOD W. ROBINSON, III, Circuit Judge,", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellant, v. Lonnie GOODING, Appellee. UNITED STATES of America, Appellant, v. Leon F. BARNETT, Appellee. Nos. 71-1669, 71-1945. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 25, 1972. Decided March 26, 1973. Rehearing Denied May 11, 1973. Guy H. Cunningham, III, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Gregory C. Brady, Asst. U. S. Attys., were on the brief, for appellant. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellant. Kenneth Michael Robinson, Washington, D. C., entered an appearance for appellant in No. 71-1945. Herbert A. Rosenthal, Jr., Washington D. C. (appointed by this Court), for appellee in No. 71-1669. James A. Treanor, III, Washington, D. C., with whom Su2;anne Meyer, Washington, D. C. (both appointed by this Court), was on the brief for appellee in No. 71-1945. Before FAHY, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges. WILKEY, Circuit Judge: These cases arise on appeal by the United States from orders of the District Court suppressing certain evidence for use at trial on indictments for violations of the federal narcotics laws. The orders of the District Court rested on the view that the evidence was seized at night pursuant to warrants which failed to meet the statutory prerequisites for nighttime execution. 1. The Applicable Statute Just which statute’s requirements were applicable has been a matter of some debate. We can sympathize with U. S. District Judge Gesell’s feeling that “[t]he search warrant statutes of possible application to narcotics searches in this jurisdiction are a bramblebush of uncertainties and contradictions.” Unfortunately, in its search for clarity, the District Court wandered into the briar patch and came to a result, in both cases, with which we cannot agree. There are four potentially applicable standards which relate to the showing necessary before nighttime searches may be authorized. Two of these provisions deal with nighttime search as a general matter. The District of Columbia Court Reform and Criminal Procedure Act of 1970, 23 D.C.Code §§ 521-523 (Supp. V, 1972) provides that a warrant may direct execution of the search at any time of the day or night on certain specified showings of need, which were admittedly not made in this case. Rule 41(c) of the Federal Rules of Criminal Procedure allowed authorization of service anytime “if the affidavits are positive that the property . . . is in the place to be searched.”' Since the magistrates found only probable cause, the requisite “positivity” was admittedly lacking in the cases at bar. Two other provisions deal with nighttime search in the more limited area of offenses “involving controlled substances.” Title 33 of the D.C.Code § 414(h) (1967) as amended (Supp. V, 1972) provides that, when such offenses are involved, “the judge or commissioner shall insert a direction that it may be served at any time of the day or night.” However, § 414(c) arguably imposes an additional requirement that the complainant and any witnesses must be examined on oath before the warrant is issued. There is no showing that this requirement was met in these cases, so we will proceed on the assumption that § 414 would not validate the search warrants challenged here. Finally, the federal narcotics search warrant provision, 21 U.S.C. § 879(a), provides that A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate ... is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time. Since none of the other statutory standards were met, these search warrants can only be held valid if § 879(a), the specific federal statute, is the applicable provision. Judge Gesell in Gooding held that the general nighttime search provisions in the D.C.Code govern and require a special showing of need to search at night even in narcotics cases. In Barnett Judge Corcoran agreed. The District Court’s holding in Gooding was apparently based on the ground that a statute which is more specific and more recent should govern when conflict appears between such a statute and an older or more general law. While we agree with that general principle, we disagree with its application in this case. Although, as the District Court noted, 23 D.C.Code Sections 521-523 are more specific in the sense that they apply only to the limited geographical area of the District of Columbia, 21 U.S.C. § 879(a) is clearly the more specific or “special” provision as to subject matter — search in narcotics cases. Although § 879(a) went into effect before §§ 521-523, § 879(a) was considered and passed after §§ 521-523. Thus, the federal narcotics search statute — § 879(a) — is in fact both the more specific and the more recent provision. Viewed in that light, the apparent inconsistency between the general local nighttime search statute and the special federal nighttime narcotics search statute disappears. Sections 521-523 of Title 23 of the D.C.Code were enacted because (1) there was no general D.C. provision relating to the time for exeeution of search warrants and (2) Congress desired to insert criteria of “need” which were felt superior to the “positivity” test found in the Federal Rules. There is no reason to believe that narcotics searches were to be affected because, in contrast, (1) there was already a specific federal provision relating to narcotics searches (18 U.S.C. § 1405(1)), and (2) the “positivity” requirement needed no revision in regard to narcotics searches because it had not been applied in that context. When Congress later turned to the specific problem of standards governing the issuance of warrants by U.S. magistrates in narcotics cases, § 879(a) was its response to this narrower problem and that section must govern in these cases. 11. Application of the Statute Since we conclude that § 879(a) provides the relevant tests by which to judge the validity of these search warrants, the obvious next inquiry is whether those tests were met. Appellees contend that § 879(a) requires a special showing of a need to search at night. They argue that the magistrate must be satisfied that there is probable cause to believe-that grounds exist both “for the warrant” and “for its service at such time” (at any time of the day or night). The Government contends that no special showing of need is required and admit that, if it is, no such showing was made and the warrants were invalid. If appellees’ interpretation of the words of the statute were the only possible reading, we would have to agree with their position. However, the requirement of probable cause to search at night does not necessarily call for a special showing of need for nighttime as opposed to daytime search. Rather, at least as natural an interpretation would imply that this added clause, “for its service at such time,” requires only grounds for service at night in the sense that the narcotics sought will probably be present on the named property at night. Confronted with this ambiguity, we can gain guidance from the legislative history. Section 879(a) is a direct descendant of 18 U.S.C. § 1405(1). Indeed, the House Report notes that Subsection (a) of this section [21 U. S.C. § 879] incorporates 18 U.S.C. § 1405 and authorizes service of a search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. Magistrate issuing the warrant. Section 1405(1) was uniformly interpreted to require only a showing of probable cause to search in order for a warrant relating to narcotics to be executed at night. Despite the clear legislative history reflecting congressional intent not to change the prior law in this area, appellees argue that the change in wording must be viewed as significant. We cannot agree. If the necessary “grounds . . . for service at such time” involve more than a showing that the narcotics will be present on the premises at any time of the day or night, then presumably the additional showing required would concern a need to search at night. Appellees argue as much by suggesting that § 879(a) incorporates the standards set forth in the general D.C. nighttime search provision. However, the exact wording of § 879(a) was proposed by the Justice Department. It is inconceivable that, confronted with a creseendoing nationwide drug abuse problem, the Department would recommend to Congress a statute making the obtaining of nighttime search warrants just as difficult for narcotics offenses as in any other ease. If we accepted appellees’ argument that the federal statute’s requirements for nighttime search in narcotics cases are precisely coterminous with those of the local statute which applies in all types of cases, then whatever distinction Congress sought to establish by enacting a separate and special statute regarding federal narcotics offenses would be completely obliterated. And since we are construing a federal statute, that construction would be of uniform national application. On the other hand, if appellees concede that § 879(a) does set up its own federal standard, and if the showing required is less than that set out in 23 D.C.Code §§ 521-523, but more than mere probable cause to believe that the drugs will be found “at such time,” then no source for the applicable standard appears. Appellees are essentially arguing that great significance should be given to one possible reading of new language when an ambiguity is present, even when the legislative history suggests no intent to change the meaning of the section. Our refusal to follow that reasoning is fortified by the fact that the very same ambiguity was potentially present in the previous statute. Section 1405 provided that a search warrant could be served at any time if “there is probable cause to believe that grounds for the application exist.” It is possible to read, this statute to require a showing of need to search at night, since the “application” could be interpreted as seeking both (1) issuance of the warrant and (2) permission to search any time of the day or night, just as “probable cause to believe that grounds exist” (§ 879(a)) has been argued by appellees to require showings of “probable cause” and “grounds” both “for the warrant” and “for its service at such time.” The courts, of course, refused to read § 1405 that way. They required only a showing of probable cause to believe that narcotics would be found. Judges and legislators thoroughly conversant with the special, almost unique, problems of narcotics law enforcement have long recognized that effective searches for narcotics reasonably require different methods and timing. This is basically the reason that both the U.S.Code and the D.C.Code contain two distinct provisions, one for general searches, the other for narcotics searches. Deferring to “a legislative judgment that . . . special facts existed in searches concerned with federal narcotics violations,” one court noted that the “eonclusory statements about the need for speed and surprise that [a statutory construction parallel to the one sought by appellees here] . . . would cause to appear on affidavits for search warrants would be pointless.” There is absolutely no showing that this “legislative judgment” changed in any respect during the enactment of § 879(a) to replace § 1405. All the legislative history is to the contrary. Surely such a significant departure from prior policy would have drawn comment in the Senate and House Reports — especially in the context of a statutory scheme which had the overall purpose of much more stringent and effective suppression of narcotics trafficking. Since the new language cited by appellees does not even present a novel ambiguity, we must conclude that the previous meaning of the section “incorporated” in § 879(a) remained intact. It has been argued that a greater showing of grounds to search at night was intended because § 879 applies in a comprehensive fashion to all offenses involving “controlled substances.” In contrast, § 1405 applied to only certain specified narcotics offenses. Appellees suggest (without, however, pointing to any concrete evidence of such congressional intent) that a tougher standard for nighttime search was established as the quid pro quo in a legislative compromise extending the availability of nighttime search authorizations to a larger number of offenses. This argument proves too much. Although the “probable cause” required to be shown by § 879 could conceivably be characterized as ambiguous and potentially read to include probable cause to believe that special need exists to search at night, the one thing that is clearest about § 879 is that it is meant to apply the same standard for nighttime search authorizations with respect to every type of controlled substance. It is true that reading § 879 to incorporate the showing previously required by § 1405 does make obtaining nightime search warrants easier with regard to some categories of drugs. However, the alternative reading, espoused by appellees, suggests that the statute was intended to make nighttime searches more difficult in hard narcotics cases. As noted earlier, the Justice Department proposed the exact language of § 879. This argument from expanded coverage necessarily suggests that the Department desired a retreat from the test of mere probable cause to search in hard narcotics cases, and that the Department accomplished this with no comment in the legislative history, in the context of a measure aimed at increasing the effectiveness of law enforcement with regard to drugs. The Justice Department’s proposals have sometimes been the subject of inaccurate interpretation and speculation, but the suggestion that the Justice Department meant to make nighttime searches for heroin more difficult is indeed novel and patently off the mark. Another attempt to suggest that the general legislative intent was compatible with a greater required showing of grounds to search at any time implies that such a showing would be quite easy in heroin cases and would thus not impede law enforcement. That argument proves too little. Since the showing required by the reading of § 879 which appellees seek is a showing of grounds to search “at such time,” it must be noted that the requirement is of grounds to search “at any time of the day or night.” That is quite different from a requirement that there be grounds to search “at night.” The statute’s actual phrasing implies that the real interest required to be demonstrated is the interest in speed and surprise — grounds for search as soon as tactical considerations warrant despite the fact that the earliest possible moment may be after dark. If this showing would be easy in heroin cases, we can see no reason why it would not be just as routine in any other ease involving controlled substances. Speed and surprise are equally necessary to seize any type of drug which it is generally illegal to possess. Since all controlled substances can be the subject of abuse and may have to be ferreted out in “underground” markets, there is nothing about the nature of the drug sought which renders the need for speed and surprise any less likely or any less easily shown. Therefore the expanded applicability of § 879 to a larger variety of controlled substances does not necessarily imply a departure from the standards of the previous “incorporated” section. At worst, requiring a special showing of need to search “at any time of the day or night” would make nighttime search for narcotics more difficult. At best, and more probably, acceptance of appellees’ arguments here would generate pointless and eonclusory statements in future applications for warrants. Neither result would comport with the sound and clear legislative intent which was expressed when § 879(a) was enacted. We hold that the applicable statute, 21 U.S.C. § 879(a), requires only a showing of probable cause to believe that the narcotics will be found on the premises at any time of the day or night. Since both search warrants clearly met this standard, the District Court’s grant of the motions to suppress in these cases must be reversed and the cases are remanded for further proceedings consistent with this opinion. So ordered. FAHY, Senior Circuit Judge, concurring: I concur in the result reached by Judge Wilkey. I also concur generally in his opinion. In reaching the same conclusion, however, I have followed the course now stated, which is similar to but somewhat different from that adopted by Judge Wilkey. Rule 41(c) of the F.R.Crim.P., when each of the search warrants in these cases was issued, provided as follows with respect to issuance and contents: The warrant shall direct that it be served in the daytime, but if the affidavits [establishing the grounds for issuing the warrant] are positive that the property is on the person or in the place to be searched, the warrant may direct that it may be served at any time .... Subparagraph (g) of the Rule provided: This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. . . . Special provision was made by former section 1405 of Title 18 of the United States Code for any ease involving specified violations of the federal narcotics laws. United States v. Stallings, 413 F.2d 200 (7th Cir.), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969); United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966). In such cases section 1405(1) provided: a search warrant may be served at any time of the day or night if the judge or the United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist. . The Managers on the part of the House, in referring to section 1405, stated that the restrictions governing the issuance of night search warrants are thus liberalized with respect to specified laws relating to narcotic drugs and marijuana, “so that a search warrant may be issued in any such case at any time of the day or night if the judge or the United States Commissioner is satisfied that there is probable cause to believe that the grounds for the application exist.” Conference Rep.No.2546, 84th Cong., 2d Sess., 16 (1956), U.S.Code Cong. & Admin.News, p. 3320. The “positiveness” requirement of Rule 41(c) was referred to as inflexible and archaic, giving the peddler a distinct advantage over law enforcement forces and hampering efforts to deal with narcotics racketeering. S.Rep.No.1997, 84th Cong., 2d Sess., 8-9 (1956). The Report continues: “the element of ‘positiveness’ [of Rule 41] is no longer required and ‘probable cause’ alone is enough to obtain a night search warrant in narcotics cases . . . .” Id. at 9. The “positiveness” previously required of the affidavits by Rule 41(c) was that “the property is on the person or in the place to be searched,” as to which, under section 1405(1), the issuing judge or commissioner need have only “probable cause” to believe. 21 U.S.C. § 879(a), has now supersede ed section 1405(1). It provides as follows: A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time. This enactment I construe to be a restatement or interpretation of section 1405(1). It clarifies the meaning of that section, which had relieved search warrants for narcotics of the positivity requirement of Eule 41(c), substituting a probable cause requirement for a search at any time, thus giving the “flexibility” sought by Congress in narcotics cases. It does not seem to me that this interpretation is precluded by the fact that the controlled substances covered by section 879(a) are enlarged beyond those previously within the scope of section 1405. From the foregoing history I conclude that the requirement of section 879(a) that the issuing magistrate be “satisfied that there is probable cause to believe that grounds exist . . . for its service at such time” means, when considered with Eule 41(c) as it then read, that there is probable cause to believe that, in the case of narcotics, the “property is on the person or in the place to be searched,” in which event the warrant could direct that it be served at any time. Thus, in the case of narcotics, previously under section 1405(1) and later under section 879(a), if the judge was satisfied “that there is probable cause to believe” rather than “if the affidavits are positive” that the “property is on the person or in the place to be searched,” the warrant could permit execution at any time. It is in this manner I interpret the House Eeport, relied upon by the Government, which states: Subsection (a) of this section [21 U. S.C. § 879] incorporates 18 U.S.C. 1405 and authorizes service of a search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. magistrate issuing the warrant. Our question then, under section 879(a), is the factual one whether in each case the magistrate issuing the warrant, which authorized the search at any time of the day or night, was “satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time,” i. e., “that the property is on the person or in the place to be searched.” In the Gooding case the magistrate, referring to the facts set forth in the affidavit accompanying and made a part of the warrant, states: “I am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) above described .” The affidavit supports such a statement by the magistrate. The same is true of the situation in Barnett. These search warrants accordingly have met the requirements of section 879(a). The question then arises whether the searches were nevertheless invalid for failure to meet the standards for a nighttime search contained in either Title 23 or Title 33 of the District of Columbia Code. I consider first Title 23 in its relation to Title 33. The search warrant provisions of 23 D.C.Code §§ 521-525 (Supp. V, 1972) do not refer specifically to controlled substances. They apply generally to search warrants in this jurisdiction. The warrants in the cases before us fail to meet these standards for a nighttime search, namely, That there is probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances . . . . 23 D.C.Code § 522(c)(1) (Supp. V, 1972). A strong argument is available that these provisions were intended by Congress to apply in this jurisdiction to controlled substances as well as generally, notwithstanding 33 D.C.Code § 414, as amended (Supp. V, 1972), applies specifically to search warrants for narcotics, and subsection (h) of section 414 provides that the warrant shall direct that it be served at any time in the day or night. In United States v. Thomas, 294 A.2d 164, cert. denied, 409 U.S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972) the Court of Appeals of the District of Columbia spoke upon this matter as follows: We think it more in harmony with the obvious intent of Congress to give special treatment to narcotics law enforcement to view such provisions [relating to controlled substances] as the “special” ones (including D.C.Code 1967, § 33-414(h)) not subject to qualification by the general search warrant provisions of the U.S. and D. C.Codes (Rule 41(c), Federal Rules of Criminal Procedure, and § 23-522(c)(1)). The “special” area of legislation is narcotics law enforcement, not District of Columbia law enforcement .... 294 A.2d at 166-167. We need not inquire whether or not we are bound by this ruling; for, that aside, I am unable to give precedence to sections 521 to 525 of Title 23 over section 414 of Title 33, insofar as the search warrants now considered are concerned. True it is that Title 33 appears to have been overlooked in the legislative history of Title 23, see the Appendix to this opinion, but I think the court cannot overlook the fact that Title 33 was nevertheless reenacted at the same session that enacted the up-to-date general search warrant provisions of Title 23. I accordingly conclude that as between the two standards for a nighttime search for narcotics Title 33, section 414(h), prevails over Title 23, section 522(c)(1). Finally, does Title 33, section 414(h), control over section 879(a)? If so, the warrants were inadequate, for section 414(c) of Title 33 was not complied with. But I am persuaded that in a search warrant for narcotics involved in an alleged violation of the federal narcotics laws, as here, section 879(a) controls, as held by the Court of Appeals of the District of Columbia in Thomas. I reach this conclusion, however, upon somewhat different reasoning. It is that Chapter 4 of Title 33 of our Code, of which section 414(h) is a part, entitled “Narcotic Drugs,” is concerned only with violation of our local narcotics laws, that is, as section 414(a) states, “violation of the provisions of this chapter” — the District of Columbia Code chapter concerned with narcotics and defining related local crimes. By reason of the foregoing, since the present warrants, explicitly issued in connection with the alleged violation of the federal narcotic laws, complied with section 879(a), I conclude they were valid and that the evidence seized thereunder should not have been suppressed. I reach this conclusion reluctantly. Congress recently, in providing in Title 23 of our local Code the standards generally applicable for a nighttime search in this jurisdiction, clearly differentiated between a nighttime and a daytime search. The legislative history of those provisions give strong evidence of an intention to include searches for controlled substances. Searches at night, especially of a home, present a potentially greater intrusion upon privacy. See Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). And no significant burden would be imposed on the magistrate or other officials by requiring special reasons for a search at night even for narcotics, particularly of a private home. These considerations have now found expression in Rule 41 itself as amended effective October 1, 1972, subsequently to the issuance of the Gooding and Barnett search warrants. The Rule now provides in its subparagraph (c) as follows: The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime .... This provision would not have helped appellees had it been in effect when the present warrants were issued, for it is coupled with another provision, in sub-paragraph (h) of the new Rule, which defines the term “daytime” to mean “the hours from 6 a. m. to 10 p. m. according to local time.” The Gooding and Barnett warrants were each served before 10 p. m. local time. The salutary effect of the modification of subparagraph (c) of the Rule remains for consideration with respect to search warrants issued after its effective date. The result I reach in the present cases I think follows from the statutory situation existing when the Gooding and Barnett warrants were issued, a situation which in my opinion did not go beyond what is permissible under the Fourth Amendment. I accordingly concur in reversal. APPENDIX There is strong indication in the legislative history of 23 D.C.Code §§ 521-525 that Congress intended to apply these provisions to narcotics searches in this jurisdiction. In revising the provisions governing Criminal Procedure for the District of Columbia Congress was advised that other than the “inadequate” positivity rule of 41(c), F.R.Crim.P., the then existing D.C.Code had no provision dealing with nighttime searches. Mr. Donald E. Santarelli, Associate Deputy Attorney General of the United States stated: Mr. Chairman, we have also proposed a change in the standard [41(c), F.R. Crim.P.] for nighttime search warrant. As you know; the District of Columbia Code presently contains no provision at all governing the time for execution of a search warrant .... * * * * * * We have found that the positivity rule, positivity test, is inadequate. In fact, it is relatively unfair because of the greater potential intrusion on the privacy of persons from a nighttime search. There should be some justification for that search; not merely that you are positive that the evidence is there. * * * * * * This is for the protection of civil liberties and greater improvement over the positivity. Hearings on S.2869, S.2602, and S.2980, Before the Senate Comm, on the District of Columbia, 91st Cong., 1st Sess., Pt. 4 at 1389 (1969) (Hearings). See also, Statement of Mr. Thomas A. Flannery, U. S. Attorney for the District of Columbia, id. at 1416. The new provisions governing nighttime search warrants, 23 D.C.Code §§ 521-525, thus seem to have been enacted under the mistaken assumption that, notwithstanding Title 33 of the Code, The District of Columbia Code presently contains no provision at all governing the time for execution of a search warrant. H.R.Rep. No. 91-907, 91st Cong., 2d Sess. at 109 (1970) (H.R.Rep.). Moreover, the new provisions were intended to be comprehensive, S.Rep. No. 91-405, 91st Cong., 1st Sess. at 38-39 (1969), encompassing nighttime and no-knock searches for narcotics. See H.R.Rep., supra, at 109, including a statement of Mr. Charles T. Duncan, Corporation Counsel for the District of Columbia, that narcotics were a type of contraband, 23 D.C.Code § 521(d)(2), which “may be removed or destroyed if not seized forthwith or found only at nighttime.” Hearings, supra, Statement of Mr. Santarelli, at 1404. See also the testimony of Mr. Santarelli, id., at 1389-1390; the statement of Mr. Flannery, id., at 1417; and the statement of Mrs. Patricia Wald of the Neighborhood Legal Services, id., at 1493. It would seem from the above that Congress may have intended the new search warrant nighttime provisions to apply in the case of narcotics. This interpretation is further supported by the reason stated by the District Court in Gooding: Roughly sixty percent of the search warrants isued [sic] in the District of Columbia are related to violations of the narcotics laws. If Congress had intended to except federal narcotics search warrants from the requirements of 23 D.C.Code § 523(b), one would certainly expect the intention to be expressed in the statute or at least in the legislative history, possibly by reference to the special narcotic search statute then applicable in the District for local offenses. The Government has not directed the Court’s attention to any such indication and the Court has found none. (Footnote omitted.) 328 F.Supp. at 1007-1008. Yet we are faced with the reenactment of Title 33, with its section 414(h), authorizing search warrants for narcotics, executed at night, without compliance with such standards as Title 23 requires generally for searches at night. SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in the result: The thoughtful and excellently crafted opinions of my colleagues demonstrate convincingly that the orders appealed from cannot-stand. I concur in reversal and in much of their supporting reasoning. I differ, however, with their conclusion that 21 U.S.C. § 879(a) authorizes nighttime execution of search warrants in federal narcotic eases merely on a showing of probable cause to believe that a controlled substance is then present on the person or premises to be searched. I believe, too, that the affidavits underpinning the warrants issued in the cases at bar should be credited with a larger and more crucial role in the resolution of these cases than they have yet been assigned. To accommodate these two considerations, I record this separate position. I At the outset, I acknowledge agreement with my colleagues that Section 879(a) set the standard for' nighttime execution of the warrants before us. The careful analysis and thorough treatment which they have given this aspect of the litigation certainly needs no effort toward further elaboration. The task left for me is simply to summarize the major propositions which have persuaded me. While the Controlled Substances Act, of which Section 879(a) is a part, is not expressly made operative in the District of Columbia, it is clear that Congress intended the new law to have nationwide effect, and thus to encompass federal narcotic offenses which occur in the District. I see no conflict between Section 879(a) and D.C.Code § 33-414, which also is limited to execution of search warrants in narcotics cases, since the local provisions extend only to searches based on suspected transgressions of the District’s own drug laws. Moreover, statutes which are specific as to subject matter normally prevail over those which are less particularized in their area of concern. Nothing sufficient to override that principle appearing here, it follows that the federal narcotic search warrant procedures of Section 879(a) must take precedence over the general search warrant provisions of D.C.Code §§ 23-521 to 23-523 and, as well, the general service criteria set forth in Federal Criminal Rule 41(c). Our unanimous conclusion with respect to the applicability of Section 879(a) to the present cases is further buttressed by the canon that the more recent statute dominates the less recent for, as Judge Wilkey notes, Section 879(a) was considered and passed after enactment of Section 23-521 and its companion provisions. Additional support for our construction is derived from the requirement of the Controlled Substances Act that where one of its specifications so conflicts with a state law that the two cannot be read consistently, the federal regulation controls the field. I believe that such a conflict exists between Section 879(a) and the District provisions, and hence that effect must be given to the former as Congress has mandated. II In agreement with my colleagues up to this point, I now arrive at the place where our paths diverge. They hold that Section 879(a) works no change in its predecessor statute, 18 U.S.C. § 1405(1), which permitted search warrants in federal narcotic investigations to be served at any time of the day or night so long as the authorizing magistrate or judge was satisfied as to the existence of probable cause for the search. On the basis of the language of Section 879(a), which I consider to be very plain, I am unable to accept that interpretation. I perceive no ambiguity in the wording of Section 879 (a) which would require a probe into its legislative history. As a comparison of that section with-former Section 1405(1) readily reveals, the two provisions are not nearly identical. Congress did not reenact the earlier in the later without significant alteration; it changed the language of Section 1405(1) importantly by addition of the final clause — “and for its service at such time.” Reading that clause with the preceding part of the section and applying normal rules of English grammar, I can construe the whole to mean but one thing: for service of a search warrant at night, probable cause must be shown for the search itself and probable cause must be shown for service of the warrant “at such time.” Indeed, as Judge Kelly stated in dissent in United States v. Thomas, to hold otherwise would be to render the added words meaningless. In the face of an unambiguous statute, resort to legislative history serves no useful purpose. Here, although both of my colleagues resort to legislative comment on Section 879(a) to support their interpretation of that section, it seems to me that the comment introduces uncertainty not present in the section when examined alone. The House Report states that Section 879(a) “incorporates” former Section 1405 and authorizes anytime-service on “probable cause.” But the report intimates nothing as to whether the probable cause which it says must be established to the satisfaction of the magistrate or judge for service at “any time” is simply probable cause to search or, rather, probable cause to search at a particular time. This amphibology in the legislative history offers no clarification of what is already obvious to me from Section 879(a) itself. I am convinced that Section 879 (a) exacts more for a nighttime search than merely probable cause for a search. I cannot, however, accept appellees’ argument that Section 879(a) embraces the criteria for nighttime searches which are contained in the general search warrant provisions of D.C.Code §§ 23-521 to 23-523. To require compliance with those standards in order to activate Section 879(a) would be to strain its wording beyond any perceptible intent of Congress in enacting special measures to control the drug traffic. Whatever may have been its purpose in selecting the language of Section 879(a), it could hardly have sought to limit nighttime searches for controlled drugs as strictly as nighttime searches in non-drug cases. Nor am I persuaded to my colleagues’ view of that Section 879(a) countenances a direction for a nighttime search just on probable cause to believe that the sought-after drugs are then present on the person or the property to be subjected to the search. Unless there is a showing of probable cause to believe that the matter to be seized will be found by search of a designated person or place, a search warrant cannot issue at all. Consequently, my colleagues’ construction of Section 879(a)" would demand no more for a nighttime search than one in the daytime; in other words, no more than is prerequisite for any search. If, as I think, the last clause of Section 879(a) establishes a probable cause requirement for nighttime execution additional to probable cause to search, their construction reads that clause completely out of the section and would leave the door wide open to nighttime execution of any warrant licensing a search for controlled substances. In my view, the probable cause which Section 879(a) exacts for searches at night can be supplied only by circumstances demonstrating reasonable cause for a search at that particular time. Section 879(a) calls for something above and beyond the showing that would support a daytime search, and that would require a degree of justification outweighing the potentially more serious intrusion on privacy inherent in any nighttime search. Not all searches for controlled substances possess the same degree of urgency, nor do all applications for nighttime search warrants induce the same conviction of need. Some probable cause is more probable than some other, and some ultimately turns out to be a false alarm. A standard of reasonable cause which enables a realistic evaluation of the competing public and private interests accommodates the myriad situations confronting magistrates and judges far better than any inexorable rule possibly could. And such a standard serves well the legislative objectives underlying Section 879(a) while maintaining an appropriate sensitivity to the concern for privacy shared by the citizenry at large. The test of reasonable cause for nighttime execution does not demand a demonstration that drugs are positively on the premises at night, or that they could be found on the premises only at night, or that for some reason a search would be impossible in the daytime. It does summon some factual basis for a prudent conclusion that the greater intrusiveness of nighttime execution of the warrant is justified by the exigencies of the situation. The remaining question, then, is whether there was justification of that caliber in these cases. III Consideration of this question marks the point at which I am able to rejoin my colleagues — in the disposition of these appeals. For while I do not subscribe to the probable cause standard they espouse for nighttime searches under Section 879(a), I am satisfied that the warrants and supporting affidavits in these cases afforded ample foundation for allowance of such searches under the test I have endeavored to articulate. The affidavits in- the two eases are quite similar, and they portray very similar situations. The affiant, a police officer, was told by an informant of proven reliability that a named individual —in each case, the appellant — was selling narcotic drugs on specified premises. The informant advised of a recent purchase which he had made, and stated that he could transact another for the edification of the officer. The information supplied by the informant was then verified by a transaction, at the place and with the person previously specified, under controlled conditions leaving no doubt as to a sale of narcotics. In the recitals bearing vitally on the question at hand, the search warrants in both cases were identical. Each stated that the magistrate was “satisfied that there is probable cause to believe that” narcotics and narcotic paraphernalia “is being concealed on the” described premises. Each warrant proceeded to direct that it be served and that the search be made “at anytime in the day or night.” The service and search occurred in the nighttime within one day in one instance, and within three days in the other instance, after the verified on-premises drug purchase was made. Beyond cavil, the affidavit disclosed and the magistrate found reasonable cause for a nighttime search in each of these eases. The showing went beyond grounds for believing that narcotics were kept on the premises searched; it extended to ground for believing that a drug-peddling operation persisted there. Where, as here, it appears that a search is calculated not only to garner evidence of past crime but also to terminate a serious species of ongoing criminality, reasonable cause for a nocturnal intrusion is demonstrated. For this reason, I concur in the conclusion that there was an ample legal and factual basis for the searches, and in reversal of the orders suppressing their fruits. . Both Gooding and Barnett were charged with violating former 26 U.S.C. § 4704(a) (1964), Act of 16 August 1954, ch. 736, § 4704(a), 68 Stat. 550, repealed by Pub.L.No.91-513, Title III, § 1101(b)(3)(A), 84 Stat. 1292 (1970). Gooding was also charged with violating former 21 U.S.C. § 174 (1964), Act of 18 July 1956, ch. 629, Title I, § 105, 70 Stat. 570, repealed by Pub.L.No.91-513, Title III, § 1101(a)(2), 84 Stat. 1291 (1970). . Both warrants recited facts which were characterized as “in violation of Title 26 Section 4704(a) of the U.S.Code.” Both warrants further stated: [A]s I [the issuing magistrate] am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) above described and that the foregoing grounds for application for issuance of the search warrant exist. You are hereby commanded to search forthwith the (place) named for the property specified, serving this warrant and making the search (at any time in the day or night i) . . . i. The Federal Rules of Criminal Procedure provide: “The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is onllie person or in the place to be searched, the warrant may direct that it be served at any time.” (Rule 41(c) The warrant in Gooding was executed at 9 :30 p. m. on 12 February 1971, the day after its issuance. The warrant in Barnett was executed at 8:08 p. m. on 11 February 1971, the day it was issued. . United States v. Gooding, 328 F.Supp. 1005, 1008 (D.D.C.1971). . These sections became effective as of 1 February 1971, prior to the issuance of these warrants. . Section 521(f) (5) provides that the warrant shall contain a direction that it be executed during the hours of daylight or, where the judicial officer has found cause therefor, including one of the grounds set forth in section 23-522 (c)(1), an authorization for execution at any time of day or night. . . . . . The grounds set forth in Section 23-522 (c)(1) for execution of the warrant at any time are . that there is probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (O) the property sought is not likely to be found except at certain times or in certain circumstances .... . There is also an argument that 33 D.C. Code § 414(h) was impliedly repealed since 23 D.C.Code §§ 521-523 were intended to be comprehensive and were enacted under the (albeit incorrect) assumption that “[t]he District of Columbia Code presently contains no provision at all governing the time for execution of a search warrant. H.R.Rep.No.91-907, 91st Cong., 2d Sess. at 109 (1970).” Since our conclusions concerning these warrants do not rest on the application of 33 D.C.Code § 414(h), we need not reach this issue. However, we should note that the District Court firmly rejected this argument of implied repeal in United States v. Green, 331 F.Supp. 44 (D.D.C.1971). . See Part II of this opinion for a discussion of the application of § 879(a) to these warrants. . 328 F.Supp. 1005, 1008. . The District of Columbia Court Reform and Criminal Procedure Act of 1970, which included 23 D.C.Code §§ 521-523, was enacted on 29 July 1970 but did not become effective until 1 February 1971. The Controlled Substances Act, including 21 U.S.C. § 879, was enacted on 27 October 1970 and became effective, at least as to the provisions of § 879(a), immediately. . The District of Columbia Court of Appeals came to the same conclusion in United States v. Thomas, 294 A.2d 164, 166-167 (D.C.C.A.), cert. denied, 409 U. S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972): We think it more in harmony with the obvious intent of Congress to give special treatment to narcotics law enforcement to view such provisions [as § 879 (a) ] as the “special” ones not subject to qualification by the general search warrant provisions of the U.S. and D.C.Codes . . .' . The “special” area of legislation is narcotics law enforcement, not District of Columbia law enforcement. . And the “bramblebush” of statutes appears less forbidding. . The possibility that Congress thought there was no D.C. provision at all dealing with nighttime search warrants is discussed at note 6. That fact might relate to doubts about the continuing validity of 33 D.C.Code § 414(h), although that issue does not need to be decided in this case. However, even congressional intent to enact a comprehensive nighttime search statute when it passed 23 D.C.Code §§ 521-523 would not serve to negate its subsequent decision to reaffirm a specific and different rule for U. S. magistrates regarding narcotics nighttime searches in regard to federal violations — by passing 21 U.S.C. § 879(a). . See United States v. Stallings, 413 F.2d 200 (7th Cir. 1969), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969). See footnote 22, infra. . We have noted that, if the special local statute (33 D.C.Code § 414) is still valid, these warrants may not have met its requirement of examination under oath. However, § 414 of Title 33 is concerned only with “violations of the provisions of this chapter” (i. e., Chapter 4, entitled “Narcotic Drugs” — the local narcotic laws). Thus the requirements of § 414 (c), which were not demonstrated to have been met by the warrants in these cases, simply do not apply here because these warrants were issued for violations of federal law. . Appellant’s Reply Brief at p. 2, n. 5. . Section 879(a) was given this reading by the District of Columbia Court of Appeals in United States v. Thomas, 294 A.2d 164 (D.C.C.A.), cert. denied, 409 U.S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972). . Act of 18 July 1956, ch. 629, Title II, § 201, 70 Stat. 573, repealed by Pub.L.No. 91-513, Title III, § 1101(b)(1)(A), 84 Stat. 1292 (1970). This section provided, in pertinent part, that a “search warrant [relating to narcotics offenses] may be served at any time of the day or night if the judge of United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist.” . H.R.Rep.No.91-1444 (Part I), 91st Cong., 2d Sess. 54 (1970) (emphasis added). See U.S.Code Cong.Adm.News, 91st Cong., 2d Sess., at pp. 4621-22 (1970). Exactly tlie same language is contained in the Senate Report. S.Rep.No.91-613, 91st Cong., 1st Sess. 30-31 (1969). . United States v. Stallings, 413 F.2d 200, 207 (7th Cir. 1969), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969); United States v. Castle, 213 F.Supp. 52 (D.D.C.1962); United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966). . In Gooding, Judge Gesell conceded that “the legislative history [of 21 U.S.C. § 879(a)] indicates that no change from the prior law was intended.” 328 F.Supp. 1005, 1007. . 21 U.S.C. § 879(a) is part of the Controlled Substances Act, “legislation de- • signed to deal in a comprehensive fashion with the growing menace of drug abuse in the United States . . . through providing more effective means for law enforcement aspects of drug abuse prevention and control . . . . ” H.R.Rep. No. 91-1444 (Part I), 91st Cong., 2d Sess. 1 (1970) U.S.Code Cong. & Admin. News, p. 4567. . Section 1405(1) was intended to provide an exception to the inflexible and archaic requirement of “positivity” in Rule 41(c). See S.Rep.No.1997, 84th Cong., 2d Sess., 8-9 (1956). Rule 41(c)’s test required the affidavits to be “positive” about the fact that “the property is on the person or in the place to be searched.” The new provision, § 1405(1), merely changed the degree of certainty required as to that foot. Ignoring a potential ambiguity, the courts wisely consulted congressional intent and found, as we do here, no desire to establish an additional required showing of need when narcotics search was involved. . United States v. Castle, 213 F.Supp. 52, 53-54 (D.D.C.1962). . The District Court in Gooding stated that “[t]here is no suggestion that . . the need for nighttime warrants [is] any greater where narcotics offenses are involved rather than other crimes.” 328 F.Supp. 1005, 1008. That comment simply ignores the whole background and purpose of both 18 U.S.C. 1405(1) and 21 U.S.C. 879(a). See United States v. Castle, supra. . Both search warrants found probable cause to believe that the narcotics were being “concealed” on the relevant premises. Both incorporated affidavits which alleged that the drugs were being “secreted.” In the absence of any indication that such concealment was other than continuous, the natural inference would be that they could be found on the premises at any time of the day or night. In this context, any requirement of a more specific finding by the magistrate would be an absurd linguistic artificiality which the statute does not require. . Act of July 18, 1956, ch. 629, Title II, § 201, 70 Stat. 573, repealed by P.L. 91-513, Title III, § 1101(b)(1)(A), 84 Stat. 1292 (1970). . Such provisions included former sections 174 and 184(a) of Title 21 of the United States Code, and related violations of the Internal Revenue Code. . H.R.Rep.No.91-1444, 91st Cong., 2d Sess., Pt. 1 at 54 (1970) (hereinafter, H.R.Rep.No.91-1444b U.S.Code Cong. & Admin.News, p. 4621, and like language in the Senate Report, S.Rep.No.91-613, 91st Cong., 1st Sess., 30-31 (1969). . Some question may be raised about the applicability of section 879(a) in the District of Columbia in that Congress had failed specifically to include in the Act a special provision of applicability to the District of Columbia as it had done with respect to section 1405(2). I do not think the applicability of section 879(a) to this jurisdiction turns upon such a special provision, but upon the considerations advanced subsequently in this opinion. . Pub.L. No. 91-513, tit. II, 84 Stat. 1236, 1242 (1970), 21 U.S.C. § 801 et seq. (1970). . The national scope of the Act is apparent from 21 U.S.C. § 801 (1970), in which congressional findings as to the interstate and intrastate aspects of traffic in narcotics are enunciated. . Section 33-414 (a) provides : A search warrant may be issued by any judge of the Superior Court of the District of Columbia or by a United States commissioner for the District of Columbia when any narcotics drugs are manufactured, possessed, controlled, sold, prescribed, administered, dispensed, or compounded in violation of the pro visions of this chapter, and any such narcotic drugs and any other property designed for use in connection with such unlawful manufacturing, possession, controlling, selling, prescribing, administering, dispensing, or compounding, may be seized thereunder, and shall be subject to such disposition as the court may make thereof and such narcotic drugs may be taken on the warrant from any house or other place in which they are concealed. (emphasis supplied). . D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932); Kepner v. United States, 195 U.S. 100, 125, 24 S.Ct. 797, 49 L.Ed. 114 (1904). Compare Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957). . Fed.R.Crim.P. 41(c). At the time the warrants in controversy were issued and executed, Rule 41(c) authorized a direction for nighttime service only where the affidavit supporting the warrant was positive that the property to be seized was on the person or in the place to be searched. The positivity requirement has since been deleted, and Rule 41(c) now permits such a direction for reasonable cause shown. See note 16, infra. . Schick v. United States, 195 U.S. 65, 68-69, 24 S.Ct. 826, 49 L.Ed. 99 (1904); United States v. Hosmer, 76 U.S. (9 Wall.) 432, 435, 19 L.Ed. 662 (1869). . Ante p. 431. . Section 903 of the Act provides: No provision of this subchapter shall be construed as indicating any intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. 21 U.S.C. § 703 (1970). The District of Columbia falls within the Act’s definition of “State”. 21 U.S.C. § 802(24) (1970). . As I later point out, text infra at notes 14-15, the local provisions for nighttime execution of search warrants are considerably more stringent than that of § 879(a), and thereby conflict with the disposition of Congress to make federal narcotics searches at night less rather than more difficult than other types of searches. . Section 879(a) reads: A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time. . 294 A.2d 164 (D.C.App.), cert. denied, 409 U.S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972). In Thomas, a majority of the court construed § 879(a) as my colleagues do here. Id. at 166. . United States v. Public Util. Comm’n of California, 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953); Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); See also United States v. Rice, 327 U.S. 742, 752-753, 66 S.Ct. 835, 90 L.Ed. 982 (1946). . “Subsection (a) of this section incorporates 18 U.S.C. 1405 and authorizes service of a search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. magistrate issuing the warrant.” H.R.Rep. No. 91-1444 (pt. I), 91st Cong., 2d Sess. 54 (1970) U.S.Code & Cong.News, p. 4621. Identical language is used in the Senate Report, S.Rep. No. 91-613, 91st Cong., 1st Sess. 30-31 (1969). . D.C.Code § 23-522(c)(1) (Supp. V 1972) permits search warrants to be executed at any time of the day or night only upon probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances. . As the House Report states, the purpose of Congress in enacting the Controlled Substances Act was to deal with narcotic usage by more effective methods of law enforcement. See H.R.Rep. No. 91-1444 (pt. I), 91st Cong., 2d Sess. 1 (1970). . Sgro v. United States, 287 U.S. 206, 210-211, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Schoeneman v. United States, 115 U.S.App.D.C. 110, 113, 317 F.2d 173, 176 (1963); Rosencranz v. United States, 356 F.2d 310, 315-318 (1st Cir. 1966); Durham v. United States, 403 F.2d 190, 193-194 (9th Cir. 1968). See also Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Ramirez, 279 F.2d 712, 715 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960). . See text supra at notes 10-11. . The standard of “reasonable cause shown” has replaced the “positivity” requirement for nighttime searches under former Fed.R.Crim.P. 41(c). The Rule as amended reads in pertinent part: The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a federal magistrate to whom it shall be returned.
f2d_477/html/0444-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America v. George GRAY, Jr., Appellant. No. 72-1776. United States Court of Appeals, District of Columbia Circuit. March 30, 1973. Harry E. Middleton, Jr., Falls Church, Va. (appointed by this Court), was on the brief for appellant. Harold H. Titus, Jr., U. S. Atty., John A. Terry, Roger M. Adelman and Frederick C. Moss, Asst. U. S. Attys., were on the brief for appellee. Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM JAMESON United States Senior District Judge for the District of Montana. Sitting by designation pursuant to 28 U.S.C. § 294(d). PER CURIAM: On this appeal from a conviction of foreeable rape and burglary, the only issue is whether the testimony of the prosecutrix was sufficiently corroborated. Appellant urges that corroboration of the corpus delicti requires independent evidence tending to establish each and every material element of the offense. Specifically, he contends that because the Government’s proof as to penetration rested wholly on the complainant’s testimony, his conviction must be reversed. Although there are statements in Allison v. United States, 133 U.S.App.D.C. 159, 409 F.2d 445 (1969) and United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 (1969) that support appellant’s position, our more recent decisions make it clear that Allison and Bryant no longer reflect the controlling law. United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704 (1970); United States v. Huff, 143 U.S.App.D.C. 163, 165-166, 442 F.2d 885, 887-888 (1971); United States v. Jones, 155 U.S.App.D.C. -, 477 F.2d 1213 (1973). Simply put, the principle emerging from these cases is that the independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim’s account of the crime was not a fabrication. This rule is a flexible one, and the particular quantum of proof required will necessarily vary from case to case depending upon, for example, the age and impressionability of the prosecutrix and the presence or absence of any apparent motive to falsify or exaggerate. Such flexibility is responsive to the underlying rationale of the corroboration requirement — -the avoidance of baseless accusations — and it is far more consonant with the realities of the trial situation than a rule which would compel the Government to prove virtually its entire case twice: once by the victim’s testimony and again by independent evidence. Applying this standard to the facts of the present case, we find the corroborative evidence more than adequate to take the case to the jury. The prosecutrix was a mature woman, 66 years of age, who had no prior affiliation with the 19-year-old appellant. Less than 15 minutes before the assault, a neighbor had observed her gardening in her front yard, in good health and cheerful spirits. Another neighbor testified that, at the relevant period, he heard a woman scream but was unable to identify the source of the commotion. The complainant telephoned the police as soon as the attacker left her house. Upon their arrival, they found the prosecutrix in tears. Her body was bruised and bleeding, and subsequent medical examination disclosed that one of her ribs had been broken. Her dress was in tatters, and laboratory examination showed the presence of semen on both her dress and underclothing. A towel was found on the kitchen floor, and the police discovered a broken water glass outside the house. All of this evidence dovetailed perfectly with the victim’s testimony that the appellant had confronted her outside her home and asked for a drink of water, which she gave him. He had then dragged her into the kitchen and raped her, using a towel to stifle her screams. Although gynecological examination of the prosecutrix was inconclusive, she testified unequivocally that her attacker had achieved penetration. We believe that the corroborative evidence as to the entire episode was sufficient to permit the jury to rely upon her testimony as to this element of the offense. Corroboration is also required as to identification of the assailant; but our cases have traditionally recognized that, as to this element, a lesser standard of proof is required. And where there is a convincing identification, one that minimizes the danger of mistake or falsification, no further corroboration is required. Thomas v. United States, 128 U.S.App.D.C. 233, 387 F.2d 191 (1967); United States v. Hines, 148 U.S.App.D.C. 441, 460 F.2d 949 (1972). Here, the victim identified appellant to the police by name. She accurately recalled that he had lived in the neighborhood several years earlier and remembered approximately when the family moved. She correctly stated the appellant’s age and the color of the jacket he was admittedly wearing on the day in question. The initial confrontation took place out of doors at about 12:45 in the afternoon; and she and her attacker were together for approximately 30 minutes, affording an excellent opportunity to observe. Moreover, she testified that, some two weeks prior to the assault, the appellant had approached her while she was working in her yard (circumstances identical to those immediately preceding the attack) and chatted with her for several minutes. Her subsequent identification of the appellant's Polaroid photograph from a group of twenty shown to her by the police is not challenged. We find the corroborative evidence, both as to corpus delicti and identification, entirely adequate. Accordingly appellant’s conviction must be and is Affirmed. . The doctor who examined the complainant at D.C. General Hospital testified that no intact sperm were found in her vagina. The doctor stated that she was unable to determine whether the prosecutrix had recently engaged in sexual relations or had been the victim of forced intercourse and explained that it would be more unlikely to find evidence of vaginal damage as a result of forced intercourse in the case of a 66-year-old mother of four, married for 49 years, than in the case of a young girl. . The victim also gave a detailed description of the height, weight, build and complexion of her assailant to the investigating officers. But the record contains no physical description of the appellant himself, making comparison impossible. Obviously, however, such a comparsion could be made by the jury.
f2d_477/html/0447-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America v. Patricia DENT, Appellant. No. 72-1321. United States Court of Appeals, District of Columbia Circuit. Decided March 30, 1973. As Amended April 4 and April 26,1973. Michael Mulroney, Washington, D. C. (appointed by this Court) was on the brief for appellant. Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Lawrence H. Weehsler, Asst. U. S. Attys., were on the brief for appellee. Before LEVENTHAL and ROBB, Circuit Judges, and JAMESON, United States Senior District Judge for the District of Montana. Sitting by designation pursuant to 28 U.S.C. § 294(d). PER CURIAM: Appellant was convicted of manslaughter in the stabbing of her brother, Leroce, and appeals from a judgment of 6 to 24 months’ imprisonment on the grounds that the judge should not have submitted the second degree murder charge to the jury, and that he failed to instruct the jury adequately on accidental homicide. We affirm. The facts, developed principally by John Barsh, a friend of the deceased Leroce, are: The night of March 1, he and Leroce were drinking beer in the hallway of the small apartment building where Leroce and appellant lived. Appellant joined them; she and her brother began to discuss bills to be paid; the two then moved to appellant’s room, where the discussion heated into an argument. When Leroce turned to abuse of their father, appellant asked her brother to leave the house. Leroce left the room, went outside for 10-15 minutes, then returned, and the argument was renewed in the entrance hallway. When Leroce again went outside for several minutes, appellant went to the kitchen and returned holding, in her right hand, a knife with a six-inch blade. Meanwhile, Leroce had reentered the hall; and the argument was renewed. Barsh grabbed the appellant and urged her in vain to drop the knife. The argument continued, marked now by Leroce’s taunt to appellant: “Stab me”. Leroce eventually turned and walked out of the house. Barsh released appellant, who ran out, picked up a beer can in her left hand and threw it at her brother. Leroce turned, picked up a mop or broom handle from the front yard, and struck the appellant with it. Leroce tried to run down the front steps but was grabbed by appellant. They scuffled on the front porch. She held the knife in her right hand and held onto Leroce with her left arm, trying to get his arm from her neck. Barsh tried to separate the pair, could not, and retired to the side of the porch. When the struggle ended, Leroce lay on the front porch, dying of a stab wound some four inches deep, which penetrated the heart. Barsh, who did not see the struggle in its entirety, testified that he believed Leroce was trying to escape his sister and that she was holding on to him. The appellant, who took the stand in her own defense and in broad terms corroborated Barsh’s testimony up to the critical juncture, asserted that Leroce was trying to throttle her. She claimed that she had armed herself in self-defense out of fear that Leroce would do her violent injury. She went to get the knife because, “I figured I could scare him” and to “try to get him out of the house.” Several defense witnesses testified that Leroce had a reputation for assaultive behavior. The instructions given to the jury by the trial judge covered the elements of the pertinent offenses. He charged the jury, inter alia: Malice may be inferred from the willful use of a deadly weapon, where not explained or justified by the circumstances, or where the act is done so recklessly or wantonly as to manifest deprivity of mind and disregard for life. A homicide is manslaughter when committed intentionally in the heat of passion, caused by adequate provocation, such as might naturally induce a reasonable person to lose self-control and to act on impulse. Manslaughter may be established by a homicide resulting from recklessness — not “mere negligence alone,” but “recklessness involving extreme danger of death or serious bodily harm, a gross deviation from the standards of conduct that a reasonable person would observe.” The high degree of recklessness requisite for malice and murder is distinguished from the lesser recklessness constituting manslaughter, by reason of the quality of defendant’s awareness of risk — either actually, or from the showing of such danger “that any reasonable person must have been aware of it.” “And, as I say, there is a third degree of conduct not amounting to recklessness at all, which is simply negligence, and you may not infer the element of recklessness in either instance if that is all you find was present.” These instructions are in accordance with our rulings. See, e. g., United States v. Lumpkins, 141 U.S.App.D.C. 387, 439 F.2d 494 (1970); Thomas v. United States, 136 U.S.App.D.C. 222, 224, 419 F.2d 1203, 1205 (1969); United States v. Dixon, 135 U.S.App.D.C. 401, 403, 419 F.2d 288, 290 (1969) (concurring opinion); Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967). The instructions have been paraphrased rather than quoted as given, for we do not wish to imply that they are a model. However, our recognition that they may well have been modified so as to be more clear and meaningful to the jury does not gainsay our conclusion — on this record, which inter alia shows no request for clarification that was denied— that there was no prejudicial error. The submission of the murder charge to the jury presents no reversible error. We need not now determine whether there was sufficient evidence of malice to sustain a second degree conviction. The prejudice alleged is one step removed when the jury has acquitted of murder. Howard v. United States, 128 U.S.App.D.C. 336, 389 F.2d 287 (1967). In that context we find enough evidence of malice to warrant a murder charge. The jury might have inferred an intentional stabbing and given short shrift to the claim of self-defense urged at trial. As to the issue of recklessness that has become the focus on appeal, the jury might well have inferred a reckless disregard of the possibility of death or serious bodily injury. As to the claim that the trial judge erred in failing to instruct the jury adequately as to accidental homicide, we have already indicated our approval of the instructions. The judge instructed the jury that mere negligence was not sufficient for culpability, that there must be recklessness. Appellant seems to complain that this point was only made in a single sentence or so, and that much more of the charge was devoted to the distinction between degrees of recklessness. However, that is only to say that more time was devoted to the more complicated matters. The complexity of the analysis of the “recklessness” that constitutes culpable homicide, and in what degree, is undeniable. The principles reviewed in United States v. Dixon, supra (concurring opinion), and accepted by this court in Thomas and other opinions, are hopefully helpful in analysis, but the subject certainly remains complicated. There is no complaint of denial of an instruction. Appellant by her own testimony admitted that during a heated argument with her brother she went to the kitchen for a knife in order to “scare him”, and further admitted that she struck at her brother with her fist as she was holding the knife in her hand. We think that the jury understood the essence of its task and rendered a verdict supported by the evidence. Finding no reversible error, we hold the judgment must be Affirmed. Appellant’s counsel also raises a claim of ineffective assistance of counsel, in that counsel at sentencing received the presentence report and the psychiatric report of Dr. Whyte, but failed to obtain the concluding recommendation of the probation officer. This, it is urged, showed that the probation officer had misunderstood the recommendation of the psychiatrist as being in favor of incarceration. The arguments now advanced to this court were presented to the trial judge in a motion for reduction of sentence, which was denied. The sentencing transcript reassures us that the trial judge studied all of the reports with care. He was capable of drawing his own conclusion from the psychiatrist’s report. The trial judge stated that he felt appellant would benefit from a short period of incarceration in spite of Dr. Gant’s opinion that incarceration would be counter-productive and counter-therapeutic. We conclude that the pertinent matters have been considered by the judge who has sentencing discretion, that this process was conducted reflectively and without prejudicial error of law.
f2d_477/html/0452-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MERRILL, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Charles W. P. KAMANSKI and Robin Kamanski, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 71-2103. United States Court of Appeals, Ninth Circuit. April 16, 1973. Charles W. P. Kamanski, in pro. per. Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept. of Justice, K. Martin Worthy, Chief Counsel, IRS, Washington, D. C., for respondent-appellee. Before MERRILL, KOELSCH and KILKENNY, Circuit Judges. MERRILL, Circuit Judge: The question presented is taxpayers’ right to a casualty loss deduction under § 165(c)(3) of the Internal Revenue Code of 1954, by virtue of loss in property value following an earthslide. The slide occurred a short distance from taxpayers’ residence. It did minor physical damage to their property but as a consequence the market value of the property was reduced by approximately $23,000. Loss in property value in the sum of $21,094.27 was realized by taxpayers in disposing of their property. This was the amount they had invested and the value of the equity they enjoyed subject to trust deed. Following the slide they permitted the property to revert to the trust deed holder and accordingly realized their loss. They claimed a deduction in this amount as a casualty loss. This deduction was denied by the Commissioner. Minor physical damage by way of cracks in walls and pavements was sustained by the taxpayers. In absence of proof of the monetary extent of this damage, the Commissioner allowed a loss in the sum of $1,000 and rejected further claim of loss. A deficiency in income tax was determined accordingly. The Tax Court upheld the Commissioner’s determination. Its opinion appears at 29 T.C.M. 1702. The Tax Court ruled that the loss sustained was a nondeductible personal loss in disposition of residential property and not a casualty loss; that the drop in market value was not due to physical damage caused by the slide, but to “buyer resistance”; that casualty loss is limited to damage directly caused by the casualty. We agree. The loss claimed by taxpayers was not attributable to the slide itself, but to the existence of soil conditions that the occurrence of the slide served to demonstrate. The loss in market value was not due to damage caused by the casualty, but to buyer predictions that future casualties would cause further damage. This may well be an accurate prediction but the claim of loss must await the event. Loss of value based upon such a prediction is not deductible as casualty loss under § 165(c)(3). See Squirt Co. v. Commissioner, 423 F.2d 710 (9th Cir. 1970); Pulvers v. Commissioner, 407 F.2d 838 (9th Cir. 1969). Affirmed.
f2d_477/html/0453-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Eddie BROOKS et al., Defendants-Appellants. No. 72-2734. United States Court of Appeals, Fifth Circuit. April 25, 1973. Rehearing Denied May 31, 1973. Marvin Kurzban, Miami, Fla., Court-appointed, for Brooks. George Weires, Miami, Fla., Court-appointed for Lumdy. Steadman S. Stahl, Jr., Edward M. Kay, Hollywood, Fla., for Haller. Robert W. Rust, U. S. Atty., Lawrence B. Craig, III, Marsha Lyons, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges. PER CURIAM: Eddie Brooks, Willie Lumdy, and Sandra Haller appeal from their conviction for possession and distribution of a narcotic controlled drug, heroin, in violation of 21 U.S.C. § 841. We affirm. The appellants raise several contentions. Appellant Haller contends that the trial court erred in admitting into evidence certain statements conceniing her reputation. At trial, Haller took the stand and testified that she was entrapped. The trial court later allowed a government witness to testify that several unnamed informants told him that Haller had been involved in other narcotic transactions. Haller argues that the agent’s testimony was inadmissible hearsay and that the names of the informers should have been revealed. We disagree. In Rocha v. United States, 5 Cir. 1968, 401 F.2d 529, cert. den. 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 796, we held that when entrapment is asserted as a defense, hearsay is admissible to show prior disposition to commit an offense charged in the indictment and that the government is not required to disclose the names of the informants. Haller also contends that the evidence established that she was entrapped, as a matter of law Brooks contends that the trial court erred (1) in refusing to give a requested jury instruction as to the government’s burden in proving entrapment and (2) in ruling that Brooks was not entrapped as a matter of law. Lumdy contends (1) that the jury selection plan, allegedly excluding Latin-Americans and persons between 21 and 25, denied his right to a jury of his peers; (2) that Congress exceeded its power under the commerce clause in enacting 21 U.S.C. § 841(a)(1); (3) that the trial court erred in denying his motion for severance; (4) that there was insufficient evidence to show for the jury to find him guilty of the offenses charged; and (5) that there was a failure to republish Schedule I as required by 21 U.S.C. § 812. We find no merit in any of these contentions. The decision of the district court must therefore be affirmed. Affirmed.
f2d_477/html/0454-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM: MUIR, District Judge", "license": "Public Domain", "url": "https://static.case.law/" }	Carol E. THOURON, Appellant, v. Carol Victoria K. McCOY. No. 72-1476. United States Court of Appeals, Third Circuit. Argued March 5, 1973. Decided April 25, 1973. F. Alton Tybout, Tybout, Redfearn & Schnee, Wilmington, Del., for appellant. E. N. Carpenter, II, Allen M. Terrell, Jr., Richards, Layton & Finger, Wilmington, Del., for appellee. Before GIBBONS and JAMES HUNTER, III, Circuit Judges, and MUIR, District Judge. OPINION OF THE COURT PER CURIAM: The district court sitting in a diversity case in Delaware concluded that a Delaware state court would apply Pennsylvania law to the undisputed facts in this case. Since Pennsylvania has by statute abolished the cause of action for alienation of affections pleaded in the complaint, Pa.Stat.Ann. tit. 48, §§ 170, 172, the court granted summary judgment. We have concluded that the district court decided this conflict of laws issue as it would have been decided by a Delaware state court. Klaxon Co. v. Stentor Electric Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Delaware, in resolving conflicts of laws issues, stresses particularly the desirability of certainty of operation of the rule. Friday v. Smoot, 211 A.2d 594, 595 (Del.1965). The district court’s decision is consistent with this approach, since the location of the marital domicile is certain, whereas the place where enticement succeeded often may be, and in this case is, quite uncertain. The cause of action has since been abolished in Delaware as well as in Pennsylvania. 10 Del.C Ann. § 3925. Thus, an extended discussion would have no precedential value. The judgment of the district court will be affirmed. MUIR, District Judge (dissenting). I do not agree with the Court’s analysis that because Delaware stresses certainty in conflicts of laws issues, a Delaware court would apply the law of the marital domicile in an alienation of affections case. In Friday v. Smoot, 211 A.2d 594 (Del.1965), the Supreme Court of Delaware rejected the “most significant contacts” theory represented by Restatement Second, Conflict of Laws, § 145, and adhered to the traditional lex loci delicti conflicts of laws rule. The fact that this decision was based upon a desire for certainty in the application of Delaware's conflicts rule, 211 A.2d at p. 595, does not change the holding “that the substantive rights of parties in a tort action are governed by the law of the place where the tort arose. . . . ” 211 A.2d at p. 595. An alienation of affections action is essentially a claim for loss of consortium. Sharp v. Hayes, 4 Terry 493, 50 A.2d 412 (Del.Super.1946); Ramsey v. Ramsey, 4 W.W.Harr. 576, 156 A. 354 (Del.Super.Ct.1931); Prettyman v. Williamson, 1 Pennewill 224, 39 A. 731 (Del.Super.Ct.1898). In applying the lex loci delicti rule to a wife’s claim for loss of consortium, the Supreme Court of Delaware applied, not the law of the marital domicile, but the law of the state in which the defendant’s actions upon the husband took place. Folk v. York-Shipley, Inc., 239 A.2d 236 (Del. 1968). In an alienation of affections action, I believe that a Delaware court would interpret the Folk case as requiring application of the law of the state where the Defendant’s alleged wrongful acts upon Plaintiff’s husband occurred. It should be pointed out that every other court operating under the lex loci delicti rule in a multi-jurisdictional alienation of affections action has applied the law of the state where the Defendant’s wrongful acts took place. Albert v. McGrath, 107 U.S.App.D.C. 336, 278 F.2d 16 (1960); Orr v. Sasseman, 239 F.2d 182 (5th Cir. 1956); Marra v. Bushee, 317 F.Supp. 972 (D.Vt.1970), rev’d on other grounds, 447 F.2d 1282 (2d Cir. 1971) (affirming conflict of law holding) . The exact location of the Defendant’s alluring conduct may be difficult to ascertain. However, it is a proper question for a jury. See Marra v. Bushee, 447 F.2d 1282 (2d Cir. 1971). The difficulty should not bar application of Delaware’s lex loci delicti rule. I respectfully dissent.
f2d_477/html/0456-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "BUTZNER, Circuit Judge: FIELD, Circuit Judge", "license": "Public Domain", "url": "https://static.case.law/" }	Johnnie Edward JOYNER, Individually and as Editor-in-Chief of the Campus Echo; Harvey Lee White, Individually and as President of the Student Government Association; and both of them in behalf of all persons similarly situated, Appellants, v. Albert N. WHITING, President of North Carolina Central University, individually and in his official capacity, Appellee. No. 72-1630. United States Court of Appeals, Fourth Circuit. Argued Nov. 2, 1972. Decided April 10, 1973. Professor Daniel H. Pollitt, Chapel Hill, N. C. (Norman B. Smith, Smith, Patterson, Follin & Curtis, Greensboro, N. C., James V. Rowan, and Paul, Keenan & Rowan, Durham, N. C., on brief), for appellants. Burley B. Mitchell, Jr., Asst. Atty. Gen. (Robert Morgan, Atty. Gen. of North Carolina, on brief), for appellee. John R. Jordan, Jr., Raleigh, N. C. (Jordan, Morris & Hoke, Raleigh, N. C., on brief), amicus curiae, Board of Governors of University of North Carolina; Professor William W. Van Alstyne, Durham, N. C., amicus curiae. Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges. BUTZNER, Circuit Judge: Johnnie Edward Joyner, editor of the Campus Echo, the official student newspaper of North Carolina Central University, and Harvey Lee White, president of the university’s student government association, appeal from an order of the district court, which (a) denied their application for declaratory and injunctive relief to secure reinstatement of financial support for the Echo, and (b) permanently enjoined Albert N. Whiting, president of the university, and his successors in office, from granting future financial support to any campus newspaper. Joyner v. Whiting, 341 F.Supp. 1244 (M.D.N.C.1972). Joyner and White assert that the decree violates the First and Fourteenth Amendments. President Whiting urges affirmance on the ground that the paper’s segregationist editorial policy and racially discriminatory practices violate the Fourteenth Amendment and the Civil Rights Act of 1964. We reverse because the president’s irrevocable withdrawal of financial support from the Echo and the court’s decree reinforcing this action abridge the freedom of the press in violation of the First Amendment. I EDITORIAL COMMENT The first issue of the Echo under Joyner’s editorship published a banner headline on the front page that asked, “Is NCCU Still a Black School,” and an article entitled, “Look and You Shall See,” which stated in part: “There is a rapidly growing white papulation on our campus. . . . . “We want to know why they are here. How many are here? Why more and more come every year (by the hundreds)? . . . . “But I think that the reason we will be taken over so quickly and so easily is our fault. “Black students on this campus have never made it clear to those people that we are indeed separate from them, in so many ways, and wish to remain so. And until we assume the role of a strong, proud people we will continue to be co-opted. Until we chose to make this clear, by any means necessary, the same thing will continue to happen .... “I maintain that we must pick up the cry of Frantz Fanan who has said, ‘Each generation must discover its mission, fulfill it or betray it.’ And the words of H. Rap Brown, T do what I must out of the love for my people. My will is to fight. Resistance is not enough. Aggression is the order of the day.’ And more over that we take nothing from the oppressor, but only in turn get that which is ours. “Now will you tell me, whose institution is NCCU? Theirs? Or ours?” In addition, the paper contained a survey of student opinion which reflected strong opposition to the admission of white students. President Whiting responded with the following letter to Joyner: “In my view the September 16 issue of the Campus Echo does not meet standard journalistic criteria nor does it represent fairly the full spectrum of views on this campus. Because of this, I am writing to advise that funds for the publication of additional issues will be withheld until agreement can be reached regarding the standards to which further publications will adhere. “If consensus cannot be established then this University will not sponsor a campus newspaper. That portion of remaining funds collected or allocated to the Campus Echo budget will accrue to the credit of all contributing students for this school year.” Despite a meeting to resolve the differences, no agreement could be reached. The president’s counsel then advised him that because North Carolina Central University is a state institution he could not constitutionally refuse to financially support the newspaper if his refusal was contingent on the paper’s meeting journalistic standards or other subjective criteria. Accordingly, acting on advice of counsel, the president irrevocably terminated the paper’s financial support and refunded to each student the pro rata share of the activities fee previously allocated to the Echo. The president took no action to bar Joyner, or any other student, from publishing and circulating a privately funded newspaper on the campus. Indeed, several issues of the Echo were published without the university’s financial support, but it became apparent that the paper could not survive unless it received its usual subsidy from the student activities fees; Fortunately, we travel through well charted waters to determine whether the permanent denial of financial support to the newspaper because of its editorial policy abridged the freedom of the press. The First Amendment is fully applicable to the states, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and precedent establishes “that state colleges and universities are not enclaves immune from [its] sweep.” A college, acting “as the instrumentality of the State, may not restrict speech . simply because it finds the views expressed by any group to be abhorrent.” Healy v. James, 408 U.S. 169, 180, 187, 92 S.Ct. 2338, 2345, 2349, 33 L.Ed.2d 266 (1972); see Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1037 (1969). It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment. Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755, 757 (1971); cf. Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885, 892 (1946). This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege. Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The principles reaffirmed in Healy have been extensively applied to strike down every form of censorship of student publications at state-supported institutions. Censorship of constitutionally protected expression cannot be imposed by suspending the editors, suppressing circulation, requiring imprimatur of controversial articles, excising repugnant material, withdrawing financial support, or asserting any other form of censorial oversight based on the institution’s power of the purse. But the freedom of the press enjoyed by students is not absolute or unfettered. Students, like all other citizens, are forbidden advocacy which “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” See Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969), expressly limits the free and unrestricted expression of opinion in schools to instances where it does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” We previously considered these limitations in Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971): “Specifically, school authorities may by appropriate regulation, exercise prior restraint upon publications distributed on school premises during school hours in those special circumstances where they can ‘reasonably “forecast substantial disruption of or material interference with school activities” ’ on account of the distribution of such printed material.” In his brief President Whiting acknowledges that there does not appear to have been any danger of physical violence or disruption at the university because of the publication of the Echo. The record, of course, does disclose that the paper’s message of racial devisiveness and antagonism was distasteful to the president, and it may well have offended other members of the university community. However, no white faculty members or students complained that the paper’s editorial policy incited anybody at the university to harass or interfere with them. The case, therefore, does not present a situation that Brandenburg, Tinker, and Quarterman recognize as justifying restriction of free expression. As a foundation for its decree, the district court fashioned a unique exception to the well established body of law dealing with censorship of college newspapers. Describing the Echo as a state agency, the court upheld the termination of its funding by the university on the ground that the Fourteenth Amendment and Civil Rights Act of 1964 bar a state agency from spending state funds to discourage racial integration of the university “by a program of harassment, discourtesy, and indicia of unwelcome.” Censorship of the paper cannot be sustained on the court’s theory. The record contains no proof that the editorial policy of the paper incited harassment, violence, or interference with white students and faculty. At the most, the editorial comments advocated racial segregation contrary to the Fourteenth Amendment and the Civil Rights Act of 1964. The court’s rationale disregards the distinction between the First Amendment’s clause prohibiting the establishment of religion and its clause protecting freedom of the press. Neither federal nor state governments may expend funds to establish a religion. The First Amendment, however, contains no similar ban against speech or press. Both governments may spend money to publish the positions they take on controversial subjects. The speeches and publications that originate in government offices attest to the diversity of views that are freely expounded. But under the rule that President Whiting urges us to affirm, no state official could use his office to criticize, as the editor of the Echo did, government policy on race relations with which he disagrees. We need not decide whether the Echo is a state agency; it is enough to say that even if it were, it would not be prohibited from expressing its hostility to racial integration. The Fourteenth Amendment and the Civil Rights Act proscribe state action that denies the equal protection of the laws, not state advocacy. To be sure, the line between action and advocacy may sometimes be difficult to draw, but it is clear that nothing written in the Echo crossed it. A college newspaper’s freedom from censorship does not necessarily imply that its facilities are the editor’s private domain. When a college paper receives a subsidy from the state, there are strong arguments for insisting that its columns be open to the expression of contrary views and that its publication enhance, not inhibit, free speech. Cf. Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). However, this case provides no occasion for formulating a principle akin to the fairness doctrine for the college press. The record does not disclose that Joyner rejected any articles that were opposed to his editorial policy, and President Whiting does not claim the paper refused to publish his pro-integration plea. The president, emphasizing that the students are still free to publish and circulate a newspaper on the campus without university support, protests that the denial of financial support cannot be considered censorship because it is permanent. Permanency, he suggests, does not link the ebb and flow of funds with disapproval or approval of editorial policy. Absent this correlation, he claims, there is no censorship. But this argument overlooks the fact that one of the reasons for the president’s withdrawal of funds was his displeasure with the paper’s editorial policy. The abridgement of freedom of the press is nonetheless real because it is permanent. Freedom of the press cannot be preserved, as Mr. Justice Frankfurter noted, by prohibitions calculated “to burn the house to roast the pig.” Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed. 2d 412 (1957). The president has failed to carry the “heavy burden of showing justification for the imposition of” a prior restraint on expression. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). He has proved only that he considers the paper’s editorial comment to be abhorrent, contrary to the university’s policy, and inconsistant with constitutional and statutory guarantees of equality. This is plainly insufficient. Healy v. James, 408 U.S. 169, 187, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); cf. Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Similarly, the district court’s permanent injunction against the university’s funding of the paper cannot stand. The court’s grant of the injunction was intended to protect the student press by eliminating the inducement of future financial support “as a possible method for censorship.” But the proper remedy against censorship is restraint of the censor, not suppression of the press. A court, no less than the executive and the legislature, must defer to the First Amendment. Twice in the history of the nation the Supreme Court has reviewed injunctions that imposed prior restraints on the publication of newspapers, and twice the Court has held the restraints to be unconstitutional. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). In both instances the proof was insufficient to overcome the presumption of unconstitutionality under which prior restraint of expression labors. Because this case is marked by the same defect, the injunction must be dissolved. II DISCRIMINATORY PRACTICES Early in September of 1971, Joyner, who had been elected editor the previous spring, told the Echo’s faculty advisor that the paper would be black-oriented and that neither whites nor foreigners would be allowed to serve as staff members. The first edition of the paper under Joyner’s editorship, published later in the month, contained a notice that the paper would not carry advertising for white merchants. The president asserts that the Echo is an agency of the state, and that continued financial support of the paper despite its discriminatory practices would violate the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In contrast, the Board of Governors of the University of North Carolina takes the position that the Echo is not an agency of the state, but it justifies the president’s withholding of funds as a permissible means of enforcing a valid campus regulation proscribing racial discrimination. We need not choose between these theories. Under both of them, the president was justified in prohibiting racial discrimination in staffing the newspaper and accepting advertising. The equal protection clause forbids racial discrimination in extracurricular activities of a state-supported institution. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 899 (5th Cir. 1966), cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967), and freedom of the press furnishes no shield for discrimination in advertising. United States v. Hunter, 459 F.2d 205, 211 (4th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972); cf. Lee v. Board of Regents, 441 F.2d 1257 (7th Cir. 1971). Even if the Echo is not, strictly speaking, an agency of North Carolina, the president was not powerless to act. Campus organizations claiming First Amendment rights must comply with valid campus regulations, Healy v. James, 408 U.S. 169, 191, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), and the state, acting through the president, possesses adequate power to promulgate and enforce rules prohibiting discrimination. Railway Mail Ass’n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945). It does not follow, however, that the appropriate remedy for the paper’s racial discrimination was the permanent cessation of financial support. During a meeting with the president after suspension of financing, Joyner disavowed his black only staff policy. Moreover, the second issue of the Echo carried a notice repudiating its statement that it would not accept any more business from white advertisers. Henceforth, the notice said, the Echo will “only accept ads from white businesses that employ on an equal opportunity basis.” We cannot accept the contention pressed by Joyner and the Board of Governors that the issues of discrimination in staffing and advertising are now moot. Neither the president nor the district court were required to give credence to the disavowal of the discriminatory practices, and, as the president points out, the paper is still free to take ads from black businesses which are not equal opportunity employers. Therefore, on remand, the president should be afforded an opportunity to amend his pleadings to apply for relief against discriminatory practices in staffing and advertising. If he does, the district court should determine whether “there exists some cognizable danger of recurrent violation.” United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953). If the court finds that this danger exists, it may enjoin these discriminatory practices. The permanent withdrawal of funds, however, is not an appropriate remedy. While the state may suppress speech when it is thoroughly enmeshed with unlawful conduct, Milk Wagon Drivers’ Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941), this record fails to disclose that the discriminatory staffing and advertising policies are inextricably related to the news and editorial content of the paper. To comply with the First Amendment, the remedy must be narrowly drawn to rectify only the discrimination in staffing and advertising. Cf. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957). Ill Two other matters require but brief comment. The parties have argued about the right of a student to resist having a part of his student activities fee allocated to the Echo. Cf. International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). This issue is speculative. No student has protested that he was compelled to subscribe to the paper. We, therefore, express no opinion concerning this aspect of the case. The second issue which we do not reach is the contention that the students have been denied the equal protection of the laws because eleven other state supported universities in North Carolina sponsor college newspapers. In view of our disposition of the case, we find it unnecessary to consider this alternative ground for relief. The judgment of the district court is reversed, and the injunction which- it entered is dissolved. This ease is remanded for the entry of a declaratory judgment consistent with this opinion. In the exercise of its sound discretion, the district court may grant or withhold injunctive relief. See Antonelli v. Hammond, 308 F.Supp. 1329, 1338 (D.Mass.1970). FIELD, Circuit Judge (dissenting in part): The high regard I have for my brothers of the majority makes me somewhat hesitant to dissent, but I simply do not see this case as they apparently do. No one would now question that the eonstitutional freedoms of speech and press guaranteed by the First Amendment protect the students of our colleges and universities from unreasonable administrative interference, and the school authorities may not restrict the students’ freedom of speech merely because they find the views expressed to be abhorrent. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), and the related authorities in this area cited by the majority solidly support this principle. However, as pointed out by Professor Van Alstyne in his amicus brief, the issue in this case does not involve the more familiar form of abridgment by restriction of expression of opinion by the students as individuals either on or off the campus of NCCU, nor does it present the case where financial support of the college newspaper was temporarily withheld for the purpose of inducing editorial policies acceptable to the administration. Cf. Antonelli v. Hammond, 308 F.Supp. 1329 (D.C.Mass.1970). The issue as I see it is whether President Whiting had the right if not, indeed, the duty to terminate the University’s subsidy of the Echo when he had reasonable grounds to believe that the newspaper was engaged in conduct which was violative of the Constitution and laws of the United States and which, under the circumstances, jeopardized the University’s participation in the various federal funding programs necessary to its operation. I submit that President Whiting’s decision on this basis to irrevocably discontinue the subsidy to avoid future involvement in the terms of the school’s possible responsibility for the editorial content of the Echo, coupled with the express disavowal on his part that the subsidy might be renewed in the event the newspaper would accede to acceptable “journalistic standards” or other subjective criteria, violated no First Amendment rights of the plaintiffs, and that the conclusion of the district court on the primary issue in this ease was correct. Referring to the action of the district judge in upholding the termination of the subsidy on the theory that the racist editorial policy of Joyner was violative of the Fourteenth Amendment and the Civil Rights Act of 1964, the majority suggests that he “fashioned a unique exception to the well established body of law dealing with censorship of college newspapers” which cannot be sustained. In all deference, I suggest that there was nothing unique about the rationale of the district court’s decision and that it finds solid support in law and in fact. For almost two decades since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed 873 (1954), the school authorities of this country have been “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U.S. 430 (1968) at 437-438, 88 S.Ct. 1689 at 1694, 20 L.Ed.2d 716. It is an understatement to say that the transition from segregated schools to a non-raeial system of public education has not been a simple task, and this is especially true for an educator in the position of President Whiting confronted with the delicate responsibility of converting a previously all black university into an integrated educational facility. The constitutional responsibility to eliminate racial discrimination articulated by the courts has received substantial support from the Congress of the United States, and the national policy against support for segregated education emerged in provisions adopted by the Congress in the Civil Rights Act of 1964. Title VI, Section 601 of the Act, 42 U.S.C. § 2000d, provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 602 of the Act, 42 U.S.C. § 2000d-1 directs each federal agency administering programs of financial assistance to take action by rule, regulation or order to effectuate the principles of Section 601, and to effect compliance with those requirements under this section an agency is authorized to terminate or refuse to grant assistance under a program to any recipient as to whom there has been a finding of a failure to comply with such requirements. It is in the context of this background that President Whiting’s action should properly be appraised. The majority states that Joyner’s message of racial divisiveness and hostility was distasteful to Whiting. This may well be true, but the record clearly shows that the reason for the termination of the subsidy was not President Whiting’s personal displeasure with the editorial policy of the Echo but his fear, based upon the advice of the Attorney General of North Carolina, that continued support of the student newspaper could be construed as “state action” in the context of the various civil rights acts passed by the Congress as well as the Federal Constitution. Whiting's apprehension that continued subsidization might jeopardize the University’s federal funding was well founded for the federal agencies have not hesitated to act pursuant to Section 602 of the Civil Rights Act and terminate federal assistance where the authorities of a state have failed to take affirmative action to eliminate discrimination in its schools. State of Georgia v. Mitchell, 450 F.2d 1317 (C.A.D.C. 1971); see also, Green v. Connally, 330 F.Supp. 1150 (D.C.D.C.1971), aff’d per curiam sub nom., Coit et al. v. Green et al., 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed. 2d 550 (1971). Unquestionably the activities of the Echo, subsidized as it was by the University, constituted “state action” in the area of civil rights, Lee v. Board of Regents of State Colleges, 441 F.2d 1257 (7 Cir. 1971); Zucker v. Panitz, 299 F.Supp. 102 (S.D.N.Y.1969); Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755 (1971), and if its editorial content was violative of Federal Constitutional or statutory proscriptions, the responsibility necessarily would fall squarely on NCCU. It should be borne in mind that we are not dealing here with a “letter to the editor” nor a casual news article or student poll. What we have before us is the lead editorial in the first issue of the subsidized house organ of NCCU greeting the matriculating students with a clear and violent statement of policy which the district court found to be designed to discourage racial integration of the University “by a program of harassment, discourtesy and indicia of unwelcome.” The majority disposes of this finding, however, with the observation that the record fails to show that the editorial policy incited harassment, violence or interference with white students. Conceding that the editorial advocated racial segregation contrary to the Fourteenth Amendment and the Civil Rights Act of 1964, my brothers would countenance it on the ground that it was not proscribed “state action” but was acceptable “state advocacy.” I must confess I find the import of this statement somewhat obscure and, assuredly, of questionable validity on the issue before us. In Smith v. St. Tammany Parish School Board, 316 F.Supp. 1174 (D.C.E.D.La.1970), aff’d, 448 F.2d 414 (5 Cir. 1971), the district court ordered all Confederate flags as well as other symbols of racism removed from the schools with this observation at page 1176: “In this connection, the principal of the Covington High School understands today’s symbolism of the Confederate battle flag as well as he understands the symbolism of a Black Panther or a Black Power flag. But none of these flags are constitutionally permissible in a unitary school system where both white and black students attend school together. At the moment, the Covington principal insists on the display of the Confederate battle flag; but the display of the flag is an affront to every Negro student in the school, just as the display of the Black Panther flag would be an affront to every white student in a school whose principal was a Negro. * * * The retention of Confederate flags in a unitary school system is no way to eliminate racial discrimination ‘root and branch’ from the system.” I respectfully suggest that Mr. Joyner’s editorial policy was at least as much of an affront to the white minority of NCCU as the Confederate flag was to the black students of St. Tammany Parish. Whether we label it “advocacy” or “action,” the Echo’s editorial policy was violative of the Fourteenth Amendment and the Civil Rights Act of 1964, and President Whiting acted reasonably and responsibly in irrevocably terminating the subsidy and removing the imprimatur of the University from Joyner’s racist views. I, of course, am in agreement with the views expressed by the majority relative to the discriminatory staffing and advertising policies of the Echo under Joyner’s leadership. I also agree that the district court’s permanent injunction against the future funding of any newspaper at NCCU was improper. While this action of the court was designed to eliminate the possibility of the use of such support in the future “as a possible • method of censorship,” such an anticipatory measure was neither necessary nor appropriate in the disposition of this case. Accordingly, I would affirm the court below in its denial of declaratory and injunctive relief to the plaintiffs, and remand the case with directions to dissolve the permanent injunction against possible future funding. . The president also circulated the following memorandum to all members of the university community: “By now I am certain that most of you have read the September 16 issue of the Campus Echo. Because of the very pronounced critical position taken in this paper regarding integration in the University Community, I feel it my duty as President to indicate clearly and unequivocally what the official policy of the Institution is and will continue to be in accordance with the present law of the land and the State of North Carolina. North Carolina Central University has always been opposed to any policies and practices which deprive any individual of a right or a privilege because of race, color, creed, or national origin. It will not extend recognition to or knowingly affiliate with and condone any group, organization, or association, espousing policies which discriminate on such bases. “Because of historical circumstances issuing out of the shameful segregated past this institution is and will continue to be in the foreseeable future predominantly Black or Negro (whichever word one chooses to use here is a.matter of personal' choice). It has had a prideful and heroic educational tradition and in its various forms, from the date of its founding, has contributed significantly and effectively to the development and well-being of those who have had the good fortune to attend. Because of relatively recent social changes, integration on all college and university campuses and, as a matter of fact, in all legitimate schools has become more visible. This is no longer a reversible trend and it is sheer folly to think otherwise. Presently, at North Carolina Central University we have an array of ethnic and racial types but in actuality only a statistically insignificant number of non-Negroes. This notwithstanding, the point that I wish to make is that as a State-Supported Institution especially, but also in terms of what is morally and legally right, this institution is not a ‘Black University’ and does not intend to become one. “To those who find this assertion and this fact uncomfortable and/or intolerable I wish to make it perfectly clear that they must, while here, operate within the framework of the University policies regarding this. If this is not possible, then my advice is to seek enrollment and/or employment in institutions where such attitudes are acceptable. “In line with this point of view, I am herewith announcing that all funds for the publication of the Campus Echo have been temporarily suspended until consensus can be established regarding the journalistic standards to which this paper will adhere and its role on this campus. If consensus cannot be developed, then the university will no longer sponsor a campus newspaper and that proportion of funds collected and allocated to the budget of the Campus Echo will accrue to the credit of all contributing students for this school' year.” . In Danskin, Mr. Justice Traynor dealt with the validity of a school board rule requiring persons seeking use of a school auditorium for meetings, to take an oath renouncing the overthrow of the government by force or unlawful means. In holding that such a requirement violated the First Amendment, he wrote: “It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable.” 171 P.2d at 892. . Scoville v. Board of Educ. of Joliet Tp. H. S. Dist. 204, 425 F.2d 10 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970); Sullivan v. Houston Ind. School Dist., 307 F.Supp. 1328 (S.D.Tex.1969); Dickey v. Alabama State Bd. of Educ., 273 F.Supp. 613 (M.D.Ala.1967). . Channing Club v. Board of Regents, 317 F.Supp. 688 (N.D.Tex.1970). . Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971); Eisner v. Stamford Bd. of Educ., 440 F.2d 803 (2d Cir. 1971); Trujillo v. Love, 322 F.Supp. 1266 (D.Colo.1971); Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755 (1971). . Korn v. Elkins, 317 F.Supp. 138 (D.Md. 1970); Zucker v. Panitz, 299 F.Supp. 103 (S.D.N.Y.1969). . Korn v. Elkins, 317 F.Supp. 138 (D.Md. 1970); Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970). . Trujillo v. Love, 322 F.Supp. 1266 (D.Colo.1971); Korn v. Elkins, 317 F.Supp. 138 (D.Md.1970); Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970); Dickey v. Alabama State Bd. of Educ., 273 F.Supp. 613 (M.D.Ala.1967); Panarella v. Birenbaum, 37 A.D.2d 987, 327 N.Y.S.2d 755 (1971); see Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1045, 1130 (1968): “[Sitate finaneial support alone is not enough to prevent application of the first amendment to student newspapers.” . The Board is the governing body of the University of North Carolina system, which includes North Carolina Central University. It filed a brief amicus curiae. . The majority apparently recognizes, however, that a university has no constitutional responsibility to establish a campus newspaper. See Dickey v. Alabama State Board of Education, 273 F.Supp. 613, 618 (M.D.Ala.1967); Cf. Danskin v. San Diego Unified School District, 28 Cal.2d 53, 171 P.2d 885, 892 (1946). . Neither Joyner nor anyone else was subjected to suspension, expulsion, or any other reprisal; nor as stated by the majority, was there any attempt by President Whiting to suppress the publication or circulation of any privately funded newspaper on the campus. These factors are sufficient to distinguish this case from practically all of the authorities cited by the majority. . It should be noted that in a post-subsidy issue of the Echo, Joyner wrote an article relative to the institution of this litigation in the district court which carried the utterly tasteless and offensive headline “So, We took Jm ass to court.” Demonstrating commendable restraint and respect for Joyner’s First Amendment rights of expression, President Whiting took no punitive or repressive action against either Joyner or the publication. . The nub of the present controversy becomes more readily apparent if we reverse the circumstances. Suppose that incident to a program of integration, the advent of black students on the campus of a previously all white state-supported university in North Carolina or elsewhere had been greeted by a similar message in the subsidized university newspaper denouncing the admission of blacks to the institution. I submit that this court or any court would have had little difficulty in finding such “advocacy” to be state action which was violative of the law of the land. . Even should it be assumed wrguendo that the Echo’s editorial policy was not violative of the law, the record clearly supports the conclusion that President Whiting acted in the reasonable belief that Joyner’s conduct was illegal and, under these circumstances, termination of the subsidy could well be sustained under the rationale of Sellers v. Regents of University of California, 432 F.2d 493 (9 Cir. 1970).
f2d_477/html/0467-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "GOLDBERG, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	J. William WOLF et al., Plaintiffs-Appellants-Cross Appellees, v. Robert R. FRANK et al., Defendants-Appellees-Cross Appellants. No. 72-2534. United States Court of Appeals, Fifth Circuit. April 24, 1973. Rehearing and Rehearing En Banc Denied June 5, 1973. Richard B. Marx, Miami Beach, Fla., Irving M. Wolff, Miami, Fla., for defendants-appellees. Howard W. Mazloff, Eugene C. Heiman, Miami, Fla., for plaintiffs-appellants. Before RIVES, GOLDBERG and MORGAN, Circuit Judges. GOLDBERG, Circuit Judge: This is an appeal and cross-appeal from a judgment of the United States District Court for the Southern District of Florida awarding plaintiffs, J. William Wolf and Pearl M. Wolf, shareholders of Industrial-Guaranty Bancorp (hereinafter “IGB”), individual and derivative relief from defendants, IGB, Robert R. Frank, Jack H. Stein, and John W. Roberts, Jr., for violations of the Securities Act of 1933, 15 U.S.C. § 77a et seq., and of the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. Although not an overly complicated securities ease, its presentation sometimes gives the appearance that the geometry of the case would defy the law that a straight line is the shortest distance between two points. Both plaintiffs and defendants appeal from numerous substantive and procedural aspects of the District Court’s judgment, which deviate from the essentials of the decision. The only claim we find meritorious, however, is plaintiffs’ argument that Mills v. Electric Auto-Lite Co., 1970, 396 U.S. 375, 90 S.Ct. 616, 24 L. Ed.2d 593, entitles them to be reimbursed by IGB for the cost of maintaining this derivative claim. The District Court’s order is therefore affirmed in all things but the denial of plaintiffs’ plea for reimbursement for the costs of maintaining this action. I. THE OPERATIVE FACTS The District Court made numerous and detailed findings of fact and conclusions of law that have greatly aided this Court in its resolution of this complex appeal. Not all of these findings and conclusions are involved in this appeal; thus, we here summarize only those matters necessary for an understanding of our disposition of the case. In early 1969, plaintiff J. William Wolf began discussing with defendants Robert R. Frank and Jack H. Stein the possibility of his investing in IGB, a Florida corporation with its principal place of business in Florida. Defendants Frank, Stein, and Roberts organized IGB with the intention of making it a bank holding company, and they served at all relevant times as officers and directors of IGB. Plaintiff repeatedly met with defendants, in various combinations, to discuss IGB. Prior to plaintiffs’ initial purchase, defendants Stein and Frank represented to plaintiff that they were going to allow not more than fifteen of their friends to purchase shares in IGB before making a proposed public offering: They represented that everyone would pay $2.00 cash per share and that there would be no free stock or fringe benefits. In reliance upon these and other representations concerning (1) an application by IGB to the Federal Reserve Board for approval as a bank holding company, (2) the acquisition plans of IGB, and (3) the progress of registration of IGB shares with the Florida Securities Commission, plaintiffs purchased 37,500 shares of IGB stock for $75,000.00 between July 28, 1969 and October 8, 1969. No registration statement was then in effect as to those securities. As early as July 24, 1969, prior to the initial purchase of IGB stock, plaintiff began inquiring among his friends about resales to them of the IGB stock that was to be purchased. During the six-month period beginning in late July, 1969, plaintiffs sold at least 23,000 of their 37,500 shares to approximately fourteen persons in various parts of the United States at prices ranging from $2.00 to $5.00 per share. In these transactions plaintiffs realized a total of $95,000.00, some $20,000 more than they had paid for all of their IGB stock. In fact, an application for approval as a bank holding company was never filed on behalf of IGB. Furthermore, defendants did not pay $2.00 cash per share when they acquired their own stock interest in IGB. First, in September, 1969, defendants exchanged 19,826 shares of stock in the National Industrial Bank [hereinafter NIB] with IGB for 346,995 newly issued shares- of IGB stock, pursuant to an exchange ratio computed by defendant Roberts. At the exchange value of $2.00 per share, the IGB stock acquired in the exchange by defendants was worth $693,910.00. The NIB stock that the corporation received from defendants in exchange was worth considerably less. It had been purchased by defendants in January, 1968 for $198,260.00, or $10.00 per share, and was selling for $10.00 per share in October, 1969. Second, on January 16, 1970, defendants received 184,935 shares of IGB stock in exchange for non-interest bearing, unsecured promissory notes in the amount of $369,870.00 due in 1973. A voting trust agreement reflects that defendants controlled 1,336,391 voting shares of IGB and were at all material times in control of the company. Although IGB’s Certificate of Incorporation requires the directors to fix the value of any property received by the corporation in exchange for stock, this was •not done in conjunction with the transfer by defendants of their 19,826 shares of their NIB stock for 346,995 shares of IGB stock [hereinafter the “NIB-IGB stock exchange”]. In that exchange, a ratio of 17t4 to 1 was the basis used, and the value of the IGB stock was calculated at its par of $1.00 per share. Under this ratio, defendants received the equivalent of $17.50 per share for their NIB stock. If the transaction had been based on payment of $2.00 per share for the IGB stock, the sum that defendants had represented would be paid and that everyone else did in fact pay, then defendants actually received what amounted to $35.00 per share for their NIB stock, which was worth no more than $10.00 per share. The required valuation was also neglected in connection with the issuance of stock to defendants in exchange for their promissory notes. At a directors meeting held on January 16, 1970, defendants, acting as directors, elected three additional directors. The new directors, with defendants abstaining, authorized defendants to purchase the aforementioned 184,935 shares of IGB stock by executing non-interest bearing, unsecured notes in the total amount of $369,870. At the same time that these non-interest bearing and unsecured notes of defendants were outstanding, IGB borrowed greater sums from banks at interest rates varying from 7i/2 percent to 9y2 percent per annum. Such loans were fully secured by part of the assets of IGB. The newly constituted board of directors, with defendants voting, “ratified” the NIB-IGB stock exchange and all other actions taken on previous occasions by defendants as directors. No annual or special meeting of stockholders of which plaintiffs received notice was held until January 21, 1971. II. ACTION BELOW Soon after the meeting of January 21, 1971, plaintiffs brought this action both individually and derivatively as stockholders of IGB against defendants. The complaint charged that: (1) misrepresentations, omissions, and acts of defendants constituted a manipulative and deceptive device and contrivance and a scheme and artifice to defraud in connection with the sale of securities of IGB to plaintiffs, all of which was in violation of Rule 10b-5; (2) sale by defendants to plaintiffs of the IGB stock constituted a violation of Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e, because no registration covering the securities had been declared effective by the United States Securities and Exchange Commission; (3) defendants committed common-law fraud in connection with plaintiffs’ purchase of IGB stock. Relying on Rekant v. Desser, 5 Cir. 1970, 425 F.2d 872, the District Court found that plaintiffs had established a derivative Rule 10b-5 violation by defendants in that defendants’ activities in the NIB-IGB stock exchange constituted a fraudulent issuance of stock to insiders for grossly inadequate consideration. The District Court found that the NIB stock was worth $198,260.00 and that therefore defendants paid approximately $.57 per share of IGB stock issued to them, or $1.43 less than the $2.-00 per share that defendants represented that they would pay for their IGB purchase. The Court ordered defendants to reimburse IGB $1.43 per share of IGB received in the fraudulent transaction. The District Court also found, however, that plaintiffs were not entitled to individual relief under Rule 10b-5 because they failed to show any actual individual damages in connection with the sale or purchase of IGB stock, since through their own sales of IGB stock they had made a profit of approximately $20,000.-00 in addition to the value of the IGB shares they retained. The District Court relied on Hill York Corp. v. American International Franchises, Inc., 5 Cir. 1971, 448 F.2d 680, in finding that defendants had violated Section 5 of the Securities Act of 1933 and in granting the individual plaintiffs the option of rescinding their purchase of 14,000 shares of IGB stock. The Court also held that Section 5 of the 1933 Act did not authorize derivative relief for the corporate entity. Finally, the District Court found that defendants breached their fiduciary duty on January 16, 1970 by paying for IGB stock with non-interest bearing notes. The Court ordered defendants to pay IGB 7i/2 percent back-interest on the $369,870.00 note, from January 16, 1970 to the date of the judgment. The District Court, however, refused to find that plaintiffs were entitled to be reimbursed for the costs of maintaining a derivative action for IGB. The Court also refused to appoint a receiver or to grant other equitable relief sought by plaintiffs. On cross-appeal, defendants contend that the District Court erred by: (A) failing to recognize plaintiffs’ unclean hands and to take appropriate remedial actions against plaintiffs; (B) failing to rule that the derivative Rule 10b-5 claim was barred by the statute of limitations; (C) allowing plaintiffs to maintain a derivative action; (D) failing to give proper weight to defendants’ evidence concerning the value of the NIB stock exchanged for IGB stock; and (E) substituting its business judgment for that of the IGB stockholders and directors who ratified defendants’ activities. Plaintiffs contend on direct appeal that the District Court erred by: (A) refusing to grant plaintiffs individual relief pursuant to Rule 10b-5; (B) not granting interest to IGB on the judgment recovered from defendants; (C) dismissing plaintiffs’ derivative Section 5 claim; (D) failing to grant further equitable relief to correct defendants’ wrongdoing; and (E) denying plaintiffs’ request for reimbursement for the costs of attorneys’ fees and expert witness fees incurred in maintaining the derivative claim. ■ III. DEFENDANTS’ APPEAL The defendants’ briefs and arguments are predicated upon facts and inferences and conclusions that the trial court neither found nor was compelled to find. In the welter of charges and counter charges the ensuing obfuscation can be visioned away by the application of a relatively few simple legal propositions, the most elementary principle being that appellate courts are governed by the “clearly erroneous” test of Rule 52(a) of the Federal Rules of Civil Procedure when they review District Court fact findings. In applying this test, we have said: “The question is not simply whether the reviewing court would have found otherwise but whether the trial court could permissibly find as it did. The reviewing court should upset a finding only when it ‘is convinced on the whole record that the finding does not reflect the truth and right of the case.’ Wright, Federal Courts § 96, at 432.” Movible Offshore, Inc. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271. Defendants’ brief oftentimes totally fails to evidence an awareness, much less an understanding, of this controlling principle of appellate jurisprudence. A. Equitable Defenses Defendants contend that the facts clearly establish that plaintiffs were manipulating market-makers who violated applicable statutes and Securities and Exchange Commission rules by selling IGB stock before actually acquiring it. Claiming that this factual contention gives rise to a defense of “unclean hands.” defendants' urge that the District Court erred by: (1) finding that defendants violated Section 5 of the Securities Act of 1933 and thereupon granting plaintiffs an option to rescind pursuant to the remedial provisions of Section 12 of the Securities Act of 1933 ; (2) not creating a constructive trust on behalf of the parties who purchased IGB stock from plaintiffs; and (3) not requiring plaintiffs to rescind their purchase of IGB stock. Without passing on the merits of defendants’ factual contentions, we deem it sufficient to say that defendants’ arguments are misguided. While the defense of “unclean hands” is available in securities actions in this Circuit, Kuehnert v. Texstar Corp., 5 Cir. 1969, 412 F.2d 700, its application rests within the sound discretion of the District Court. Whether the defense is allowed should be determined by ascertaining whether the application or non-application of the defense will better promote the objectives of the securities laws by increasing the protection afforded the investing public. Id. The District Court did not abuse its discretion in refusing to bar plaintiffs from maintaining a suit to enforce the requirements of Section 5 of the Securities Act of 1933. After carefully considering the record, we have determined that no party in the Court below ever took the position, by pleadings or otherwise, that a constructive thrust should be imposed in favor of those who purchased from plaintiffs. Without deciding the question of defendants’ standing to seek such relief in the District Court, we conclude that because defendants did not in fact seek such relief below they cannot now raise a new theory that was not presented to the District Court. Hill York Corp. v. American Internat’l Franchises, Inc., 5 Cir. 1971, 448 F.2d 680, 690; Overmyer Co. v. Loflin, 5 Cir. 1971, 440 F. 2d 1213, cert. denied, 1971, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90. Finally, we find that the District Court properly declined to find that plaintiffs were required to accept the remedy of rescission afforded with regard to their remaining shares. Plaintiffs invoked the jurisdiction of the federal court both under Section 5 of the Securities Act of 1933 and under Rule 10b-5, and were not required to elect the remedy of rescission proffered in settlement by defendants prior to trial, since that election would have been inconsistent with plaintiffs’ capacity to maintain their derivative Rule 10b-5 complaint. United States v. Borin, 5 Cir. 1954, 209 F.2d 145, cert. denied, 1954, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed. 647; Breeding v. Massey, 8 Cir. 1967, 378 F.2d 171. B. Statute of Limitations Defendants argue that the District Court erred in not ruling that plaintiffs’ individual and derivative Rule 10b-5 claims were barred by the statute of limitations. In actions for relief brought pursuant to Rule 10b-5 the applicable statute of limitations is that of the state in which the federal court sits. Hooper v. Mountain State Securities Corp., 5 Cir. 1960, 282 F.2d 195, cert. denied, 1961, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. Defendants nevertheless contend that even though plaintiffs filed this action within the two-year Florida statute of limitations, which defendants argue is applicable under F.S.A. § 517.-21, plaintiffs are barred because they failed to tender their securities to defendants as required by F.S.A. § 517.21. Plaintiffs reply that Florida’s three-year statute of limitations for actions brought for relief on the ground of fraud, F.S.A. § 95.11, is applicable and that they fall well within that time period. Defendants’ argument misconceives the issue. This suit was maintained in the District Court under Rule 10b-5, not under pendent jurisdiction of a state claim. When applying the forum’s statute of limitations to actions brought under the federal securities laws, federal courts borrow only the chronometric aspects and not the procedural or substantive nuances of the law of the forum. We therefore find it unnecessary to determine whether the applicable statute of limitations is the two-year limitation embodied in Section 517.21 or the three-year limitation of Section 95.11 because plaintiffs commenced this action well within either period of limitation. C. Plaintiffs’ Standing to Maintain the Derivative Claim Defendants next maintain that the District Court erred in allowing plains tiffs to maintain the derivative Rule 10b-5 claim on behalf of IGB because at no time material to the occurrences complained of were plaintiffs stockholders of IGB entitled to maintain a derivative stockholders’ .suit. See Fed.R.Civ.P. 23.-1. Defendants contention, supported more by invective and vituperation than by scholarly analysis or citation of authority, is apparently based on a belief that: (1) plaintiffs’ allegedly unclean hands bar them from maintaining a derivative suit; or (2) the fact that plaintiffs made a profit in excess of their original investment divests them of stockholder status, even though plaintiffs at all relevant times retained approximately 14,000 shares of IGB stock; or (3) the District Court was “clearly erroneous” in finding that plaintiffs at all times retained 14,000 shares of IGB. We hold that the District Court did not err in allowing plaintiffs to maintain the derivative Rule 10b-5 claim. Defendants are purblind to the fact that this is not a case of a brigand seeking to recover his loot. Plaintiffs’ actions, alleged to be illegal, were in no way involved with the transactions for which the District Court granted derivative relief. Furthermore, although defendants contend that plaintiffs are economic pirates disqualified because of their piracy from representing an innocent corporation, the District Court made no such finding and in fact found that only defendants were picaroons. Whether plaintiffs were or were not knights in shining armor is irrelevant under Rule 23.1 of the Federal Rules of Civil Procedure, so long as they fairly and adequately represented the shareholders in enforcing the rights of IGB. Assuming, without deciding, that unclean hands might bar plaintiffs from maintaining a derivative Rule 10b-5 claim, we find that the District Court exercised its discretion properly when it refused to find plaintiffs barred under the doctrine. We next find that the fact that plaintiffs made a profit on their original investment in no way alters their status as stockholders or their standing to bring a derivative claim. That plaintiffs’ stock represented a profit to them does not alter its status as stock for the purposes of Rule 23.1 of the Federal Rules of Civil Procedure. As long as plaintiffs actually owned stock at the time of the challenged actions, then plaintiffs have standing to maintain a non-collusive Rule 10b-5- claim under the provisions of Rule 23.1. Finally, we hold that the District Court’s finding that plaintiffs resold all but 14,000 of their shares of IGB was not clearly erroneous. Neither by selectively reading the record, nor by isolating words and phrases, can defendants establish that plaintiffs were not shareholders at the critical and crucial times. The transcript and record, when fairly and comprehensively examined in their entirety, amply support the District Court’s finding that plaintiffs were stockholders at the time of the occurrences they attack. D. Valuation of the NIB Stock Defendants assert that the District Court erred in valuating the 19,826 shares of NIB stock that they exchanged for 346,995 shares of IGB stock in the NIB-IGB stock exchange. More specifically, defendants insist that the' Court did not give proper weight to general trade practices concerning controlling stock and to other evidence in support of defendants’ belief that the exchange rate was not detrimental or unfavorably harmful to IGB. We cannot agree. The District Court, the finder of fact, held: “Under any measure of value, the NIB stock was greatly overvalued in the exchange.” We have considered the record before us, and under the limited factual review open to us, see Fed.R.Civ.P. 52(a); Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271, we are unable to say that the District Court’s valuation of NIB stock was clearly erroneous. E. Stockholder and Director “Ratification” Defendants contend that the District Court wrongfully substituted its business judgment for that of the Board of Directors of IGB. Defendants urge that this is especially so in light of the fact that the IGB stockholders allegedly ratified the corporate directors’ actions. The problem with this contention is that defendants have failed to adduce adequate evidence that in any way shows that the stockholders of IGB made a knowing ratification of either the NIB-IGB stock exchange or of the sale of IGB stock for unsecured, noninterest bearing notes. We therefore refuse to hold that the stockholders of IGB ratified the activities found by the District Court to be fraudulent. The only action that we have discovered in the record that arguably constitutes a ratification of defendants’ action is that taken by the newly constituted Board of Directors on January 16, 1970. At that time, the defendants themselves elected three new members to the IGB Board, and the newly constituted Board, with all three defendants participating, then held two different votes to ratify defendants’ past actions as directors. The newly elected directors, with defendants abstaining, also voted to sell defendants additional IGB stock for unsecured, non-interest bearing notes. We are mindful of the Florida rule that “[i]t cannot be disputed that a board of directors of a corporation is without power to ratify that which it cannot do directly or that which it could not authorize to be done initially. It has no power to ratify a' void or illegal act.” Flight Equipment & Engineering Corp. v. Shelton, 103 So. 2d 615, 621 (citations omitted) (1958). We also recognize the general rule that “[Ratification can never be made on the part of the corporation by the same persons who wrongfully assume the power to make the contract.” Fletcher Cyc. Corp. § 761, p. 1067. Guided by the rule of Flight Equipment & Engineering Corp. v. Shelton, supra, we hold that the votes of the newly elected directors could not legally authorize defendants to breach their fiduciary duties by accepting IGB stock for unsecured, non-interest bearing notes at the same time that IGB was borrowing money at interest rates varying from 7% percent to 9% percent per annum. Moreover, the votes of the newly constituted Board of Directors, in which defendants participated, could not constitute a valid ratification of defendants’ illegal activities. We find that the fact that the fraud was committed by a director of IGB in no way provides these defendants with an impenetrable “business judgment” shield. See Bankers L. & C. Co., 1971, 404 U.S. 6, 10, 92 S.Ct. 165, 30 L.Ed.2d 128, 133. There could “be no more effective way to emasculate the policies of the federal securities laws then to deny relief solely because a fraud was committed by a director rather than by an outsider.” Ruckle v. Roto American Corp., 5 Cir. 1964, 339 F.2d 24, 29. As the District Court, held, and as this Court stated in Rekant v. Desser, supra, 425 F.2d at 882: “[W]hen officers and directors have defrauded a corporation by causing it to issue securities for grossly inadequate consideration to themselves or others in league with them or the one controlling them, the corporation has a federal cause of action under § 10b and Rule 10b-5. . . .” Defendants’ arguments to the contrary are meritless. IV. PLAINTIFFS’ APPEAL A. Plaintiffs’ Individual Rule 10b-5 Claim The District Court dismissed plaintiffs’ individual Rule 10b-5 claim because plaintiffs were unable to show any actual damages inasmuch as the dilution of their equity interest was not a cognizable element of damages for a violation of Rule 10b-5. Plaintiffs argue that Swanson v. American Consumer Industries, Inc., 7 Cir. 1969, 415 F.2d 1326, and Boggess v. Hogan, N.D.Ill. 1971, 328 F.Supp. 1048, establish that the dilution of a shareholder’s equity interest is a cognizable element of damages for violation of Rule 10b-5 and that their equity interest was in fact diluted by (1) the NIB-IGB stock exchange, and (2) defendants’ misrepresentations and omissions, which greatly altered the composite picture of the corporation from that represented to plaintiffs at the time of their initial purchase of IGB stock. In Swanson v. American Consumer Industries, Inc., supra, the Seventh Circuit held that the dilution of equity interest is an appropriate measure of damages where dilution was caused by fraud in connection with a purchase or sale in which the claimants participated. Boggess v. Hogan, supra, held that individual stockholders could maintain Rule 10b-5 claims when fraud in connection with a purchase or sale in which their corporation participated diluted the equity position of the corporation, and thus does support plaintiffs’ argument. This Circuit, however, has already rejected the result reached there. In Herpich v. Wallace, 5 Cir. 1970, 430 F.2d 792, we refused to allow shareholders of a corporation to maintain an individual Rule 10b-5 claim arising out of a fraudulent purchase by their corporation. We held that: “we are of the opinion that only purchasers and sellers of securities involved in an alleged Rule 10b-5 violation — that is, securities in connection with which fraud has allegedly been committed — can show injury of the type the rule is meant to prevent.” Id., 430 F.2d at 806. In short, a reading of Swanson with Herpich establishes that plaintiffs do not have standing to seek individual damages for the dilution of equity interest caused by the NIB-IGB stock exchange because plaintiffs were neither purchasers nor sellers in connection with that transaction. Plaintiffs also contend that their equity interest was diluted by defendants’ failure to fulfill the promises that had induced plaintiffs to purchase IGB stock. The District Court held that because plaintiffs had already made a profit of approximately $20,000 on their IGB stock, they were unable to show any damages arising out of their purchase. Typically in Rule 10b-5 damage actions: “[d]efrauded buyers who have prevailed on the merits have recovered their purchase price on a recission measure of damages, whether or not formally suing for recission. In an appropriate situation, e. g., if the scurities are not worthless, a buyer can keep them and recover damages for the difference between the price paid and the real value when bought. This is an out of pocket rule not covering expected speculative profit.” 2 A. Bromberg, Securities Law: Fraud, § 9.1, p. 226, at nn. 2-4 (emphasis added) (1971). We find that this is the appropriate measure of damages. Therefore, in light of the facts that: (1) the District Court award plaintiffs the option to rescind the purchase of their remaining shares of IGB; (2) plaintiffs have already made a $20,000 profit on their original purchase of IGB stock; and (3) Rule 10b-5 only provides for recovery of actual damages, 15 U.S.C. § 78bb, and not for loss of speculative profits, Schaefer v. First National Bank of Lincolnwood, N.D.Ill.1970, 326 F.Supp. 1186, 1193, appeal dismissed, 7 Cir. 1972, 465 F.2d 234; Ross v. Licht, S.D.N.Y.1967, 263 F.Supp. 395, 410, plaintiffs are unable to show that they suffered any damages compensable under Rule 10b-5. B. Prejudgment Interest Plaintiffs’ contend that the District Court erred in not granting interest on the moneys that the Court ordered defendants to reimburse to IGB in connection with the NIB-IGB stock exchange. Relying on Joseph E. Bennet Co. v. Trio Industries, Inc., 1 Cir. 1962, 306 F.2d 546, plaintiffs claim that the right to recover interest on a claim is a state question and that Florida law requires that IGB recover interest on the judgment entered in its favor. Plaintiffs reliance on Joseph E. Bennet Co. v. Trio Industries, Inc., supra, is erroneous. Bennet was a diversity case where state substantive law clearly would be controlling, and it is thus of no weight in an action brought pursuant to the federal securities laws. In determining whether prejudgment interest is allowed on damages awarded pursuant to Rule 10b-5, federal law governs. Ross v. Licht, supra, 263 F.Supp. at 411. Rule 10b-5, like Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), “being a federal right, its remedial aspects also are a matter of federal law.” Gilson v. Chock Full O’Nuts Corp., 2 Cir. 1964, 331 F.2d 107, 109. Under federal law, whether prejudgment interest should be awarded on a damage recovery in a Rule 10b-5 action is a question of fairness resting within the District Court’s sound discretion. Blau v. Lehman, 1962, 368 U.S. 403, 414, 82 S.Ct. 451, 7 L.Ed.2d 403, 411; Wessels v. Buhler, 9 Cir. 1971, 437 F.2d 279, 284; Norte & Co. v. Huffines, 2 Cir. 1969, 416 F.2d 1189, 1191, 1192, cert. denied sub nom., Muscat v. Norte & Co., 1970, 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396. We perceive no abuse of discretion in the District Court’s denying IGB prejudgment interest in the instant case. C. The Derivative § 5 Claim The District Court awarded defendants summary judgment on plaintiffs’ derivative claim seeking damages for violations of Section 5 of the Securities Act of 1933, which was brought pursuant to the remedial provisions of Section 12 of that Act. The Court below reasoned that “Section 12 affords a remedy to the purchaser alone where thére has been noncompliance with Section 5. It is not argued that the Section 5 violation here resulted in injury to the issuer.” Plaintiffs contend that this ruling was erroneous because defendants had not carried their burden of proof on a motion for summary judgment. This argument misses the point. Section 12, in terms, provides a remedy for violations of Section 5 only to purchasers of securities, Schoenbaum v. Firstbrook, S. D.N.Y.1967, 268 F.Supp. 385, 396, aff’d, 2 Cir. 1968, 405 F.2d 200, rev’d en banc on other grounds, 2 Cir. 1968, 405 F.2d 215, cert, denied, 1969, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219, or to one who stands in the shoes of a purchaser. American Bank & T. Co. v. Barad Shaff Securities Corp., S.D.N.Y.1972, 335 F.Supp. 1276. Plaintiffs’ derivative Section 5 claim does not involve any purchase of securities by IGB and therefore was properly dismissed. D. Equitable Belief Plaintiffs next argue that the District Court erred in failing to enjoin defendants from voting their shares of IGB until the shares were fully paid for. In determining whether further equitable relief was necessary, the District Court exercised its discretion to fashion a remedy that would most fully comport with the purposes of the applicable federal securities law. We cannot say that the District Court abused its equitable discretion by refusing to order additional injunctive relief. E. Costs of the Derivative Suit Finally, plaintiffs urge that the District Court erred in holding that plaintiffs had failed to establish a basis for reimbursement. of their reasonable attorneys’ fees and expert witness fees incurred in maintaining this action. In Mills v. Electric Auto-Lite Co., 1970, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, the Supreme Court held that attorneys’ fees could be awarded in private suits brought to enforce the Securities Exchange Act of 1934. The Court held that “petitioners, who have established a violation of the securities laws by their corporation and its officials, should be reimbursed by the corporation or its survivors for the costs of establishing the violation.” Id., 396 U.S. at 389, 390, 90 S.Ct. at 624, 24 L.Ed.2d at 605. We hold that the District Court erred in finding that plaintiffs had established no basis for reimbursement of the cost of maintaining the derivative claim. By their efforts in acting as “private attorney generals,” plaintiffs established violations of the securities laws and created a substantial fund for the benefit of IGB. The reimbursing of plaintiffs’ costs for attorneys’ fees and expert witness fees is supported both by the policy of encouraging enforcement of the securities laws and by well established equitable principles. “[P]rivate stockholders’ actions of this sort ‘involve corporate therapeutics,’ and furnish a benefit to all shareholders by providing an important means of enforcement of the . statute. Id., 396 U.S. at 396, 90 S.Ct. at 628, 24 L.Ed.2d at 609 (footnotes omitted). Moreover, in the instant suit plaintiffs have created a substantial fund benefitting IGB, and plaintiffs are equitably entitled to be reimbursed by IGB. Sprague v. Ticonic Nat’l Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; Central R. R. & Banking Co. v. Pettus, 1885, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915, Trustees v. Greenough, 1882, 105 U.S. 527, 26 L. Ed. 1157. On remand, the District Court should determine the amount of attorneys’ fees and expert witness fees reasonably incurred by plaintiffs in maintaining the derivative claims on behalf of IGB, and the Court should order IGB to reimburse plaintiffs in that amount. V. CONCLUSION Both in the District Court and in this Court, plaintiffs have vindicated the rights of IGB by enforcing the federal securities laws. Both the policy of the federal securities laws and notions of fair play require that plaintiffs be reimbursed for the costs of maintaining IGB’s derivative claim. The District Court conducted the trial below in an admirable manner and we have been greatly benefitted by its thoughtful and incisive rulings. We affirm it in all things but the denial of plaintiffs’ attorneys’ fees and expert witness fees. Costs to be taxed against defendants-appellees-cross appellants. Affirmed in part, reversed in part, and remanded with instructions. . In this opinion Robert R. Frank, Jack H. Stein, and John W. Roberts, Jr. will be referred to as “defendants” and J. William Wolf will be referred to as “plaintiff.” . Although defendant Roberts was present when some of these representations were made, the District Court found that there was no credible evidence that he made any affirmative representations. . Rule 10b-5 was adopted by the United States Securities and Exchange Commission pursuant to Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j. . It was stipulated that the activities complained of were accomplished by the use of means and instrumentalities of interstate commerce and the mails. . Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e provides : “(a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly— (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell such security through the use or medium of any prospectus or otherwise; or (2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale. “ (b) It shall be unlawful for any person, directly or indirectly — ■ (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to carry or transmit any prospectus relating to any security with respect to which a registration statement has been filed under this sub-chapter, unless such prospectus meets the requirements of section 77j of this title; or (2) to carry or cause to be carried through the mails or in interstate commerce any such security for the purpose of sale or for delivery after sale, unless accompanied or preceded by a prospectus that meets the requirements of subsection (a) of section 77j of this title. “(c) It shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of any prospectus or otherwise any security, unless a registration statement has been filed as to such security, or while the registration statement is the subject of a refusal order or stop order or (prior to the effective date of the registration statement) any jrablic proceeding or examination under section 77h of this title.” . Plaintiffs elected not to rescind their purchase of the remaining shares of IGB stock. . Section 12 of the Securities Act of 1933, 15 U.S.C. § 77l, provides in relevant part: “Any person who — (1) offers or sells a security in violation of section 77e of this title [§ 5] . . . shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” . Rule 23.1 provides : “In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the United States which it would not otherwise have. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The' action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to slxareholders or members in such manner as the court directs.” . See Section A, supra. . We have carefully examined the documents cited by defendants as supporting this argument. We find no support in them for the notion that the IGB stockholders ratified either of the transactions in question. . Although Southern Ice Co. v. Morris, 5 Cir. 1915, 219 F. 551, has been cited by the Seventh Circuit in Estate Counselling Service v. Merrill, Lynch, Pierce, Fenner 6 Smith, Inc., 7 Cir. 1962, 303 F.2d 527, 533, as holding that speculative profits are recoverable in Rule 10b-5 actions, we think that Southern Ice Go., which was decided prior to the passage of both the Securities Act of 1933 and the Securities Exchange Act of 1934, is not controlling authority for that position. . See note 6 supra. . For a valuable discussion of the ramifications of Mills v. Electric Auto-Lite Co., see Comment, The Allocation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316 (1971). See also Comment, Attorneys’ Fees in Shareholder Derivative Suits: The Substantial Benefit Rule Reexamined, 60 Calif.L.Rev. 164 (1972); Note, Mills v. Electric Auto-Lite Company; Proxy Violations — The Causation Question and the Award of Attorney’s Fees, 65 Nw.U.L. Rev. 854 (1970).
f2d_477/html/0481-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "\n HASTINGS, Senior Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	REX CHAINBELT INC., Plaintiff-Appellee, v. BORG-WARNER CORPORATION, Defendant-Appellant. REX CHAINBELT INC., Plaintiff-Appellee, v. CARMAN INDUSTRIES, INC., Defendant-Appellant. Nos. 71-1596, 71-1597. United States Court of Appeals, Seventh Circuit. Argued Sept.. 28, 1972. Decided April 26, 1973. Rehearing Denied May 18, 1973. Thomas F. McWilliams, Malcolm S. Bradway, Chicago, Ill., Basil H. Lorch, Jr., New Albany, Ind., for defendants-appellants. Albert H. Pendleton, Ralph E. Church, Jr., Chicago, Ill., for plaintiff-appellee. Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CUMMINGS, Circuit Judge. HASTINGS, Senior Circuit Judge. On October 5, 1965, George D. Dumbaugh. filed a patent application, Serial No. 493,197. Patent No. 3,251,457 issued to him on May 17, 1966. The Dumbaugh patent has been described as being generally directed to “the varying of the feed rates of vibratory conveyors by varying the voltage applied to a squirrel cage type of motor which drives the feeder or conveyor.” Alvin G. Westerman applied for a patent on October 26, 1965. His application bears Serial No. 505,284. Pursuant to 35 U.S.C.A. § 135, the Commissioner of Patents determined that the Westerman application interfered with the Dumbaugh patent and, on November 21, 1966, gave the requisite notice to the parties. Pursuant to Rule 205(a) of the Rules of Practice in Patent Cases, 37 C.F.R. § 1.205(a) (1972), Title 35, U.S.C.A., Westerman, the applicant party, amended his application by copying verbatim the eight apparatus and four method claims of Dumbaugh, the patentee party, and adding them to his own application. The copied claims were designated as the counts of Interference No. 95,710, which was referred to the Board of Patent Interferences (Board) for resolution. The Board is the tribunal within the Patent Office charged by Congress with the exclusive responsibility for determining “the question of priority of invention.” 35 U.S.C.A. § 135. Because Dumbaugh’s application had been filed prior to Westerman’s, Dumbaugh was- the senior party before the Board. In the interference proceedings, therefore, it was incumbent on Westerman, as the junior party, to prove his priority of invention by a preponderance of the evidence. Sanford v. Kepner, 3 Cir., 195 F.2d 387, 389 (1952), aff’d, 344 U.S. 13, 73 S.Ct. 75, 97 L.Ed.12. The Board’s decision of April 30, 1970, awarded priority to Dumbaugh. Plaintiff then brought the instant action in the district court under 35 U.S. C.A. § 146 to review the Board’s award. The court on April 20, 1971, upon the record made' before the Board and a small amount of additional testimony adduced by plaintiff in the district court, set aside all the Board’s findings and awarded priority of invention to Westerman. We reverse the judgment of the district court. I. We are faced with the threshold question of whether the district court applied the correct standard of review. An action under § 146 is of a hybrid nature. It has one element of a trial de novo in that either party is permitted to introduce evidence which was not before the Board. Nevertheless, it is clear under the controlling case of Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657 (1894), that a § 146 action is essentially of an appellate character and that the scope of review is quite narrow: “Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Id. at 125, 14 S.Ct. at 773 (emphasis added). In 1916, Circuit Judge Mack, speaking for our court in Gold v. Gold, 7 Cir., 237 F. 84, set forth a standard of review for district courts to follow in these cases which, with only the modifications made necessary by intervening amendments to the statute, has continuing vitality:' “The final decision in the interference proceedings, while not conclusive, is nevertheless of the utmost importance. The Court of Appeals [of the District of Columbia] acts therein as the highest patent tribunal; like the Patent Office officials, its members acquire a wide experience in these intricate questions, the solution of which demands expert knowledge and training. Moreover, unlike the ex parte grant of patents, interference proceedings are contested between parties in interest, and, while conducted by administrative officials, are quasi judicial in their nature. “The District Court, in this statutory proceeding to review the decree rendered in a contested case by a court acting as the final expert administrative governmental department, exercises a jurisdiction somewhat analogous to, though broader than, that exercised by a court of equity on a bill to set aside a judgment at law — broader, in that the evidence may go to the merits of the original controversy; but, though a re-examination of the evidence is not precluded, the court must be thoroughly convinced that it furnishes no substantial support whatever for the decree before the conclusions reached by the Court of Appeals of the District of Columbia will be overturned. “And while this seems obvious enough, when the re-examination involves merely a weighing of the evidence and a consideration of the credibility of witnesses, as in the ordinary priority of invention cases, it is equally true when questions peculiar to the patent law, such as the construction and scope of the patent application, are involved. For it is just such questions that the administrative tribunal is pre-eminently qualified to solve. Even then, of course, the court is not absolved from the duty of examination; but, unless it be perfectly clear that the final expert administrative body, the Court of Appeals, erred, relief should not be granted * * * .” Id. at 86. It is plain from the district court’s memorandum opinion of May 5, 1971,-that it did not apply the proper criterion. After finding that it had jurisdiction over the parties and of the subject matter of the action, the court said: “The plaintiff has maintained its burden of proof of the essential elements and alleged facts of the complaint by a preponderance of the evidence * * * .” We find no basis for accepting plaintiff’s contention that the district court meant this statement to apply only to the ten “formal” paragraphs of the complaint, but not to the eleventh paragraph which alleged that the Board’s award had been erroneous. The district court’s decision cannot stand, therefore, unless as we apply the “thorough conviction” test laid down in Morgan v. Daniels, it appears to us that the district court reached the correct result despite its use of the wrong standard. II. It has long been accepted that the question of priority of invention is the only matter within the competence of the Board of Patent Interferences. See Ferree v. Shephard, 384 F.2d 1019, 55 C.C.P.A. 848 (1967). This restriction of the Board’s jurisdiction does not, however, prevent it from determining certain matters “ancillary” to the basic question of priority. The Board’s decision on the ancillary question of Westerman’s right to make the counts of the interference was one of the independent grounds for its award. Dumbaugh raised the question initially during the usual motion period by moving to dissolve the interference. The Primary Examiner denied Dumbaugh’s motion, holding that Westerman’s disclosure “comprehends within its confines the AC squirrel cage motor.” In so doing, however, the Primary Examiner applied the wrong rule of law. As the Board correctly pointed out in its opinion, “a sufficient basis [to support the copied claims] is provided only if the specification is so worded that the necessary and only reasonable construction to be given the disclosure by one skilled in the art is one which will lend clear support to the claim” (emphasis in original). The question is not whether the applicant party’s application can be read to include the particular device of the patent, but whether it necessarily discloses the device. Gubelmann v. Gang, C.C.P.A., 408 F.2d 758, 766 (1969); Dreyfus v. Sternau, 357 F.2d 411, 415, 53 C.C.P.A. 1050 (1966); Jepson v. Coleman, 314 F.2d 533, 536, 50 C.C.P.A. 1051 (1963); Crome v. Morrogh, 239 F.2d 390, 392, 44 C.C.P.A. 704 (1956). Measuring the Westerman application by this criterion, the Board concluded that it failed to disclose as a necessary element the use of an A.C. squirrel cage induction motor. Rather, the Board found that the application might also be read to teach the use of a wound rotor motor — the other type of A.C. induction motor. Plaintiff expended most of its energies before the district court attempting to refute the Board’s conclusion by evidence of the character and amount required by Morgan v. Daniels. Thus, it sought to demonstrate by the testimony of experts that the phrase “ordinary induction motor,” which appeared in the Westerman application, would be read by one skilled in the art to signify a squirrel cage motor to the exclusion of any other type. Furthermore, plaintiff contended and attempted to prove that the symbol employed in the drawings accompanying the Westerman application disclosed a squirrel cage motor to the exclusion of any other type. With respect to the meaning of “ordinary induction motor,” plaintiff’s expert witnesses asserted that squirrel cage motors are ordinary in the sense that they are the induction motors most usually encountered by manufacturers who employ induction motors in the course of their business. Defendants’ experts testified that wound rotor motors are also ordinary in the sense that they are common, simple and relatively uncomplicated. On cross-examination, neither side’s witnesses were willing to state that the opposing witnesses were wrong in their testimony. The conclusion to be drawn from this testimony comports with the result reached by the Board, namely, that the phrase “ordinary induction motor” does not necessarily reveal a squirrel cage motor. However, the testimony with respect to the symbol used in the drawings cuts the other way. As the Board pointed out in its opinion, “drawings alone may be sufficient to support a count — if there are no contradictory disclosures in the specification and the drawings are unambiguous.” The additional testimony before the district court, which was not, of course, available for the Board to consider, establishes clearly and with sufficient force to compel “thorough conviction” that the symbol used in the Westerman application would teach the exclusive use of a squirrel cage motor to one skilled in the art. The new evidence before the district court was uncontradicted that the symbol used in the Westerman application was the one approved by the American Standards Association for depicting an A.C. squirrel cage induction motor. Although the Association approved the same symbol to represent other elements in an electrical system (a generator, a repulsion motor or a rotary phase converter, for example), from the drawing as a whole it would be obvious to one skilled in the art that the symbol was meant to represent a motor driving a load. Aided by the language of the specification in Westerman’s application, then, the symbol would necessarily disclose a squirrel cage rather than a wound rotor motor. The Board erred in finding otherwise, and the district court was correct in overruling this finding. However, finding that Westerman had the right to make the counts merely gives plaintiff the right to go forward before the Board and does not reach the ultimate question of priority of invention. We next consider the important central question of priority. III. In conducting our review of the district court’s action in these interference proceedings, we have attached paramount significance to the roles to be played by the Board and the district court in the factfinding process. The record shows that plaintiff’s evidence before the district court touched mainly on the question of Westerman’s right to make the interference counts. What little evidence plaintiff introduced relative to actual priority of invention was largely cumulative of that before the Board. Plaintiff’s failure to present “new” evidence before the district court on this issue did not of itself require the district court to uphold the Board’s award. Nevertheless, consistent with “thorough conviction” test enunciated in Morgan v. Daniels, we think that the less “new” evidence there is before the district court, the more blatant the Board’s factual errors must have been before the district court is justified in reversing the Board’s award. the It requires no citation of authority to state that invention has not occurred until the subject of the invention has been both conceived and reduced to practice. In the absence of convincing proof of earlier dates, the date of application for a patent is presumed to be the date of constructive conception and reduction. It is for this reason that the earlier applicant is considered the senior party in an interference, for until proof is taken, he is the first inventor by benefit of this presumption. If the parties to an interference are not content to rely on their application dates (and the junior party cannot rely on his if he is to prevail), they have the opportunity during the interference proceedings to establish earlier dates by clear proof. The primary date to establish is that of conception, since 35 U.S.C.A. § 102(g) permits the party with the earlier conception date to prevail if he can show “reasonable diligence” in later reducing the invention to practice. In the present proceedings it is uneontested that Dumbaugh conceived the invention on July 8, 1965, and reduced it to practice on July 27, 1965. The question of priority of invention turns, then, on plaintiff’s proof that Westerman conceived the invention at some particular date prior to July 8, 1965. Specifically, under the facts of this case, plaintiff must demonstrate convincingly that Westerman conceived the invention now in issue in late 1959 and early 1960 in the course of correcting a feeder malfunction at a customer’s plant and of performing certain experiments incidental thereto. In 1959, plaintiff’s predecessor, Carrier Conveyor Corporation (Convey- or), of Louisville, Kentucky, designed and marketed several different types of vibratory feeders, including its Amplitrol model. The Amplitrol feeder embodied a free mass, natural frequency vibratory system of a type well known to the art. The three main components of this system were the exciter mass (an A.C. squirrel cage induction motor with an eccentric weight mounted on each end of its shaft), the feeder mass (a trough containing a load of particulate matter) and a set of pneumatic springs (bags of compressed air) connecting the two masses. The squirrel cage motor was chosen for use because of its durability and its minimal maintenance requirements. The speed of this motor, when not driving a load or when driving a small load relative to its size, was known to be adjustable by controlling the voltage applied to it. But it was thought in the art that, because of load torque requirements and the limited thermal capability of a squirrel cage motor, motor speed could not be adjusted within the context of a vibratory system without burning out the motor. As a practical matter, the fact that motor speed could not be adjusted meant that the commercially critical step of controlling the feed rate off the end of the trough could only be accomplished by varying the stiffness of the springs. This accounted for the presence in the Amplitrol feeder of pneumatic springs, rather than helical steel coils or other common type of spring. The stiffness of the springs, and hence the feed rate, of the Amplitrol feeder was' controlled by increasing or decreasing the compressed air pressure in the pneumatic springs. In August 1959, Conveyor sold two Amplitrol feeders to the American Tobacco Company (American Tobacco) for use in its Richmond, Virginia, plant. The squirrel cage motors in the feeders sold to American Tobacco had internal wiring connections that could be connected in such a way that the machine could operate on either 220 volts or 440 volts of electrical potential. Before being shipped to American Tobacco, the feeders had been tested at Conveyor’s plant, which had a 440-volt source in the testing area. Since American Tobacco’s order specified that the feeders should be wired for 220 volts, the necessary adjustments to the internal connections should have been made before the feeders left the Conveyor plant. Evidently only one of the feeders was properly wired. In late October 1959, soon after the feeders had been installed at American Tobacco, Conveyor received a complaint that one of the new feeders would not convey material properly. The complaint came to Westerman, who was in charge of customer service for Conveyor, and he spoke by telephone to an engineer at American Tobacco. Westerman first suggested some minor adjustments to the malfunctioning feeder. While these suggestions were being followed up, he studied Conveyor’s file on the American Tobacco order and noticed the 220-volt specification. Westerman later testified: “In trying to solve the problem, the thought came to me that possibly one feeder has been changed to 220 volt and the other feeder had not.” At this point he hypothesized that if the lower than designed voltage had decreased the speed of the squirrel cage motor, the normal and desirable feed rate could be obtained by making an abnormally large adjustment to the air pressure in the springs. When the American Tobacco engineer called back, Westerman told him to lower the air pressure substantially. After this adjustment had been made (from approximately 30 p.s. i. to approximately 15 p. s. i.), the recalcitrant feeder operated at a satisfactory feed rate for two months until Westerman could travel to Richmond, verify the wiring error and have the internal wiring connections changed to 220 volts. Early in November 1959, Westerman reported the American Tobacco incident to John M. Morris, his superior. Morris told Westerman that he must have been wrong about the miswiring for if Westerman’s theory of a miswiring were correct, the malfunctioning feeder’s motor would have burned out within a few hours of its installation and first use by American Tobacco. The other engineers at Conveyor who were consulted on the matter agreed with Morris’ analysis. Westerman, convinced of the correctness of his own thinking, prevailed upon Morris to perform an experiment with an Amplitrol feeder in Conveyor’s laboratory, in an attempt to recreate what Westerman thought had occurred with the American Tobacco feeder. At the laboratory, Westerman and Morris found the feeder wired for 220 volts, because the laboratory’s available source was 220 volts. The feeder was started, a small bag of sand was put in the trough to act as the load, and the air pressure in the pneumatic springs was adjusted to the point where feed rate was normal. The feeder was then turned off, the internal wiring connections were changed to 440 volts and the feeder was restarted. Feed rate was negligible, but the motor did not heat up. Air pressure in the pneumatic springs was then decreased substantially, and the feeder again began to operate at normal feed rate. It was allowed to continue running in this way for a week or two; Westerman, Morris and the other engineers at Conveyor looked at it occasionally as they passed through the laboratory. At no time did the squirrel cage motor show signs of overheating. As stated above, Westerman traveled to Richmond in early January 1960, bringing the American Tobacco incident to a close. In his deposition testimony before the Board, Westerman was asked the following questions and made the following responses: “Q258 Now, after this laboratory experiment was concluded, did you have anything further to do with that particular project or a continuation of the project? “A Of the project, no, sir. “Q259 Did you ever have anything further to do with variable speed controls for feeder motors after that time? “A No, sir. “Q260 Now, I believe you stated on direct that you told Mr. Morris that you thought this particular setup could be patentable. Do you recall what Mr. Morris said to you in response ? “A His response to me after we had run the test in the lab was that the research and development, of which he had control, would pursue the incident that we just witnessed in the lab. **** “Q263 When you told Mr. Morris you thought this should be patentable, just what did you have in mind as the patentable subject matter ? “A Varying the speed of the motor and changing the rate of feed on a work member. “Q264 Did you have in mind any particular means of doing that ? “A No, sir. “Q265 At the time of this laboratory experiment, did you know of anything else with respect to speed variation other than this one incident of of [sic] running the 440 volt motor on the 220 volt line ? “A No, sir. “Q266 Wouldn’t it be correct to categorize the situation at American Tobacco Company as an unsatisfactory situation, having the 440 volt motor on the 220 volt line, which you subsequently corrected by rewiring the motor for 220 volts ? **** “A Yes, sir. “Q267 Wouldn’t it be correct to say that that situation was accidental? “A It was accidental. “Q268 The effects were undesirable? “A From the customer standpoint, yes, and from our standpoint of leaving it like that, yes.” We now turn to a consideration of the American Tobacco incident. IY. The Board was quite unimpressed with the American Tobacco incident as proof of conception of the invention by Westerman. It stated: “We regard such evidence at best as only providing proof of the basis, or of the impetus, for Westerman’s idea or appreciation that the motor speed was dependent on the effect of the applied voltage and that the motor, when used with a vibratory feeder, would not burn out when energized at lower than the designed voltage. We do not regard this as establishing even complete conception of the invention in issue by Westerman.” The district court disagreed with the Board on this point, finding in the American Tobacco incident not only an “idea or appreciation,” but conception and reduction to practice of the precise invention in issue. It appears to us that the disagreement between the Board and the district court stems from their different approaches to the incident, particularly in two aspects. First, the district court gave full credit to Westerman’s testimony that as soon as he discovered that the motor in an Amplitrol feeder would not burn up when energized at lower then the designed voltage, he realized that feed rate could be varied by electrical controls alone and that the use of compressed air, a costly second form of energy, could be obviated. Secondly, having credited this testimony completely, the district court thought that Westerman’s professed “realization” constituted conception of the invention in issue. The Board, either expressly or impliedly, took the opposite position on each matter. As far as the physical facts of the American Tobacco incident are concerned — the miswiring of the motor, the telephoned complaint, the trip to Richmond and the like — there is no serious reason to doubt that they occurred. Contemporaneous documentation, from Conveyor’s files and elsewhere, attests to their occurrence. The same cannot be said for Westerman’s “realization” of the essential principle of the invention. As Westerman admitted in his deposition testimony, there were no documents known to exist, either in his possession or plaintiff’s, showing that between October 1, 1959, and February 15, 1960, he personally had the idea that it was either desirable or possible to vary feed rate by varying voltage to the motor. Morris testified that there was no documentation anywhere, to his knowledge, dating from before August 2, 1965, which mentioned the American Tobacco incident or tied Westerman in any way to plaintiff’s ongoing attempt to develop just such an electrical feeder control as Westerman claims he conceived in 1959-1960. Nor did any disinterested person testify to having heard Westerman, Morris or any of their colleagues discuss the American Tobacco incident or the “realization” that Westerman allegedly had. The only testimony favorable to Westerman on this point was his own and that of certain of his co-workers, similarly concerned about the outcome of the interference proceedings, who tended to^ corroborate Westerman in their deposition testimony before the Board. Nothing further was added by the testimony before the district court. With the record in this state, we cannot fault the Board for finding, as it must have done, that this self-serving oral testimony was inherently unworthy of credit. In order to have come to such a conclusion, it was not necessary for the Board to decide that Westerman and his witnesses were consciously doing otherwise than telling the truth as they remembered it. On the contrary, there is no hint of perjury in the record before us. The courts have long followed a rule, in patent cases where one party (particularly a nonpatentee) must prove what he thought or did years before testimony is taken, of putting that party to the strictest of proofs. The soundness of such a rule is clearly demonstrated in this case where testimony was not taken until more than eight years after the events in question occurred. As the Supreme Court noted in The Barbed Wire Patent Case, 143 U.S. 275, 284-285, 36 L.Ed. 154 (1892): “The very fact, which courts as well as the public have not failed to recognize, that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of witnesses who imagined they had made similar discoveries long before the patentee had claimed to have invented his device, has tended to throw a certain amount of discredit upon all that class of evidence and to demand that it be subjected to the closest scrutiny.” See also Globe-Union, Inc. v. Chicago Telephone Supply Co., 7 Cir., 103 F.2d 722, 729-730 (1939); 1 Walker, Walker on Patents § 75, at 348, 351, 353 & 356 (Deller 2d ed. 1964). As a final observation on this point, we note that quite aside from the rules laid down in The Barbed Wire Patent Case and Morgan v. Daniels, the result we reach is compelled by our own reading and consideration of the evidence. As this court said in Globe-Union, Inc. v. Chicago Telephone Supply Co., 103 F.2d 722, 732 (1939): “In the instant case the bulk of the record stands on deposition evidence. Findings of the trial court in such situations, while worthy of great consideration, are not conclusive in this court.” See also Uihlein v. General Electric Co., 7 Cir., 47 F.2d 997, 1003 (1931). Finally, the disagreement between the Board and the district court as to whether Westerman’s “realization,” if credited, would amount to conception of the invention in issue is most easily resolved by looking to the meaning of “conception of invention.” “The conception of' the invention consists in the complete performance of the mental part of the' inventive act. All that remains to be accomplished in order to perfect the act or instrument belongs to the department of construction, not invention. It is, therefore, the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is thereafter to be applied in practice that constitutes an available conception within the meaning of the patent law.” Mergenthaler v. Scudder, D.C.Cir., 11 App. D.C. 264 (1897), quoted in 1 Walker, Walker on Patents § 75, at 356 (Deller 2d ed. 1964). Deller’s edition of Walker on Patents summarizes the law on this question even more succinctly by noting that “[a] mere idea is not conception” and that “[u]ntil the entire conception is complete and is ready to be incorporated in a practical embodiment, there is no available and complete conception of the invention within the meaning of the patent law.” Id. at 357. See Standard Cartridge Co. v. Peters Cartridge Co., 6 Cir., 77 F. 630, 645 (1896). When an alleged inventor has only an “idea or appreciation” of what he wants to accomplish and not a conception of the means to be used in accomplishing the purpose, particularly when the means constitute an essential part of the invention, the idea or appreciation cannot stand as a complete conception of the invention within the meaning of the law. Land v. Dreyer, C. C.P.A., 155 F.2d 383, 387, 33 C.C.P.A. 1108 (1946); cf. Reed v. Cutter, 20 F.Cas. 435, 438 (No. 11,645) (C.C.D.Mass. 1841) (Story, Circuit Justice). It is obvious to us, as it must have been to the Board, that Westerman had no conception of the means to be utilized in accomplishing feed rate variation. In addition to the previously quoted excerpt from Westerman’s deposition testimony, the following passage from the same source is eloquent in establishing that Westerman did not conceive the invention in issue: “Q167 You spoke earlier about electrical means, I am trying to quote you accurately, to control the speed of the feeder and therefore the feed rate, as being the idea that you had at the time of the laboratory demonstration. “Can you state what it was you proposed to do electrically to effect that control ? “A Well, I could see where the change in the motor speed would change the feed rate, and with Morris being head of Research and Development, an electrical engineer from Speed School, I left that in his hands, because I didn’t know what would be proper or the best way of controlling the speed of the motor. “I just wouldn’t know that, and I suggested or stated to him that he is versed in that subject and he ought to be able to work it out. “Q168 Now, by that, do you have reference to specific varying voltage means ? “A I have reference to varying the voltage of the motor which we did to change the motor speed. “Q169 But you did not suggest the specific means to be used for the purpose? “A No, sir, I did not.” V. After having determined that Dumbaugh had priority of invention, the Board found and held as an alternative ground that the forfeiture doctrine of Mason v. Hepburn, D.C.Cir., 13 App.D.C. 86 (1898), applied to this case. The district court held to the contrary. We do not find it necessary to reach and determine this issue here. Dumbaugh established conception and reduction dates in July 1965. Westerman did not succeed in establishing a conception date prior to his constructive conception date of October 26, 1965. It follows, then, that Dumbaugh has established priority of invention, and the award of priority by the Board of Patent Interferences to Dumbaugh was proper. Accordingly, the judgment of the district court is reversed, and this cause is remanded with directions to dismiss the amended complaint and enter judgment for the defendants. Reversed and remanded. . Defendant Carman Industries, Inc. (formerly Carrier Manufacturing Company), Dumbaugh’s employer, was the initial assignee of this patent. In 1968 it sold the patent to a company whose assets have since been acquired by defendant Borg-Warner Corporation. Carman retains a license under the patent and, therefore, has an interest in the outcome of these proceedings. . Carrier Mfg. Co. v. Rex Chainbelt, Inc., E.D.Wis., 281 F.Supp. 717, 718 (1968). The description appears in the report of a decision concerning pretrial discovery in an infringement suit brought by present defendant Carman (under its former name) against present plaintiff. That suit was later dismissed as a part of a settlement agreement between the parties thereto under which each side granted the other a license for the invention in issue. The questions of who is the licensor under the agreement and who is the licensee were left to abide the ultimate determinaturn of priority of invention in these interference proceedings. . Plaintiff Rex Chainbelt Inc., Westerman’s employer, is the assignee of his patent application. . The interference as so declared contained twelve counts. The parties have agreed that Count 5 is representative: “In an electric motor drive for a vibratory free mass system, the combination of a mass mounted for a vibratory movement, means for exciting the mass to a vibratory movement with a given frequency and stroke, said means including an A.C. squirrel cage motor carrying an eccentric weight, and means for simultaneously varying both said stroke and said frequency, said last named means including means for varying voltage applied to said motor.” . The district court’s unreported amended opinion was filed May 5, 1971. . “In such suits the record in the Patent Office shall be admitted on motion of either party upon the terms and conditions as to costs, expenses, and the further cross-examination of the witnesses as the court imposes, without prejudice to the right of the parties to take further testimony.” 35 U.S.C.A. § 146. . The statutory basis for interference proceedings and district court review of the Patent Office determination of priority is now found in 35 U.S.C.A. §§ 135 & 146. Within the Patent Office, the Board of Patent Interferences is the only body which determines interferences, so that its decision is final. If the dissatisfied party wishes to obtain district court review of the Board’s award, he may bring his action immediately after the award is made, as was done in the instant case. The relevant statutes in effect in 1916 were Rev. Stats. §§ 4904, 4909-4910 & 4915 (Act of July 8, 1870, ch. 230, §§ 42, 46-47 & 52, 16 Stat. 204-205) and Act of Feb. 9, 1893, ch. 74, § 9, 27 Stat. 436. The initial determination of priority was made by the Primary Examiner. Within the Patent Office, his decision was reviewable by the Board of Examiners-in-Chief, and their decision could be appealed to the Commissioner of Patents in person. His decision could be appealed to the Court of Appeals of the District of Columbia, and if this step -was taken, the court’s decree stood as the final determination of the Patent Office. At the option of the dissatisfied party, a bill in equity to review the Patent Office decision could be brought in the district court either after the Commissioner’s ruling or after that of the D.C. Court of Appeals. . “An ancillary question has been defined as one which, if decided in favor of the moving party, would necessarily result in judgment against his adversary, that is, that the moving party would be adjudged to be the prior inventor of the interferference issue.” Baker, Outline of Patent Office Interference Practice 43 (12th rev. ed. 1965) (emphasis in original). . See Rule 231, Rules of Practice, 37 C.P.R. § 1.231 (1972), Title 35, U.S.C.A. . Quoting (in part) Johnson v. Riener, 302 F.2d 757, 761, 49 C.C.P.A. 1096 (1962). . In fact, we note that the Court of Appeals for the District of Columbia Circuit recently approved an award reversal based entirely on the record made before the Board. Cody v. Aktiebolaget Flymo, 452 F.2d 1274, 1279-1280 (1971), cert. denied, 405 U.S. 990, 92 S.Ct. 1254, 31 L.Ed.2d 456 (1972). . Plaintiff has introduced substantial evidence concerning the activities between 1960 and 1965 of some of its employees other than Westerman. Its purpose in so doing was to prove other reductions to practice before Dumbaugh’s in the event the Board did not think Westerman’s 1959-1960 activities established a reduction to practice. The theory under which they sought to have these activities credited to Westerman has its basis in a principle of patent law first laid down in Agawam Co. v. Jordan, 74 U.S. (7 Wall.) 583, 19 L.Ed. 177 (1869): “No one is entitled to a patent for that which he did not invent unless he can show a legal title to the same from the inventor or by operation of law; but where a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments' arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are in general to be regarded as the property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention.” Id. at 602. See also Milwaukee v. Activated Sludge, Inc., 7 Cir., 69 F.2d 577, 587 (1934), cert. denied, 293 U.S. 576, 55 S.Ct. 87, 79 L.Ed. 673. The theory seems to be that in the same way that an employee’s work is creditable to his inventor-employer under the conditions set out above, a fellow-employee’s work is creditable to his inventor-fellow-employee, at Ifeast when both employees are under obligation to assign to their common employer the rights in any discovery made in the course of their employment. Under the view we take of this case, we do not find it necessary to decide this issue. It is beyond dispute that if plaintiff is to prevail, it must prove at least that Westerman eoneeived the invention in the technical sense in which that word is used in patent law. It is clear to us that unless Westerman conceived the invention, he is not the inventor, is not entitled to a patent under 35 U.S.C.A. § 102(f) and cannot be awarded priority of invention in these proceedings. Moreover, if proof that Westerman conceived the invention is to be found anywhere, it must be found in the evidence concerning his 1959-1960 activities, for his deposition testimony before the Board was straightforward and unequivocal that he had nothing further to do with the project or any continuation of it or with anything involving “variable speed controls for feeder motors” after that time. Thus, there is no need to consider the 1960-1965 activities of plaintiff’s other employees for any purpose relevant to the present proceedings. . At about this time, plaintiff was in the process of acquiring Carrier Conveyor Corporation, which after acquisition continued to operate as plaintiff’s Carrier Division under the same management. Sometime thereafter, Robert M. Carrier, Jr., the president of the acquired company and general manager of the Carrier Division, left plaintiff’s employ to organize Carrier Manufacturing Company. By a change of corporate name, this latter company became defendant Carman. See note 1, supra.
f2d_477/html/0492-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "KOELSCH, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. DAKIN AND COMPANY, Respondent. No. 71-2424. United States Court of Appeals, Ninth Circuit. April 2, 1973. Stephen Yohay (argued), N.L.R.B., Roy Hoffman, Region 20 Director, N.L. R.B., San Francisco, Cal., Peter Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, M. Davison, Deputy Ass. Gen. Counsel, Michael Barkow, Atty., N.L.R.B., Washington, D. C., for petitioner. Wesley J. Fastiff (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., Robert M. Lieber, Stanley H. Neyhart, Duane. B. Beeson, Brundage, Neyhart, Grodin & Beeson, San Francisco, Cal., for respondent. Before KOELSCH, BROWNING and CARTER, Circuit Judges. . The Regional Director opined that “while the employer’s argument has some appeal, the Ideal Electric holding appears to state a mechanical rule and no exceptions to its application appear to be contemplated. Accordingly, as the undersigned is bound by the Board’s decision in Ideal Electric, it is concluded that objections one through six are not meritorious.” KOELSCH, Circuit Judge. The National Labor Relations Board seeks enforcement of its order directing R. Dakin and Company to bargain with Warehouse Union Local No. 860. The record discloses that the Union filed three representation (election) petitions within a period of three months; that it withdrew the first two, and that the third eventuated in the election which the Union won. All three petitions were identical in content. In due time Dakin filed objections with the Board; it sought to have the election set aside on grounds of Union misconduct. Pursuant to Board Rules and Regulations, 29 C.F.R. 102.69(c), the Regional Director conducted an administrative investigation into the matter. He noted in his Report on Objections “that the investigation has raised a substantial and material issue of fact — -“but he refused to consider the objections on the merits, because all the misconduct allegedly occurred prior to the last petition — which he deemed the operative one. As support for this procedure he expressly relied upon Ideal Electric & Mfg. Co. (134 N.L.R.B. 1275 (1961)), a case in which the Board had ruled “that the date of filing of the petition . . . should be the cutoff time in considering alleged objectionable conduct in contested cases.” Dakin filed timely exceptions to the Regional Director’s Report; it urged that the “cut off” date should be the date of the filing of the first representation petition; and in the alternative that the Ideal Electric rule, as applied in this matter, was arbitrary. The Board, however, summarily adopted the Regional Director’s findings and recommendations, approved his rationale, and certified the Union as bargaining representative for Dakin’s employees. Dakin nevertheless refused to bargain. A complaint issued. Dakin again urged that a hearing should be held upon its objections to the election. But the Board, like the Regional Director, invoked the Ideal Electric Rule and refused to entertain them. (181 N.L.R.B. 572). Before initiating this enforcement proceeding the Board sua sponte, “wish[ing] to have the benefit of record testimony concerning allegations of conduct which transpired following October 14, 1968, the date on which the first petition was filed . . .” reopened the case. The trial examiner, to whom the matter was referred for hearing, found that all the alleged Union misconduct antedated the third election petition and that the Union’s withdrawal of the earlier petitions was not in bad faith and to “clean the slate.” Thereupon, the Board adopted the examiner’s findings and reaffirmed its decision. The record supports the Board’s adopted findings concerning the two initial petitions. Thus the question remains, did the Board err in “mechanically” applying the Ideal Electric rule? We conclude that the answer is yes. Ideal Electric makes clear that the rule is simply an evidentiary device calculated to render irrelevant upon a post election contest, conduct “too remote” to have interfered with the employees’ exercise of the free choice guaranteed by Sec. 7 of the Act. In a proper case such a rule undoubtedly serves a worthwhile purpose. But if its predicate is lacking, then an indiscriminate application serves as a blanket exclusion of all evidence from consideration without regard to materiality. We of course recognize “the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Consistent with this principle, we would pay great deference to a Board created cut-off date which is applied to some types of pre-election misconduct, even though we might believe that the lapse of time was not of sufficient length to render that conduct innocuous. But, we are not prepared to give our approval to a rule which flatly bars the consideration of all pre-petition misconduct, particularly where, as here, the Regional Director concluded, and the Board affirmed, that such alleged misconduct “raised a substantial and material issue of fact” regarding the validity of the election. The Tenth Circuit shares this view: N.L.R.B. v. Lawrence Typographical Union, 376 F.2d 643 (10th Cir. 1967). The Order is set aside and the matter is remanded to the Board for further proceedings. . It would be improper for us to distinguish Ideal Electric, where the Board has itself declared the decision controlling. The Board has not always regarded cutoff dates as inflexible. In fact, Ideal Electric is a decision in which the Board modified its then current cut-off rule (as previously fixed in F. W. Woolworth Co., 109 N.L.R.B. 1446) to accommodate evidence of pre-election misconduct which would have been otherwise inadmissible. Nor has the Board always abided by the Ideal Electric rule. Thus in Weather Seal, Inc., 161 N.L.R.B. 1226 (1966) the Board, although expressly finding that “almost all” the acts which constituted employee coercion antedated “the critical period prior to the election” (citing Ideal Electric), nevertheless considered those acts in deciding to set aside the election. . Dakin’s contention that enforcement of the Board’s order should be denied because “the presentation of the Company’s case after almost two years of administrative intransigence was hopelessly impaired,” is not persuasive. At the hearing, Dakin’s counsel urged that the delay had rendered unavailable several prospective witnesses, but he also stated that those persons would be merely “corroborating witnesses . . . . ” Not only does Dakin fail to specify any actual prejudice, but we think it would be extremely unlikely that it could do so, for the witness to whom the Union’s coercive statements were allegedly made was present and testified and was credited by the trial examiner.
f2d_477/html/0495-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "DONALD RUSSELL, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	APPALACHIAN POWER COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. APPALACHIAN POWER COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. BETHLEHEM STEEL CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, and Environmental Protection Agency, Respondent. Nos. 72-1733, 72-1734, and 72-1776. United States Court of Appeals, Fourth Circuit. Argued Dec. 5,1972. Decided April 11, 1973. H. Edward Dunkelberger, Jr., Washington, D. C. (Theodore L. Garrett, Washington, D. C., Charles C. Wise, Jr., and Thomas C. Damewood, Charleston, W. Va., on brief), for petitioners in Action Nos. 72-1733 and 72-1734. H. Vernon Eney and Thomas P. Perkins, III, Baltimore, Md. (Anthony M. Carey, Robert G. Smith and Venable, Baetjer & Howard, Baltimore, Md., on brief), for petitioner in Action No. 72-1776. James R. Moore, Atty., U. S. Dept. of Justice (Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., U. S. Dept. of Justice, on brief), for respondents in Action Nos. 72-1733, 72-1734 and 72-1776. Before RUSSELL, FIELD and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: These proceedings arose under the Clean Air Act Amendments of 1970, which represented a drastic revision of earlier federal air quality control legislation. In enacting the Amendments, Congress was seeking to “make possible the more' expeditious imposition (and enforcement both nationally and locally) of specific emission standards” for air pollutants by substantial revisions in the “cumbersome and time-consuming procedures” of the earlier statutes in the field. To achieve this purpose, it sought to involve both state and federal governments by establishing two methods of control, one federal and one state, each complementary of the other, and the two combining and cooperating to assure a healthy air environment throughout the nation under plans specially adapted to the unique conditions of the various states. By national action the Amendments proposed to regulate the amount of pollution in the ambient air and by state action it sought to control the amount of polluting emissions at their source. The federal agency charged with responsibility under the Amendments was the Environmental Protection Agency. The first responsibility of the Administrator of such Agency is to prepare, from time to time, a list of all air pollutants which have an adverse effect on public health or welfare and to issue air quality criteria for these pollutants, reflecting “the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant [s] in the ambient air, in varying quantities.” He is then directed by the Amendments to promulgate national primary and secondary ambient air quality standards for each air pollutant for which air quality criteria had been issued. In the promulgation of these national standards, the Administrator, it is argued, is to be guided solely by health considerations. He is, also, to issue regulations establishing federal standards of performance for all new stationary sources. Those standards were to be achieved through the use “of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated.” The states, on the other hand, are to formulate, after reasonable notice and public hearings, “implementation plans” establishing standards for the control within their borders of sources of pollution, which standards were to be sufficiently stringent to assure that the emission volume from all such sources within those areas did not exceed the national ambient air standards. Stated somewhat differently, the Amendments provided that states, in preparing their own plans for control, could be as tough on polluters as they wished, but that no state could allow industry to exceed the federal standards on smoke and dust, carbon monoxide and other common pollutants. The state plan was to cover existing sources and to take into account new stationary and moving sources. It is expected that states, in exercising their authority under the Amendments, would consider local factors such as “meteorological conditions, topographical context, and economic and social demands.” They are expected, also, to give consideration to control technology and economic factors. Any state implementation plan, however, has to be submitted to the Administrator for approval. The approval of the Administrator requires, inter alia, a finding by him that the plan provided for the attainment of the national primary ambient standards— based on health — within three years, and of the secondary standards' — based on welfare — within a reasonable time. Judicial review of the action of the Administrator in approving or disapproving a state plan is authorized before the Circuit Court of Appeals for the Circuit in which the state submitting the plan is located. Application for such judicial review is to be filed within thirty days from the date of the Administrator’s approval. Unless reversed on such review, the state implementation plan remains enforceable as federal law under procedures spelt out in the Amendments and is not “subject to judicial review in [federal] civil or criminal proceedings for enforcement.” The petitioners are all seeking judicial review of the approval by the Administrator of a state implementation plan submitted under the Amendments. In two of the proceedings, the operators of electric generating plants assail the approval of plans submitted by the States of West Virginia and Virginia. In the third proceeding, Bethlehem Steel Corporation challenges the approval of the plan of the State of Maryland. In approving the state plans involved in all three proceedings, the Administrator held no “hearings”, i. e., he granted no opportunity, after public notice, for either comment or testimony on the proposed state plans. Interested parties had, however, been given notice and hearing before the state authorities on the state plans under review. The Administrator did not file, in connection with his approval, either an environmental impact statement or a finding that one was unnecessary. The matter presently before us does not concern the merits of the petitioners’ challenge to the Administrator’s aetion. The petitioners, by motion, seek remand of the proceedings of approval to the Administrator with instructions that the Administrator provide, after notice, an evidentiary hearing on the approval or disapproval of the state plans and that he file an environmental impact statement in connection with his approval or disapproval. These motions present the issues presently before us. They represent largely procedural questions, though some elements of substance arise. Since all motions pose similar issues, we consolidated them for oral hearing and will dispose of them together. The initial dispute between the parties centers on the nature or character of the Administrator’s action or approval. The petitioners would catalogue that action as rulemaking, as defined in the Administrative Procedure Act, and subject to the hearing requirement fixed in that Act. The Administrator, on the other hand, asserts that “Congress did not intend that this approval process be treated as traditional rulemaking, subject to APA requirements” of a hearing. It is idle, and fruitless, to boggle over the appropriate classification of the Administrator’s action, though we cannot avoid observing that the Administrator, in his order of approval, described his action as “rule-making”. Modern precedent has discarded such classifications as criteria for determining the type of hearing to which the parties affected by administrative action are entitled. The leading text on administrative law puts it that the “best solution of the problem of classifying borderline activities is to avoid classifying them * * * [I]f the problem is to determine appropriate procedure for a particular activity, the practical procedural needs may be studied without calling the activity either rule making or something else * * ." Another commentator, who has described attempts at classifying administrative actions as formal, rulemaking or adjudicatory as “largely an unprofitable one,” suggests that, “[T]he most constructive way to eliminate many of the inequities and inadequacies which appear from time to time in administrative proceedings is to pay less attention to theoretical, conceptual, and largely artificial lines between adjudication and rule making, and to devote more attention to the task of fashioning, out of the available arsenal of procedural techniques, hybrid modes of procedure most appropriate to the issues and circumstances of particular cases or classes of cases.” Following these principles, the firm direction of recent decisions is that “Procedural requirements (dealing with the requirement of hearings in administrative proceedings) depend in part on the importance of the issues before the agency” and “The kind of procedure required must take into account the kind of questions involved.” Accordingly, if the resulting administrative action, whether regarded as rule-making or otherwise, “is individual in impact and condemnatory in purpose” or “when the issue presented is one which possesses great substantive importance, or one which is unusually complex or difficult to resolve on the basis of pleadings and argument,” a hearing preceding any final administrative action is appropriate. On the other hand, if a public hearing would appear unnecessary, either because of other available procedures or because the proceeding presents “only a question of law without any dispute on the facts” or “the ultimate decision will not be enhanced or assisted by the receipt of evidence,” a prior hearing may be dispensed with. Naturally, the parties differ sharply in their construction of both the power and the effect of the Administrator’s approval. The petitioners which are operating electric generating plants state that the plans challenged by them, if enforced, will require the closing of their steam generating plants and the petitioner Steel Company asserts that the enforcement will compel it to incur large expenses which will result in no real diminution in either air or smoke pollution in its plant. It is the petitioners’ construction of the Amendments that not simply the state authorities but also the Administrator, in his evaluation and approval of the state plans, must consider, among other factors, the technological and economic feasibility of those provisions of the state plan which impose such onerous and “condemnatory” burdens on them. For these reasons, they urge that they should be accorded a right to be heard by the Administrator in an evidentiary proceeding. The Administrator, however, would find no need for a hearing by him on the state plans. In the first place, under his construction of his function, a hearing at his level would be unnecessary because of the prior opportunity of the parties to be heard before the state authority. The Administrator, also, justified his failure to accord a hearing on the ground that he had published, prior to promulgation, “as a notice of proposed rulemaking”, his guidelines to be issued to the state authorities in connection with the preparation of the state plans, with appropriate opportunity for comment by interested parties. 40 C.F.R., Part 51. These guidelines, however, instructed the state authorities to consider technological and economic factors. We apprehend that it is the failure to consider such factors that constitutes the basis of petitioners’ attack. The petitioners, we feel sure, have no complaint with the guidelines; their complaint is that the plan as finally approved did not give the proper weight to the technological and economic factors that the guidelines commanded. The failure of the petitioners to object to the guidelines would constitute no basis for a denial of a right of hearing by the Administrator on the subsequently developed state plans, which the petitioners may well claim violated such guidelines, and we shall not further consider such failure in connection with the Administrator’s position on the issues. We are, however, disposed to agree with the Administrator that, if the state hearings were adequate, he was not required, prior to approving the state plans, to extend to the petitioners or other interested parties, an opportunity to be heard. An opportunity to be heard on the proposed state plans had presumably already been given all interested parties, after appropriate notice, by the respective state authorities. It is to be presumed that at such hearings all objectors had a reasonable opportunity to present, in an appropriate type of hearing, their objections to the proposed plans. To provide them a second opportunity merely to reiterate the claims made by them before the state authority, at a hearing before the Administrator, would normally be a useless exercise wasteful and time-consuming and “unnecessary”, whether the Administrator’s action be deemed “rulemaking” or otherwise. It would seem particularly unwarranted, too, in a situation, where Congress had determined that expedition was demanded by urgent considerations of health and the general welfare. That Congress intended that such a hearing before the Administrator on the state plan was to be avoided in the interest of expediting action is persuasively suggested by the statutory language. Thus, the Amendments in express words enjoin the state authorities to afford, after notice, a hearing to all interested parties, but, in providing for the subsequent approval by the Administrator, it omitted any prior hearing requirement. This omission would seem to have been purposeful, in keeping with the Congressional intent to expedite the promulgation of state enforcement plans, without encumbering the administrative procedures with two hearings on the same plan. That this was so, the Administrator found confirmed, since, under the other provisions of the Amendments, there was “no practical way that the rulemaking procedures of the Administrative Procedure Act [covering hearings preliminary to administrative actions] could be followed if the statutory time-table [for the promulgation and approval of state implementation plans under the Amendments] was to be observed.” We think it plain that Congress regarded the right to a public hearing, prior to adoption of the plan, satisfied by the hearing guaranteed before the state authority, and in the interest of expediting the promulgation of an effective state plan, dispensed with a hearing before the Administrator. In effect, Congress made a finding, which the Administrator merely confirmed in his order, that, under these circumstances, a hearing at the Administrator’s level was both “impractical” and “unnecessary.” That finding met the requirements of Section 553(b)(3)(B), 5 U.S. C.A., exempting certain rulemaking proceedings from any requirement of a hearing, if, as the petitioners argue, that Act is applicable to the Administrator’s action. This conclusion, however, is based on the assumption that at the state hearing interested parties were afforded full opportunity to present their contentions with respect to the proposed plan. Because of the nature of the regulations and their drastic impact, such opportunity might well include the right to more than merely the opportunity to comment. See International Harvester Co. v. Ruckelshaus (D.C.Cir.1973) 478 F.2d 615, at 630-631. What is required in all instances, whatever the character of the administrative action, is “the reality of an opportunity to submit an effective presentation,” and, if in the context of the issues involved, “cross-examination on the crucial issues” is found proper, such right should be recognized and upheld. Walter Holm & Company v. Hardin (1971), 145 U.S.App.D.C. 347, 449 F.2d 1009, 1016. The record of those state hearings has not been as yet certified to this Court and it is not possible for us to determine whether those hearings provided the petitioners with the type of hearing the importance of their rights required. Should it appear, after the state hearings have been certified to this Court, that an adequate right of hearing at the state level was not afforded the petitioners, a motion to remand as requested by the petitioners might be in order. There remains the question whether, under due process, the state hearing (assuming its adequacy) would be a valid justification for the Administrator’s failure to afford a hearing on his part prior to his approval of the state plans. This generally turns on the traditional balancing of public and private interests, though, again, some courts would resolve it in terms of whether the administrative action is adjudicative, i. e., is directed at an identifiable party. Note, Federal Administrative Law Developments — 1971, Duke L. J. (1972), supra, at 158-67; cf., Langevin v. Chenango Court, Inc. (2d Cir. 1971) 447 F.2d 296, 300. As expressed in the Amendments, Congress found that air pollution represents a present danger to human health and required urgent governmental action. For that reason, it sought to expedite, as far as it validly could, the delays that might result from unnecessary administrative proceedings in achieving effective regulation of air pollution at both national and state levels. It is fair to infer that Congress felt that, by affording interested parties an adequate opportunity for a hearing before the state authority on the state plan which was eventually to be reviewed by the Administrator, it had met the requirements of due process. Assuming that the state hearings were adequate and that the Administrator, in the course of his own evalua,tion of the state plans, reviewed those state hearings, we are inclined, on balance, to conclude that the procedures followed by the Administrator accorded with due process. While perhaps not at issue now, it might be indicated that, even though the Administrator may have been authorized (subject to the caveats already indicated) to dispense with a hearing before him on the state plans, this in no way precludes or prejudices the right of the petitioners, under proper circumstances, to move before this Court for an opportunity to adduce additional evidence. In Citizens to Preserve Overton Park v. Volpe (1971) 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 for instance, it was held that the Secretary of Transportation was not bound to hold a public hearing prior to his administrative action in those proceedings (which action, incidentally, the Court found to be “plainly not a rulemaking function”) but, nonetheless, as an incident of judicial review of that action, the Court found that a hearing was necessary. As a matter of fact, the Amendments with which we are concerned expressly provide that, in connection with judicial review of the order of approval of a state plan by the Administrator, the reviewing court may remand the proceedings to the Administrator to take additional testimony “in such manner and upon such terms and conditions as to the court may deem [sic] proper,” upon a showing by the moving parties that “such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator.” Section 1857h-5(c), 42 U.S.C.; Getty Oil Company v. Ruckelshaus (3d Cir. 1972) 467 F.2d 349, 357. Whether the petitioners would be entitled to an order to remand to the Administrator to receive additional testimony in connection with judicial review would depend largely on the issues to be resolved in that review. The Amendments, in authorizing judicial review, do not prescribe in specific terms the scope of that review. In Getty Oil Company v. Ruckelshaus (D.C.Del.1972) 342 F.Supp. 1006, 1015, it was assumed that the review of the action of the Administrator in approving a state plan would encompass whether the determination was “arbitrary and unreasonable because unnecessary, uneconomic and ill-suited to the accomplishment of the objectives of the regulatory program.” On appeal, the construction of the Court’s scope of review under Section 307, as stated by the District Court, was apparently accepted as authorizing judicial review on the grounds that the approval or disapproval was wholly “arbitrary and unreasonable” and that, in considering such grounds, “questions of economic hardship or lack of compelling necessity” could be considered. Getty Oil Company v. Ruckelshaus, supra, at 355, 357 of 467 F.2d. These statements of the range of judicial review find support in Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 413-416, 91 S.Ct. 814, where, in construing the scope of judicial review under a statute in which, as here, that scope was not spelt out, the Court stated that the real issue on judicial review under such circumstances was whether the agency acted within the scope of its authority and whether the decision reached was arbitrary, capricious or otherwise not in accordance with law, and, in making such determination, the court should decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision represented a clear error of judgment. This is substantially the scope of review as authorized under the Administrative Procedure Act, Section 706, 5 U.S.C. It can be accepted as the proper formula to be applied in reviewing the action of the Administrator in these actions. But the Administrator argues that, in the exercise of judicial review of his action in approving the state plans, the Court shall look simply to his order of approval and the state plan itself and make its determination on those two documents as the sole record in the case. He goes farther and asserts that his authority in this area is largely ministerial. It is suggested that he makes no review of either the economic or technological feasibility of the plan in exercising his power to approve or disapprove the state plan. He argues that, even if the Court concludes that it is not confined in its review to the Administrator’s order and the state plan, it can go no farther in its review of his action than to consider (1) whether a hearing was had before the state authority and (2) whether the mathematical determination by the Administrator that the national standards will be achieved under the state plans is arbitrary and unreasonable. This is so, he says, because those are the sole matters considered and determined by the Administrator in his action. We take no such narrow view of either our own role in connection with the judicial review of the Administrator’s action or of the Administrator’s role in evaluating the state plan in connection with his exercise of the power to approve or disapprove. Certainly, the Administrator’s connection with the proceedings before the state authority is considerably more intimate than he suggests and certainly may not fairly be characterized as substantially ministerial. At the outset he provided the state authorities with the guidelines to be used by them in preparing state plans and in identifying the factors to be weighed by them. And, in those guidelines, he admonished the state authorities that “nothing in this part shall be construed in -any manner * * to encourage a State to prepare, adopt or submit an implementation plan without taking into consideration * * * impact or availability of fuels, energy, transportation and employment.” He went further in Regulations issued by him and spelt out for them “the available technology” for control of air pollutants because, as he puts it, “some of the States do not have in their State control programs enough information on what is available technology.” He made available to the state agencies throughout the formulation of their state plans technological advice. In fact, one of the primary responsibilities of the Administrator was to conduct research in the field of air pollution and make it available to the state authorities. In order to keep himself informed of the manner in which the state authorities were proceeding, he required them to give him notice of all hearings so that, if he desired, he might have observers present. Section 51.4(b)(2), 40 C.F.R. And when he came to review and evaluate the state plan, he did not restrict his consideration to the state plan itself. In his Regulations, he provided that “the State shall prepare and retain, for inspection by the Administrator on his request, a record of each [state] hearing. The record shall contain, as a minimum, a list of witnesses with the text of each presentation.” Moreover, when the plans are submitted, the Administrator does not rely on his own staff or limit his consideration to matters within the expertise of his own agency. He submits the plans, as well, we assume, as the state hearings, for review to an interagency committee, composed of representatives of the Federal Power Commission, the Office of Transportation, the Office of Management and the Budget and perhaps other federal agencies. The representatives on this federal interagency committee sit, according to the Administrator, “on a committee * * * to review the aggregate impact of all of these implementation plans” (Emphasis added). He explained further the functions of this interagency committee in his testimony before the 1972 Oversight Committee (1972): “In the coming months we will be examining the adequacy of State implementation plans. We will be working very closely with other Federal agencies and we anticipate that the interagency review process will be an invaluable asset in determining the availability of fuels, transportation programs, and public and private sector investment.” The review by these other agencies and by the interagency committee is not a perfunctory review of the state plans. Their review, under the procedure established by the Administrator, covers half the time allowed the Administrator himself by law to act on the plans. It is inconceivable that these agencies, acting with the Administrator, in determining “the aggregate impact” of the plans and “in determining the availability of fuels, transportation programs, and public and private sector investment,” do not consider and evaluate the technological and economic aspects of the plans under review. Nor is such evaluation inappropriate under the Amendments. After all, the Administrator’s responsibility is to determine whether the proposed plan is practical and reasonably likely to achieve the results required under the Amendments; and, if he finds it reasonably unlikely to achieve such results within the fixed time-tables, whether for technological or economic reasons, or otherwise, he should reject the plan and return it to the state authorities with instructions to consider alternative procedures that might meet the statutory requirements as established by the Administrator. And when this Court reviews the action of the Administrator, it does not confine itself to the order of the Administrator or to the bare language of the state plan, nor will it seek to determine from the four corners of those two documents whether the action taken was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If judicial review were to be tethered to these abbreviated documents, it would “almost inevitably become [s] a meaningless gesture” and would be reduced to “a game of ‘blind man’s bluff’ ”. [sic] Courts require that administrative agencies “articulate the criteria” employed in reaching their result and are no longer content with bare administrative ipse dixits based on supposed administrative expertise. Environmental Defense Fund, Inc. v. Ruckelshaus, supra, at 586 of 439 F.2d. While an agency may have discretion to decide, “[Discretion to decide does not include a right to act perfunctorily' or arbitrarily”; and, in order for a Court to make a critical evaluation of the agency’s action and to determine whether it acted “perfunctorily or arbitrarily,” the agency must in its decision “explicate fully its course of inquiry, its analysis and its reasoning.” Ely v. Velde (4th Cir. 1971) 451 F.2d 1130, 1138-1139. And, in making its review, the Court must have, not merely that full articulation of the agency’s reasoning, but it must also have “the whole record” on which the agency acted, or, as it is expressed in Overton Park, “the full administrative record that was before the Secretary at the time he made his decision.” (401 U.S., at 420, 91 S.Ct. at 825). This is so, because, in its review, the Court is to “engage in a substantial inquiry” into the reasonableness of the agency action (Section 706, 5 U.S.C.) and as a part of that “inquiry” it “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” (■Overton Park, supra, 401 U.S. at 415-416, 91 S.Ct. at 823-824) since “it is ‘arbitrary or capricious’ for an agency not to take into account all relevant factors in making its determination.” As applied to these proceedings, in order for the Court to make a rational determination, to make that “substantial inquiry” demanded of it in these cases calling for review of the validity of the Administrator’s action, the Court must have before it the record of expert views and opinions, the technological data and other relevant material, including the state hearings, on which the Administrator himself acted. Cf., Walter Holm & Company v. Hardin, supra, at 1015-1016 of 449 F.2d. No such record is now before the Court. The Administrator should promptly certify the “full record” that was before him at the time he approved the state plans involved in these actions. When the records of the proceedings resulting in the approval of the state plans under review have been certified to this Court, the petitioners may, if they feel so entitled, apply to this Court for an order of remand, either because of the inadequacy of the state hearing or to take additional testimony as authorized under Section 1857h-5(c), 42 U.S.C., and, if they are able to satisfy the Court with the propriety of their motions, to secure a remand for that purpose. But the present motions are, in our judgment, premature until the Administrator has certified to this Court the full administrative record since, without that record, the Court cannot intelligently pass on the motions and determine either the adequacy of the state hearings or the right to take additional testimony under Section 1857h-5(c), 42 U.S.C. Finally, the petitioners challenge the approvals for failure to include an environmental impact statement. We are convinced that, while NEPA applies to “all agencies of the Federal Government” and requires an impact statement for every major federal action “significantly affecting the quality of the human environment,” it is inapplicable to the action of the Administrator in seeking, through the approval of state implementation plans, to improve “the quality of the human environment.” As the Court said in Getty Oil Co. v. Ruckelshaus, supra, at 359 of 467 F.2d, “It is apparent that the Clean Air Act itself contains sufficient provisions for the achievement of those goals sought to be attained by NEPA.” Motions denied without prejudice to the right to renew. . Section 1857c-2 et seq. 42 U.S.C. . The history of federal clean air legislation is detailed in 116 Cong.Rec., 91st Congress, 2d Sess., p. S16103 (daily ed. Sept. 21, 1970); see, also, Note, Clean Air Act Amendments of 1970: A Congressional Cosmetic, 61 Geo.L.J. 153, 154-6 (1972). . See H.Rept. No. 91-1146, 91st Cong., 2d Sess., (1970), U.S.Code Cong. & Admin. News, p. 5360 (1970); Kennecott Copper Corp. v. Environmental Protection Agcy. (D.C.Cir. 1972), 462 F.2d 846, 849. . Note, Clean Air Act Amendments of 1970: A Congressional Cosmetic, 61 Geo. L.J. 153, 159 (1972): “The Clean Air Act Amendments of 1970 represent a compromise between the need for effective national control and the desire to mold the air pollution program around state and local needs.” . These proceedings are concerned with the control of air pollution from stationary sources. The Amendments also deal with moving sources but those provisions are not involved in the claims of the petitioners. . Section 1857c-3, 42 U.S.C. . Section 1857c-4, 42 U.S.C. At the time of the enactment of the Amendments, criteria had been issued for six pollutants but it was stated in the Congressional debates that the Administration “is currently studying 30 different pollutants to determine their potential effects on health.” 116 Cong.Rec., 91st Cong., 2d Sess., p. S16104 (daily ed., Sept. 21, 1970). . The House version had required the consideration of economic feasibility and costs in setting national ambient standards. The Senate version, which was later adopted, “deleted all wording as to economic feasibility and cost in setting national ambient standards which appear in the original bill with the single exception of new source performance standards.” 61 Geo.L.J., supra, 179, n. 157. For the reasoning behind such deletion, see Kennecott Copper Corp. v. Environmental Protection Agcy., supra, at 850, n. 16 (462 F.2d). . Section 1857c-6, 42 U.S.C. . The effectiveness of this program of joint control has been seriously questioned. In 61 Geo.L.J., supra, at 161, n. 57, it is observed: “Derivation of emission standards from ambient standards, while determined by complex computer programming, ultimately rests on assumptions, which, if incorrect, undermine the entire control program.” See, also, the testimony of Sussman, Director, Bureau of Air Quality and Noise Control, Pennsylvania Department of Environmental Resources at the Hearings, Senate Subcommittee on Air and Water Pollution, Committee of Public Works, 92d Cong., 2d Sess. (1972), at 719. . One commentator has stated that this requirement of federal approval of state implementation plans “was intended to cramp the style of authorities that might be inclined to wink at pollution for the sake of attracting industry and expanding their local economies.” 246, The Economist (London), at 23 (January 20, 1973). . 61 Geo.L.J., supra, at 157. See, also, Baum, The Federal Program for Air Quality, 5 National Resources Lawyer 165, 169 (1972) : “But, as I said, when the ambient air quality standards were promulgated, there was no consideration given to economics or feasibility. It is at the implementation plan stage that a state will consider these things. In devising their control strategy, the states will determine who can do what, how much it is going to cost, if we should require sixty per cent reduction for this industry and forty per cent for this one or vice versa, and when these things will be applied.” Mr. Baum is Assistant General Counsel of EPA. He also prepared for the Administrator a memorandum submitted to the Senate Oversight Committee, in which this statement is made with reference to state plans: “It was expected that, at the (state) hearings, persons responsible for adoption of the plan would be made aware of the feasibility and impact of various possible strategies on all segments of the public. To expect States to evaluate the impact of various alternatives open to them without considering the economic and social impact of their decisions would deprive them of the flexibility and initiative Congress intended that they retain.” Hearings, Senate Subcommittee on Air and Water Pollution, Committee on Public Works, 92d Cong., 2d Sess. (1972), at 312. See, also, p. 308 of same Hearings under heading “Economic Feasibility.” Senator Cooper, in explaining the provision for state plans, said: “And these plans must accomplish the air quality standards within 3 years. It is at this point that States and communities must make economic decisions, and decisions on the future growth of their areas and the kind of life they want, in considering alternative means of achieving clean air.” 116 Cong.Rec., 91st Cong., 2d Sess., at S16107. . New sources required consideration of both economic and technological factors. As Sussman, Director, Bureau of Air Quality and Noise Control, Pennsylvania Department of Environmental Resources, has observed, however, “It is obvious that these standards (of ‘the best available technology’) will be incorporated in state regulations for existing sources (especially since federal regulations will cover ‘modifications’ to existing sources).” Hearings, Senate Subcommittee on Air and Water Pollution, Committee of Public Works, 92d Cong., 2d Sess. (1972), at 719. . It was held in Sierra Club v. Ruckelshaus (D.C.Cir. 1972), filed November 1, 1972, cert. granted 93 S.Ct. 941, that the Administrator could not approve any plan that permitted any degradation in the air quality in the state, without regard to whether its provisions were “adequate to prevent” any pollution exceeding the national standards. . 42 U.S.C. 1857h-5(b) (2). This requirement that judicial review should follow immediately upon the Administrator’s approval or disapproval of the plan and not when enforcement was sought represented a change from the House version of the Amendments. As initially adopted by the House, the Amendments provided for a judicial review, described in the House Report thus : “The court may enter such judgment and orders as it deems necessary in the public interest and the equities of the case. In so doing the court must give due consideration to the practicability and to the technological and economic feasibility of complying with the provisions of the plan.” U.S.Cong. & Admin.News, 91st Cong., 2d Sess., p. 5364. . See Section 1857h-7, 42 U.S.C. . Section 551(4), 5 U.S.C. defines a rule as “an agency statement of general or particular applicability and future effect * * ." And Section 551(5), 5 U.S.C. defines rulemaking as an “agency process for formulating, amending, or repealing a rule.” Rulemaking is “typically concerned with broad policy considerations rather than review of individual conduct.” American Airlines v. Civil Aeronautics Board (1966), 123 U.S.App.D.C. 310, 359 F.2d 624, 629 cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75. It is generally contrasted with adjudication. The distinction between the two types is illustrated by classifying “any aspect of it [the administrative action] that declares generally applicable policy as ‘rulemaking’ and any aspect applying the policy to identified persons as ‘adjudication’.” Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921, 924 (1965). . See, Section 553(b)(3)(B), 5 U.S.C. . 1 Davis, Administrative Law Treatise, sec. 5.01, at 286. . Clagett, Informal Action — Adjudication —Rule Making: Some Recent Developments in Federal Administrative Law, 1971 Duke L.J. 51, 53, 85; see, also, Boyer, Alternative to Administrative Trial Type Hearings for Resolving Complex Scientific, Economic and Social Issues, 71 Mich.L.Rev. 111, 112-4 (1972); Robinson, The Making of Administrative Policy:- Another Look at Rule Making and Adjudication and Administrative Procedure Reform, 118 U.Pa.L.Rev. 485, 500 (1970). . Marine Space Enclosures, Inc. v. Federal Maritime Com’n. (1969) 187 U.S.App.D.C. 9, 420 F.2d 577, 586, n. 22. . Walter Holm & Company v. Hardin (1971), 145 U.S.App.D.C. 347, 449 F.2d 1009, 1015. . American Airlines, Inc., v. Civil Aeronautics Board, supra, at 631 of 359 F.2d. . National Air Carrier Association v. C.A.B. (1970), 141 U.S.App.D.C. 31, 436 F.2d 185, 191. . International Harvester Co. v. Ruckelshaus, (D.C.Cir. 1973), 478 F.2d 615. . Retail Store Employees U., Local 880, R.C.I.A. v. F.C.C. (1970), 141 U.S.App.D.C. 94, 436 F.2d 248, 254-255, n. 39. . Citizens for Allegan County, Inc. v. Federal Power Com’n. (1969), 134 U.S.App.D.C. 229, 414 F.2d 1125, 1128. . City of Lafayette, Louisiana v. Securities & Exch. Com’n. (1971), 147 U.S.App.D.C. 98, 454 F.2d 941, 953. . An illustration of such a procedure exists in these very Amendments. In Kennecott Copper Corp. v. Environmental Protection Agcy., supra, 462 F.2d 850, n. 16, the Court said: “ * * The legislative history of the ‘Clean Air Amendments of 1970’ (Pub.L. 91-604) makes it dear that Congress felt public hearings on the national standards were unnecessary in light of the implementation plan hearings and would unduly delay achievement of air quality protective of the public health and welfare * * ". See, also, Citizens for Allegan County, Inc. v. Federal Power Com’n., supra, at 1128 of 414 F.2d in which the Court said that “the right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing. The precedents establish, for example, that no evidentiary hearing is required where there is no dispute on the facts and the agency proceeding involves only a question of law.” . “The right to a full trial-type hearing in administrative proceedings is generally limited to the situation where adjudicatory facts — that is, facts pertaining to a particular party — are in issue.” Note, Federal Administrative Law Developments — 1971, Duke L.J., (1972) 115, 171, n. 24. However, it is the recent rule that classifications such as rulemaking (as distinguished from adjudication) do not automatically foreclose a right to an evidentiary hearing. It is the basic scope of the proceeding, rather than its classification, that determines the right. . Cf., Retail Store Employees U., Local 880, R.C.I.A. v. F.C.C., supra, at 254-255, n. 39 of 436 F.2d. “We recognize, however, that when one federal agency has rejected factual charges after an adequate investigation a sister agency may be entitled to rely upon the prior investigation in dismissing factually identical allegations without hearing * * * ” . Cf., Law Motor Freight, Inc. v. C.A.B. (1st Cir. 1966) 364 F.2d 139, 144, cert. denied 387 U.S. 905, 87 S.Ct. 1683, 18 L.Ed.2d 622. “Section 403(a) of the Federal Aviation Act, 49 U.S.C. § 1373(a), does not require a hearing, although other sections do. With such a statutory configuration, the clear indication is that the legislative omission was significant.” The petitioners, however, urge that no particular inference of Congressional intent is to be drawn from the omission of any requirement of a hearing before the Administrator on the approval of a state plan, and they would find a perfectly plausible explanation for the inclusion of an express provision for such hearing in the proceedings before the state authority and the omission of such requirement in the proceedings before the Administrator. They state that it was necessary for the Amendments to provide expressly for a public hearing in connection with the state proceedings but there was no such necessity at the federal level in view of the positive command of the Administrative Procedure Act requiring a hearing in all federal administrative proceedings where there was no express provision to the contrary. It is true, as the petitioners suggest, that the Amendments include no express provision justifying the denial of a hearing in connection with the Administrator’s approval of the state plan. But we find, as did the Court in Law, a very plain Congressional intent, which we are disposed to respect. . An excellent statement of the reasons for this requirement of a hearing before ' administrative action, is set forth in Bonfield, Military and Foreign Affairs Function Rule-Making Under the APA, 71 Mich.L.Rev. 222-4 (1972). . There is an intimation in the record— actually by the Administrator — that he does not review the hearings before the state authority and the presentations made thereat. This is contradictory to a substantial extent of his justification for a denial by him of a hearing and, in our judgment, would not accord with the legislative intent or with due process. A failure on his part to consider the state hearing record would mean that interested parties had had no hearing before him. Under those circumstances, the entire justification for a denial of a hearing before the Administrator would be undermined and it might well be that a court would be compelled to remand the proceedings for a hearing before the Administrator. For the moment and in connection with these motions as they now stand, we shall assume until otherwise established, after the certification of the entire record to this Court, that the Administrator did review the full state record. . See, also, Walter Holm & Company v. Hardin, supra, at 1015-1016 of 449 F.2d. . This Section corresponds with Section 2347 (c), 28 U.S.C., applicable to proceedings before the Federal Communications Commission, the Federal Maritime Commission, the Atomic Energy Commission and orders of the Secretary of Agriculture. . See, also, Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584. . Cf., Environmental Defense Fund, Inc. v. Environmental Protection Agency (1972) 150 U.S.App.D.C. 348, 465 F.2d 528, 540-541: “Our own responsibility as a court is as a partner in the overall administrative process — acting with restraint, but providing supervision.” . See, Hearings, Subcommittee on Air and Water Pollution, Committee on Public Works, 92d Cong., 2d sess. (1972), at 237. . Section 51.4(c), 40 C.F.R. . See, Hearings, Senate Subcommittee on Air and Water Pollution, Committee on Public Works, 92d Cong., 2d sess. (1972), at 230 and 236. . See, First National Bank of Smithfield, North Carolina v. Saxon (4th Cir. 1965) 352 F.2d 267, 274 (Judge Sobeloff dissenting); Environmental Defense Fund, Inc. v. Ruckelshaus, supra, at 597-598 of 439 F.2d. See, also, D. C. Federation of Civic Associations v. Volpe (1971) 148 U.S.App.D.C. 207, 459 F.2d 1231, 1237: “Absent a record, judicial review of the Secretary’s action can be little more than a formality unless the District Court takes the disfavored step of requiring the Secretary to testify as to the basis of his decision.” . Cf., Note, Federal Administrative Law Developments — 1971, Duke L.J. (1972), supra, at 317, 329. . Hanly v. Mitchell (2d Cir. 1972) 460 F.2d 640, 648. . Section 4332, 42 U.S.C.
f2d_477/html/0508-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "CUMMINGS, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Andrew GEORGE et al., Defendants-Appellants. Nos. 72-1553 to 72-1555. United States Court of Appeals, Seventh Circuit. Argued Feb. 12, 1973. Decided April 12, 1973. Rehearing and Rehearing En Banc Denied May 2, May 31 and June 5, 1973. Charles A. Bellows, Sherman C. Magidson, Michael B. Nash, Francis X. Riley, Chicago, Ill., for defendants-appellants. James R. Thompson, U. S. Atty., William T. Huyck, Glynna W. Freeman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before CASTLE, Senior Circuit Judge, and FAIRCHILD and CUMMINGS, Circuit Judges. CUMMINGS, Circuit Judge. The three defendants were indicted for mail fraud in violation of 18 U.S.C. § 1341 and for aiding and abetting that fraud under 18 U.S.C. § 2. The indictment was ultimately in 18 counts. The only variance in counts was that the last 17 involved additional mailing dates. The indictment described defendant Peter K. Yonan as a cabinet buyer in the Purchasing Department of Zenith Radio Corporation. Defendant Andrew George was said to do business as A & G Woodworking Co. The other defendant, Irving H. Greensphan, was specified as president of Accurate Box Corporation, which supplied cabinets to Zenith. The grand jury charged that from June 1967 through January 1971, the three friends devised a .scheme to defraud Zenith whereby Yonan received kickbacks on Accurate Box Corporation’s sales of cabinets to Zenith. To accomplish this, George allegedly submitted fictitious “commission” invoices of A & G Woodworking Co. to Greensphan’s company. After these invoices were paid, George supposedly paid part of the proceeds to Yonan. The kickbacks were of course not disclosed to Zenith. The indictment alleged that the scheme deprived Zenith of its lawful money and property and of the honest and faithful performance of its employee Yonan’s duties. The mailings mentioned in the indictment covered checks sent by Zenith to Greensphan’s cabinet company before the latter was billed by George’s company. After a jury trial, the defendants were found guilty as charged. Yonan received a three-year sentence; George received a one-year sentence and was assessed a $1,000 fine on each count; and Greensphan received a six-month sentence and was ordered to pay a $1,000 fine on each count. On appeal, all defendants assert that the evidence was insufficient to convict them of mail fraud; George and Greensphan assail instructions; George complains of the court’s receipt into evidence of Zenith’s conflict-of-interest policy; and Yonan attacks the court’s refusal to sever his trial from Greensphan’s. We affirm. The evidence brought forward at the trial disclosed a novel scheme. Yonan went to work for Zenith in 1961 and was a buyer in the cabinet division of Zenith’s Purchasing Department. He had “primary responsibility” for negotiating with cabinet vendors, and, in the words of his immediate supervisor, that meant “his responsibility was to send out the blueprints and gather in quotations, and where the price was too high, to try to negotiate it down to a proper level.” Of course, the quotations Yonan negotiated were reviewed by his superiors and by other departments of Zenith. In 1966, Yonan was given the responsibility for finding and negotiating with a supplier of cabinets for Zenith’s newly conceived “Circle of Sound” product. His responsibility also included arranging for delivery and monitoring the quality of the cabinets. His friend since the mid-fifties, defendant Greensphan, the owner of Accurate Box Corporation (“Accurate”), was tapped as the supplier. During the indictment years, Accurate was the sole bidder on and supplier of these cabinets. Yonan’s supervisor thought Accurate’s prices to be fair and reasonable, but in the absence of other bidders, could not conclude they were competitive. Zenith normally allowed its suppliers a maximum of 10% profit, and Accurate’s prices reflected that profit margin. The Circle of Sound product proved to be a tremendous financial success. The Zenith checks listed in the indictment were received by Accurate in payment of the cabinets sold to Zenith. Without recounting any actual threat by Yonan, Greensphan testified that he agreed to pay Yonan $1 per cabinet kickback on the model 565 Circle of Sound unit and later per cabinet kickbacks on other models because he was afraid he was otherwise going to lose Zenith’s business. Yonan assertedly told him that “everybody and their uncle would like to get into this to manufacture this unit.” He stated that Yonan’s requests for such payments originated in October 1967. When he asked Yonan how the kickbacks were to be paid, Greensphan was told to pay A & G Woodworking Co.’s commission invoices. Greensphan never related these events to anyone at Zenith. He had known defendant George since 1960. He denied inflating any quotations to cover monies paid to Yonan. Commencing in December 1967, Accurate received commission invoices from defendant George’s A & G Woodworking Co. even though neither George nor A & G Woodworking Co. provided any services to Accurate. Accurate paid these invoices on the basis of a commission per unit on the types of models it shipped to Zenith. Greensphan also cashed a $3,000 Accurate check payable to himself and gave the proceeds to George because he was fearful of losing Zenith’s business. To conceal the set fee per unit commission on the cabinets shipped, Accprate’s records showed the payments to George’s company as 3.4% on monies Accurate received from Zenith rather than as fixed sums on each cabinet. However, on these records the total prices of the cabinets shipped to Zenith were not correct, but were altered to make the commissions correspond to 3.4% thereof. From December 1967 until December 1970, Accurate paid George’s company in excess of $300,000 in commissions. During the period in which Greensphan’s company was paying the commission invoices of George’s company, the latter paid Yonan kickbacks in excess of $100,000 through checks made out by George. The Government’s theory, credited by the jury, was that the kickbacks to Yon-an were accomplished by Greensphan’s payments of George’s company’s fictitious commission invoices, with George then acting as a kickback conduit to Yonan. In this connection, it should be noted that in 1969 or 1970, Yonan asked Greensphan’s company’s controller for a report of the total commission payments then made by that company to George. Shipping quantities on at least one A & G invoice were confirmed to Yonan by Accurate’s plant superintendent. Zenith had a conflict-of-interest policy providing that no gratuities of any nature were to be bestowed on its Purchasing Department employees by suppliers. Yonan twice signed documents embodying that policy, which was annually brought to the attention of all suppliers of Zenith through letters sent out to them. Greensphan admitted receiving these letters during the period of time he was channeling the payments to Yon-an. A number of Zenith’s employees testified that Yonan did not request preferential treatment for Greensphan and his company and that they had no knowledge of Yonan providing such treatment for them. It appears Yonan was insistent on quality and efficiency from Accurate. Evidentiary Sufficiency of a Scheme to Defraud The mail fraud statute delineates two essential elements constituting the crime: a scheme to defraud and use of the mails in furtherance of the scheme. There is no dispute as to the sufficiency of the evidence to establish use of the mails, nor could there be. Defendants contend that the evidence was insufficient to satisfy the first element — the existence of a scheme to defraud. Reduced to its essential distillation, their argument is that because the kickbacks were never shown to come out of Zenith’s pockets, as opposed to Greensphan’s, because Yonan was never shown to provide or secure any special services for Greensphan and his company, and because Zenith was never shown to be dissatisfied with Accurate’s cabinets or prices, no fraud within the contemplation of the statute can have occurred. We reject this argument, in part because it misses the point in two respects and in part because the particular scheme shown by the evidence to defraud Zenith is, from every defendant’s point of view, within the reach of the mail fraud statute. Since the gravamen of the offense is a “scheme to defraud,” it is unnecessary that the Government allege or prove that the victim of the scheme was actually defrauded or suffered a loss. United States v. Regent Office Supply Co., 421 F.2d 1174, 1180-1181 (2d Cir. 1970); Pritchard v. United States, 386 F.2d 760, 766 (8th Cir. 1967); Adjmi v. United States, 346 F.2d 654, 657 (5th Cir. 1965); United States v. Shavin, 287 F.2d 647, 651-652 (7th Cir. 1961), certiorari denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273. If there was intent on the part of a schemer to deprive Zenith of Yonan’s honest and loyal services in the form of his giving Greensphan preferential treatment, it is simply beside the point that Yonan may not have had to (or had occasion to) exert special influence in favor of Greensphan or that Zenith was satisfied with Accurate’s product and prices. And it is of no moment whether or not the kickback money actually came from Zenith. United States v. Dorfman, 335 F.Supp. 675, 679 (S.D.N.Y.1971). Thus the district court correctly charged the jury that it was unnecessary for the Government to prove “that anyone actually be defrauded.” Contrary to defendants’ contentions, the evidence hardly shows that it was impossible for Yonan to exercise favoritism toward Greensphan. As the Court noted in Shushan v. United States, 117 F.2d 110, 115 (5th Cir. 1941), certiorari denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531: “The fact that the official who is bribed is only one of several and could not award the contract by himself does not change the character of the scheme where he is expected to have influence enough to secure the end in view.” In our view the evidence shows that Yonan did have opportunities to give Greensphan preferential treatment, particularly by avoiding the solicitation of potential competitors. Of course, the actual exercise of any such opportunity by a person in Yonan’s position may be practically undetectable. Furthermore, even if Yonan. never intended to give Greensphan preferential treatment, and the Government does not argue that the evidence was sufficient to support a conclusion that he did, the defendants’ argument still misses the mark. The evidence shows Yonan actually defrauded Zenith. We need not accept the Government’s far-ranging argument that anytime an agent secretly profits from his agency he has committed criminal fraud. Not every breach of every fiduciary duty works a criminal fraud. But here Yon-an’s duty was to negotiate the best price possible for Zenith or at least to apprise Zenith that Greensphan was willing to sell his cabinets for substantially less money. Not only did Yonan secretly earn a profit from his agency, but also he deprived Zenith of material knowledge that Greensphan would accept less profit. There was a very real and tangible harm to Zenith in losing the discount or losing the opportunity to bargain with a most relevant fact before it. As Judge Learned Hand stated in a related context; “A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him. That is the evil against which the statute is directed.” United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932), certiorari denied, 286 U.S. 554, 52 S.Ct. 579, 76 L.Ed. 1289. Here the fraud consisted in Yonan’s holding himself out to be a loyal employee, acting in Zenith's best interests, but actually not giving his honest and faithful services, to Zenith’s real detriment. No refuge can be taken in Zenith’s policy “normally” to allow suppliers a 10% profit and in Accurate’s prices being within that margin. Nothing would have prevented Zenith from bargaining with Accurate for a lesser profit margin, and it would be unrealistic to presume that Zenith would consider the fact of better than $100,000 in actual kickbacks to its buyer- — over $300,000 in agreed-to-kickbacks — to be immaterial in its dealings with Greensphan. It is preposterous to claim that Zenith would have spurned such a discount if offered. In this case, whether Zenith was to be deprived of Yonan’s honest and faithful performance of his duties to the extent of his secretly profiting from his agency and concealing knowledge of the availability of that material sum from Zenith, or to the further extent of his meriting the payments which he received, a fraud within the reach of the mail fraud statute would be present. The statute requires the existence of a scheme to perpetrate this fraud, and the question of evidentiary sufficiency boils down to whether the Government has proven that the defendants contemplated that Zenith suffer the loss of Yonan’s honest and loyal services. Indubitably the evidence showed a “scheme.” The critical element is fraudulent intent. United States v. Regent Office Supply Co., supra, 421 F.2d at 1180. Each of the defendants asserts that there was insufficient evidence as to his intent to defraud Zenith of Yon-an’s loyalty and honesty, but we conclude to the contrary. As to Yonan, his undisclosed receipt of the kickbacks by itself warrants a finding that he intended to defraud Zenith of his honest and loyal services. His employment duty was to negotiate the best possible deal for Zenith, or at least to apprise Zenith that Greensphan would be satisfied with a lesser profit margin. He is presumed to know that he could not personally profit by any decrease in price he could negotiate with Greensphan and that any such decrease should be made available to Zenith. In sum, the jury could hardly help but infer that Yonan intended to do exactly what he did. Hence it was not necessary for the jury to conclude that when Yonan received the kickbacks, he intended to defraud Zenith further by giving Greensphan the favored treatment for which Yonan was paid. The evidence also supports a finding that George contemplated Zenith would be defrauded of Yonan’s honest and faithful services. George billed Greensphan for “commissions” on the Circle of Sound cabinets Greensphan sold Zenith though he provided no services to Greensphan. Checks totalling about $100,000, approximately one-third of the commissions, then passed from George to Yonan, with George apparently retaining an unmerited two-thirds. That George’s payments to Yonan had their source in Greensphan’s commission payments to George is shown by Yonan’s call to Greensphan’s accountant asking about the commission sums paid to George by Greensphan and by Yonan’s checking the shipping quantities on an A & G invoice with Greensphan’s plant superintendent. George can hardly claim to have been an unwitting conduit for the payments from Greensphan to Yonan. He submitted spurious invoices based on the number of cabinets Greensphan shipped to Zenith and made an enormous profit in the process. He, Greensphan, and Yonan were mutual friends at the inception of the scheme, and, at least on one occasion, were observed together in Accurate’s plant. He must have known Yonan’s position at Zenith and the relationship between Yonan and Greensphan. If the substantial payments from Greensphan to Yon-an were not designed to compromise Yonan’s fiduciary duties to Zenith, why were they not made directly and openly instead of through George and disguised as commission payments to him? Why would the transaction be so shrouded in secrecy and spuriousness if Yonan could legitimately make and hide from Zenith an enormous profit from his employment position or curry Greensphan’s favor? It would take a man of incredible na'iveté to play George’s role in this scheme and not understand that Yonan was giving less than full measure of loyalty and honesty to Zenith. At least George must have known that some actual injury to Zenith was the reasonably probable result of this scheme. See United States v. Regent Office Supply Co., supra, 421 F.2d at 1182. Having admitted that he agreed to make the kickback payments to Yonan to ensure that he would not lose the Circle of Sound cabinet business, Greensphan argues that he lacked the requisite intent on the ground that he was the victim of extortion. He urges what is really an affirmative defense of extortion. However, he had no contractual agreements entitling him monopolistically to continue to sell cabinets to Zenith. He had no right to be protected from future competition. If he really feared Yonan would wrongfully try to shift the cabinet business to a competitor, why did Greensphan not go to Zenith with the report that Yonan had asked for the kickbacks ? He presented nothing to indicate why this course was not open to him. And certainly he could have gone to Zenith when and if Yonan had decided that a less deserving competitor should get the business. Under some circumstances a threat of economic injury may constitute a defense, but not here. Furthermore, since, by Greensphan’s own account, Yonan did not actually threaten him with economic harm, the evidence does not support his claim. United States v. Miller, 340 F.2d 421, 425 (4th Cir. 1965). Accordingly, his tendered instructions B and C were properly refused. Under the evidence Greensphan’s payments could be considered by the jury as an attempt to obtain an advantage against competition by purchasing Yonan’s loyalty. Greensphan’s “theory of defense,” to the extent it was valid and supported by evidence, was adequately safeguarded because the instructions given as to intent, “knowingly” and “willfully” as used in the two statutes specified in the indictment permitted the jury to accept the hypothesis that Yonan’s economic pressure negatived Greensphan’s intent to harm Zenith. Its choice not to do so was supported on this record. Thus we conclude that there was sufficient evidence for the jury to find that each defendant intended to defraud Zenith. Admissibility of Zenith’s Conflict-of-interest Policy The Government introduced Zenith’s conflict-of-interest policy as bearing on the knowledge of Yonan and Greensphan. It was clearly admissible for this purpose since Yonan’s and Greensphan’s knowledge of that policy bore on their intent to defraud, though it was not essential for proving that intent. The record does not show that Zenith’s conflict-of-interest policy was admitted with reference to George’s intent. The trial testimony went to connecting the policy with Yonan and Greensphan only. The jury was correctly instructed that admissions, acts or statements of other defendants in the scheme were attributable to all only if the jury found the existence of a joint venture and if in furtherance thereof. No error was committed with respect to receiving in evidence Zenith’s conflict-of-interest policy for the limited purpose for which it was offered. Refusal to Sever Yonan from Greensphan’s Trial Yonan claims that Greensphan’s defense was antagonistic, thus entitling Yonan to a mistrial and a separate trial. Here we fail to discern any conflict of defense strategies, much less one so irreconcilable “that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Robinson, 139 U.S.App.D.C. 286, 432 F.2d 1348, 1351 (1970). True, Greensphan testified that Yonan asked him for kickbacks, but Yonan’s only real defense to what the Government proved he did was that his conduct could not have defrauded Zenith. This defense would not be undercut because he asked Greensphan for kickbacks, and Greensphan presented the same defense. Yonan’s real complaint is that Greensphan, in an attempt to save himself, made Yonan out to be a blackmailer, and the jurors “could well conceive it their duty to remove such a person from society.” But “the mere fact that * * * one may try to save himself at the expense of another is in itself alone not sufficient grounds to require separate trials * * *." United States v. Hutul, 416 F.2d 607, 620 (7th Cir. 1969), certiorari denied sub nom. Sacks v. United States, 396 U.S. 1007, 90 S.Ct. 562, 24 L.Ed.2d 499. And Greensphan did not save himself. Furthermore, under the instructions given, the jury could not have convicted Yonan of extortion, and we see no substantial prejudice to warrant upsetting the presumption that the jurors followed the law as given to them. In sum, having found no clear likelihood of detriment to Yo-nan’s defense or confusion in the jury’s mind so great as to prejudice his fair trial, we find the trial judge did not abuse his discretion by trying all participants in the scheme together. United States v. Kahn, 381 F.2d 824, 838-839 (7th Cir. 1967), certiorari denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661. Judgments affirmed. . The original Count 18 was dismissed and Count 19 became Count 18 prior to submission of the case to the jury. . On two Circle of Sound models, the commission was $1.00 per unit shipped, and on two others it was $.75 and $.20 per unit respectively. . 18 U.S.C.A. § 1341 provides : “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” . See United States v. Faser, 303 F.Supp. 380, 383-384 (E.D.La.1969); United States v. Hoffa, 205 F.Supp. 710, 716 (S.D.Fla.1962). . See Epstein v. United States, 174 F.2d 754 (6th Cir. 1949). In that case, heavily relied on by defendants, two of the defendants had directorates in both breweries and brewery supply companies, and the Government argued that because the breweries bought from these suppliers and the defendants did not disclose their conflict-of-interest positions, - the defendants were guilty of mail fraud. The Court held such conduct was “constructive” and not “active” fraud and outside the purview of the mail fraud statute absent a showing that the supply companies’ prices were unfair. Its rationale was that under applicable civil law, directors, on behalf of their corporations, could contract with themselves or corporations in which they were interested, and such contracts were completely valid so long as they were advantageous and made in good faith. Under these circumstances mere non-disclosure did not generate a profit at the corporation’s expense. However, those defendants did not have a duty to make their profit — the return on their investment in the supply companies— available to the breweries, whereas Yonan did have a duty to make his profit — an assumedly unmerited kickback — available to Zenith. There was no reason to believe disclosure by the defendants in Epstein would have, under the particular circumstances there, made any bargaining difference to the breweries, but Yonan’s disclosure, in addition to making the scheme impossible, would have enabled Zenith to realize a substantial discount. . The court properly charged the jury as follows: “Now, to knowingly tamper or interfere with an employer-employee relationship for the purpose of and with the intent of depriving the employer of the employee’s honest and faithful performance of his duties for the employer may constitute a fraud within the meaning of the mail fraud statute.” See United States v. Procter & Gamble Co., 47 F.Supp. 676, 678 (D.Mass.1942). . Lest there be any doubt on that score, it may be noted that Tonan twice signed Zenith’s conflict-of-interest policy, thus acknowledging this.
f2d_477/html/0516-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "KALODNER, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America ex rel. Gilbert John GAUGLER, Appellant, v. Joseph BRIERLEY, Superintendent, State Correctional Institution at Pittsburgh. No. 72-1262. United States Court of Appeals, Third Circuit. Argued Oct. 31, 1972. Decided April 16, 1973. H. David Rothman, Pittsburgh, Pa., for appellant. J. Kent Culley, Asst. Dist. Atty., Appeals Section, Robert W. Duggan, Carol Mary Los, J. Kent Culley, Pittsburgh, Pa., for appellee. Before KALODNER, ADAMS and ROSENN, Circuit Judges. OPINION OF THE COURT KALODNER, Circuit Judge. The relator Gaugler is now serving a two to four year sentence imposed by a Pennsylvania court following his conviction for burglary and larceny. On July 16, 1971, fifteen days after he commenced serving his sentence, the relator filed a petition for a writ of habeas corpus in the District Court challenging the validity of his conviction and confinement on the ground that the state trial court had erred in not suppressing evidence which he claims was obtained by use of alleged illegal search warrants. The District Court, after reviewing the state trial records, ordered that an evidentiary hearing take place. At that hearing, the state adduced testimony to the effect that the applicant for the challenged search warrants had, under oath, made allegations to the Justice of the Peace who had issued the warrants which fully supported their issuance. The District Court denied the relator’s petition for habeas corpus relief. The relator’s primary contention on this appeal is that the District Court erred in allowing testimony in supplementation of the bare averments of the affidavit filed in support of the application for the warrants. He concedes that under Pennsylvania law sworn oral testimony before a magistrate may be considered along with the facts recited in the affidavit for a search warrant in determining the sufficiency of the facts before the magistrate to justify his finding of probable cause. Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), aff’d per curiam, 432 Pa. 627, 247 A.2d 226 (1968). The relator, however, urges that Commonwealth v. Crawley, supra, “is unconstitutional because it supplies no guidelines or standards” for its administration. The background facts necessary to our disposition may be stated as follows: On October 2, 1966, the home of Clyde W. Williams in Gibsonia, Allegheny County, Pennsylvania, was burglarized of some $1,500 personal property. On or about October 16, 1966, the home of Mr. and Mrs. Eugene Connelly, located in the Penn Hills section of Pittsburgh, was also burglarized of some $13,500 personal property. Connelly, in advertisements in two local newspapers, offered a $1,000 reward for information regarding the burglary of his home. In response, an informant who identified himself as a member of the burglary gang, met with Connelly. He named the relator as the burglar, and Barbara Enscoe, the relator’s girlfriend, as receiver of some of the stolen property. He described Barbara and supplied addresses where she could be located. Connelly proceeded to look for Barbara at these addresses. He found her one evening in a bar on the north side of Pittsburgh. He observed at the time that she was wearing his wife’s mink stole and wristwatch. Connelly advised the local police as to these facts the next day. A day later, on December 5, 1966, he, his wife and Police Lieutenant James DiMaria of the Penn Hills Police Department went to the local Justice of the Peace, A. C. Ireland (“Squire”). Connelly asked the Squire to issue search warrants for Barbara’s apartment, at No. 9, 1110 Palo Alto Street, Pittsburgh, Pennsylvania, and for the relator’s automobile. He told the Squire, under oath, the details of the disclosures made to him by his informant burglary gang member, earlier here recited. He further testified that when he located Barbara he observed that she was wearing his wife’s stolen mink stole and wristwatch. Connelly then executed an affidavit which had been prepared by the Squire’s sister who was apparently acting as his clerk. The affidavit did not reflect Connelly’s testimony that when he located Barbara she was wearing his wife’s stolen mink stole and wristwatch. Armed with the search warrants issued by the Squire, the police entered Barbara’s apartment on December 6, 1966. She and the relator were there at the time. The police found items stolen from the homes of Connelly and Williams in the apartment. They then searched the relator’s car and found in it items stolen from Connelly and Williams. The relator and Barbara were then placed under arrest. A Pittsburgh newspaper published a picture of the items found in Barbara’s apartment, which was seen by Williams. He recognized several of the items as property stolen from his home. Search warrants were then issued for Barbara’s apartment and the relator’s home in Gibsonia, Pennsylvania. Items stolen from Williams’ home were found in Barbara’s apartment. It may be noted, parenthetically, that the relator, subsequent to his arrest, admitted to Connelly his participation in the burglary of the latter’s home. The relator was charged in two indictments respecting the Connelly and Williams burglaries: at No. 74 February Sessions 1967, he was indicted with Barbara in the Williams burglary on three counts — Burglary, Larceny and Receiving Stolen Goods; and at No. 81 March Sessions 1967, he was indicted on the same three counts in the Connelly burglary. Prior to his state trial at which he pleaded not guilty on all indictments and counts, the relator moved to suppress all seized evidence,' and subsequent statements and admissions. The trial court, following a hearing, dismissed the suppression motion on December 1, 1967. On the same day, the relator was found guilty on all counts of the indictment relating to the Connelly burglary and guilty on the Receiving Stolen Goods count of the indictment relating to the Williams burglary. His motion to arrest judgment on the Receiving Stolen Goods count of the indictment relating to the Connelly burglary was granted. In disposing of the relator’s challenge to the Connelly affidavit in the first search of Barbara’s apartment, the state court held that “ [sufficient facts are alleged here to enable the Magistrate to form his own conclusion that stolen property will be found at the address stated.” The relator’s conviction was subsequently affirmed by the Superior Court of Pennsylvania, and Allowance for Appeal was denied by the Pennsylvania Supreme Court. On April 17, 1968, the relator was sentenced to a two to four year prison term on Indictment No. 81 March Sessions 1967. Sentence was suspended on Indictment No. 74 February Sessions 1967. His state remedy exhausted, the relator filed the instant petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania. He urged that the facts as evidenced by Connelly’s affidavit did not constitute probable cause for the issuance of the initial search warrants and that all evidence seized after-wards, and his admission of guilt to Connelly, were “fruits of the poisonous tree.” At the District Court evidentiary hearing, objected to by the relator, Connelly testified that he had told the Squire, under oath, of observing Barbara’s wearing of Mrs. Connelly’s mink stole and wristwatch. Mrs. Connelly and Police Lieutenant DiMaria substantially corroborated Connelly’s testimony at the evidentiary hearing. In an Opinion, accompanying its Order denying the relator’s habeas corpus petition, the District Court stated in relevant part: “[I]t is clear that the material supplied by the informant and the corroboration supplied by Connelly’s investigation supplied both probable cause and evidence as to the reliability of the information. . . . ” “ . . . Pennsylvania law . . . as set out in Commonwealth v. Crawley, 432 Pa. 627, [247 A.2d 226,] 209 Pa.Super. 70, [223 A.2d 885,] holds that sworn oral testimony before a magistrate may be used to supplement facts contained in the affidavit. This court, in Commonwealth of Pennsylvania, ex rel. Feiling v. Sincavage, 313 F.Supp. 967 (W.D.Pa.1970), affirmed per curiam 439 F.2d 1133 (3rd Cir. 1971), also recognized the validity of supplementary oral testimony to sustain a search warrant. “Although Justice of the Peace Ireland died before the evidentiary hearing in this court, nevertheless we find the testimony of Mr. Connelly, as corroborated by his wife and Lieutenant DiMaria, to be credible and reliable. A study of the transcript during the trial in the state court also contains references to Connelly’s investigation and to his observation of Miss Enscoe before the search warrant was issued. “Because it is alleged that a federal right has been violated, it becomes our duty to determine the validity of the attack by review of any available information even if it involves taking of testimony not given to the state court. Since we determine that the warrant was valid when the oral statements made to the magistrate are considered, in all events, then it becomes immaterial that the state court based its decision on less evidence. “While it is désirable that all of the information presented to the magistrate be included in the affidavit, we do not believe that such a.requirement is of constitutional dimensions. Accordingly, the petition for writ of habeas corpus is denied. An appropriate order will be entered.” (footnote omitted). The hard core of the relator’s position is that probable cause is not shown on the face of the affidavit in support of the search warrants here involved and that the District Court erred in receiving Connelly’s oral testimony before the Squire in supplementation of the affidavits. We do not subscribe to the reiator’s contention. We are of the opinion that a federal court, in acting on a habeas corpus petition arising out of a state conviction, may consider sworn oral testimony presented to a state judicial officer who issued a search warrant, in determining whether probable cause existed for the warrant’s issuance. Otherwise stated, we hold that in a federal habeas proceeding arising out of a state conviction, sworn oral testimony presented to a state judicial officer in an application for a search warrant may supplement an affidavit for the warrant which on its face fails to establish probable cause for the warrant’s issuance. Our holding is without precedent in this Court. It is in accord with the views expressed by our counterparts in the Second, Eighth and Ninth Circuits. The other Circuits have not reached the issue embraced in our holding. Nor has the Supreme Court of the United States expressly done so. The Supreme Court has, however, in two cases arising from state criminal convictions, indicated that sworn oral testimony presented to a state judicial officer in an application for a state search or arrest warrant may constitutionally supplement an affidavit which, on its face, fails to establish probable cause for the warrant’s issuance. The Court did so in the leading case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), where questions concerning the constitutional requirements for obtaining a state search warrant were presented, and Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), where the constitutionality of a state arrest and ensuing search and seizure was at issue. In Aguilar, supra, a state search warrant was issued to local police officers upon an affidavit which stated in relevant part: “Affiants have received reliable information from a credible person and do believe that heroin . . . and other narcotics . . . are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” The affidavit provided no further information concerning either the undisclosed informant or the reliability of the information. The warrant was issued, a search made, and the evidence obtained was admitted at the trial over objections challenging the validity of the search warrant. The defendant was found guilty of possessing heroin. His conviction was affirmed on appeal to the Texas Court of Criminal Appeals. The Supreme Court granted a writ of certiorari to the Texas Court of Criminal Appeals. It reversed the conviction on the ground that the affidavit on it face failed to establish probable cause for the issuance of the search warrant. In doing so it held that although an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, the judicial officer issuing the warrant must be informed of some of the underlying circumstances relied on by the informant and some of the underlying circumstances from which the affiant concluded that the informant, whose identity was not disclosed, was “credible” or his information “reliable.” It is significantly pertinent here that the Court after noting that “[i]t is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention,” further stated that if facts other than those contained in the affidavit “had been appropriately presented to the magistrate this would, of course, present an entirely different case.” 378 U.S. at 109 n. 1, 84 S.Ct. at 1511 (latter emphasis supplied.) In Whiteley, supra, the constitutionality of the use of evidence seized during a search incident to an alleged illegal arrest, was challenged by a state prisoner in a federal habeas corpus proceeding. The Court reversed denial of habeas corpus relief below on the ground that the complaint for an initial arrest warrant, presented by a county sheriff, acting on a tip, failed to show probable cause for its issuance. In doing so, the Court emphasized that the parties had stipulated in the habeas corpus proceeding that “the sole support for the arrest warrant issued at Sheriff Ogburn’s request was the complaint. . . 401 U.S. 564-565, 91 S.Ct. 1035 (foot-omitted). Relevant here is the fact that in stressing that the complaint was the sole basis for issuance of the warrant, the Court, in a footnote which cited Aguilar, supra, inferentially indicated that “an otherwise insufficient affidavit” can be “rehabilitated” by sworn oral testimony presented in an application for a warrant. 401 U.S. at 565 n. 8, 91 S.Ct. 1031. It may be noted, parenthetically, that the Tenth Circuit has construed footnote 8, in Whiteley, supra, as holding that “[a]n insufficient affidavit may be ‘rehabilitated’ by testimony disclosed to the issuing magistrate.” Leeper v. United States, 446 F.2d 281, 286 (1971), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1972). As earlier stated, the Supreme Court has not ruled upon the question here presented, viz, whether a federal court, in acting on a habeas corpus petition arising out of a state conviction, may consider sworn oral testimony presented to a state judicial officer in an application for a search warrant in determining whether probable cause existed for the warrant’s issuance. The Supreme Court’s express rulings with respect to Fourth Amendment probable-cause requirements were summarized in Whiteley, supra, as follows: cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969); United States v. Ventresca, 380 U.S. 102 [85 S.Ct. 741, 13 L.Ed.2d 684] (1965); Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509] (1964); Rugendorf v. United States, 376 U.S. 528, [84 S.Ct. 825, 11 L.Ed.2d 887] (1964); Jones v. United States, 362 U.S. 257 [80 S.Ct. 725, 4 L.Ed.2d 697] (1960); Giordenello v. United States, 357 U.S. 480 [78 S.Ct. 1245, 2 L.Ed.2d 1503] (1958).” 401 U.S. at 564, 91 S.Ct. at 1035 (footnote omitted). “The decisions of this Court concerning Fourth Amendment probable- The Fourth Amendment does not require that a sworn statement in support of an application for a search warrant must be reduced to writing. See Sherrick v. Eyman, 389 F.2d 648, 652 (9 Cir.), cert, denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968). The Fourth Amendment requires only that the judicial officer issuing a search warrant be supplied sufficient information, under oath or affirmation, which would support an independent judgment that probable cause exists for the warrant’s issuance. What has been said brings us to the relator’s contention that Rule 41(c) Fed.R.Crim.P., pertaining to “[s]earches and [s]eizures,” requires that “[a] warrant shall issue only on affidavit sworn to . . . and establishing the grounds for issuing the warrant,” and that this requirement precludes rehabilitation of an insufficient search warrant affidavit in a federal habeas corpus action arising out of a state conviction. We do not subscribe to this contention for these reasons: The federal criminal rules are not constitutional imperatives. They do not extend to prosecutions in state courts for violations of state criminal laws. They govern only prosecutions in federal courts for violation of criminal laws of the United States. They are procedural only. Moreover, federal habeas corpus proceedings are civil, and not criminal, in nature. They are governed by the Federal Rules of Civil Procedure. Rule 81(a)(2) of the civil rules specifies that “[fjhese rules are applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” (emphasis supplied). It must be said at this juncture that the three cases cited by the relator do not afford an iota of nourishment to his contention that in a federal habeas corpus action arising out of a state conviction, Rule 41(c) precludes supplementation of an insufficient warrant affidavit by oral testimony presented to the judicial officer who issued the warrant. First, only one of the cited cases, Frazier v. Roberts, 441 F.2d 1224 (8 Cir. 1971), involved a habeas corpus proceeding arising out of a state conviction. There, the Court in fact held that the Fourth Amendment permits supplementation of an insufficient affidavit by sworn oral testimony presented to the warrant-issuing magistrate, and it denied supplementation only because the offered oral testimony had not been given under oath. In United States v. Berkus, 428 F.2d 1148 (8 Cir. 1970), there was a federal prosecution for violation of the federal narcotics laws. There, the search warrant had been issued by a state judicial officer on the affidavit of a city policeman. The Court ruled that the sworn oral testimony of the policeman presented in his application for the warrant could supplement his insufficient affidavit. It may be noted, parenthetically, that Rule 41(c) was not adverted to in the Court’s opinion. United States v. Sterling, 369 F.2d 799 (3 Cir. 1966), relied on by the relator, is inapposite on its setting and its facts. Apart from the circumstance that Sterling was a federal, and not a state, prosecution it did not present the question whether sworn oral testimony presented to a magistrate in an application for a warrant may supplement an insufficient affidavit. In -Sterling, it was contended that information presented in an affidavit for a search warrant had been illegally obtained and that accordingly it could not be held to establish probable cause. The District Court rejected the relator’s contention. It also alternatively held that the testimony, presumably adduced at the trial, and not to the magistrate, “independent [ly]” established probable cause for the warrant’s issuance. On review, we affirmed the trial court’s primary holding that the warrant affidavit legally established probable cause. We, however, held that its alternative ground was “legally unacceptable,” in this statement: “The lower court’s alternative ground for upholding the search warrant was based on information not in the affidavit. Such an approach is legally unacceptable. The affidavit must be the exclusive support for the warrant.” 369 F.2d at 802 n. 2. Coming now to the relator’s challenge to the constitutionality of the Pennsylvania rule which permits rehabilitation of an insufficient affidavit by sworn oral testimony presented to the magistrate issuing the warrant: In Commonwealth v. Crawley, supra, it was held that the Fourth Amendment and Article 1, § 8 of the Pennsylvania Constitution, P.S. do not prohibit the use of sworn oral testimony “to demonstrate facts relied on by the magistrate in issuing the warrant.” 209 Pa.Super. 70, at 76, 223 A.2d 885, at 889. In doing so, the Court said: “In Pennsylvania when a warrant is under attack on the ground there were insufficient facts to support a finding of probable cause the rule has been that sworn facts told to the magistrate at the time the warrant was issued are admissible to support the finding of probable cause, (citing cases).” 209 Pa.Super. at 76-77, 223 A.2d at 889. We agree with the Court’s holding that the stated Pennsylvania rule does not contravene the Fourth Amendment or the Pennsylvania Constitution. It is well settled that a state has a right to formulate its own rules of procedure in cases arising out of violations of its criminal laws, providing that the state procedures do not contravene constitutional guarantees. In Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963), it was said: “The States are not . . . precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain.” In Mapp v. Ohio, 367 U.S. 643, 659 n. 9, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081 (1961), the Court said in relevant part: “As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.” Again in Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946), the Court said at page 175, 67 S.Ct. at page 218: “But the Due Process Clause has never been perverted so as to force upon the forty-eight States a uniform code of criminal proocedure. Except for the limited scope of the federal criminal code, the prosecution of crime is a matter for the individual States. The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States. It is for them, therefore, to choose the methods and practices by which crime is brought to book, so long as they observe those ultimate dignities of man which the United States Constitution assures. Brown v. New Jersey, 175 U.S. 172, 175 [20 S.Ct. 77, 78, 44 L. Ed. 119]; Missouri v. Lewis, 101 U.S. 22, 31 [25 L.Ed. 989]. Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases.” (emphasis supplied). This, too, must be said with regard to the relator’s contention that the District Court erred in its evidentiary hearing on his habeas petition when it went beyond the state trial record and permitted Connelly to testify with respect to his sworn statements to the Squire in support of his applications for the search warrants here involved. The stated contention is utterly without merit. The Supreme Court has squarely ruled that “the Federal District Court has a broad power on habeas to hold an evidentiary hearing and determine the facts.” Fay v. Noia, 372 U.S. 391, 422, 83 S.Ct. 822, 840 (1963) (emphasis by the Court), and that “[t]he language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (emphasis supplied). In Townsend, supra, the Court specifically held that the State, as well as the petitioner, can present “testimonial and documentary evidence” outside the state court record, in a habeas evidentiary hearing. In doing so, it said (p. 322, 83 S.Ct. p. 762): “To be sure, the state-court record is competent evidence, and either party may choose to rely solely upon the evidence contained in that record, but the petitioner, and the State, must be given the opportunity to present other testimonial and documentary evidence relevant to the disputed issues.” (footnote omitted) (emphasis supplied). The vitality of the cited rulings was attested to in Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). We need not dwell on the relator’s contention that the District Court erred in finding credible the testimony of Connelly, his wife and Police Lieutenant DiMaria, respecting Connelly’s sworn testimony on his application for the search warrants. Whether information was given to the magistrate on oath or affirmation within the meaning of the Fourth Amendment presents a question of fact. Frazier v. Roberts, supra, 441 F.2d at 1228. In United States ex rel. Stone v. Robinson, 431 F.2d 548, 551 (3 Cir. 1970), we said: “The standard of review that this Court must follow in this habeas corpus claim where factual determinations were made below is the same as that governing our review of other civil matters tried to the district court without a jury; i. e., under Rule 52 (a), Fed.R.Civ.P., 28 U.S.C.A., the findings of the court below will not be set aside unless they are ‘clearly erroneous.’ ” On review of the record we certainly cannot say that the District Court’s challenged fact-findings are “clearly erroneous.” Other points raised by the relator do not merit discussion. For the reasons stated the Order of the District Court denying the relator’s habeas corpus petition will be affirmed. . The relator and Barbara were charged with unlawful possession of narcotics in a third indictment based-on the discovery of marijuana in Barbara’s apartment on the first search. The relator was acquitted on this charge. . The Opinion of the District Court is presently unreported. . The affidavit, prepared by the Squire’s sister, sworn to and signed by Connelly, states in relevant part: “AND NOW, to wit, this 5th day of Dee. 1966, before me the undersigned authority, personally appeared Eugene Connolly [sic! who being duly sworn (affirmed) according to law deposes and says that he has reason to believe, and that he does so believe, that certain articles, items, things and other property, which are particularly described as follows, to-wit, . . . and a part thereof, are now situate at and in a certain building or place, which is specifically described as follows, to wit, apartment #9, at 1110 Palo Alto Street, Pittsburgh, Pa., the same believed to be the apartment of Barbara Enscoe. “AND FURTHER, that the facts and circumstances tending to establish the belief that the aforesaid Articles, items, things and other property are now situate at and in the above described building or place, are (inter alia) as follows : that information was received from an informer to the effect that Barbara Enscoe was seen wearing a fur stole that was described as being identical to that stolen from the affiant and that Barbara Enscoe is a friend of the man the informer claims committed the burglary of the affiant’s home. Said informer identified himself as being a former member of the burglary gang and has good knowledge of their activities.” . Two district courts in this Circuit have held that sworn “[o]ral testimony as well as affidavit in writing, may serve as the basis for the issuance of a [state search] warrant under constitutional standards.” Commonwealth of Pennsylvania ex rel. Feiling v. Sincavage, 313 F.Supp. 967, 970 (W.D.Pa.1970), aff’d on other grounds, 439 F.2d 1133 (3 Cir. 1971) and United States ex rel. Boyance v. Myers, 270 F.Supp. 734, 738 (E.D.Pa.1967), rev’d on other grounds, 398 F.2d 896 (3 Cir. 1968). We noted in our disposition of the appeals in these two cases that we did not reach the quoted holdings of the district courts. In Boyance we said : “We do not reach the point urged by the appellant that unrecorded oral statements to the magistrate may not be the basis for a finding of probable cause to issue a warrant.” 398 F.2d at 897 n. 1. . United States ex rel. Pugach v. Mancusi, 411 F.2d 177 (2 Cir.), cert. denied, 396 U.S. 889, 90 S.Ct. 172, 24 L.Ed.2d 163 (1969); United States ex rel. Schnitzler v. Follette, 379 F.2d 846 (2 Cir. 1967). In Pugach, Judge (now Chief Judge) Friendly said: “Since the State does not seek to sustain the sufficiency of the affidavit, . . . [the relator] is entitled to a hearing at which the State may show, if it can, that the fudge had other sufficient information before him either when the bugging was initially authorized or on the extensions of the authority.” 411 F.2d at 180 (footnote omitted) (emphasis supplied). . Miller v. Sigler, 353 F.2d 424 (8 Cir. 1965), cert. denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966). See also Frazier v. Roberts, 441 F.2d 1224 (8 Cir. 1971). . Boyer v. State of Arizona, 455 F.2d 804 (9 Cir. 1972); Sherrick v. Eyman, 389 F.2d 648 (9 Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968). . The question whether sworn oral testimony adduced to a state judicial officer in an application for a search warrant could be considered in supplementation of an insufficient affidavit was presented to the United States Supreme Court in a petition for certiorari from a ruling of the Supreme Court of the State of Washington which answered the question in the affirmative at 74 Wash.2d 154, 443 P.2d 815 (1968) based on that Court’s prior holding at 72 Wash.2d 959, 435 P.2d 994 (1967). The Supreme Court denied certiorari, over the dissent of Mr. Justice Brennan, joined in by Mr. Justice Marshall. Christofferson v. Washington, 393 U.S. 1090, 89 S.Ct. 855, 21 L.Ed.2d 783 (1969). . Note 1 states in relevant part: “The record does not reveal, nor is it claimed, that any other information was brought to the attention of the Justice of the Peace. It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention. Giordenello v. United States, 357 U.S. 480, 486 [78 S.Ct. 1245, 2 L.Ed.2d 1503], 79 C.J.S. 872 (collecting cases). . . . The fact that the police may have kept petitioner’s house under surveillance is thus completely irrelevant in this case, for, in applying for the warrant, the police did not mention any surveillance. Moreover, there is no evidence in the record that a surveillance was actually set up on petitioner’s house. Officer Strickland merely testified that ‘we wanted to set up surveillance on the house.’ If the fact and results of such a surveillance had been appropriately presented to the magistrate, this 'would, of course, present an entirely different case.” (emphasis that of the Court). . The complaint for the arrest warrant follows: “I, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A. D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building].” . The Stipulation was the basis for the Court’s denial of the State’s request for remand to the District Court so that it could “develop a record which might show that the issuing magistrate had factual information additional to that presented in Sheriff Ogburn’s complaint.” 401 U.S. at 569, 91 S.Ct. at 1037. . Footnote 8 stated in relevant part: “More importantly, even the dissent apparently concedes that as far as the record in this case reveals, the only information Sheriff Ogburn communicated to the magistrate issuing the warrant was contained in his written complaint reproduced above. Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U.S. 108, 109 n. 1 [84 S.Ct. 1509, 1511, 12 L.Ed.2d 723], A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless.” . “AMENDMENT IV — SEARCHES AND SEIZURES “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, hut upon proh able cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (emphasis supplied). . The Federal Rules of Criminal Procedure were amended April 24, 1972, effective October 1, 1972. 18 U.S.C.A. (Supp. 1973). We are here concerned with the Rules prevailing December 5, 1966, when the search warrant involved was applied for and issued. . United States v. Schwartz, 372 F.2d 678, 682 (4 Cir. 1967). . Cameron v. Hauck, 383 F.2d 966, 971 n. 7 (5 Cir. 1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 777, 19 L.Ed.2d 828 (1968). . Rule 1, Fed.R.Crim.P., in effect when the warrant here involved was issued, provides: “These rules govern the procedure in the courts of the United States and before United States commissioners [now United States magistrates] in all criminal proceedings, with the exceptions stated in Rule 54.” . Independent of all other considerations, and standing alone, the following factors negate the relator’s contention that Rule 41(c) Fed.R.Crim.P. is applicable here: the Rule relates to a warrant “directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.” (emphasis supplied). In the instant case the search warrant was issued to a state police officer incident to a state prosecution for violation of a state’s criminal laws and not to a federal officer incident to a federal prosecution for violation of a federal criminal law. . Fay v. Noia, 372 U.S. 391, 423-424, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Riddle v. Dyche, 262 U.S. 333, 335-336, 43 S.Ct. 555, 67 L.Ed. 1009 (1923); Fisher v. Baker, 203 U.S. 174, 181, 27 S.Ct. 135, 51 L.Ed. 142 (1906). In Dyche it was said: “The writ of habeas corpus is not a proceeding in the original criminal prosecution, but an independent civil suit. . . . ” We treated a habeas corpus petition as a civil proceeding in United States ex rel. Stone v. Robinson, 431 F.2d 548, 551 (1970). . In doing so, the trial court said: “The foregoing facts disclose that the evidence which Sterling seeks to suppress was duly obtained pursuant to a valid search warrant. Sterling seeks to go behind the warrant and establish that the whole search was the ‘fruit of a poisonous tree’. However, the testimony shows that the officer executing the warrant (as well as Sams) had long had a tip from a reliable informer regarding the tanks, and the warrant could stand on the basis of independent information unconnected with the allegedly poisonous tree.” 244 F.Supp. 534 (W.D.Pa.1965) at 536. . Article 1, § 8 of the Pennsylvania Constitution provides: “Sec. 8. Security from searches and seizures “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.” . The Crawley rule was reaffirmed and applied in Commonwealth v. Milliken, 450 Pa. 310, 312-318, 300 A.2d 78, 80-82 (decided January 30, 1973). In Milliken, the Court announced that in exercise of its supervisory powers it would “formulate by rule of Court appropriate procedural requirements of a sufficient written record made contemporaneously with the issuance of search warrants,” and that “[b]ecause this issue is not one of constitutional proportions, the rule will be wholly prospective and thus not applicable to the case at bar.” (emphasis supplied). It should be noted that the Court on March 28, 1973, adopted Rule 2003, Pennsylvania Rules of Criminal Procedure, 19 P.S.Appendix, pursuant to its announcement in Milliken, specifying that the Rule would be “effective for warrants issued sixty days hence.”
f2d_477/html/0526-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MATTHES, Chief Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	James BROWN and Rosa Lee Brown, Appellants, v. KENRON ALUMINUM AND GLASS CORPORATION, and Reynolds Aluminum Credit Corporation, Appellees. James BROWN and Rosa Lee Brown, Appellants, v. KENRON ALUMINUM AND GLASS CORPORATION, Appellee, and Reynolds Aluminum Credit Corporation. No. 72-1304, 72-1437. United States Court of Appeals, Eighth Circuit. Submitted March 13, 1973. Decided April 20, 1973. Robert C. Oberbillig, Des Moines, Iowa, for appellants. Donald A. Wine, Des Moines, Iowa, for appellee Reynolds. Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges. MATTHES, Chief Judge. These appeals serve to highlight again the narrow range of remedies often afforded unwitting consumers by state law. James Brown and his wife, Rosa Lee Brown, plaintiff-appellants, signed a contract in December of 1964 in which they agreed to purchase aluminum siding and four aluminum doors for their home from defendant-appellee Kenron Aluminum and Glass Corporation (Kenron). The contract recited a cash sale price of $2,998 payable in an undesignated number of monthly installments of $55.70. At the same time, appellants completed a credit application, which Kenron subsequently submitted to defendant-appellee Reynolds Aluminum Credit Corporation (Reynolds), a wholly-owned subsidiary of Reynolds Metals Company organized for the purpose of extending long-term credit to selected home improvement dealers. The record reveals that apart from Reynolds, Kenron also financed its customers through several local banks. Reynolds approved appellants’ credit application and notified them that the “unpaid cash balance” of $2,998 was “payable in 84 monthly installments of $55.68.” Appellants were not informed that 84 monthly installments of $55.68 equaled a time price of $4,677.12, in comparison to the quoted cash price of $2,998. At the time of the signing of the contract, Mr. Brown, whose schooling was limited to the first grade, worked as a night watchman at Camp Dodge at a wage of $283 a month. Mrs. Brown earned $200 a month working in a rest home. They lived with Mrs. Brown’s five children in a $3,000 home they were purchasing under a real estate contract calling for monthly payments of $55. According to appellants, they understood the home improvement contract to provide for installation of four doors and fourteen windows at an approximate cost of $1,000. When they were informed that instead they had signed a contract for siding and doors at a cash price of $2,998, they allegedly sought the advice of several persons who told them “there was nothing they could do but try to pay it off as best they could.” After Reynolds approved appellants’ credit application, Kenron proceeded to remove the original slate siding from the Brown home and install the aluminum siding and doors. On February 17, 1965, Mrs. Brown signed a completion certificate. On that same date, both appellants executed a promissory note in the amount of $4,677.12, payable in 84 monthly installments of $55.68. And in order to secure the note, they also executed a real estate mortgage on their home. Reynolds purchased the promissory note and mortgage from Kenron on February 23. From March, 1965 through June, 1966, appellants regularly paid monthly installments on the promissory note to Reynolds. During this period of time Mrs. Brown registered several complaints with Reynolds as to the application of the siding and incompletion of the work. The record shows that Reynolds relayed these complaints to Kenron, and that, on at least one occasion, Kenron made a service call. After June, 1966, appellants fell in arrears on the note, and Reynolds referred the Brown account to an attorney, George G. West. At about the same time, Reynolds purchased the vendor’s interest in appellants’ real estate contract, allegedly in order to protect Reynolds’ security interest in the property. As payments were overdue on the real estate contract when it was acquired by Reynolds, it too was referred to West for collection. Between January 12, 1967, and March 11, 1968, appellants paid West $1,025, of which he applied $348.88 to the real estate contract and $676.12 to the note. On April 5, 1968, an additional $50 was paid by money order. The record does not reveal to which account this last payment was credited. On March 11, 1968, the balance due on the real estate contract was $975.92, and the balance due on the promissory note was $3,167.-8L On May 28, 1968, West served notice of forfeiture of the real estate contract and, on July 1, notice to vacate the premises. Suit for possession was filed on July 22 and later dismissed for improper service of process. This diversity action was instituted by appellants against Kenron and Reynolds in state court on August 6, and removed by Reynolds to the United States District Court, Southern District of Iowa. On August 9, 1968, Reynolds filed anew its suit for possession in the state court. That court, however, entered a stay pending the outcome of this action, upon the condition that appellants pay $75 monthly to the court. As of March 29, 1972, appellants had paid $3,009.50 to the state court pursuant to its order. Appellants’ amended complaint filed October 3, 1968, accused Kenron of fraudulent misrepresentation, breach of contract, usury, and unconscionability of contract. Reynolds was charged with fraud, conspiracy to defraud, liability of a principal for acts of its agent, usury and credit harassment. In response to the amended complaint, defendants filed a motion to dismiss or, in the alternative, for a more definite statement. The trial court, on February 6, 1969, dismissed the usury claims on the ground that they had been improperly pleaded under Iowa law. Otherwise, defendants’ motion was denied. On March 12, 1970, appellants filed a pleading denominated “statement of damages” setting forth specific elements claimed as damages. The claims for relief against each defendant sought compensatory damages for payments made to Reynolds on the promissory note, costs of repairs, the difference between heating bills prior to and after the application of the siding, mental anguish and distress, credit harassment, attorney fees and expenses, and costs of the action. In addition, in Count VI of their amended complaint appellants sought rescission of the contract contained in Exhibit B (real estate contract). Also under each count, appellants requested punitive damages in the sum of $50,000 for the wanton, willful and reckless conduct of the defendants. On February 3, 1971, the trial court filed an order permitting Kenron’s attorney, George West, to withdraw as counsel on the ground that he would be called as a witness in the action. The order also provided that if new counsel failed to enter an appearance within fifteen days, Kenron would be in default without further notice. An attorney for the trustee of the bankruptcy estate of Kenron, which was pending at that time in the Northern District of Illinois, advised the court that Kenron would not appear and defend. Thereafter, a judgment of default was entered against Kenron and in favor of appellants in the sum of $6,400 plus interest. Reynolds, however, vigorously contested the action. On May 19, 1972, the trial court filed a memorandum and order finding Reynolds free from fraud or knowledge of fraud. Nor was there any evidence, the court held, that Kenron acted as an agent for Reynolds, that both had conspired to defraud appellants, or that Reynolds or West exceeded their legal rights in attempting to collect payments. The court also declared the real estate contract free of infirmity and, accordingly, refused appellants’ request for its rescission. Having been granted leave to proceed in forma pauperis by the district court, appellants filed timely appeals from both judgments. On appeal from the judgment in favor of Reynolds, appellants assert that the court erred in construing the pleadings to request rescission of the real estate contract rather than the rescission of the home improvement contract. On appeal from the default judgment against Kenron, appellants argue that the court erred in not making a finding of fraud on the part of Kenron. 1. No. 72-1304 As a preliminary matter, we note that the complaint and other pleadings filed in this case by counsel for appellants are replete with ambiguity, repetition, and inartful phrasing. However, under any possible construction of the pleadings, we are soundly convinced that the judgment of the trial court in favor of Reynolds was proper. Appellants do not suggest that there was any fraud exercised in the procurement of the promissory note and real estate mortgage, the only instruments which were eventually negotiated to Reynolds. Nor have appellants satisfactorily proved the existence of an agency or conspiracy between Kenron and Reynolds. Appellants’ theory that Kenron acted as an agent for Reynolds is premised primarily on the fact that only Reynolds, of the several financing institutions available to Kenron, offered the seven year plan extended to appellants. However, this circumstance, in and of itself, is not sufficient to negative the independent status of Reynolds, particularly when Reynolds retained the option of rejecting the credit transaction, and Kenron furnished its own forms and utilized several financing institutions. See United States v. Tholen, 186 F.Supp. 346 (N.D.Iowa 1960). In short, there is absolutely no ground upon which to rescind the home improvement contract or to bottom Reynolds’ liability for fraud, either directly or derivatively. Appellants reach a contrary conclusion by apparently reasoning that Reynolds should be held strictly liable for defects in the obligation underlying the negotiated instruments. Appellants have not directed us, however, to any cases so holding, nor were we able to discover any by means of our own research. We emphasize the distinction, however, between this case and one where the negotiated instruments themselves are defective. See Millrose Corp. v. Brent, 106 U.S.App.D.C. 242, 271 F.2d 508 (1959). Here, the negotiated instruments were admittedly free of infirmity. Appellants also dispute the trial court’s finding that Reynolds did not engage in credit harassment. Appellants urge that West, Reynolds’ attorney, deliberately treated appellants’ payments on the real estate contract as payments on the promissory note, thereby insuring that appellants’ property would continually remain subject to forfeiture. There existed, however, a conflict in the evidence as to the understanding between West and appellants. Moreover, since Reynolds had purchased a mortgage on appellants’ property as security for the promissory note prior to obtaining the real estate contract, it is difficult to understand what advantage effectively accrued to Reynolds by applying payments to one obligation or the other. We conclude that there was ample support for the finding of the trial court that West and Reynolds did not exceed their legal collection rights. In the final analysis the bases for appellants’ claims against Reynolds presented issues of fact. The seasoned district judge, after a plenary trial and consideration of the voluminous documents, found that appellants had failed to sustain their burden of proving any of their claims for relief. We are satisfied the court’s findings are not clearly erroneous. II. No. 72-1437 In appealing from the default judgment against Kenron, appellants complain of the failure of the trial judge to make a finding of fact as to the alleged fraud of Kenron. The memorandum and order of the trial court reads in pertinent part as follows: “The Court finds that the plaintiffs in the above-entitled cause of action entered into a contract with the defendant Kenron on or about December 21, 1964, for aluminum siding, aluminum windows and aluminum doors for plaintiffs’ house. Defendant Kenron subsequently caused such materials to be fixed to plaintiffs’ house but subsequently, the materials proved to be defective and worthless. Default has been previously entered against defendant Kenron and the issues of liability cannot now be contested. Accordingly, the Court makes no independent finding of any fraud, misrepresentation, or malice on the part of Kenron. The Court finds that Kenron received $4,600.00 from plaintiffs for work done in supplying and installing the above described materials. The Court further finds that the present value of these materials is nothing, and that it would take $1,800.00 to place adequate siding on the house. Accordingly, the Clerk shall enter judgment against Kenron Aluminum and Glass Corporation and in favor of plaintiffs for $6,400.00 plus interest from the date of trial of this action. The parties shall bear their own costs. It Is Further Ordered that the foregoing memorandum shall constitute the findings of fact and conclusions of law in this ease with respect to Kenron Aluminum ánd Glass Corporation in accordance with F.R.C.P. 52(a).” Rule 52(a) requires findings of fact “in all actions tried upon the facts without a jury or with an advisory jury .” A default judgment, however, generally precludes a trial of the facts, except as to damages. “A hearing to determine whether to enter judgment by default [pursuant to Rule 55] is not considered as a trial. If the court determines that the defendant is in default, his liability to the plaintiff is deemed established and the plaintiff is not required to establish his right to recover. The allegations of the complaint except as to the amount of damages are taken as true. If the default is established, the defendant has no further standing to contest the merits of plaintiff’s right to recover. His only recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery.” 3 Barron & Holtzoff, Federal Practice & Procedure § 1216, pp. 85-86 (1958). See cases collected in Annot., 8 A.L.R.3d 1070 (1966). A judgment by default is as conclusive an adjudication of the issues for purposes of res judicata as a judgment rendered after a trial on the merits. Riehle v. Margolies, 279 U.S. 218, 225, 49 S.Ct. 310, 73 L.Ed. 669 (1929). The allegations of the complaint, in effect, become findings of fact. And, therefore, Rule 52 is inapplicable except as to damages. Thus we hold that implicit in the judgment of default is a finding of fraud by Kenron. Judgments affirmed. . A judgment in favor of Reynolds on appellants’ complaint does not determine whether or not Reynolds would possess the status and rights of a holder in due course should that issue arise in a subsequent suit brought to enforce the promissory note. See Iowa Code Ann. §§ 554.3302, 554.3305.
f2d_477/html/0531-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "INGRAHAM, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	Bernard Gerard RAFFERTY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 72-3819 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 4, 1973. Gerald H. Goldstein, San Antonio, Tex., for petitioner-appellant. William S. Sessions, U. S. Atty., Edward M. Johnson, Asst. U. S. Atty., San Antonio, Tex., Donald H. Feige, Atty., John L. Murphy, Chief, Dept. of Justice, Crim. Div., Washington, D. C., for respondent-appellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409. INGRAHAM, Circuit Judge: Appellant Rafferty, an Irish national and an ordained Roman Catholic priest, had been admitted to the United States as a permanent resident in 1965. He left the active ministry in 1970 and has been gainfully employed as a carpenter in San Antonio. In February of 1971, Rafferty filed a petition for naturalization. He was afforded a preliminary examination, at which time he indicated a desire to take a qualified oath of allegiance to the United States as permitted by the Immigration and Nationality Act, 8 U.S.C. § 1448: Oath of renunciation and allegiance (a) A person who has petitioned for naturalization shall, in order to be and before being admitted to citizenship, take in open court an oath (1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5) (A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by the law. Any such person shall be required to take an oath containing the substance of clauses (1) to (5) of the preceding sentence, except that a person who shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to the bearing of arms in the Armed Forces of the United States by reason of religious training and belief shall be required to take an oath containing the substance of clauses (1) to (4) and clauses (5) (B) and 5(C) of this subsection, and a person who shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to any type of service in the Armed Forces of the United States by reason of religious training and belief shall be required to take an oath containing the substance of said clauses (1) to (4) and clause (5)(C). The term “religious training and belief” as used in this section shall mean an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code. Specifically, Rafferty was opposed to the taking of that portion of the oath which requires him to bear arms on behalf of the United States. He asserted that his opposition was an outgrowth of his religious training and belief and was independent of the tenets of the Roman Catholic Church. Subsequent to the interview the Naturalization Examiner entered the following findings of fact: (a) That the petitioner is a lawfully admitted alien for permanent residence and filed a petition for naturalization on February 2, 1971; (b) That the petitioner is not willing to bear arms on behalf of the United States when required by the law; (c) That the petitioner is an ordained Catholic priest and is no longer in the active ministry. He is a nonpracticing Roman Catholic, and (d) That the petitioner’s refusal to bear arms on behalf of the United States is based on his religious training and belief. The examiner recommended that the naturalization court allow Rafferty to take the qualified oath, and further requested that the petition for naturalization be granted. The district judge upon hearing the petition determined that Rafferty’s views did not bring him within the scope of the exception to the unqualified oath. A review of the transcript of the proceedings indicates to us that the court employed an erroneous legal criterion in arriving at its conclusion. After questioning Rafferty’s membership in the Roman Catholic Church, the district judge formulated his basis for denying the petition as follows: “Well, Mr. Rafferty, as you said a moment ago, as the Court knows, the Catholic Church does not have any serupples against the bearing of arms and does not prohibit it, and therefore the Court finds that you failed to show the Court by clear and convincing evidence to the satisfaction of this Court that you are opposed to the bearing of arms by reason of your religious training and beliefs, and it is more of a personal moral code. The Court will deny your petition for naturalization.” Our interpretation of religious training and belief as it appears in § 1448 of the Immigration and Naturalization Act is guided by the Supreme Court’s construction of similar language contained in § 6(j) of the Universal Military Training and Service Act, 50 U.S.C.App. § 456. In re Thomsen, 324 F.Supp. 1205 (N.D.Ga., 1971); In re Weitzman, 426 F.2d 439 (8th Cir., 1970). We therefore hold that the proper test to be applied in determining whether a petitioner for naturalization is to be permitted to take the qualified oath of allegiance to the United States is the religious parallel test as advanced by the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). The question to be answered is whether or not an individual’s opposition to the bearing of arms stems from his moral, ethical or religious beliefs about what is right and wrong, and whether or not these beliefs are held with strength of traditional religious convictions. Rather than applying a subjective test in the case at hand, the district court erroneously used the tenets of the Roman Catholic Church as a touchstone against which Rafferty’s beliefs were tested. We therefore must reverse the order denying the petition and remand the case for a redetermination in accordance with the guidelines of Seeger and Welsh, supra. During the course of the hearing the district judge questioned Rafferty as follows: “THE COURT: Are you married? “MR. RAFFERTY: Yes, sir, I am. “THE COURT: Do you have a child ? “MR. RAFFERTY: Yes, sir, I do. “THE COURT: If someone came into your house and attempted to kill your wife or child, would you defend them? “MR. RAFFERTY: Like I gave in my original testimony, I distinguish between what one does subjectively and what one does objectively. Objectively speaking, as I am standing here, I do not believe that the use of force is a solution to anything. Subjectively speaking, or in the situation like you so describe, I can’t say that I would not. I don’t know what I would do under that kind of circumstances, since I am an emotional person like everyone else. “THE COURT: In other words, you can’t say that you wouldn’t defend your wife? “MR. RAFFERTY: No, I can’t say that. “THE COURT: Your wife and child, and you can’t say that you wouldn’t ? “MR. RAFFERTY: No, I can’t say that.” While Rafferty never expressly stated that he would resort to force, we need only note that a willingness to use force in defense of one’s self or one’s family is not inconsistent with a person’s position that he would not bear arms in defense of the nation. Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955). Reversed and remanded.
f2d_477/html/0534-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	Rojelio E. RIVERA et al., Plaintiffs-Appellants, v. E. O. TOFT, Warden, et al., Defendants-Appellees. No. 72-1785. United States Court of Appeals, Tenth Circuit. Submitted April 23, 1973. Decided April 23, 1973. Rojelio E. Rivera, and others, pro se. Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okla., for defendants-appellees. Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges. PER CURIAM. Rivera and others, inmates of the Federal Reformatory at El Reno, Oklahoma, filed this action in the district court seeking a declaratory judgment and injunctive relief. Jurisdiction was asserted under the Civil Rights Act, 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3). The inmates complain of the procedures before the institution’s disciplinary committee. They contend that before being “sentenced” to punitive segregation, they are entitled to written notice of charges, a hearing with rights of confrontation and cross-examination, a record of the hearing, decision, and the evidence relied upon, and assistance of counsel or counsel substitute. They also challenge the possibility of multiple punishment for the same act — administrative punishment and criminal conviction. The district court dismissed the petition after determining that the Declaratory Judgments Act does not apply in actions against the United States, that federal authorities do not act under col- or of state law therefore jurisdiction is lacking, and administrative remedies must be pursued in the first instance. We agree. To begin with, it is established in this Circuit that administrative punishment and subsequent judicial prosecution does not constitute double punishment for the same offense. United States v. Smith, 464 F.2d 194 (10th Cir. 1972); United States v. Hedges, 458 F.2d 188 (10th Cir. 1972); Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971). It must be remembered that the ’ discipline of inmates arises while they are in custody pursuant to unrelated valid convictions and this is not considered an “arrest”. United States v. Smith, supra; United States v. Reid, 437 F.2d 1166 (7th Cir. 1971). In Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972), the Supreme Court was concerned with informal procedural guarantees in parole revocations and distinguished the custody of a parolee with “that summary treatment . . . necessary as it may be with respect to controlling a large group of potentially disruptive'prisoners in actual custody.” Actions of prison officials in disciplining inmates are not subject to judicial review in the absence of arbitrariness or caprice. United States v. Smith, supra; Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). The primary supervision in the administration of federal reformatories is delegated by statute, 18 U.S.C. § 4042, to the Bureau of Prisons under the direction of .the Attorney General, empowering them to review any action taken or approved by the local wardens. Prisoner discipline is one of the specific provisions of Section 4042. We would have to assume that the disciplinary committee operates under established practices reasonably designed to promote the discipline of the institution and that there is some uniformity in practices throughout the federal prison system. See Bureau of Prisons Policy Statements, 7400.6A; Theriault v. Carlson, 339 F.Supp. 375, 387 (N.D.Ga.1972). From what we said above, it is clear that personal grievances should be presented, in the first instance, by administrative remedies available to the prisoner with the Bureau of Prisons. Tarlton v. Clark, 441 F.2d 384 (5th Cir. 1971), cert. denied 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713. See also Smoake v. Willingham, 359 F.2d 386 (10th Cir. 1966); Evans v. Harris, 341 F.Supp. 609 (D.Kan.1972); McNeal v. Taylor, 313 F.Supp. 200 (W.D.Okl.1970); Harbolt v. Alldredge, 311 F.Supp. 688 (W.D.Okl.1970), aff’d, 432 F.2d 441 (10th Cir. 1970); Owens v. Alldridge, 311 F.Supp. 667 (W.D.Okl.1970); Murphy v. Surgeon General, 269 F.Supp. 227 (D.Kan.1967). Upon docketing in this court, this case was assigned to the summary calendar, and the appellants were informed that we were contemplating summary affirmance and afforded an opportunity to submit memoranda addressing the underlying merits, which has not been done. Nevertheless, we have carefully and thoroughly reviewed the files and records in this cause and are convinced that the judgment of the district court is correct. Affirmed.
f2d_477/html/0536-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "WALLACE, Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Kenneth David CATE, Defendant-Appellant. No. 72-1020. United States Court of Appeals, Ninth Circuit. March 7, 1973. Carl E. Larson, Asst. Federal Public Defender (argued), Rodney J. Shepherd, Asst. Federal Public Defender, E. Richard Walker, Federal Public Defender, Sacramento, Cal., for defendant-appellant. Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee. Before DUNIWAY, GOODWIN and WALLACE, Circuit Judges. WALLACE, Circuit Judge: Appellant was convicted for failure to report for induction in violation of 50 U.S.C. App. § 462. We reverse. Although appellant had prior difficulties with the draft, the salient facts are that on October 28, 1970, appellant was reclassified by his local board from 1-A-O (non-combatant service) to 1-O (conscientious objector) and was properly notified of the reclassification and of his right to appeal. Appellant promptly responded in writing, asking for an appeal and requesting a reclassification to 3-A (hardship) on the ground that his economic contribution to his home had become “vital.” The board construed the letter as a request for an appeal and for a personal appearance before the board and set November 18 as the date for the personal appearance. Appellant requested a postponement of the personal appearance until after November 21, 1970, claiming a conflict with his work schedule. Appellant failed to appear on the 18th, and the board reviewed his file but did not reopen his classification. The local board forwarded appellant’s file to the appeal board on December 21, 1970, without notice to appellant. On Thursday, January 28, 1971, the appeal board reclassified appellant 1-A-O by unanimous vote but did not state any reasons for its action. On Monday, February 1, the local board received appellant’s file from the appeal board and immediately sent appellant a notice he was classified 1-A-O. On the following day the local board mailed to appellant an “Order to Report for Induction.” He did not obey the order, was convicted and appealed. Appellant questions the authority of the appeal board to bypass the question of whether he deserved a 3-A classification instead of a 1-O and to reclassify him to the higher classification of 1 — A— O. However, we do not reach this issue because the case is reversed on a different ground. In United States v. Haughton, 413 F.2d 736 (9th Cir. 1969), we held that when a prima facie claim of conscientious objector status was presented, the local board had a duty to state the reasons for its denial of the application. The rationale of the rule was that, when no reasons are stated, it is impossible for a reviewing court to ascertain whether the claim had been properly rejected. Id. at 739, 743. We extended the Haughton rule to similar actions of an appeal board in United States v. Kember, 437 F.2d 534 (9th Cir. 1970), cert. denied, 402 U. S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662 (1971). Here, the appeal board was passing upon a rejected hardship classification rather than a conscientious objector claim. However, the reason for the rule in Haughton and Kember — that of facilitating judicial review — applies equally to denial of hardship claims, whether the claim is considered by the local board, United States ex rel. Bent v. Laird, 453 F.2d 625, 632-634 (3rd Cir. 1971), or by the appeal board. This reasoning is consistent with United States v. Guaraldi, 468 F.2d 774 (9th Cir. 1972), in which we found that the failure to state reasons for denial of a requested hardship classification was cured because the reasons could be ascertained from the administrative record. Here, a prima facie case for a hardship claim had been presented, and it is undisputed that the appeal board reclassified appellant 1-A-O without stating any reasons therefor. That would not necessarily be fatal if “the appeal board’s reasons can be determined from the agency record with reasonable certainty.” United States v. Kember, supra, 437 F.2d at 536. No such determination can be made in this case. There are a number of reasons on which the appeal board might have based its determination, but there is no hint in the file as to which it may have chosen. . On Ms claim for exemption, appellant indicated he was willing to be classified 1-A-O. On June 18, 1969, appellant was so classified. He passed his physical examination and was ordered to report for induction on May 12, 1970. On April 17, his mother requested the local board to reopen appellant’s classification and consider a hardship deferment. New information bearing thereon was submitted. The local board did not reopen and appellant did not report. However, the local board subsequently cancelled the order to report. . See Storey v. United States, 370 F.2d 255, 260-261 nn. 7-8 (9th Cir. 1966). . To the same effect are United States v. Mount, 438 F.2d 1072, 1074 (9th Cir. 1971); United States v. Prichard, 436 F.2d 716, 718 (9th Cir. 1970); and United States v. Callison, 433 F.2d 1024, 1026 (9th Cir. 1970). . Although the issue was not raised, the appeal board, in effect, has reclassified appellant from 1-O to 1-A-O and has therefore denied a conscientious objector claim. If so, with! no reasons stated, reversal would be required by Haughton and Keniber. However, the thrust of the appeal is the denial of the 3-A claim. . Numerous letters in the file from the registrant, from his family and relatives, and from friends and a doctor alleged that appellant’s father had become totally disabled, that his mother was too ill to work, having suffered a recent heart attack, that a minor sister was living with the family, that the family lived in a remote area and raised its own produce and chickens and burned wood for fuel, and that the family’s only steady income was $151 per month from Social Security and $50 per month from Welfare. The letters further stated that, in addition to daily chores and occasional outside odd jobs, appellant did all of the heavy work in maintaining the truck garden and cut the wood for fuel. Cf. Howze v. United States, 409 F.2d 27 (9th Cir. 1969). . See also United States v. Marcovich, 454 F.2d 138 (9th Cir. 1972).
f2d_477/html/0538-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Cleveland MOORE, Defendant-Appellant. No. 73-1128 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 7, 1973. L. H. Walden, Montgomery, Ala., for defendant-appellant. Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Defendant-appellant, Cleveland Moore, was convicted by a jury of unlawfully possessing with the intent to distribute a controlled substance, to wit, heroin, in violation of Title 21 U.S.C. Section 841(a)(1). We affirm. On the basis of information derived from undercover sources that Moore was going to fly from Dothan, Alabama, to New York to obtain a new supply of-heroin to distribute, Alabama police officers secured a warrant to arrest appellant’s person and to search his baggage for heroin. The police officers watched Moore depart on a commercial flight bound for Newark, New Jersey, and executed the warrants three days later upon his return to the Alabama airport. The fruits of the search of appellant’s baggage included a receipt for registered mail, which was promptly delivered to the U.S. Postal Inspector who then secured a Federal search warrant for the package corresponding to the registered mail receipt taken from Moore’s person. The package contained heroin and was used as the basis for the conviction appealed from. We have reviewed appellant’s specifications of error with care and find none to be of merit: (1) the arrest by the Alabama authorities was executed pursuant to a valid arrest warrant and the subsequent decision not to prosecute appellant in the state courts does not invalidate such arrest, United States v. Seay, 5 Cir. 1970, 432 F.2d 395, 400; (2) a more thorough search of appellant’s person was still incident to an arrest when conducted shortly thereafter at the jail rather than at the time and place of arrest, United States v. Gonzalez-Perez, 5 Cir. 1970, 426 F.2d 1283, 1287; (3) the search of appellant’s clothing was not unreasonable, Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, 256-260, and the seizure of the registered mail receipt was permissible even though it was not an instrumentality of the crime itself, Warden v. Hayden, 1967, 387 U.S. 294, 300, 87 S.Ct. 1642, 1646-1647, 18 L.Ed.2d 782, 788; (4) the federal warrant to search the package was not based on information received as the result of an illegal search since there was no illegal search; (5) the affidavits for both warrants were based on information sufficiently supported by underlying circumstances to find the degree of “probable cause” necessary to validate the warrants; and (6) the evidence was sufficient to sustain a verdict of guilty, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Affirmed.
f2d_477/html/0540-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "ALBERT V. BRYAN, Senior Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY et al., Appellees. No. 72-2388. United States Court of Appeals, Fourth Circuit. Argued March 7, 1973. Decided April 30, 1973. William W. Kehl, Greenville, S. C. (David L. Freeman, Wyche, Burgess, Freeman & Parham, P. A., Greenville, S. C., on brief), for appellant. Ernest J. Howard, Greenville, S. C., (Griffin & Howard, Greenville, S. C., on brief), for appellees. Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges. ALBERT V. BRYAN, Senior Circuit Judge: Appellant, State Farm Mutual Automobile Insurance Company, sought in the District Court a declaration by summary judgment that three automobile liability policies issued by it to the named insureds, John Sam Johnson and Nina Johnson, his wife, did not extend coverage to their daughter, Dorothy Jean Johnson, while driving a “non-owned automobile”. The District Court, 349 F.Supp. 158, found this feature of the policies so ambiguous in meaning as to be of no effect. In consequence, the Court resolved the alleged lack of clarity against the insurer, thus including the daughter within the protection of the policies. We reverse. The appellant had written these policies upon two automobiles owned by John Sam Johnson and upon one owned by Nina Johnson. On October 17, 1971, Dorothy was involved in an accident when the car which she was driving, and which was not owned by her or her parents, collided with a 1964 -Ford and caused the deaths of all four of the Ford’s occupants. The provision under interpretation was identical in all of the policies. It stated the indemnity afforded in regard to non-owned cars as follows, with the determinative clause underlined: “USE OF NON-OWNED AUTOMOBILES “If the named insured is a person or persons . “(1) coverages A and B applies [sic] to the use of a non-owned automobile by: “(a) the first person named in the declarations or, “(b) his spouse if a resident of the same household, and “(c) any other person or organization not owning or hiring such automobile, but only with respect to his or its liability for the use of such automobile by an insured as defined in subsections (a) and (b) above. . . . Fatal ambiguity was seen by the District Judge in section (l)(c)’s giving coverage of a person not owning or hiring the insured automobile “only with respect to his . liability for the use of such automobile by an insured”. The judge reasoned: “. . . there would be no logical reason for the inclusion of paragraph (l)(c) . . . unless it was intended to extend coverage “A” and “B” to some person other than the named insured and his or her spouse. The first portion of subsection (l)(c), up to the word “but”, appears to do just that. The remainder of this section however, beginning with the word “but”, renders the whole of subsection (1) (c) meaningless, as it limits the coverage of “any other person .” to “his [the other person’s] liability for the use of such [non-owned] automobile by an insured as defined in subsections (a) and (b) above;”, i. e. the named insured and his or her spouse.” The clause so penalized is less obscure to us. In our construction the offending clause means that the non-owner coverage is only against such liability of a non-owner as might arise from the use of the automobile by the insured, that is, a responsibility imputable to the non-owner by reason of an act of the insured. For example, if the non-owner is the employer or principal of the insured, or stands in any other relation to the insured in which the law would make the non-owner answerable for the insured’s use of the automobile, then only would the non-owner be protected by section (1) (c) of the policy. Here, it does not appear that Dorothy’s collision occurred in the insured’s — her parents’ — use of the non-owned automobile. This has been the meaning consistently placed upon section (1) (c) and upon its predecessors, which were expressed in substantially the same wording. There has been no deviation from this application of the section’s language, so far as we have discovered. Hamilton v. Maryland Casualty Company, 368 F.2d 768, 773 (5 Cir. 1966); Beasley v. Allstate Insurance Company, 246 S.C. 153, 142 S.E.2d 872 (1965). As there was no difference between the parties on the facts, and decision rested exclusively on the law question of the correct construction of the policies, the ruling of the District Court will be vacated and the action remanded with directions to sustain the appellant insurer’s motion for summary judgment. Vacated and remanded with directions. . The appellees here — defendants at trial —were the three Johnsons, the personal representatives of those killed in the accident and the owner of the other car in collision. . Coverage A provides liability indemnity for bodily injury to another; coverage B provides liability indemnity for damage to property of another.
f2d_477/html/0542-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	Henry OBRON, d/b/a Advance Bag and Burlap Company, Plaintiff-Appellant, v. UNION CAMP CORPORATION and Bemis Company, Inc., Defendants-Appellees. No. 72-1868. United States Court of Appeals, Sixth Circuit. Argued Feb. 6, 1973. Decided April 11, 1973. Martin J. Adelman, Troy, Mich., for plaintiff-appellant; Allen M. Krass, McGlynn, Reising, Milton & Ethington, Troy, Mich., on brief. Edward C. Stringer, St. Paul, Minn., for Bemis Co., Inc.; Briggs & Morgan, St. Paul, Minn., Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., of counsel. Stephen R. Lang, New York City, for Union Camp Corp.; Breed, Abbott & Morgan, New York City, Dahlberg, Mallender & Gawne, Detroit, Mich., of counsel. Before WEICK, CELEBREZZE and PECK, Circuit Judges. PER CURIAM. This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) from the District Court’s pre-trial order ruling that Appellant passed on to his customers any artificially high prices charged by Appellee Union Camp and that Appellant therefore suffered no damages for purposes of the present treble damage suit under Section 4 of the Clayton Act, 15 U.S.C. § 15. The District Court properly certified the order as involving a controlling question of law warranting this interlocutory appeal under Section 1292(b), and by an order dated July 26, 1972, this Court granted Appellant leave to appeal. The District Court’s Memorandum Opinion is reported at 355 F.Supp. 902. Appellees are manufacturers of mesh window bags used by vegetable growers to package their products. Appellant is a distributor of these bags manufactured by Appellee Union Camp. In October 1968 Appellant filed a complaint claiming that he had been injured in his business or property by reason of Appellees’ alleged monopolization and attempts to monopolize in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, and conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The basis of Appellees’ allegedly illegal conduct is the claim that they maintained and enfoi’ced an invalid patent relating to the manufacture of the window bags, knowing the patent to be invalid. By agreement of the parties, the District Court made a pretrial determination respecting the applicability of the “passing-on” defense, which, if available to Appellees, would preclude Appellant’s treble damage action. In ruling on this question, the District Court focused on the following undisputed practice of Appellant as a distributor of Appellee Union’s bags: “[A]fter obtaining an order from a customer for mesh window bags he would submit the order to Union and would be invoiced at Union’s list price less 5%. The bags were ‘drop shipped’, i.e., sent directly from Union to plaintiff’s customer. Plaintiff would bill his customer at Union’s full list price. Thus, whatever price Union imposed on the plaintiff, the plaintiff passed on to his customer plus his 5%.” 355 F.Supp. at 904. For the reasons set forth in the District Court’s Memorandum Opinion, we agree with the Court’s conclusion that the “passing-on” defense is applicable under the stipulated facts in this suit. Although the Supreme Court’s decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), significantly restricted the availability of this defense, we agree with the District Court’s conclusion that the above method of distribution is comparable to a “preexisting ‘cost-plus’ contract,” under which the Hanover Court suggested the defense might still be applicable. 392 U.S. at 494, 88 S.Ct. 2224. Cf. State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1086-1088 (2d Cir. 1971). Indeed, the District Court correctly characterized Appellant’s discount as comparable to a sales commission and observed that “[t]he only reasonable inference is that the plaintiff himself profited by any increase in prices set by defendant Union.” 355 F.Supp. at 906. We affirm the District Court’s order holding that the “passing-on” defense is valid and applicable under the facts of this case.
f2d_477/html/0544-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	Carl Houston ROBERTS and Roy Malcolm Roberts, Petitioner-Appellants, v. UNITED STATES of America, Respondent-Appellee. No. 72-1610. United States Court of Appeals, Eighth Circuit. Submitted Feb. 16, 1973. Decided April 20, 1973. Carl Houston Roberts and Malcolm Roberts filed briefs pro se. Daniel Bartlett, U. S. Atty., and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee. Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge. Sitting by designation. PER CURIAM. Roy Malcolm Roberts and Carl Houston Roberts, father and son, pursuant to 28 U.S.C. § 2255, appeal from the order of the district court (Judge Regan), 348 F.Supp. 563, denying them relief from their convictions and sentences for assault upon federal officers. The layman’s brief filed on behalf of appellants raises two issues already considered and found wanting of merit on direct appeal, i. e., that the evidence presented at trial was insufficient to establish guilt, and that appellants were denied their Sixth Amendment right to effective assistance of counsel. Appellants now assert an additional claim that their second trial, which resulted in their convictions, subjected them to double jeopardy in violation of the Fifth Amendment, since appellants’ first trial was improperly aborted while in its third day. We reject these contentions and affirm the determination of the district court. While the district court opinion clearly demonstrates that appellants’ claims were without merit, we add an additional comment relating to the double jeopardy claim. The district court aborted the first trial on February 12, 1969, when during cross-examination of defendant Carl Roberts, the prosecutor elicited background information about Carl’s prior felony convictions. Carl’s lawyer, who also represented Roy, moved for a mistrial because of certain comments made by the court. The lawyer representing two other defendants joined in the motion. The trial court then granted the mistrial. A claim of double jeopardy in violation of the Fifth Amendment does not arise from the later trial of a defendant, following a mistrial declared by the court upon the defendant’s own motion. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Pappas, 445 F.2d 1194, 1200 (3d Cir. 1971), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); Houp v. State of Nebraska, 427 F.2d 254, 255 (8th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 887, 27 L.Ed.2d 827 (1971); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016, 1018 (1969), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L. Ed.2d 119 (1969); Vacarro v. United States, 360 F.2d 606, 608 (5th Cir. 1966). Gf. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). The problem here arises from the joint representation of Carl and Roy by one attorney. The motion for mistrial was not specifically requested on behalf of both defendants and was made while Carl was being questioned about his prior convictions. The request was based upon comments of the court which might be deemed critical of the trial tactics of the attorney. Such comments, if taken as critical of the attorney’s conduct, would seem to taint the proceedings for all parties represented by the attorney. Roy made no objection to his retrial on double jeopardy grounds until this present posteonviction petition. Under these circumstances we think it clearly inferable that counsel’s mistrial request asked for a mistrial for both his clients, Roy and Carl, and that the court granted the request in the interest of all the defendants. See and compare United States v. Walden, 448 F.2d 925, 930 (4th Cir. 1971). Thus, the record discloses no violation of appellants’ rights under the Double Jeopardy Clause of the Fifth Amendment. . The convictions as to these and other defendants were affirmed on direct appeal in United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971). . The record shows the following: Q. (By Mr. Ruzicka [Prosecutor]) How many felonies were you convicted of on that occasion? A. [Defendant Carl Roberts] I believe it was two or three. I cleaned the books up for them. Q. Two or three? A. Yes. Q. You mean you co-operated with— is that what you mean? A. Yes. MR. BRUNTRAGER: [Attorney for Carl and Roy] I object to this, Your Honor, on the grounds this is not proper cross-examination. He is going in an attempt to go behind the convictions. THE COURT: Well, he didn’t ask — I don’t recall that you even asked him about this, the convictions, did you? MR. BRUNTRAGER: Your Honor, ■ — -will you step up, please? (Thereupon the following colloquy ensued among the Court and counsel, at the bench, out of the hearing of the jury:) MR. BRUNTRAGER: I object to the Court asking questions of this defense counsel pointing out— THE COURT: What I am trying to get at is whether you even asked him about it. MR. BRUNTRAGER: I don’t think that was a proper question, but anyway I am objecting to the Court pointing out to the jury by his question that I did not ask him. There was a specific reason for my not asking him. I cannot explain this to the jury, but in any event, inasmuch as the Court has pointed out, that it appears, it must appear to the jury, Your Honor, that I have been hiding this, or attempting to hide it, which is not true, and I would ask that the Court instruct the jury, or admonish the jury to disregard the question asked of counsel, not to place any significance on it, and I would ask that a mistrial he declared. MR. GILDEN: [Attorney for two other codefendants] I will join in that.
f2d_477/html/0546-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	Louis GERMANY, Plaintiff, v. The RIVER TERMINAL RAILWAY COMPANY, Defendant-Appellant, and Norfolk & Western Railway Company, Defendant-Cross-Claimant-Appellee. No. 72-2095. United States Court of Appeals, Sixth Circuit. Argued April 2, 1973. Decided April 24, 1973. Dennis M. Kelly, Cleveland, Ohio, for appellant; George J. Moscarino, Dennis M. Kelly, Kenneth F. Seminatore, Jones, Day, Coekley & Reavis, Cleveland, Ohio, on brief. Byron D. Fair, Cleveland, Ohio, for appellee; Byron D. Fair, Thomas V. Chema, Arter & Hadden, Cleveland, Ohio, on brief. Before PECK, McCREE and LIVELY, Circuit Judges. PER CURIAM. This case involves an interchange agreement between two railroads. Louis Germany, who is not a party to the appeal, sued The River Terminal Railway (RTR), his employer, and the Norfolk & Western Railway Company (N&W). He recovered a judgment against RTR for injuries caused by a defect in a railroad car of N&W which was under the control of RTR. In a cross-claim against RTR, the interchange agreement was filed as an exhibit and relied upon by N&W. By a later pleading, RTR, relying on the same agreement, sought to recover one-half the verdict as well as one-half of all costs from N&W. Section 8 of that agreement provided for compulsory arbitration “[I]n case of any disagreement between the parties hereto as to the true construction or meaning of any of the provisions of this agreement, or as to the rights of either party hereunder, or as to any claim arising hereunder . ” The arbitration provisions of the agreement were specifically cited by RTR in a tendered amendment to a pleading in support of its position that the cross-claim of N&W failed to state a claim upon which relief could be granted. The trial court refused to permit the "filing of the amended pleading which set up the arbitration provisions of the agreement and proceeded to interpret the agreement itself. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) favors the submission of disputes to arbitration in accordance with the intentions of the parties to an agreement as a means of easing court congestion. Galt v. Libbey-Owens-Ford Glass Co., 376 F.2d 711 (7th Cir. 1967). An agreement to arbitrate may be waived by the actions of a party which are completely inconsistent with any reliance thereon. Burton-Dixie Corp. v. Timothy McCarthy Construction Co., 436 F.2d 405 (5th Cir. 1971). However, waiver may not be inferred from the fact that a party does not rely exclusively on the arbitration provisions of a contract, but attempts to meet all issues raised in litigation between it and another party to the agreement. General Guaranty Insurance Co. v. New Orleans General Agency, Inc., 427 F.2d 924 (5th Cir. 1970). The District Judge made no finding on the issue of the right of RTR to have the dispute between it and N&W decided by arbitration. Our review of the record convinces us there was no waiver by RTR in the district court proceedings. On appeal RTR has sought to abandon its request for arbitration “in the interest of concluding this dispute as rapidly as possible.” However, the courts are concerned that the salutary results of the policy expressed in the Federal Arbitration Act be realized. The correct construction of the interchange agreement involved here will necessarily require an understanding of railroad practices and terminology. This can best be achieved by persons familiar with the industry. The judgment of the district court is vacated and the cause remanded for entry of an order requiring RTR and N&W to submit the issues in dispute to arbitration.
f2d_477/html/0548-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	Thomas A. MOODY, Appellant, v. UNITED STATES of America, Appellee. No. 72-1702. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided April 20, 1973. William D. Sutter, Lincoln, Neb., for appellant. William K. Schaphorst, U. S. Atty., and Daniel E. Wherry, Asst. U. S. Atty., Lincoln, Neb., for appellee. Before GIBSON, BRIGHT and ROSS, Circuit Judges. PER CURIAM. Thomas A. Moody appeals his conviction, based upon a jury verdict, finding him. guilty of violating the provisions of 18 U.S.C. § 2312 — the Dyer Act. The sole issue on appeal relates to the sufficiency of the evidence. Finding the evidence sufficient, we affirm. Moody claims on appeal that the Government failed to present sufficient evidence to prove that he transported the stolen auto, or materially assisted in transportation, with knowledge that it was stolen. Moody concedes that the evidence was sufficient to prove the auto was stolen and transported in interstate commerce. As a preliminary matter we note that the “verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). This principle is of course applicable to Dyer Act cases. See e. g., United States v. Fouchey, 462 F.2d 585, 586 (8th Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 174, 34 L.Ed.2d 140 (1972). The evidence, viewed in the light most favorable to the Government, may be briefly summarized as follows: On May 31, 1972, in Houston, Texas, a 1972 auto was stolen. On June 1, 1972, in Auburn, Nebraska, the stolen car was stopped by a Nebraska State Patrolman. Five people were in the auto, including Moody, who was in the back seat of the car. One of the occupants was a hitchhiker who subsequently was released. Moody, after having been informed of his constitutional rights, stated that he knew the ear had been stolen in Houston, but did not know who stole it as it had been parked in front of the place where he resided. At trial the testimony indicated that three of the occupants of the car and Moody lived together in Houston. Shortly before the car was stolen, the four men decided to go to Chicago, Illinois to seek employment. The alternatives were either to go by bus or “rip off” a car — meaning to steal a car. Moody was present when this last alternative was discussed. Allen, one of the four men involved here, stole the car in question. He then went to the apartment where the other three lived and picked up Greening and Ondras. The three then went to a friend’s house and picked up Moody. After a six-hour stopover in Dallas, the four proceeded north. During the trip from Houston to Dallas, Greening, Allen and Ondras discussed that the car had been stolen. The three could not remember whether Moody heard .this discussion. Although Moody did not drive the car, Greening testified that Moody purchased gas for the auto. Allen and Moody testified that Moody did not purchase any gas. At trial Moody explained that he thought the car had been loaned to Allen and indicated that he discovered the car was stolen just shortly before he was apprehended in Nebraska. . First, we think the evidence was sufficient to prove guilty knowledge. Shortly before the car was stolen Moody was present when the possibility of stealing a car was discussed so as to provide transportation for the four to Chicago. Moreover, Moody gave contradictory explanations with regard to how the four came into contact with the auto. When he was arrested Moody stated that the 1972 auto was abandoned in front of the men’s residence, but at trial Moody claimed that Allen had told him the auto had been loaned to Allen. This evidence also tended to prove guilty knowledge. Second, the evidence is also sufficient to prove ¡that Moody was in joint possession of the auto thus proving the element of transportation. Aside from the fact that there was evidence that Moody had been present when the parties discussed stealing a car and then jointly using it for transportation [which is exactly ¡what happened], there is direct evidence that' Moody paid for some of the gasoline expenses. This Court, Baker v. United States, 395 F.2d 368, 369 (8th Cir. 1968), as well as, other courts, Thomas v. United States, 409 F.2d 730, 732 (10th Cir. 1969); Lawrence v. United States, 400 F.2d 624, 626 (9th Cir. 1968), have indicated, directly or indirectly, that the payment of gasoline expenses is an important consideration in determining whether a defendant may be said to be in possession of an auto for the purpose of determining the element of transportation. ■ Moody claims that the evidence is insufficient because there was a conflict with Greening testifying that Moody did pay for gas, while Allen, also the Government’s witness, and Moody testified that Moody did not pay for gas. In essence, Moody attacks the credibility of Greening, indicating that Greening smoked marijuana during the trip. However, as we have recently said, in another Dyer Act case, “The credibility of the government witness is solely within the province of the jury.” United States v. Miles, 472 F.2d 1145, 1146 (8th Cir. 1973). Although the contradiction weakened the proof, it did not render the evidence insufficient. For the reasons hereinbefore expressed, the judgment of conviction is affirmed.
f2d_477/html/0550-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM;", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Michael W. McCOY, Defendant-Appellant. No. 72-3097 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 25, 1973. Tabor R. Novak, Jr., Montgomery, Ala. (court appointed), for defendant-appellant. Ira DeMent, U. S. Atty., David B. Byrne, Jr., Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM; Michael W. McCoy appeals from the district court’s decision denying his motion to withdraw his guilty plea. We affirm. On February 23, 1972, McCoy was indicted by a federal grand jury on a charge of false registration in violation of 18 U.S.C. § 1341. After a hearing, the district court denied McCoy’s motion to suppress certain evidence. On April 21, McCoy entered a plea of not guilty. He then filed several motions attacking the district court’s decision and the credibility of certain witnesses who testified at the suppression hearing. The court later denied each of these motions. On June 19, McCoy withdrew his plea of not guilty and entered a plea of guilty to the first count in the indictment. After the court accepted the plea, the government dismissed the remaining charges. The court then directed that McCoy be committed under 18 U.S.C. § 5010(e) for a period of 60 days for study and observation. On August 15, McCoy filed a motion to withdraw his guilty plea. The court denied the motion after a hearing and on August 30 sentenced McCoy to an indeterminate sentence under 18 U.S.C. § 5010(b). McCoy appealed. There is no absolute right to withdraw a guilty plea before imposition of sentence, Kirshberger v. United States, 5 Cir. 1968, 392 F.2d 782, or after imposition of sentence, United States v. McDaniel, 5 Cir. 1970, 425 F.2d 813. The decision to grant such a motion is left to the sound discretion of the trial court. Rimanich v. United States, 5 Cir. 1966, 357 F.2d 537. McCoy argues that his guilty plea was entered with reluctance, that he lacked confidence in his attorney, that perjured testimony was offered against him, and that the facts relevant to his plea are disputed. In response, the government asserts that the district court’s order committing McCoy under 18 U.S.C. § 5010(e) for a period of study and observation constitutes an imposition of sentence and that under rule 32(d) of the Federal Rules of Criminal Procedure, withdrawal of a guilty plea should be allowed only to correct a manifest injustice. We need not decide whether commitment under section 5010(e) constitutes imposition of sentence within the meaning of Rule 32(d) since we find that, even assuming the motion was made before sentencing, the district court did not abuse its discretion in denying the motion. The record shows that before accepting McCoy’s guilty plea the trial court carefully inquired into the factual basis for the plea and concluded that it was voluntarily and knowingly made. McCoy was represented by court-appointed counsel who also advised him of his rights. When McCoy filed the motion to withdraw his guilty plea, the court held another hearing to inquire into the basis for the motion and to permit him to advance any argument in support of his position. The court concluded that the motion should be denied. We cannot say that the trial court abused its discretion in so deciding. McCoy also raises several questions concerning the district court’s refusal to suppress certain evidence. These issues, however, are clearly non-jurisdictional and were effectively waived by McCoy’s guilty plea. Ortega-Velasquez v. United States, 5 Cir. 1972, 465 F.2d 419. The decision of the district court must therefore be affirmed. Affirmed.
f2d_477/html/0551-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. James W. ROSS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sylvester SAIN, Defendant-Appellant. Nos. 72-1793, 72-1794. United States Court of Appeals, Sixth Circuit. Submitted Feb. 14, 1973. Decided April 25, 1973. James L. Feinberg, court appointed, Detroit, Mich., on brief, for defendant-appellant Ross. Emmett S. Long, Detroit, Mich., on brief, for defendant-appellant Sain. Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief, for plaintiff-appellee. Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and McALLISTER, Senior Circuit Judge. PER CURIAM. Defendants were both convicted of bank robbery and murder, in a jury trial before Judge Theodore Levin. The testimony consisted of that of an accomplice and of several of the bank tellers. Both defendants seek reversal because of the Judge’s alleged refusal to ask certain questions on voir dire, particularly one which asked the jurors if they had any racial prejudice. Both defendants were black; the murdered man was white. There is nothing in the record to indicate that the questions were submitted by the defense counsel or, if they were submitted, in what form they were submitted. Defendant Ross raises both the issue of the sufficiency of the evidence and the issue relating to the voir dire question. Defendant Sain raises only the voir dire issue. As for the sufficiency question, the law of this Circuit is clear that accomplice testimony alone would be sufficient to convict. United States v. Haynes, 403 F.2d 54, 55. Of course, in this case more than uncorroborated accomplice testimony was introduced. It should also be noted that the defendant made no motion for acquittal at the conclusion of either the Government’s or defendant’s proof. This precludes raising the sufficiency issue on appeal. United States v. Broadnax, 346 F.2d 119. As for the voir dire issue, the only evidence before this Court is the affidavit of the defense attorney that he asked the Judge to submit certain questions to the jury. The questions are not in the record at any point. As the Government points out, this Court can hardly rule without the questions being in the record. It has been held by this Circuit that the responsibility for having such off-the-record colloquys recorded stenographically lies with the defense counsel. Cox v. General Electric Company, 302 F.2d 389, 390. The exact form of the questions would be crucial in this situation. The fact that Judge Levin is now dead should also be taken into consideration. The lack of a record precludes review of this issue. As to the refusal of the trial court to make inquiry of the jurors on voir dire as to possible prejudice arising from the fact that a defendant is a Negro, after timely request therefor, such refusal would be a denial of defendant’s right to a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment. See Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed. 2d 46, decided January 17, 1973. There having been no request made for such inquiry by the Court during the course of the trial, this issue is not before us. The judgments are affirmed.
f2d_477/html/0553-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Estelle BENANTE, As Surviving Wife of Carl Benante, Deceased, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, etc., Defendant-Appellee. No. 72-3648 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 2, 1973. Rehearing Denied June 11, 1973. Richard I. Kroop, Miami Beach, Fla., for plaintiff-appellant. Anthony Reinert, David L. Willing, Miami, Fla., for defendant-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al, 5th Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: This Florida diversity case turns on the construction of the term “injury” as employed in a policy of accidental death and dismemberment insurance. The District Court held that, under the controlling Florida case law, the heart attack suffered by plaintiff’s decedent after running to catch a scheduled airplane flight did not constitute “bodily injury caused by an accident” within the meaning of the policy and therefore denied recovery. We affirm. The case was submitted to the District Court upon these stipulated facts: 1. The Decedent, CARL BEN-ANTE, was a policy holder of ALLSTATE INSURANCE COMPANY Certificate No. 386 421 150, which policy was in force on July 20, 1971. Said policy is an accidental death and dismemberment insurance and a true copy of same is attached to the Complaint. 2. That on July 20, 1971, CARL BENANTE, now deceased, and his sister ANTONINA QUARTUCCIO, were in the Rome Airport awaiting their flight to New York. Both passengers had their tickets validated and were told by an Alitalia attendant to go to Gate 6 to catch their plane. 3. CARL BENANTE, now deceased, was carrying two handbags weighing approximately five pounds each. 4. Upon their arrival at Gate 6, both passengers were told by the attendant there that their Flight No. 610 was not at Gate 6, but at Gate 1, and that they should hurry to Gate 1 to catch the plane because the plane was about' to depart. 5. Both passengers ran very fast to Gate 1 in order not to miss their flight. Upon their arrival at Gate 1, both were out of breath and exhausted. Upon their arrival at the gate, they were driven by bus to the aircraft. Both passengers were out of breath as they alighted from the bus and started climbing the steps from the ground to the entrance of the plane. 6. Both passengers proceeded to go down the aisle to their seats and approximately half the length of the plane, CARL BENANTE, now deceased, started to fall backwards. He was caught by the stewards and placed in the nearest seat. As soon as he was seated, he died instantly. Under the terms of the Certificate of Insurance, Allstate Insurance Company promised to pay the insured’s beneficiary $125,000 if the insured died as a result of an accidental injury. According to the certificate, “Injury” means bodily injury caused by an accident occurring while the insurance is in force and which injury results, within 365 days after the date of the accident, directly and independently of all other causes, in any of the losses to which the insurance applies. Phrased most precisely, the question upon which recovery depends is whether a heart attack that follows voluntary physical exertion constitutes an accidental bodily injury. Under Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts in diversity of citizenship eases must apply the law of the state in which they sit. Moreover, a federal court must follow the decision of an intermediate appellate state court in the absence of other persuasive indications that the highest court of the state would decide otherwise. Six Companies of California v. Joint Highway District, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114 (1940); West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940); Fuchs v. Harbor Island Spa, Inc., 420 F.2d 1100 (5th Cir. 1970); 1A J. Moore’s Federal Practice ¶ .307 [1] (2d ed. 1965). Only where no state court has decided the point in issue may a federal court make an educated guess as to how that state’s supreme court would rule. See Trail Builders Supply Co. v. Reagan, 409 F.2d 1059 (5th Cir. 1969). In the case before us, the District Court concluded, and we agree, that a Florida court of appeal has decided the question in favor of the appellee insurance company. In Goldstein v. Paul Revere Life Insurance Co., 164 So.2d 576 (Fla.App.), cert. denied, 170 So.2d 587 (Fla.1964), the Florida District Court of Appeal for the Third District said: “The question of whether a heart attack which follows exertion is within the terms of an insurance policy insuring against accidental bodily injury, has been the subject of much litigation with many conflicting results. Insofar as Florida is concerned, however, this is a question of initial impression, and we must look to the decisions of our sister states for their experience in regard to this problem. The states are relatively evenly divided, numerically, between those that hold such a factual situation to be accidental injury and those that reach an opposite result. The ratio decidendi of those courts which hold a strain-induced heart attack to be accidental, reason that the activity’s (lifting, pushing, pulling, etc.) result (heart attack) was unforeseeable, unintentional, unlikely and therefore ‘accidental’ as opposed to intentional. On the other hand, those states which adopt the opposite view argue two ways. First they say that the heart attack resulted from a voluntary act, i. e., lifting, pulling, straining, etc., and although the result is unexpected it does not diminish the voluntariness of the act. A planned event (lifting a plank) which results in an unexpected manner is not such a non-intentional act as to constitute an accident. Secondly, it is argued that accident, as all other terms, should be defined and given their everyday ‘man-on-the-street’ understood meaning. An accident is usually thought to be an external physical injury as opposed to a disease. It is the opinion of this court that the rule adopted by those courts, holding a heart attack resulting from strain is not an accident or accidental bodily injury, is the sounder proposition.” 164 So.2d at 577-578. Being Erie-bound, the District Court was correct in applying the Goldstein rule that a heart attack resulting from strain is not an accident or accidental bodily injury. Affirmed.
f2d_477/html/0555-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Ramon A. TORRES, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee. No. 73-1461 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 7, 1973. Ramon A. Torres, pro se. Barry Scott Richard, Asst. Atty. Gen., Miami, Fla., Robert Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Petitioner Torres alleges that his constitutional right to a speedy trial was denied by the State of Florida because of a seventeen month delay between original arrest and trial. The United States District Court for the Southern District of Florida dismissed the peti-. tion for habeas corpus relief. We affirm. There are four basic factors to be weighed when considering the claim 'of a prisoner that he was denied a speedy trial: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972); Arrant v. Wainwright, 5 Cir. 1972, 468 F.2d 677. Our evaluation of these criteria in light of the factual situation presented by this petitioner leads us to the overwhelming conclusion that the right was not denied. We find that the delay in this case can clearly not be charged to the state. First, the state’s principal witness, a police officer, was unavailable for trial for a substantial period because of four gunshot wounds which he received as the result of the alleged criminal acts for which this petitioner was to be tried. More importantly, much of the delay herein was the result of various legal initiatives undertaken by petitioner and his counsel. In addition to motions which required the refiling of charges, petitioner sought a writ of prohibition in the Florida courts in an effort to prevent his trial. Following the denial of this writ, State ex rel. Torres v. Baker, Fla.App.1971, 247 So.2d 114, the state brought petitioner to trial within four months. It would be extremely difficult to charge the state with failure to try an accused while the accused is himself seeking a writ to prohibit such a trial. We also find that these actions are inconsistent with petitioner’s repeated demands for a speedy trial. While motions denominated such may have been filed, their significance is highly questionable in light of the other efforts which were directed at prohibiting trial. These factors alone seem sufficient in this case to deny relief. We would also like to note that only the most tenuous claims of prejudice have been suggested by this petitioner. In the original petition for habeas corpus relief, there were no allegations of any prejudice whatsoever. Petitioner has suggested in his brief that two unnamed and otherwise unidentified individuals who would have been available to bolster some unspecified alibi were no longer in the state because of the delay. We agree with the trial court that the prejudice involved in this case was so insignificant as to justify little or no weight. For reasons set forth above, the dismissal of the habeas corpús petition filed by Torres is Affirmed.
f2d_477/html/0557-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Lois G. POPE, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee. No. 72-1705. United States Court of Appeals, Fifth Cricuit. April 25, 1973. Robert A. Pritchard, Jackson, Miss., James E. Sandusky, Meridian, Miss., for plaintiff-appellant. John Roach, Jackson, Miss., for defendant-appellee. Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges. PER CURIAM: In this diversity action, the plaintiff, Lois G. Pope, sued Travelers Insurance Company for the sum of $40,000 allegedly due her as the named beneficiary of an insurance policy. Travelers defended primarily on the ground that the insured, Mrs. Pope’s deceased husband, had committed suicide, a risk not covered by the policy. The jury found that the insured had intentionally taken his own life and therefore denied recovery on the policy. Mrs. Pope appeals. The sole issue on appeal concerns the district court’s decision to admit into evidence a certified.copy of the insured’s death certificate. On the face of the certificate was a statement by the coroner that the immediate cause of Pope’s death was a self-inflicted gun shot wound and that Pope had committed suicide. The appellant contends that the admission of the death certificate was improper because the coroner’s statement invaded the province of the jury and attempted to find facts that were for determination by the jury alone. The parties agree that the certificate is inadmissible under the law. of the forum state, Mississippi. The appellant argues that the certificate is also inadmissible under federal law, specifically the Federal Business Records Act, 28 U.S.C. § 1732. In brief, the appellant asserts that since the coroner’s opinion would have been inadmissible if proffered on oral examination, it cannot be made admissible because included in an official document. Our review of the authorities reveals a division of opinion on this question. Compare Charleston National Bank v. Hennessy, 5 Cir. 1968, 404 F.2d 539 with McCormick, Evidence § 294 and cases cited therein and Rules 401, 402, 704, 803(6), (8), and (9) of the proposed Rules of Evidence for the United States Courts and Magistrates (1972). We need not pause on this issue, however, since we find that the district court’s error, if any, was harmless. F.R.Civ.P. 61. Without regard to the death certificate, the evidence was overwhelming that the insured committed suicide. The record indicates that the circumstances surrounding the insured’s death were inconsistent with an accident. Furthermore, several witnesses, including the investigating police officer, testified that Mrs. Pope and her mother had stated that the insured threatened suicide on the date of his death. Finally, the trial court instructed the jury that it was not to place any special weight on the coroner’s conclusion but was to consider it along with the other evidence. In these circumstances, we are convinced that any possible error was harmless and that the verdict of the jury must be affirmed. Affirmed.
f2d_477/html/0558-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "VAN SICKLE, District Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. James PATTERSON, Appellant. No. 72-1694. United States Court of Appeals, Eighth Circuit. Submitted March 15, 1973. Decided April 19, 1973. Clark L. Holmes, Des Moines, Iowa, filed brief for appellant. Alan L. Donielson, U. S. Atty., Des Moines, Iowa, filed brief for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge District of North Dakota, sitting by designation. VAN SICKLE, District Judge. Appellant in this case was indicted on 14 counts of stealing United States Treasury checks in violation of 18 U.S.C. § 1708, and 14 counts of forging endorsements on United States Treasury checks in violation of 18 U.S.C. § 495. 3 counts were dismissed during the trial and he was convicted, by a jury, of the remaining 25 counts. Appellant contends: 1. That there was a failure of proof that these checks were placed in the United States mails, and 2. That the indictment was fatally defective in that it charged theft from a “mail carrier” when the proof was all to theft from a mail box. As to point one above, the Government introduced at the trial, without objection, proofs of mailing of the cheeks in question, [Tr. p. 198, Ex. 17, 18 and 19]. This proof is adequate under the rule of this Court in United States v. Mooney, 417 F.2d 936 [8th Cir. 1969]. As to point two, the Supreme Court said in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 631, 79 L.Ed. 1314 [1935]: “No variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.” Also see United States v. Schrenzel, 462 F.2d 765 [8th Cir. 1972], As a general rule, defects or imperfections in an indictment will not constitute a ground for reversal where they had no tendency to prejudice an accused or to deprive him of any substantial rights. That rule has been applied where, although one or more of the counts were insufficient or defective, the sentence imposed was within that authorized on the good count or counts. In Marteney v. United States [218 F.2d 258 (10th Cir. 1954) cert. denied 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745], there was a conviction on 29 counts of theft of grain, with five year sentences on each to run concurrently. There, the conviction was not upset for failure of the first 28 counts to allege willfulness, where the 29th count was coneededly sufficient, and the total sentence imposed did not exceed that which might lawfully have been imposed under that count because the defendant was not prejudiced thereby. Counsel for the defendant admittedly had disclosure of the entire file of the United States. The defendant also had the advantages of an Omnibus PreTrial Conference. The Government’s trial brief, filed prior to trial, states, on page 4: “The Government’s proof will not show that the mail was taken from a mail carrier, but rather from a letter box or mail receptacle.” • Also, the 14 counts of forging the Treasury checks are concededly sufficient, and the sentence imposed, five years on each count to run concurrently, did not exceed that which might have been imposed under any one of those 14 counts, [18 U.S.C. § 495], or under any one of the theft counts, [18 U.S.C. § 1708]. Defendant having failed to show that prejudice resulted from the conviction on the 14 counts of possession of stolen checks from the mail, and having been convicted without error on 14 counts of forgery, and sentenced' concurrently on all; The conviction is affirmed.
f2d_477/html/0560-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. Jorge PALACIO et al., Defendants-Appellants. No. 72-3393 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 27, 1973. George B. Weires, Miami, Fla., court-appointed, for Palacio. Martin Light, Brooklyn, N. Y., for Perez. Melvyn Kessler, Miami, Fla., for Cardenas. Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409. PER CURIAM: The appellants here were involved in the alleged importation by boat into the United States through Miami, Florida, of approximately 3,625 pounds of marijuana. Their appeal is joint although each has separate counsel. Appellant Perez was convicted under 21 U.S.C.A., § 963 of conspiring to violate Title 21 U.S.C.A., § 952(a); and also on the substantive charge of illegal importation of marijuana in violation of Title 21 U.S.C.A., § 952(a). The evidence was sufficient as to each of the counts. There is no merit in the claim that the jury system in the United States District Court for the Southern District of Florida is unconstitutional. United States v. Pentado, 5 Cir., 1972, 463 F.2d 355; United States v. Blair, 5 Cir., 1972, 470 F.2d 331; United States v. Gooding, 5 Cir., 1973, 473 F.2d 425. Nor is there merit in the additional claim that the trial court abused its discretion in allowing the jury to separate after having begun its deliberation. Tyler v. United States, 5 Cir., 1968, 397 F.2d 565. Appellant Palacio was convicted on the conspiracy count in connection with the same marijuana transaction. His assignments of error are precisely those of Perez and are likewise without merit. Cardenas appeals from his plea of guilty to possessing marijuna in violation of 21 U.S.C.A. § 841(a)(1), on the single ground that the statute is unconstitutional. This ground is without merit. United States v. Lopez and Llerena, 5 Cir., 1972, 459 F.2d 949; United States v. Mather, 5 Cir., 1972, 465 F.2d 1035. The convictions are Affirmed.
f2d_477/html/0561-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	George R. ENTREKIN, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, Health, Education and Welfare, Defendant-Appellee. No. 73-1419 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 15, 1973. Leonard A. Blackwell, Gulfport, Miss., for plaintiff-appellant. Robert E. Hauberg, U. S. Atty., L. A. Smith, III, Asst. U. S. Atty., Jackson, Miss., for defendant-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Mr. Entrekin appeals from the denial of a period of disability or disability insurance benefits under the Social Security Act, 42 U.S.C.A., § 405(g). As usual, the question is whether the decision of the Secretary, affirmed by the District Court, is supported by substantial evidence. In our view, the issue is close, but we cannot retry factual issues here. Mr. Entrekin has a severe case of diabetes from which he has suffered for nearly thirty years. Both the Veterans Administration and the United States Civil Service Commission, in the application of their standards, have held that he is totally disabled. Nevertheless, there is medical evidence that Mr. Entrekin’s diabetic condition responds well to proper diet and treatment. The disease, after thirty years, has caused little damage to other bodily functions. A depressive reaction, without psychosis, caused by the accidental drowning of the claimant’s wife, also responds to ordinary tranquilizers. A disability of the hand could, according to the medical evidence, be corrected by surgery. Had we decided the case in the first instance we might have been inclined to hold for Mr. Entrekin. Congress, however, has seen fit to confer that function solely upon the Secretary, subject only to the substantial evidence rule. Since there is substantial evidence upon which the Secretary could find as he did, we are without the authority to exercise appellant interference. The judgment of the District Court is Affirmed.
f2d_477/html/0563-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Dallas E. WEST and Frances P. West, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 72-1168. United States Court of Appeals, Fifth Circuit. April 27, 1973. Rudy M. Groom, Melvin M. Engel, Houston, Tex., for plaintiffs-appellants. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, Washington, D. C., Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Howard A. Weinberger, Richard Farber, Attys., Washington, D. C., Tax Div., Dept. of Justice, for defendant-appellee. Before TUTTLE, WISDOM and SIMPSON, Circuit Judges. PER CURIAM: The judgment is affirmed for the reasons stated in the opinion of Judge Carl O. Bue, Jr., 332 F.Supp. 1102 (S.D.Tex. 1971), upholding the determination of the Commissioner that the taxpayers derived alimony income in the years 1961-1964 in the amount of $912.23 a month. 26 U.S.C. § 71. The decision of the district court was based on its finding that the evidence compelled its holding: [T]he parties, as represented by counsel, agreed upon monthly payments to be made for Mrs. West’s support, and maintenance, in an amount reflective both of the plaintiff’s need,and of the extreme difficulty and expense of trying to determine the exact value of the jointly acquired property at the date of divorce. Plaintiffs have not shown by a preponderance of the evidence that a property settlement was intended. Accordingly, under the evidence persuasive to this Court and the applicable law, the periodic payments to the wife are construed as alimony and, therefore, are includable in her taxable income for the years in question. This is a narrow holding, one confined to the facts presented below. The district court’s determination not to segregate alleged property settlement payments from alimony payments was consistent with the court’s decision that the parties intended all of the periodic payments as payments in lieu of alimony. The district court did not err in its rulings on the admissibility of evidence offered by the parties. The judgment is affirmed.
f2d_477/html/0564-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Graham L. BLAIR, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee. No. 72-2602. United States Court of Appeals, Fifth Circuit. June 5, 1973. Richard W. Aschenbrenner, Miami, Fla., for plaintiff-appellant. David S. Batcheller, W. O. Mehrtens, Jr., Miami, Fla., for defendant-appellee. Before WISDOM, GEWIN and COLEMAN, Circuit Judges. PER CURIAM: For reasons adequately stated in the opinion of the district court, 344 F.Supp. 360 (S.D.Fla.1972), the judgment is affirmed. See also 344 F.Supp. 367 (S.D. Fla.1972).
f2d_477/html/0564-02.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	A. C. RENT-A-CAR, INC., Plaintiff-Appellant, v. The AMERICAN NATIONAL BANK & TRUST COMPANY OF MOBILE et al., Defendants-Appellees, The CURRY CORPORATION, Plaintiff-Appellant, v. The AMERICAN NATIONAL BANK & TRUST COMPANY OF MOBILE et al., Defendants-Appellees. No. 72-2380. United States Court of Appeals, Fifth Circuit. June 8, 1973. Frederick O. Scheske, Miami, Fla., for plaintiff s-appellants. Mayer W. Perloff, Oliver J. Latour, Jr., Harry H. Riddick, Mobile, Ala., for defendants-appellees. Before WISDOM, DYER and INGRAHAM, Circuit Judges. PER CURIAM: This Court having carefully reviewed the evidence presented to the district court below sitting without a jury, we find the district court’s memorandum of Findings of Fact and Conclusions of Law, 339 F.Supp. 506, to be correct, and the judgment is hereby Affirmed.
f2d_477/html/0564-03.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	LOCAL UNION NO. 626 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Appellant, v. DELAWARE CONTRACTORS ASSOCIATION, INC., a Delaware Corporation. No. 72-1845. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) May 22, 1973. Decided May 23, 1973. John Merwin Bader, Bader, Dorsey & Kreshtool, Wilmington, Del., Leonard M. Sagot and Thomas W. Jennings, Ettinger, Poserina, Silverman, Dubin, Ana-pol & Sagot, Philadelphia, Pa., for appellant. Vincent J. Arpuzzese, and Frank A. Mastro, Apruzzese & McDermott, Springfield, N. J., for appellee. Before KALODNER, ALDISERT and ADAMS, Circuit Judges. OPINION OF THE COURT PER CURIAM: This appeal presents the question whether the vacation plan of the appellant Local No. 626 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, violates the provisions of § 302 of the Labor Management Relations Act of 1947, 29 U.S.C. § 186. We are persuaded by the reasoning of Judge James L. Latchum, 344 F.Supp., 1281 (D.Del.1972), that the plan did violate the statute. See also, Mechanical Contractors Association of Philadelphia, Inc. v. Local Union 420, 265 F.2d 607 (3d Cir. 1959). The judgment of the district court will be affirmed.
f2d_477/html/0565-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	William H. CONNELLY, Plaintiff-Appellee, v. AMERICAN SECURITY CARD CORPORATION et al., Defendants, Andrew C. Sandell and Frank Adamson, Defendants-Appellants. No. 72-3651 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 6, 1973. Craig R. Goodman, A. J. Block, Jr., Atlanta, Ga., for Sandell. Frank Adamson, pro se. Hugh G. Head, Jr., Howard H. Johnston, Atlanta, Ga., for plaintiff-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: We are convinced that the evidence fully supports the district court’s findings that appellants Adamson and Sandell made false and fraudulent misrepresentations to appellee Connelly, to his detriment, including the false statement that his check would be held in escrow and would be refundable as agreed in the contract between the parties. We likewise agree that the items of damages and attorney’s fees were correctly assessed by the trial judge. Affirmed.
f2d_477/html/0565-02.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "\n PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. B. FOSTER COMPANY, Respondent. No. 73-1183 Summary Calendar.* United States Court of Appeals, Fifth Circuit. May 31, 1973. Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Clifford Potter, Director, Region 23, N.L.R.B., Houston, Tex., for petitioner. Louis B. Paine, Jr., Houston, Tex., for respondent. William N. Wheat, Houston, Tex., for Shopmen’s Local Union No. 694 of the Int. Assn, of Bridge, etc. Workers, intervenor. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. PER CURIAM: Pursuant to section 10(e) of the National Labor Relations Act of 1947, 29 U.S.C. § 160(e) (1971), the National Labor Relations Board seeks enforcement of an order compelling L. B. Foster Company to bargain with Shopman’s Local Union No. 694, which was certified as the bargaining representative of certain employees. In the election there were 10 votes cast for the Union and 8 votes against the Union. At issue on appeal is the validity of the Board’s determination that five employees were ineligible to vote because they were supervisors within the meaning of section 2(11), 29 U.S.C. § 152(11) (1971). The facts of this case are similar to National Labor Relations Board v. Houston Natural Gas Corporation, 5 Cir., 1973, 478 F.2d 467, where the Board expressed an opposite view and we agreed that the employees were not supervisors. Finding the present case indistinguishable from Houston Gas, we conclude that the employees were not supervisors and therefore their votes should have been counted. Enforcement denied.
f2d_477/html/0566-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Leon ROBBINS and Jimmy Tillman, Petitioners-Appellants, v. C. Murray HENDERSON, Warden, Respondent-Appellee. No. 73-1465 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 6, 1973. Leon Robbins and Jimmy Tillman, pro se. Ragan D. Madden, Dist. Atty., 3rd Judicial Dist., Ruston, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: It is ordered that this appeal be, and it is hereby, dismissed for want of jurisdiction, due to appellants’ failure to file timely their notice of appeal. Rule 4(a), F.R.A.P.; Tribbitt v. Wainwright, 5th Cir. 1972, 462 F.2d 600.
f2d_477/html/0566-02.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellee, v. David Ross HESBETT, aka William George McIver, Defendant-Appellant. No. 73-1737 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 6, 1973. Frank C. Fariss, Houston, Tex. (Court Appointed), for defendant-appellant. Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: In conformity with the requirements established by Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed.2d 493, we have carefully considered this cause in its entirety, and conclude that there is no arguable merit in the appeal. It is therefore ordered that the motion filed by Frank C. Fariss for leave to withdraw as court-appointed counsel for appellant is granted; the appellant’s pro se motion for appointment of new counsel is denied; and the appeal is dismissed. See Local Rule 20. See also United States v. Minor, 5 Cir. 1971, 444 F.2d 521; United States v. Crawford, 5 Cir. 1971, 446 F.2d 1085.
f2d_477/html/0567-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee. No. 71-2245. United States Court of Appeals, Ninth Circuit. June 1, 1973. Richard A. Scully, Washington, D. C. (argued), Dean C. Smith, U. S. Atty., Carroll D. Gray, Asst. U. S. Atty., Spokane, Wash., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, John J. McCarthy, John M. Dowd, Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant. Richard C. Fields (argued), of Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, Eugene I. Annis, of Myers, Reiley & Annis, Spokane, Wash., for defendantappellee. Before KILKENNY and GOODWIN, Circuit Judges, and BELLONI, District Judge. Honorable Robert C. BeUoni, United States District Judge, District of Oregon, sitting by designation. PER CURIAM: The judgment of the district court, denying plaintiff’s motion for summary judgment and granting defendant’s motion for summary judgment is affirmed for the reasons given therein, as reported in 328 F.Supp. 69 (E.D.Wash.1971). Affirmed.
f2d_477/html/0568-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "COWEN, Chief Judge, DAVIS, Judge", "license": "Public Domain", "url": "https://static.case.law/" }	FRUEHAUF CORPORATION v. The UNITED STATES. METRO-GOLDWYN-MAYER, INC. and Consolidated Subsidiaries v. The UNITED STATES. Nos. 91-70, 191-71. United States Court of Claims. Decided April 13, 1973. Ernest Getz, Detroit, Mich., attorney of record, for Fruehauf Corp.; Dickinson, Wright, McKean & Cudlip, Detroit, Mich., of counsel. Herbert L. Awe, Washington, D. C., attorney of record, for Metro-Goldwyn-Mayer, Inc. and Consolidated Subsidiaries; John P. Lipscomb, Washington, D. C., of counsel. Kenneth R. Boiarsky, Washington, D. C., with whom was Asst. Atty. Gen. Scott P. Crampton, for defendant; Gilbert E. Andrews, Jr., and Joseph Kovner, Washington, D. C., of counsel in No. 191-71. Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges. ON PLAINTIFFS’ MOTIONS AND DEFENDANT’S CROSS MOTIONS FOR SUMMARY JUDGMENT COWEN, Chief Judge, delivered the opinion of the court: These actions for the refund of income taxes present another of the perplexing questions that often arise with respect to the computation of interest under the provisions of the Internal Revenue Code. The cases were argued together because Count I of Fruehauf’s petition and Metro-Goldwyn-Mayer’s petition involve similar questions of law and fact. These issues relate to the assessment of interest on potential corporate tax deficiencies and the awarding of interest on corporate tax overpayments. Specifically, we are called upon to decide the proper methods by which to set off the overpayments against the interest due the Government and to determine when that interest becomes a liability for the purposes of the set-off. The issues which are common to both suits are considered in Part I hereof. Count II of Fruehauf’s petition involves a separate and distinct issue from the claim asserted by Metro-Goldwyn-Mayer and is. considered in Part II of this opinion. I At oral argument the parties presented a hypothetical statement of facts which they agree is sufficiently similar to the true facts to provide a basis for deciding the legal issues. The hypothetical facts so presented are as follows: An Internal Revenue Service audit of plaintiffs’ 1960 tax returns revealed a “potential” deficiency of $1,100,000. The audits also revealed a large net operating loss for 1963. The 1963 net operating loss was carried back to 1960, and the carryback not only extinguished the “potential” deficiency, but also created an overassessment of $500,000 for 1960. There is no question that the Government is entitled to interest on the “potential” deficiency running from 1960 to the end of the loss year 1963. This interest amounts to $200,000 and specific statutory authority therefor is found in Section 6601(e) and (g) of the Internal Revenue Code of 1954. After assessing this interest, the Internal Revenue Service applied $200,000 of the $500,000 overassessment in satisfaction of such interest due the Government even though the deficiency interest was not actually assessed until February 14, 1969. Interest on the remaining $300,000 was allowed from September 1, 1963, the first day after the end. of the applicable loss year, to February 14, 1969, when the interest due the Government was assessed. By relating back the interest actually assessed in 1969 to 1963 in order to make the offset, the Service denied plaintiffs interest on the $200,000 for six years, i. e., from the loss year 1963 to 1969. Plaintiffs claim that statutory interest should be awarded on the $200,000 from the loss year to February 14, 1969, the date of the assessment of interest on the deficiency. We agree. The resolution of this issue depends primarily upon the interpretation of Treasury Regulation § 301.6611-1. This regulation prescribes, in part, that there can be no overpayment of tax until the entire tax liability, including interest, is satisfied: § 301.6611-1. Interest on overpayments. (a) General rule. Except as otherwise provided, interest shall be allowed on any overpayment of any tax at the rate of 6 percent per annum from the date of overpayment of the tax. (b) Date of overpayment. Except as provided in section 6401(a), relating to assessment and collection after the expiration of the applicable period of limitation, there can be no overpayment of tax until the entire tax liability has been satisfied. Therefore, the dates of overpayment of any tax are the date of payment of the first amount which * * * is in excess of the tax liability (including any interest, addition to the tax, or additional amount) and the dates of payment of all amounts subsequently paid with respect to such tax liability. * * * However, the regulation goes on to provide special rules in the cases of credits: (h) Period for which interest allowable in case of credits— (1) General rule. If an overpayment of tax is credited, interest shall be allowed from the date of overpayment to the due date (as determined under subparagraph (2) of this paragraph) of the amount against which such overpayment is credited. (2) Determination of due date— * * * * * * * * * (v) Assessed interest. In the case of a credit against assessed interest, the due date is the date of the assessment of such interest. [Emphasis added.] * * * * * * The Government recognizes that the proper interpretation of the regulation is crucial to the decision in this case and argues that the term “entire tax liability,” as used in section (b) thereof, includes interest, whether assessed or unassessed. Thus, it maintains that the interest on the potential deficiency was a liability at the end of the loss year 1963, even though the interest was not assessed until February 14, 1969. If such a construction of section (b) is adopted, it would conflict with section (h) (2) (v) or render the latter section meaningless. In this case, the date of the overpayments by plaintiffs (the day following the last day of the loss year) was September 1, 1963, and section (h) provides that interest on the overpayments shall be allowed to the due date of the amounts against which they are credited. To find the due date, we turn to section (h)(2)(v), which states unequivocally that it is the date the interest is assessed which, in this case, was February 14, 1969. It is our conclusion, therefore, that until the due date of the interest (the date of the assessment of the interest), there is no tax liability as that term is used in the pertinent regulation. This construction of the regulation enables us to read section (b) in harmony with section (h) (2) (v) and thus avoid the conflict that would exist if defendant’s view is accepted. Prior to assessment, the liability for deficiency interest was only a contingency. A contingent liability is not the same as the “potential” liability which resulted from the determination of the basic tax deficiency for the year 1960. The 1960 deficiency was “potential” only because there was an immediate offsetting carryback loss for 1963. The liability was determined and fixed as of the filing of the I960 return and as we have said, the Government is entitled to interest on such deficiencies from the due date (which is the date of the filing of the 1960 tax returns) until the end of the loss year. Therefore, it is inherent in the statutory scheme that the due date determines and fixes the liability for both tax and interest. It was the “current” liability concept that was decisive in Northern Natural Gas Co. v. United States, 354 F.2d 310, 173 Ct.Cl. 881 (1965). In that case, the Internal Revenue Service was restricted from assessing the interest on potential deficiencies pending a determination by the Tax Court of the basic tax due. The parties finally stipulated a settlement in 1961, and the Service tried to relate the satisfaction of the deficiency interest back to 1952, thus avoiding interest on a like amount of overpayment during that time interval. In rejecting the Government’s contention, the court stated: [Pjlaintiff “knew” in 1952 * * * that it would most likely be liable for some amount [of interest] regardless of section 722 [relief]. However, there was no “current” liability because the Commissioner was restricted from assessing any deficiency during the Tax Court proceeding * * , and also, because the potential deficiency is based on the “corrected” deficiency which was not determined until 1961. It would not be proper for us, on these facts, to make an ex post facto credit of the 1952 remittance against the potential deficiency interest item which was finalized by the Tax Court decision on December 6, 1961. Accordingly, we find that the interest on the potential deficiencies should be deducted from plaintiff’s total overpayment of taxes and interest as determined in 1961, rather than from the 1952 remittance. [354 F.2d at 318, 173 Ct.Cl. at 892. Emphasis added and footnote omitted.] The instant cases are even stronger for plaintiffs because of the statute and regulation before us. Since there was no interest liability until February 14, 1969, there remained outstanding a. net overassessment of $500,000 from 1963 until 1969, which is permitted to draw interest under the provisions of Section 6611 of the Code. Defendant’s cross-motions rely primarily upon Rev.Proc. 60-17, 1960-2 Cum.Bull. 942. This revenue procedure is entitled “Guides and instructions to be followed with respect to the computation of restricted interest under the Internal Revenue Codes of 1954 and 1939.” In its brief, defendant quotes the following from the procedure: Any part of an overpayment attributable to a carryback loss which is extinguished by a general adjustments deficiency * * * No interest allowable (In effect, interest is allowed, by terminating interest on the deficiency on the last day of the loss year.) The defendant asserts that the quoted procedure is appropriate for application under the facts of this case and plaintiffs agree. They concede that they are not entitled to any interest on that portion of the overassessment attributable to the carryback loss that extinguished the potential deficiency of 1960. As previously stated, plaintiffs have also stipulated that the Government is entitled to interest on the potential deficiency running to the last day of the loss year, which was August 31, 1963. Therefore, the quoted procedure does not affect the real issue in these cases. Although it is not quoted in defendant’s brief, there is another section of Rev.Proc. 60-17 which does support defendant’s position. It is set forth in a table appearing in Section 3(4) of Rev. Proc. 60-17. This portion of the revenue procedure states that when an overpayment is applied as a credit to unpaid interest due for the same year and for the same type of tax, no interest is allowable. It also states that when the overpayment is applied as a credit to unpaid interest due for another year or another type of tax, interest should be computed from the date of the overpayment to the date of the assessment of the amount to which the credit is applied. We believe that this is the revenue procedure upon which defendant bases its argument. It is defendant’s contention that the section of the regulation, upon which plaintiffs rely, relates only to the crediting of overpayments and amounts due for different years and not to the determination of an overpayment for a single year. However, we find nothing in Section 6611(b) of the Code or in Treasury Regulation 301.-6611-1 which authorizes such a distinction. On the contrary, this part of Rev. Proc. 60-17 is at variance with the regulation and is therefore entitled to little or no weight. There is no doubt that the regulation takes precedence over the revenue procedure, and this is acknowledged by the following statement which appears on the first page of the introduction of each Cumulative Bulletin: Revenue Rulings and Revenue Procedures reported in the Bulletin do not have the force and effect of Treasury Department Regulations (including Treasury Decisions), but are published to provide precedents to be used in the disposition of other cases, and may be cited and relied upon for that purpose. * * * The Government also argues that section 6611 and the pertinent regulation must be interpreted in accordance with defendant’s position in order to carry out the purpose of Section 87 of the Technical Amendments Act of 1958, 72 Stat. 1606. We find no such purpose in our examination of the statute or its legislative history and conclude that the regulation, as we have construed it, fully complies with the intent of Congress. The evil at which the statute was aimed was the disparate running of interest on overpayments and underpayments, and the remedy provided by the Act was termination of the interest on both during any period of time to the extent that they offset each other. The problems associated with the prior law are described in the following portion of the general statement in the Senate Committee Report: Section 87 — Correlation of interest where overpayment of tax is credited against underpayment of tax (a) General correlation of interest. —Under present law situations can arise where, even though underpayments and overpayments offset each other, the Internal Revenue Service collects more interest than it pays or the taxpayer is entitled to more interest than he owes the Government. Section 6611(b)(1) of the code provides, for example, that interest on an overpayment which is credited against an additional assessment is to be allowed from the date of the overpayment to the date of the assessment. However, interest on an additional assessment which is offset against an overpayment runs from the due date of the return until the credit is scheduled, which may be long after the date the interest on the overpayment is cut off by the assessment of the additional amount. In such cases, although the underpayment and overpayment offset each other, the Internal Revenue Service collects more interest than it pays. On the other hand, where a taxpayer agrees to a determination and signs a waiver of the restrictions on an assessment, interest on an overpayment may run during the period between the 30th day after the waiver and the issuance of notice and demand while interest on an offsetting deficiency may be suspended. In such a case it is the taxpayer who is entitled to more interest than he owes even though the overpayment and underpayment offset each other. The House bill eliminates these erratic differences of present law by terminating the interest both as to the overpayment and underpayment during any period of time to the extent they offset each other * * . [Emphasis added.] [1958-3 Cum. Bull. 922, 1020-1021.] [S.Rep.No. 1983, 85th Cong., 2d Sess., pp. 97-100 (1958), U.S.Code Cong. & Admin. News 1958, pp. 4791, 4888.] The technical explanation in the Senate Report further explains the purpose of the Act: * * Interest on a credited overpayment would in either case now run only from the date of the overpayment to the original due date of the amount against which it is credited. Thus, if it is credited against an underpayment antedating the overpayment, no interest would run on the overpayment at all. Since interest would otherwise run on the overpayment from the date of overpayment to the date of refund, interest on the underpayment will stop running as of the date of the overpayment; that is, when the mutuality of indebtedness arises. Similarly, in the case of an overpayment which antedates the due date of an underpayment, interest will run on the overpayment only until such due date, that is, when the mutuality of indebtedness arises. [1958-3 Cum.Bull. 922, 1156.] [Emphasis added.] [S.Rep. No.1983, 85th Cong., 2d Sess., pp. 234-235 (1958), U.S.Code Cong. & Admin.News 1958, pp. 4791, 5023.] From the foregoing, it seems clear that the real purpose of Section 87 of the Technical Amendments Act of 1958 was to eliminate the running of interest during the time there is a mutuality of indebtedness — a deficiency which is offset by an overpayment in the same amount. -In this case, there was no liability for the interest on the potential deficiency and consequently no mutuality of indebtedness until that interest was assessed. The date of the overassessment (overpayment) was September 1, 1963. It antedated the due date of the deficiency interest, which was February 14, 1969, and therefore plaintiffs are entitled to interest on the overpayment until the latter date. We recognize that a different result was reached in Citadel Industries, Inc. v. United States, 314 F.Supp. 245 (S.D.N.Y.1970), a case relied upon by defendant. However, that case was decided under the provisions of the 1939 Internal Revenue Code, and there was no regulation under the 1939 Code fixing the due date of assessed interest against which an overpayment is credited. The existence of such a regulation and its application to these cases distinguishes that case from our holding today. For that reason, we do not regard the Citadel case as being in conflict with this decision. II Plaintiff Fruehauf Corporation in Count II of its petition raises a second issue based on the same facts as its Count I claim. The Count II cause of action is peculiar to the specific facts of Fruehauf’s refund claim and accordingly has no bearing on the claim of plaintiff Metro-Goldwyn-Mayer, Inc. The detailed facts underlying both counts of the Fruehauf petition are set forth in Appendix A, infra. Briefly stated, the facts relevant to Fruehauf’s Count II are as follows. After the Internal Revenue Service asserted deficiencies against Fruehauf with respect to its corporate income taxes for the years 1954, 1955, and 1956, the Tax Court determined that Fruehauf had underpaid its taxes for 1954 and 1956, but because of a net operating loss carryback from 1958 (in the amount of $4,270,636.94) Fruehauf had overpaid its taxes for 1955 in the amount of $1,711,087.39. That net amount of overpayment was determined by applying the total amount of the carryback from 1958 against Fruehauf’s potential deficiency for 1955 in the amount of $2,559,549.55. After the judgment of the Tax Court became final, the IRS, on December 9, 1966, assessed deficiency interest against Fruehauf for its 1954 and 1956 underpayments, and for its potential deficiency for the year 1955. The deficiency interest for 1955, totaling $389,591.01, was mainly computed from the due date of Fruehauf's 1955 return until the last day of the 1958 loss year. Thereafter, the IRS applied Fruehauf’s overpayment for 1955 as determined by the Tax Court ($1,711,087.39), first against its deficiency interest for 1955 ($389,591.01), and the remainder against Fruehauf’s underpayment for 1954. The essence of Fruehauf’s Count II argument is that the IRS unlawfully collected $389,591.01 in excess of Fruehauf’s net tax liabilities for the years 1954, 1955, and 1956. This occurred, in Fruehauf’s view, when the IRS applied $389,591.01 of the $1,711,087.39 overpayment for 1955 determined by the Tax Court against the $389,591.01 of deficiency interest assessed for 1955, prior to crediting the balance of the overpayment against Fruehauf’s deficiencies for 1954 and 1956. Fruehauf contends that under Section 6215(a) of the 1954 Code the defendant is precluded from assessing or collecting any part of a tax deficiency disallowed by the final decision of the Tax Court; the taxpayer also says that under Section 6402(a) of the Code, the defendant is authorized to credit any overpayment of tax against any tax liability of the same taxpayer. Fruehauf points out that under the final decision of the Tax Court, Fruehauf had made an overpayment for 1955 in the amount of $1,711,087.39, and underpayments for 1954 and 1956 in the amounts of $1,651,654.58 and $3,176,489.25, respectively. Consequently, Fruehauf argues that under the pertinent Code provisions, the defendant could have and should have applied the entire overpayment determined by the Tax Court for 1955 against the underpayments, also determined by the Tax Court for 1954 and 1956, without attempting to reduce the amount of overpayment in the amount of any other purported liabilities of Fruehauf for 1955. In effect, Fruehauf is contending that the net overpayment determined by the Tax Court for 1955 is the final balance of Fruehauf’s liabilities for that year, and the defendant is bound by the Tax Court’s decision. Thus, Fruehauf argues that the Government disregarded the pertinent Code provisions as well as the decision of the Tax Court and unlawfully collected from Fruehauf $389,591.01 in excess of Fruehauf’s true tax liabilities for 1954, 1955, and 1956. Whereas in Count I Fruehauf is seeking to recover the interest ($185,568.07) that the $389,591.01 of overpayment would have earned between January 1, 1959 and December 9, 1966, Fruehauf in Count II seeks to recover the principal amount of $389,591.-01 which it claims the IRS illegally credited against the net 1955 overpayment determined by the Tax Court. It is the contention of the Government that notwithstanding the merits of Fruehauf’s Count II claim (which the defendant disputes), Fruehauf’s recovery is precluded because that portion of its claim was never presented to the Internal Revenue Service in any formal or informal claim for refund prior to the commencement of the suit in this court. Thus, the defendant has timely raised as an affirmative defense to Fruehauf’s Count II claim the so-called substantial variance rule. We have concluded, after a careful examination of Fruehauf’s refund claims filed with the Service for the years 1954, 1955, and 1956, that the Government’s contention is correct and that the arguments Fruehauf now makes with respect to Count II were never even suggested in any of its refund claim documents. Fruehauf filed with the IRS timely claims for refund for each of the years ending December 31, 1954, 1955, and 1956. Each of the claims presented in detail the common set of facts that form the basis of the claims presented in Counts I and II of the petition herein. Each of the claims also stated at considerable length the legal basis for recovery presented by Count I of the petition. The amount of the refund requested in each of the claims was $185,278.92 (“Plus interest and such greater amount as is refundable by law”) which is very close to the $185,568.07 sued for in Count I. As previously stated, however, the argument presented here with respect to Count II, as outlined above, was never presented or suggested in any of the claim documents. Therefore, it must be concluded that the Internal Revenue Service had no notice of the contentions raised in Count II until Fruehauf’s petition was filed in this court on March 12, 1970. We have frequently held that a ground for refund may not be asserted in a tax refund suit in this court that is at variance with the grounds for refund presented to the IRS. Commercial Solvents Corp. v. United States, 427 F.2d 749, 753-754, 192 Ct.Cl. 339, 347, cert. denied, 400 U.S. 943, 91 S.Ct. 242, 27 L.Ed.2d 247 (1970); Union Pac. R.R. v. United States, 389 F.2d 437, 442, 182 Ct.Cl. 103, 108-109 1968) and cases cited therein. The scope of the variance rule and the reasons underlying it have been set forth at considerable length in the cases cited and need not be reiterated here. It is sufficient to say that the rule is designed to prevent surprise, to give the Internal Revenue Service notice of the claim so as to permit an administrative investigation thereof, and to allow the Service the opportunity to correct errors and limit the scope of ensuing litigation. Those objectives would be frustrated were we to allow Fruehauf to proceed on the merits of its Count II contentions. Fruehauf’s Count II claim is not aided by a showing that all the facts material thereto were made available to the Internal Revenue Service in the several refund claims. The same facts underlie Count I, and the Service does not have the burden of divining all possible grounds for refund a taxpayer might assert on a given set of facts. Union Pac. R.R., supra, 389 F.2d at 445, 182 Ct.Cl. at 113. The amount of the refund requested in Count II, $389,591.01 plus interest, is, as previously noted, substantially in excess of the amount requested in the refund claim documents. The notation in the claims “Plus * * * such greater amount as is refundable by law” adds nothing to indicate the grounds on which the claim is made. In all essential respects, Fruehauf’s claim for refund with respect to Count II is as fatally deficient as the second and third counts of the taxpayer’s amended petition in Commercial Solvents Corp., supra. Fruehauf did not provide the Internal Revenue Service with timely notice of the ground for refund now asserted in Count II, and its petition must be dismissed with respect to Count II. In view of this disposition of that portion of Fruehauf’s claim, it is unnecessary to reach the merits thereof. III For the reasons stated in the foregoing opinion, Fruehauf’s motion for summary judgment on the claim asserted in Count I of its petition in Docket No. 91-70 and Metro-Goldwyn-Mayer’s motion for summary judgment on its claim in Docket No. 191-71 are granted, and defendant’s cross motions for summary judgment are denied. The cases are remanded to the trial commissioner for determination of the amount of recovery pursuant to Rule 131(c). Fruehauf’s motion for summary judgment on the claim asserted in Count II of its petition in Docket No. 91-70 is denied ; defendant’s cross motion on Count II of the petition in that case is granted, and Count II of the petition is dismissed. DAVIS, Judge (concurring): In joining the court’s opinion, I wish to stress — on the question dealt with in Part I — -that the problem arises solely because of the Treasury’s decided lack of clarity in drafting Treas.Reg. § 301.-6611-1. If subsection (b) stood without (h)(2)(v), I would have little doubt, because of the explicit parenthesis in (b), that defendant is correct in its argument here. But (h) (2) (v) is also very explicit, and at the same time is the more specific of the two. All that defendant can do with it is to say that— despite its unqualified language and general context — it has no application to the same tax for the same year. This pushes too far to be an acceptable rationalization of the self-created disharmony in § 301.6611-1. Where the Treasury itself puts contradictions into the same section of a regulation, and it is nearly impossible or at least very hard for a court to read the conflicting provisions together without great strain, I would let the Government bear the brunt of its error until the regulation is altered. For that reason I accept the court’s reconciliation of (b) and (h)(2)(v), even though it is not free from difficulties of its own. APPENDIX A The Facts Material to the Tax Refund Claim of FRUEHAUF CORPORATION V. UNITED STATES (No. 91-70) The following is a summary of the material, actual facts underlying the tax refund claim of Fruehauf Corporation (No. 91-70), as agreed upon by the plaintiff and defendant in their Stipulation of Facts filed on December 6, 1971, and in their Supplemental Stipulation of Facts filed on May 31,1972. Plaintiff Fruehauf Corporation, a Michigan corporation, uses the calendar year as a reporting period for its Federal corporate income taxes. In 1960, Fruehauf received notice from the Commissioner of Internal Revenue of deficiencies in its corporate income taxes for the years 1954, 1955, and 1956, based upon a change in Fruehauf’s method of accounting for used trailer inventories (which had been initiated by the Internal Revenue Service (IRS)). Fruehauf contested the asserted deficiencies before the Tax Court of the United States. On July 24, 1964, the Tax Court entered its judgment that Fruehauf had underpaid its taxes for the years 1954 and 1956 in the amounts of - $1,651,654.58 and $3,176,489.25, respectively. The Tax Court further determined, however, that Fruehauf had overpaid its taxes for the year 1955 in the amount of $1,711,087.39. The decision of the Tax Court was affirmed by the United States Court of Appeals for the Sixth Circuit, and on October 10, 1966, the Supreme Court denied Fruehauf’s petition for a writ of certiorari. The 1955 overpayment of $1,711,087.-39 determined by the Tax Court arose because of the carryback of a 1958 net operating loss to 1955, reduced by an excessive tentative net operating loss carryback from 1957 to 1955 previously taken by Fruehauf. Prior to taking into account the 1957 and 1958 carry-back factors, a tentative deficiency existed for 1955 in the amount of $2,193,095.27. That tentative deficiency was increased in the amount of $366,454.28 by reason of an excessive 1955 refund in that amount arising from the excessive 1957 tentative net operating loss carryback. The total tentative deficiency for 1955 of $2,559,549.55 ($2,193,095.27 plus $366,454.28) was eliminated by $4,270,636.94 of 1955 tax attributable to the 1958 net operating loss carryback. On December 9, 1966, the Detroit District Director of Internal Revenue assessed Fruehauf for the years 1954, 1955, and 1956 in the following amounts: 1954 Tax ------------- $1,651,654.58 .Interest --------- 532,985.39 Total--------$2,184,639.97 1955 Interest --------- $389,591.01 1956 Tax ------------- $3,176,489.25 Interest ---------- 1,852,284.85 Total--------$5,028,774.10 Of the $389,591.01 of interest assessed for 1955, $367,628.86 represents interest computed from the due date of the 1955 return to the last day of the 1958 loss year on the tentative 1955 deficiency of $2,193,095.27. The remaining portion ($21,962.15) of the $389,591.01 interest assessed for 1955 represents interest computed from January 1, 1958 to December 31, 1958, on the excessive 1955 refund of $366,454.28 attributable to the excessive tentative net operating loss carryback from 1957. On or about December 13, 1966, a Form 17-A Statement of Tax Due was issued, setting forth for 1954 and 1956 the amounts of tax and interest due as assessed on December 9, 1966, and balances due of $2,184,639.97 and $5,028,-774.10, respectively. Also, on or about December 13, 1966, Fruehauf received a Form 1331 Notice of Adjustment detailing the application made by the IRS of the $1,711,087.39 overpayment determined by the Tax Court for 1955. That form reflects that $389,591.01 of the $1,711,087.39 overpayment was credited against the $389,591.01 of deficiency interest assessed against Fruehauf for 1955, and that $1,321,496.38 of the overpayment (i. e., the remainder thereof) was credited against the $1,651,654.58 of tax assessed against Fruehauf for 1954. Thereafter, a Form 17 Corrected Bill was issued for 1954 showing that the $2,184,639.97 of tax and interest previously assessed as due for 1954 had been reduced by $1,321,496.38 by reason of the crediting of a portion of the 1955 overpayment. Of the $1,711,087.39 of 1955 overpayment determined by the Tax Court, $389,591.01 ($1,711,087.39 less the $1,321,496.38 credited against the 1954 deficiency) was credited against the $389,591.01 of deficiency interest assessed for 1955. No interest was received by Fruehauf on the $389,591.01 portion of the 1955 overpayment so credited against the same amount of 1955 deficiency interest. On December 23, 1966, Fruehauf paid the following amounts to the IRS: Year Tax Interest Total 1954 —. $330,158.20 $532,985.39 $863,143.59 1956 —. 3,176,489.25 1,852,284.85 5,028,774.10 Total $3,506,647.45 $2,385,270.24 $5,891,917.69 Fruehauf filed timely refund claims with the IRS for the years 1954, 1955, and 1956 on March 6, 1968. Fruehauf’s refund claims were disallowed in full for 1955 on October 17, 1968, and for 1954 and 1956 on October 22,1968. The $389,591.01 portion of-the 1955 overpayment determined by the Tax Court that was credited against the $389,591.01 of deficiency interest for 1955 would have earned $185,568.07 of interest between January 1, 1959 and December 9, 1966 (the date of the assessment of the 1955 deficiency interest) had the IRS recognized Fruehauf’s entitlement to interest on that portion of the overpayment over that period of time. APPENDIX B The Facts Material to the Tax Refund Claim of METRO-GOLDWYN-MAYER, INC. V. UNITED STATES (No. 191-71) The following is a summary of the material, actual facts underlying the tax refund claim of Metro-Goldwyn-Mayer, Inc. (No. 191-71), as agreed upon by the plaintiff and defendant in their Stipulation of Material Facts filed on March 30, 1972. Plaintiff Metro-Goldwyn-Mayer, Inc. (MGM), which brings this suit on its own behalf and on behalf of its consolidated subsidiaries, filed consolidated Federal income tax returns for the fiscal years ended August 31, 1959 and 1960, and paid the tax liabilities shown thereon. Thereafter, the Internal Revenue Service (IRS) initiated an audit of MGM’s returns for the fiscal years ended August 31, 1959, 1960, 1961, 1962, 1963, and 1964. By reason of that audit, it was determined that there were potential deficiencies of tax for fiscal years 1959 and 1960, in the amounts of $1,010,729.37 and $1,287,642.52, respectively. The audit also determined that there were net operating losses for MGM’s fiscal years ending August 31, 1961, 1962, and 1963. The audit further determined that by reason of the carry-back of the net operating losses from fiscal years 1961, 1962, and 1963, and the application of those losses to the potential deficiencies for fiscal years 1959 and 1960, there was a net overassessment of tax in the amount of $114,430.-10 for the fiscal year ending August 31, 1959, and a net overassessment in the amount of $521,816.63 for the fiscal year ending August 31,1960. The District Director (for Manhattan, New York City, where the returns were filed) computed deficiency interest in the amount of $223,092.36 on the potential deficiency for fiscal year 1959 from the due date of the return to the last day of the applicable loss year or years in accordance with Section 6601(e)(1) of the Internal Revenue Code of 1954. The District Director likewise computed interest in the amount of $215,847.69 on the potential deficiency for fiscal year 1960. The interest on the potential deficiencies for fiscal years 1959 and 1960 was assessed by the District Director on February 14, 1969. Also on February 14, 1969, the District Director determined the application of the overassessments for fiscal years 1959 and 1960 as part of the final satisfaction of MGM’s tax liabilities. The net overassessment for the year ending August 31, 1959 in the amount of $114,430.10 was applied to the interest computed on the potential deficiency for the same fiscal year in the amount of $223,092.36. This left a remaining balance of the fiscal year 1959 deficiency interest of $108,662.26. The net overassessment of $521,816.63 for fiscal year 1960 was applied first against the interest ($215,847.69) computed on the fiscal year 1960 potential deficiency. $108,662.26 of the fiscal year 1960 overassessment was then credited against the remaining balance ($108,662.26) of the deficiency interest computed on the potential deficiency for fiscal year 1959. An additional $80,394.34 of the 1960 overassessment was applied against interest computed on a potential deficiency of MGM for fiscal year 1961; and another $80,279.49 of the fiscal year 1960 overassessment was applied against a tax deficiency for the year ending August 31, 1964. The remainder of the 1960 overassessment ($36,632.85) was refunded. The IRS allowed MGM interest on the portions of the 1960 fiscal year overassessment credited against a part of the deficiency interest for fiscal year 1959, and against the deficiency interest for fiscal year 1961, computed from the last day of the applicable loss year (September 1, 1963) to the date of assessment of the deficiency interest for 1959 and 1961 (February 14, 1969). MGM was likewise allowed interest on the portion of the fiscal year 1960 overassessment that was refunded computed from September 1, 1963 to February 14, 1969. MGM was allowed interest on the portion of the 1960 overassessment credited against the 1964 deficiency computed from September 1, 1963 to November 15, 1964. However, the IRS did not allow MGM any interest on the overassessment for the year ending August 31, 1959, that was entirely offset by the interest computed on the potential deficiency for fiscal year 1959. Similarly, MGM was not allowed any interest on the portion of the overassessment for the year ending August 31, 1960, that was credited against the interest computed on the potential deficiency for fiscal year 1960. On August 7, 1969, MGM filed timely claims for refund with the IRS to recover interest, computed from September 1, 1963 to February 14, 1969, on the overassessment for fiscal year 1959, and for the portion of the fiscal year 1960 overassessment credited against the deficiency interest for 1960. More than 6 months elapsed, prior to the filing of MGM’s petition in this court, during which MGM received no statutory notice of disallowance. Plaintiff seeks interest in the amount of $37,453.13 (computed from September 1, 1963 to -February 14, 1969) on the 1959 fiscal year overassessment, and interest in the amount of $70,647.24 (also computed from September 1, 1963 to February 14, 1969) on that portion of the fiscal year 1960 overassessment credited against the interest computed on the fiscal year 1960 potential deficiency. . The actual facts pertaining to each plaintiff are set out in the appendices. . Regulation § 301.6611 is based on Section 6611 of the Internal Revenue Code of 1954, which states in pertinent part: “§ 6611. Interest on overpayments “(a) Rate. — Interest shall be allowed and paid upon any overpayment in respeet of any internal revenue tax at the rate of 6 percent per annum. “(b) Period.- — Such interest shall be allowed and paid as follows : “(1) Credits. — In the case of a credit, from the date of the overpayment to the due date of the amount against which the credit is taken.” Prior to the Technical Amendments Act of 1958 (P.L. 85-866, 72 Stat. 1606, § 83) § 6611(b)(1) read as follows : “(1) Credits. — In the case of a credit, from the date of the overpayment to the due date of the amount against which the credit is taken, hut if the amount against which the credit is taken is an additional assessment, then to the date of the assessment of that amount.” [Deleted portion italicized.] . Defendant’s brief in No. 191-71 at 12; the quotation is from a table appearing in § 4(3)(b) of the Rec.Proc., 1960-2 Cum. Bull. 942, 957. . 1960-2 Cum.Bull. 942, 951. . As in the present case, the resolution of the contradiction can be made very difficult by the opacity of the general Congressional purpose with respect to the particular subject matter and the lack of helpful legislative or administrative background. Defendant emphasizes the Technical Amendments Act of 1958, 72 Stat. 1606, as showing the general Congressional purpose. It is agreed, however, that that statute does not apply of its own terms to the precise issue here, and as the court points out the aim of the provision was to eliminate the running of interest during a period of mutuality of indebtedness. The question then becomes when did such mutuality arise, and we are brought directly back to the contradiction in § 301.6611-1.
f2d_477/html/0579-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "RICH, Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	60 CCPA The UNITED STATES, Appellant, v. The SERVCO COMPANY, Appellee. Customs Appeal No. 5509. United States Court of Customs and Patent Appeals. May 10, 1973. Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Frederick L. Ikenson, New York City, for the U. S. Robert Glenn White, Los Angeles, Cal. (Glad & Tuttle, Los Angeles, Cal.), attorneys of record, for appellee. Before MARKEY, Chief Judge, and RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge. RICH, Judge. This appeal is from the decision and judgment of the United States Customs Court, Third Division, 68 Cust.Ct. -, C.D. 4341 (1972), sustaining appellee’s protest against the classification of certain steel products imported from Austria under TSUS 610.52, as modified by T.D. 68-9, as other tubes, not welded, jointed, or seamed, not conforming to the API specifications for oil well casing, not suitable for use in the manufacture of ball or roller bearings, and of alloy iron or steel. The Customs Court held the merchandise classifiable as parts of boring and extracting machinery for earth, minerals, or ores under TSUS 664.05. We affirm. The merchandise consists of tubular steel products, 30 feet long, 213/16 inches in inside diameter, and either 61/4. or 8 inches in outside diameter, described on the commercial invoices as “AM Non-Magnetic semi-finished austenitic stainless survey Drill Collar without Threading and without welded steel subs aec. to specifications * * * .” The argument of appellant, the United States, revolves primarily about the application of General Interpretative Rule 10(h), which states: [Ujnless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished * * * . Appellant’s brief notes that the Customs Court, in deciding between the two provisions, stated that the tube provision, TSUS 610.52, “is not a specific provision for pipes and tubes which are identifiable parts of articles,” relying on Schedule 6, Part 2, Headnote l(iv), which states that Part 2 of Schedule 6 does not include articles specially provided for elsewhere in the Tariff Schedules, or parts of articles. Appellant says that the Customs Court “apparently considered the claimed provision for boring machinery and parts (in conjunction with General Interpretative Rule 10(h) to remove the merchandise from Part 2 * * * ." Appellant here takes issue with that finding, asserting error in the Customs Court having “concluded that the subject tubes were excluded from the tube provision by virtue of Schedule 6, Part 2, Headnote l(iv), and embraced by the boring machinery parts provision, by virtue of General Interpretative Rule 10(h).” Appellant’s brief tells us why this exclusion and resultant classification is believed to be improper (footnotes omitted) : Schedule 6, Part 2, Headnote 1(iv) excludes from said Part 2 (which part includes the subject tube provision) “other articles specially provided for elsewhere in the tariff schedules, or parts of articles.” The imported tubes are neither such “articles [n]or parts of articles.” They are, by the Customs Court’s own understanding, “unfinished” parts (R. 56-57) — but that does not qualify them as falling within the headnote. General Interpretative Rule 10(h) applies the “unfinished” rule only to tariff descriptions of articles, which Headnote l(iv) is not, and even then, only if the context does not require ■otherwise. Part 2 of Schedule 6 covers basic shapes and forms of metal, including tubes. It would be a severe dilution of Part 2, if basic shapes and forms are excluded therefrom because they are to be finished into articles or parts of articles. Cf. United States v. J. Gerber & Co., 58 CCPA 110, C.A.D. 1013, 436 F.2d 1390 (1971). In Gerber, this Court was asked to decide whether forgings, which were dedicated to be finished into pipe or tube fittings, were properly classifiable under the provision for forgings or under the provision for pipe and tube fittings (by virtue of General Interpretative Rule 10(h)). Holding that “Rule 10(h) does not require classification of these articles as unfinished pipe or tube fittings when they are also forgings . . . ” ([436 F.2d at 1392] 58 CCPA at 112), this Court observed (id. [436 F.2d at 1393, 58 CCPA] at 113-114): The existing schedules and their predecessors all reflect a Congressional disposition to deal with the characteristic products of the steel industry by their names as known in transactions between that industry and its customers, rather than as unfinished parts of end products: thus, there are always tariff items for forgings, plates, sheets, etc. * * * * * * The Court concluded (id. [436 F.2d at 1394/58 CCPA] at 115): We agree with the trial court that the phrase in General Interpretative Rule 10(h) “unless the context requires otherwise” is meant to withdraw the Rule from operation wherever classification of an unfinished article under the provision for the completed article would come into conflict with any express declarations of Congress elsewhere set forth, that require otherwise. Thus the rule might be effective to save an unfinished article from being classified under a mere basket item written from a horror of leaving any import unprovided for, but it is ineffective by its own terms against a specific provision that implements a policy of Congress, consciously arrived at and clearly stated. Congress has historically wanted forgings to be classed and dealt with as forgings, and has put into the new schedules nothing to state a contrary intention now. Appellant’s position here is also that the merchandise is a basic shape — a tube —which is a designation of a characteristic product of the steel industry within the meaning of the above quotation from Gerber, and that, like the forgings there, the tubes here ought to be classified according to the industry designation. Finally, appellant maintains that the contrary result of the court below would, at the very least, remove from the tube provision of Schedule 6, Part 2, the substantial class of mechanical tubes which are finished into other articles or parts. OPINION We state at the outset that we do not agree with appellant’s position that affirming the Customs Court decision in this case would have the effect of removing the provision for that class of tubes in Schedule 6, Part 2. The case here is limited to its own facts, which the Customs Court described in detail, relating specifically to the survey drill collars here involved. Appellant even assumes, for the purpose of this appeal, the correctness of the findings of the Customs Court that the imported articles had no other use but to be finished into drill collars, and that drill collars were used solely as parts of boring machinery. Appellant’s main argument, summarized in the above quotation from its brief, seems to be that the Customs Court — in “apparently” considering General Interpretative Rule 10(h) to remove the imported tubes from the application of Schedule 6, Part 2, Headnote l(iv), which headnote excludes “other articles specifically provided for elsewhere in the tariff schedules, or parts of articles” (emphasis supplied) — erroneously applied the General Interpretative Rule because (1) the Rule only “applies * * * to tariff descriptions of articles, which Headnote l(iv) is not, and” (2) “even then, [if it applies, it does so] only if the context does not require oth erwise” (which appellant maintains is the case here), and (3) the J. Gerber case, interpreting Rule 10(h) says the Rule does not apply by its own terms where it would operate to prevent classification of an article under a specific provision implementing a policy of Congress such as the congressional disposition to deal with characteristic products of the steel industry according to their industrial designations. We cannot agree with appellant’s basic assumption that the Customs Court considered General Interpretative Rule 10(h) to apply to the language of Headnote 1(iv). Perhaps appellant’s reason (1) explains why the Customs Court did not rely upon the Rule; we do not know. At any rate, since we do not find that Rule 10(h) was relied upon below for not classifying the drill collars in Part 2, we do not find it necessary to consider appellant’s arguments that Rule 10(h) was erroneously relied on in this manner. To the extent that appellant relies upon the language of J. Gerber for the general proposition that there is a congressional disposition in the tariff schedules to deal with the characteristic products of the steel industry by their industry names, we note that the case involved the forgings designation with respect to which there may indeed have been a strong disposition in Congress to classify forgings as forgings, rather than as unfinished parts of end products. See John v. Carr & Son, Inc. v. United States, 66 Cust.Ct. 316, C.D. 4209 (1971). We do not find any such comparable congressional disposition here that all “tubes” be classed aild dealt with as tubes. Cf. Carr, supra. Accordingly, having fully considered the record and appellant’s argument, we affirm the judgment of the Customs Court. Affirmed. The Customs Court did consider the application of General Interpretative Rule 10 (h) to the parts of boring machinery provision, item 664.05, finding “the unfinished drill collars classifiable as finished parts for boring machinery.” [Emphasis supplied.]
f2d_477/html/0582-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "LANE, Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	Application of Richard EPPLE and Reinhold Kaiser. Patent Appeal No. 8895. United States Court of Customs and Patent Appeals. May 17, 1973. Harvey Kaye, George H. Spencer, and Daniel Sullivan, Jr., Washington, D. C., attorneys of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation. LANE, Judge. This is an appeal from the decision of the Board of Appeals holding claims 1-7 of appellants’ application, serial No. 614,117, filed February 6, 1967, entitled “Low Capacitance Semiconductor Mounting” to be unpatentable under 35 U.S.C. § 103 in view of certain prior art. We reverse. THE INVENTION The claims are drawn to a semiconductor device, such as a transistor, diode, or solid-state circuit, which contains grooves in the semiconductor body filled with insulator material to separate the semiconductor body from passive elements, such as resistors and conductor oaths, located on the surface of the semiconductor device. The presence of an insulating barrier reduces the capacitance which develops between the passive elements and the semiconductor body. The claimed device is said to avoid the disadvantages of prior semiconductor devices in which passive elements were screened from the semiconductor body by layers of insulation placed on the surface of the body. Figures 1 and 2 of the application illustrate the semiconductor devices here involved. The specification describes the transistor depicted in the drawings as consisting of a “semiconductor body 1 which has the conductivity type of the collector region, and into which the base region 2 and the emitter region 3 are introduced * * Conventional insulating layer 4 is provided. Contact to the base and emitter regions is made by conducting paths 5 and 6, the larger areas of which are 11 and 12, respectively, seen clearly in the perspective plan of fig. 1. The semiconductor material is separated from areas 11 and 12 by grooves 7 and 8 filled with insulating material as shown at 9 and 10. The filled grooves are flush with the surface of insulating layer 4. Claim 1 is representative of the appealed claims and reads as follows: 1. A semiconductor device comprising a semiconductor body and passive elements arranged on the surface of the semiconductor body, wherein at least portions of the said passive elements are separated from the semiconductor body by insulating material arranged in grooves in the semiconductor body. Claims 2-4 and 7 also refer to “insulating material” while claims 5 and 6 define said material as silicon dioxide and silicon nitride. THE PRIOR ART AND THE REJECTION The board listed the prior art as follows: References relied upon by the Examiner: Pomerantz 3,271,201 Sept. 6, 1966 Helman 3,283,221 Nov. 1, 1966 Youmans 3,381,255 April 30, 1968 [application filed April 12, 19653 References added by the Board of Appeals: Welker 2,798,989 July 9, 1957 Folberth 2,858,275 Oct. 28, 1958 An introduction to Semiconductor Electronics by R. P. Nanavati, published 1963 McGraw-Hill Book Company, New York, New York pp. 39-40, 52-55. Pomerantz, the principal reference, discloses semiconductor devices designed to overcome the same problem faced by appellants — capacitance buildup between passive elements on the semiconductor surface and the semiconductor material. One solution taught by Pomerantz is explained as follows: In general, the present invention consists in the provision of an auxiliary layer, preferably diffused, about the base of a planar transistor or about one of the elements of a diode. The layer may be made of intrinsic material, which is, of course, of very high resistivity. Figure 1 illustrates the Pomerantz structure: The device has die 12, base 14, emitter 16, conventional insulating layer 18, and conducting paths 22 and 24 separated from the die 12 by regions 20. As an alternative to intrinsic material “i,” the regions 20 can be of the P-type base material. It is the use of the intrinsic material that is of relevance to the subject matter of the appealed claims because Pomerantz states the following: In the situation where the layer 20 is of intrinsic material, it is obvious that the thickness of dielectric material between [sic: beneath?] the metallized layer 22 or 24 is extended. The resistivity of the intrinsic material is so high that it is to all intents and purposes an insulator serving as dielectric material in addition to the masking layer between the N-type material of the die and the metal of the layers 22 and 24 which contact the emitter and base, respectively. Pomerantz teaches that “to form a layer 20 of intrinsic material, it is necessary to diffuse an intrinsifying agent such as gold into the die [12] * * ." Youmans discloses, inter alia, the suitability of silicon dioxide as an insulator. Heiman discloses a field-effect transistor which includes “a high resistivity base * * [which] may be * * * of any semiconductor or it may be an insulator material.” Heiman was relied upon as demonstrating equivalence between insulating material and semiconductor material for use as high resistivity material in semiconductor devices. With reference to the Nanavati article, the board noted that “the term insulator is not an absolute term but is relative in nature,” and that an insulator under normal conditions can become a conductor under extreme conditions. Appellants treat the intrinsified semiconducting material of Pomerantz as semiconducting material of high resistivity. The Patent Office does not appear to challenge appellants’ assertion that the intrinsic material is semiconducting. However, the solicitor does argue that the intrinsic semiconducting material disclosed by Pomerantz is within the ambit of the phrase “insulating material” as used in claims 1-4 and 7. The solicitor alternatively contends that the board’s decision may be sustained on the ground that the substitution of insulating material, including the silicon compounds of claims 5 and 6, for the Pomerantz intrinsic material would have been obvious to one of ordinary skill in the art. OPINION Although the board has attempted to establish that the terms “insulator” and “semiconductor” are of such a relative nature that one blends into the other, the record convinces us that those of ordinary skill in the art recognize a distinction between insulating and semiconducting. The Nanavati reference treats insulating, semiconducting and conducting as effects of distinguishable identification. The board may be correct in viewing the terms as “relative,” but on the record before us, we conclude that insulating material would not mean high resistivity semiconducting, i. e. intrinsic, material to one of ordinary skill in the art. We accordingly do not agree that the phrase “insulating material” as used by appellants in claims 1-4 and 7 encompasses the Pomerantz intrinsic material. The asserted obviousness of substituting insulating material for the intrinsic material used by Pomerantz is predicated primarily on the Pomerantz disclosure that the intrinsic material has such a high resistivity that it is “to all intents and purposes” an insulator which shields passive elements from the semiconductor material thereby reducing undesired capacitance, and on the Heiman disclosure that in certain types of transistors both semiconducting and insulating material will serve the function of high resistivity material. Appellants concede that Pomerantz provides a solution to the same problem, but urge that the removal of semiconductor material and its replacement with insulating material is a procedure too remote from the intrinsification technique of Pomerantz to have been appreciated by one of ordinary skill in the art. The Heiman disclosure is not regarded by appellants as a teaching of general equivalence between semiconducting and insulating materials, but merely an indication of alternatives suitable for use in constructing the Heiman transistors. We are in agreement with the position advanced by appellants in this case. We too think that one possessed of ordinary skill in the art would not have envisioned the claimed structure from Pomerantz and Heiman especially in light of the technique of manufacture disclosed by Pomerantz which differs completely from the method of making the claimed device. The ' solicitor urges that the method of manufacture is irrelevant to the patentability of claims drawn to articles. However, we are of the view that the determination of obviousness or non-obviousness of the claimed subject matter as a whole from the Pomerantz disclosure as a whole, along with the other prior art relied upon, includes weighing the respective method considerations since they would contribute to the perception of the prior art disclosures, especially that of Pomerantz, that one of ordinary skill in the art would acquire. Cf. In re Langer, 465 F.2d 896, 899, 59 CCPA-,-(1972). We agree with appellants that the claimed structure, in which semiconducting material is replaced, should properly be viewed as a substantial departure from the Pomerantz construction in which portions of semiconducting material are intrinsified to effect greater resistivity. So viewed, the claimed subject matter would not have been obvious to one of ordinary skill in the art from the references relied upon. The decision of the Board of Appeals is reversed. Reversed.
f2d_477/html/0586-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MARKEY, Chief Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	GRANDPA PIDGEON’S OF MISSOURI, INC., Appellant, v. Robert J. BORGSMILLER, d.b.a. Grandpa John’s Store, Appellee. Patent Appeal No. 8939. United States Court of Customs and Patent Appeals. May 3, 1973. John D. Pope, III, St. Louis, Mo., attorney of record, for appellant. Paul M. Denk, St. Louis, Mo., attorney of record, for appellee. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge. MARKEY, Chief Judge. This is an appeal from the decision of the Trademark Trial and Appeal Board dismissing appellant’s opposition to registration of appellee’s mark comprising the figure of an elderly. man. We reverse. Appellant’s earlier use of its marks and the identity of the parties’ retail store services are undisputed. The sole issue is whether appellee’s mark so resembles a mark of appellant as to be likely to cause confusion or mistake or to deceive. Appellant relies on two earlier registrations and its prior use of various non-registered marks, all of which include the figure of an elderly man and the words “Grandpa Pidgeon.” Particular reliance is placed on prior and continued use of a sign (Ex. 3) displaying appellant’s figure posed differently from that in its registrations and with the words of its registered mark displayed in different form below the figure. Appellant also asserts prior use of the words “Grandpa” and “Grandpa Pidgeon” without a figure. The president and sole witness of appellant testitified that two customers had asked whether appellant owned appellee’s store but nothing in the record indicates any causal relationship between the question and appellee’s use of its mark. Appellee cites its use of differing elderly man figures as well as a number of third party registrations of such figures and of “Grandpa.” Appellant’s registered mark and appellee’s mark appear as follows: Appellant points to the similarities of the figures, particularly as between its Exhibit 3 and appellee’s mark. Appellee points to their dissimilarities. Side-by-side comparison is not the test. Johann Maria Farina Gegenuber Dem Juliehs-Platz v. Chesebrough-Pond, Inc., 470 F.2d 1385 (CCPA 1972). Both parties employ an elderly man figure in connection with identical services. The figures create a similar commercial impression, likely to be remembered by purchasers. Each is that of an aged man in overalls with cane and pipe, i. e. a “grandpa.” We recognize, as the board implied, that the use by both parties of the word “grandpa,” rather than the figures per se, may have been responsible for the limited instances of alleged actual confusion and therefore ascribe no value to that testimony in arriving at our decision. That one figure is upright and apparently spry while the other is slightly stooped is, we believe, a difference not likely to be recalled by purchasers seeing the marks at spaced intervals. Purchasers of retail services do not engage in trademark dissection. Legal surgery, in which trademarks have parts enhanced or discarded, is of little aid in determining the effect of design marks on purchasers who merely recollect. The scalpel is employed by lawyers, not purchasers. We think that the overall commercial impression created by appellee’s mark is sufficiently similar to that created by appellant’s mark (Ex. 3) as to be likely to cause confusion, mistake or deception. Accordingly, we reverse. Reversed. . Reg.No. 825,465, issued March 7, 1967. Reg.No. 812,359, issued Aug. 9, 1966.
f2d_477/html/0588-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "MARKEY, Chief Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	Gordon G. KNAPP and Norman A. Lebel, Appellants, v. Robert G. ANDERSON and Lewis R. Honnen, Appellees. Patent Appeal No. 8854. United States Court of Customs and Patent Appeals. May 17, 1973. Joseph D. Odenweller, Ferndale, Mich., attorney of record, for appellants. John F. Sieberth, Baton Rouge, La., of counsel. C. J. Tonkin, San Francisco, Cal., attorney of record, for appellees. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation. MARKEY, Chief Judge. This appeal is from the decision of the Board of Patent Interferences awarding priority of invention of the subject matter of counts 1, 3, 4 and 6 to Anderson et al. (Anderson), the senior party. A similar award of counts 2 and 5 has not been appealed. Anderson is involved on application serial No. 647,632, filed June 21, 1967 which was accorded the benefit of application serial No. 481,916, filed August 23, 1965. Knapp et al. (Knapp) are involved on application serial No. 523,886, filed February 1, 1966. The board found the bench test relied upon by Knapp to demonstrate utility of their compositions inadequate to establish an actual reduction to practice. We affirm, The Subject Matter The invention involved in this interference relates to certain high molecular weight hydrocarbon-substituted amines and lubricating oil compositions containing the same. The primary function of the amine as a lubricant additive is to prevent the deposition of sludge by keeping it dispersed in the lubricating oil. Counts 1 and 4 are representative: 1. A compound of the formula where R is a hydrocarbon radical having a molecular weight of from about 425 to about 3000 and Ri and R2 are selected from the group consisting of hydrocarbon and hydroxy-hydrocarbon radicals having from 1 to about 10 carbon atoms and hydrogen. 4. A lubricant composition comprising a major amount of a lubricating oil and a minor amount of a compound of the formula where R is a hydrocarbon radical having a molecular weight from about 425 to about 3000 and Rx and R2 are selected from the group consisting of hydrocarbon and hydroxy-hydrocarbon radicals having from 1 to about 10 carbon atoms and hydrogen. Count 3 is directed to the morpholine species of generic count 1 and count 6 to the corresponding lubricant composition. The Record Both parties took testimony. Knapp attempted to establish actual reduction to practice of the subject matter of the counts on appeal prior to August 23, 1965, the filing date of the earlier Anderson application. Anderson, having elected to rely on that filing date, introduced only rebuttal testimony. The Board Decision Priority of conception and preparation of the amines and lubricant compositions containing the same was accorded to Knapp, the board stating: We are of the opinion that Knapp et al. have established by a preponderance of the evidence now before us that a composition containing a hydrocarbon substituted amine as defined by counts 1, 3, 4 and 6 was prepared by or on behalf of them prior to the record date of Anderson et al. The chief inadequacy of the Knapp evidence, in the board’s opinion, rested in the sludge dispersancy test, a laboratory test performed to evaluate the usefulness of the amines as dispersants in lubricant compositions. The board found that test not * * * sufficient to simulate actual service conditions to such an extent so [sic] as to warrant its acceptance by the industry as a standard and acceptable means of evaluation * * . It was also pointed out that there was no evidence of record which might indicate contemporaneous evaluation or reliance upon the test results. Hence the board concluded: * * we are of the opinion that the record does not establish any conviction or appreciation on behalf of Knapp et al. that their compositions would operate successfully for their intended or any other purpose. OPINION It is well settled that if the counts do not specify any particular use, evidence proving substantial utility for any purpose is sufficient to establish an actual reduction to practice. Blicke v. Treves, 241 F.2d 718, 44 CCPA 753 (1957). Here counts 1 and 3 are directed to the amines per se with no limitation as to use. Although counts 4 and 6 are drawn to lubricant compositions containing the amine additives, any use applicable to a lubricant composition would suffice. On this record, we find that the only utility contemplated for the amines is as ashless dispersants in lubricant compositions. The compositions are clearly intended to be used in internal combustion engines. We cannot accept appellants’ argument that sufficient utility is demonstrated if the amines are useful for “dispersing sludge” and the compositions are useful for “maintaining sludge in suspension,” regardless of the setting or the type of sludge suspended. The record makes it clear that such was not an objective of the Knapp research. On the other hand, advancement to the stage of commercial acceptability is not necessary to establish an actual reduction to practice, so long as the compositions are capable of fulfilling the function for which they were designed. Land v. Regan, 342 F.2d 92, 52 CCPA 1048 (1965). It was with the aforesaid contemplated utility in mind, i. e. “ashless dispersants * * * for keeping an engine clear and sludge free during operation,” that the board approached the sludge dispersancy test used by Knapp. The lack of correlation between that bench test and actual service conditions in a combustion engine, gasoline or diesel, led the board to reject the test as an acceptable standard for evaluating detergent lubricating oils. Instead, the test was described as being “preliminary in nature, serving only to screen out the most unlikely candidates and thereby limiting the need for the more expensive but reliable engine tests.” We find no error in the board’s conclusion. Laboratory testing can be an acceptable means of proving a reduction to practice, but only when a relationship is established between the test conditions and the intended functional setting of the invention. Paivinen v. Sands, 339 F.2d 217, 226-227, 52 CCPA 906, 918 (1964); White v. Lemmerman, 341 F.2d 110, 113, 52 CCPA 968, 972 (1965). The test results must prove that the invention will perform satisfactorily in that intended setting. Knowles v. Tibbetts, 347 F.2d 591, 594, 52 CCPA 1800, 1804 (1965); Koval v. Bodenschatz, 463 F.2d 442, 447, 59 CCPA(1972). Here the tests would have had to establish that the lubricant compositions containing the amine sludge dispersants would function as designed during the operation of a combustion engine. From the evidence of record, we are convinced only that the sludge dispersancy' bench test demonstrates a limited dispersant characteristic of the amine-containing lubricating oils. This property cannot be equated to and has not been adequately correlated with the contemplated useful function of the compositions. As pointed out by the board, the testimony of Knapp himself and of O’Neill, the technician who performed some of the sludge bench tests, points the way to a conclusion of inadequate correlation. It clearly does not refute the testimony of witnesses Parker and Fontana of Chevron that there are problems of correlation. Knapp admitted that there were inconsistencies between the bench test and actual service conditions, stating: There were some materials that looked good in the bench test that weren’t good in the engine, but we don’t have any of the reverse, where material looked good in the engine and didn’t look good in the bench test. The bench test doesn’t really have all of the ramifications that an engine test does; it’s not as severe, and some of the conditions did not exist in the bench test. He described the test as “preliminary” to eliminate those materials not worth submitting to an engine test. The engine test itself was acknowledged to be “still one removed from a field test.” O’Neill agreed that the effectiveness of the dispersant in a combustion engine could not be predicted from the bench test. The test results simply indicated that a “candidate” had been found which was “worthy of testing in an engine test.” The Knapp application sets forth later performed engine tests to demonstrate utility. The board found no evidence of record indicating any conviction of success at the time Knapp’s bench tests were conducted. Nor do we. Such an absence of any contemporaneous evaluation or decision to continue work toward a commercially acceptable product can hardly be reconciled with the establishment of utility. Appellants have introduced into evidence several U. S. patents which set forth various bench tests employed in the industry to demonstrate dispersant utility. None of these tests are identical to the sludge test under consideration. Most employ carbon black rather than a synthetic sludge. None provide any support for the alleged correlation of the Knapp bench test with actual service conditions. On the matter of the tests establishing utility per se, the board correctly pointed out that: * * * the disclosure necessary to support the patentability of an invention in an application is not necessarily relevant to the degree of proof required to support an actual reduction to practice in an interference proceeding. Appellants argue that the intention to do further testing to determine commercial feasibility of the products should not negate the reduction to practice as of the time of the bench tests, citing Rimbach v. Wanmaker, 362 F.2d 561, 53 CCPA 1552 (1966). Here, contrary to the situation in Rimbach, the invention had not been tested under laboratory test conditions to the extent that utility would be known to those of ordinary skill in the art. Only a potential utility had been established. It was not merely a question of commercial development. The circumstances of this case are also distinguishable from those in the recent case of Campbell v. Wettstein, 476 F.2d 642 (Cust. & Pat.App.1973). In Campbell the record failed to support the board’s conclusion that the particular tests there conducted were insufficient to establish anti-fertility activity. Those laboratory tests actually demonstrated in test animals the pharmacologacal activity being relied upon for utility and did not merely narrow the field to candidates worthy of further testing. In conclusion, we find that appellants have failed to establish actual reduction to practice of the subject matter of the counts by a preponderance of the evidence. The decision of the board is affirmed. Affirmed. . The Anderson applications are assigned to Chevron Research Company and the Knapp application to Ethyl Corporation. . In this test a synthetic sludge formed from oxidized lubricating oil and sludge is suspended in lubricating oil containing a minor amount of the test additive and the suspension is then centrifuged. The degree of settling, indicative of nondispersancy, is measured by determining the light transmittance of the upper layer using a photoelectric cell. Samples containing no additive and a commercially successful dispersant are run as standards.
f2d_477/html/0601-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "\n SOBELOFF, Senior Circuit Judge:", "license": "Public Domain", "url": "https://static.case.law/" }	James Lewis JOHNSON et al., Appellants, v. CAPITOL CITY LODGE NO. 74, FRATERNAL ORDER OF POLICE, an unincorporated association, by its President, Raymond W. Spradling, Appellee. No. 72-2452. United States Court of Appeals, Fourth Circuit. Argued April 2, 1973. Decided May 1, 1973. Timothy N. Barber, Charleston, W. Va., for appellants. Before SOBELOFF, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges. SOBELOFF, Senior Circuit Judge: The appellants are five black members of the police force of Charleston, West Virginia. They brought this class action, pursuant to 42 U.S.C. § 1983, alleging that the Capitol City Lodge No. 74, Fraternal Order of Police, discriminated against blacks in its membership selection process. By stipulation of the parties, the transcript of evidence taken in an administrative hearing before the West Virginia Human Rights Commission was adopted as the evidentiary record and the case was submitted to Judge Knapp of the Southern District of West Virginia for decision. The District Court made both findings of fact and conclusions of law. The appellants now appeal only those aspects of the District Court’s decision that relate to remedy. In order to place this case in perspective, it is first necessary to review briefly some of the unchallenged findings of the lower court. The Lodge in question, ostensibly a private fraternal organization, provides a variety of social and recreational activities for its members. But the Lodge also has several visible public functions. By statute the organization appoints one member of the City of Charleston’s three-member police civil service commission. See W.Va. Code Ann. §§ 8-14-7, 8-14-10 thru 14 (1969). This commission promulgates the regulations that govern entrance into and advancement within the Charleston police department. This commission also may conduct investigations of the police department and to this end may subpoena witnesses. Additionally, the Lodge appoints three members of the five-member commission which supervises the operation of police department sick-leave policy and investigates individual sick-leave applications. The sick-leave committee may select doctors to examine police department members and take appropriate action regarding abuse of sick-leave policy by police officers. The Supreme Court has said that the presence of two elements is necessary in order to maintain successfully a section 1983 action. First, the plaintiff must have suffered deprivation of a right secured by the Constitution and laws of the United States; and second, this deprivation must be the result of action taken by the defendant “under col- or of law.” See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In the instant case, the District Court found that the Lodge had deprived appellants and others of their class of membership solely on the basis of race. The system of exclusion was institutionalized in a rule which permitted five members to veto the application of any prospective member. The District Court also found that the defendant Lodge was operating under “color of law.” We agree both that the Lodge has pursued a discriminatory membership policy and that the Lodge and police department are so closely entwined as to fulfill the state action requirement of Adickes. The record indicates that the Capitol City Lodge functions as an integral part of the over-all operation of the Charleston police department, exercising supervisory authority and quasi-judicial power over essential aspects of the careers of all Charleston policemen. Despite the District Court’s finding of both racial discrimination and state action, affirmative relief was refused. The court merely ordered the Lodge to cease its discriminatory membership policy, while at the same time leaving the five-man-veto provision intact. This action is reminiscent of the mother who gave her daughter permission to go swimming but in the same breath admonished her not to go near the water. To refuse affirmative relief on a record such as this would not only result in a miscarriage of justice but would also invite further litigation. Courts have the power and duty to fashion affirmative relief so as to provide an effective federal remedy where federal law is violated. The Supreme Court said in Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965): “We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” The Court has since followed this rationale in upholding judicially ordered assignment of students on a racial basis in order to eradicate the vestiges of previous discrimination. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Only affirmative relief can insure with certainty that the effects of the Lodge’s past discrimination will be eliminated. Until there are a significant number of blacks who are members of the Lodge, there can be no guarantee that the five-man-veto rule will not continue to function as a convenient cover for discrimination. We agree with the action of the Fifth Circuit which in Adams v. Miami Police Benevolent Assoc., Inc., 454 F.2d 1315 (5 Cir.), cert. den., 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972), approved affirmative relief under similar circumstances. The District Court here should have ordered the Lodge to abandon its five-man-veto rule entirely and to accept forthwith as members all police officers currently in good standing on the Charleston police force. Accordingly, we remand so that the District Court may grant appellants affirmative relief consistent with this opinion. Remanded with instructions. . Mother, may I go out to swim? Yes, my darling daughter; Hang your clothes on a hickory limb And don’t go near the water. Anonymous, Familiar Quotations by John Bartlett (14th ed.), 1103a. . There are currently 141 white police officers on the force, all of whom are members, and 11 black policemen of which only three are Lodge members.
f2d_477/html/0603-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "JAMES HUNTER, III, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Ralph LANCLOS, Appellant. No. 72-1266. United States Court of Appeals, Third Circuit. Argued Feb. 2, 1973. Decided March 27, 1973. Thomas D. Ireland, Ireland & Finucan, Charlotte Amalie, St. Thomas, V. I., for appellant. Joel D. Sacks, U. S. Atty., Frederick G. Watts, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee. Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. The defendant Ralph Landos appeals from his conviction in the district court of the Virgin Islands of murder in the first degree. By information, the government charged that the defendant, on April 30, 1971, in violation of 14 V.I.C. § 922(a)(1), with malice aforethought, did willfully, deliberately and with' premeditation kill one Keith Stevens by shooting him with a pistol, thereby inflicting mortal wounds from which he died. The defendant entered a plea of not guilty, and his case was tried before a jury which found him guilty of murder in the first degree. At the close of the government’s case, the defendant moved for a dismissal of the information on the ground that the government had not proved beyond a reasonable doubt that the defendant had killed Stevens with deliberation and premeditation. The government opposed this motion, and it was denied by the district court after a brief oral argument. After the jury found defendant guilty of first degree murder, he moved for a judgment of acquittal or, in the alternative, for a new trial. The district court denied this motion, and defendant was sentenced to a mandatory life term. 14 V.I.C. § 923(a). This appeal followed. A brief summary of the evidence presented in this case is appropriate: At about 4:30 a.m. on April 30, 1971, the defendant shot and killed Keith Stevens outside of the Lindberg Bay Beach Club (“Beach Club”) on St. Thomas. The defendant testified at trial that he shot Stevens, but he claimed that he did so in self-defense because he was being “nicked” or “cut.” The homicide took place during “carnival” festivities, and the defendant apparently had not slept for nearly twenty-four hours and had consumed several drinks during the evening. Nevertheless, it does not appear that he was intoxicated. At the time of the shooting, the defendant, a Marine veteran, was employed as a police officer by the government of the Virgin Islands. He was not on duty when the homicide occurred nor was he in any way acting in his capacity as a policeman. The defendant testified that he did not know Stevens, and that they bumped into each other as the defendant was entering the Beach Club through what is primarily an exit while Stevens was coming out. The defendant stated that he tried to apologize, but that Stevens insulted him with foul language. The defendant then said that he attempted to identify himself as a policeman, whereupon Stevens attacked him with a sharp object and the defendant protected himself by shooting Stevens. The defendant testified that he could not remember any details of the shooting except that he believed his life was in danger. After the shooting, the defendant placed the gun by the body, handcuffed himself and asked to be taken to the Fort. He was driven there by two friends named Watkins and Callender, but he entered the Fort alone. When he presented himself at the front desk, he told Lieutenant Norman that a man had tried to cut him and that he, the defendant, shot him. Lieutenant Norman testified that certain parts of the defendant’s tee shirt were torn and that he had scratches on his shoulder and chest. The defendant was then taken to a local hospital where he was treated for “multiple superficial abrasions and lacerations of the left shoulder, chest and back.” While the defendant’s story might be persuasive standing alone, the prosecution in this ease presented a very different view of the facts surrounding the homicide. One government witness, Louis Morales, testified that just prior to the shooting the defendant was “sitting on the left front fender” of Morales’ Volkswagen which was parked in front of a door at the Beach Club. Morales was standing just to the left of his Volkswagen. Morales stated that he observed the defendant draw a pistol and shoot Keith Stevens, whom Morales knew, as Stevens was emerging from the Beach Club eating a chicken leg. Morales testified that the defendant fired two shots into Stevens, that Stevens leaned up against a pole, that the defendant shot Stevens again, that Stevens fell to the ground, that the defendant shot him twice more, paused, and then shot him again. A second government witness, Yvonne Warner, was sitting in the front seat of Morales’ Volkswagen when the shooting took place. She testified that she heard two or three firecracker-like noises, and that she then saw the defendant with a gun firing at Stevens who was on the ground. Miss Warner said that she saw the defendant sitting on the front fender of the Volkswagen, but it is unclear from her testimony whether this observation was made before or during the shooting. Miss Warner also stated that she did not see the defendant and Stevens engage in any conversation prior to the shooting. A third person who witnessed the homicide was Michael Springer, a line dispatcher for the local Power Authority, who was attending a dance at the Beach Club. Springer testified that he was standing outside the Beach Club when he heard a shot, saw Stevens fall to the ground, and then saw the defendant fire two or three more shots at Stevens. Springer also said that the defendant fired at least one shot while sitting or leaning on the fender of a car. The only witness who observed any contact between the defendant and Stevens was a Mrs. Eleanor Wallace. She testified that as she was leaving the Beach Club around 4:30 a.m., she saw the two men standing in the doorway, and she overheard one of them say, “I said you brushed on me,” or something to that effect. She walked on toward a parking lot, and about two minutes later heard what she thought was a shot. Although the defendant claims that he was cut and that his shirt was torn by Stevens, nobody noticed this until the defendant presented himself to Lieutenant Norman at the Fort. Instead, several witnesses described his physical appearance after the shooting, and all denied seeing any torn shirt or injuries to the body. Even the two men who drove the defendant to the Fort, but who dropped him off at the front gate and let him enter by himself, stated that they had not seen any blood or other sign of injury. In addition, another witness, Enard F. Frett, testified that after the shooting he heard the defendant ask a police officer named “Cornel” if he had “anything sharp.” Cornel allegedly replied that the only sharp thing which he had was his sunglasses. Based upon all this evidence, the government contended that the defendant was not cut by Stevens but rather that the defendant inflicted his own wounds before turning himself in. Title 14 V.I.C. §§ 921 and 922 defines the crime of murder as follows: “§ 921. Murder defined. “Murder is the unlawful killing of a human being with malice aforethought. “ § 922. First and second degree murder defined. “(a) All murder which— (1) is perpetrated by means of poison, lying in wait, torture or by any other kind of willful, deliberate and premeditated killing; or (2) is committed in the perpetration or attempt to perpetrate arson, burglary, kidnapping, rape, robbery or mayhem— is murder in the first degree. “(b) All other kinds of murder are murder in the second degree.” On this appeal, the defendant contends that the evidence is insufficient to sustain a verdict of first degree murder and that the trial court erred in denying his motion for a judgment of acquittal on this charge. Specifically, the defendant argues that the government did not prove that the killing was willful, deliberate and premeditated. He also claims that § 922(a)(1) requires, “as an essential element of first degree murder, substantially more reflection, that is, more understanding and comprehension of the character of the act, than the mere amount of thought necessary to form an intention to kill.” We cannot agree with any of these statements. The pertinent principles of Virgin Island law with respect to the elements of willfulness, deliberation and premeditation were recently set forth by Judge Maris in Government of Virgin Islands v. Lake, 362 F.2d 770, 776 (3d Cir. 1966), as follows: “To premeditate a killing is to conceive the design or plan to kill. State v. Anderson, 1961, 35 N.J. 472, 173 A.2d 377, 389-390. A deliberate killing is one which has been planned and reflected upon by the accused and is committed in a cool state of the blood, not in sudden passion engendered by just cause of provocation. State v. Roedl, 1945, 107 Utah 538, 155 P.2d 741, 749. It is not required, however, that the accused shall have brooded over his plan to kill or entertained it for any considerable period of time. Although the mental processes involved must take place prior to the killing, a brief moment of thought may be sufficient to form a fixed, deliberate design to kill. State v. Hammonds, 1939, 216 N.C. 67, 3 S.E.2d 439, 445; Keenan v. Commonwealth, 1863, 44 Pa. 55, 56-57. See, also, Bullock v. United States, 1941, 74 App.D.C. 220, 122 F.2d 213, 214; 1 Wharton’s Criminal Law and Procedure (1957) §§ 267, 268; 40 C.J.S. Homicide § 33. “The defendant argues that the record is barren of any affirmative proof of premeditation on his part. It is true that there is no direct proof of the defendant’s mental processes in this regard. But since these are wholly subjective it is seldom possible to prove them directly. If premeditation is found it must ordinarily be inferred from the objective facts. Every sane man is presumed to intend all the natural and probable consequences flowing from his deliberate acts. Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Accordingly, if one voluntarily does an act, the direct and natural tendency of which is to destroy another’s life, it may fairly be inferred, in the absence of evidence to the contrary, that the destruction of that other’s life was intended.” (emphasis added). Considering .this inference in the light of the evidence presented by both sides, we believe that the district court correctly denied defendant’s motion for a judgment of acquittal on the first degree murder charge. The defendant argues that the record contains no proof of premeditation and deliberation on his part, and that his testimony and injuries successfully rebut any inference against him. We do not think so. The defendant’s testimony that he was cut by Stevens stands alone and uncorroborated. Similarly, the defendant produced no witnesses to testify that his shirt was torn or that he was cut and bleeding prior to the time that he gave himself up.at the Fort. On the other hand, the government produced an eyewitness, Louis Morales, who said that he saw the defendant, who was sitting on the front of Morales’ car, draw his pistol and shoot Stevens six times as he came out the door of the Beach Club. In addition, several witnesses described the defendant’s physical appearance after the shooting, and all denied seeing any torn shirt or bodily injuries. With this background, and in view of Énard Frett’s testimony that he overheard the defendant ask a police officer named “Cornel” if he had anything sharp, we think that the jury could easily have concluded that the defendant’s wounds were self-inflicted to make it appear that he acted in self-defense. Finally, with respect to the defendant’s contention that the shooting occurred during the course of an argument, the only witness who observed any contact between the defendant and the deceased was Mrs. Wallace, but she stated that this was about two minutes before she heard any shots. Consequently, we believe that the jury could have found that the defendant and Stevens had had a quarrel and that the defendant was waiting to shoot Stevens when he emerged from the Beach Club. This would be consistent with the testimony that nobody saw a dispute between the defendant and the deceased immediately before the murder. In the absence of any significant evidence to support the defendant’s story, and taking all the evidence into consideration, we cannot say that it does not support the jury’s finding that the defendant was guilty of willful, deliberate and premeditated murder. The other contention raised by the defendant on this appeal is that the district court abused its discretion in not permitting him to conduct an in-court demonstration with handcuffs. The purpose of this proposed experiment was to show to the jury that the defendant could not reach the area of his wounds with his hands while handcuffed. The trial judge refused to allow the demonstration on the ground that there would be no way to determine objectively whether or not the defendant was making a good faith effort to reach as far back as he could. The trial judge has considerable discretion in deciding whether or not to permit an experiment in the presence of the jury, and we find no abuse of discretion here. The jury saw the defendant and the location of his wounds, and from that they could reasonably determine whether or not they were self-inflicted. For the reasons stated, the judgment of the district court of the Virgin Islands will be affirmed. . The Fort is the name of the local prison. . Brief for defendant-appellant at 13-14. . In reviewing whether or not the evidence is sufficient to support a conviction, it is fundamental that we must view the evidence in the light most favorable to the government. E. g., United States v. Miles, 468 F.2d 482 (3d Cir. 1972); United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971). . In deciding this question against the defendant, we have considered and reject his contention based upon § 201 of the 1937 Penal Code of Puerto Rico and these cases: People v. Perez, 84 P.R.R. 173 (1961); People v. Blanco, 77 P.R.R. 726 (1954); People v. Lassalle, 18 P.R.R. 410 (1912). We have also considered and reject his contention based on People v. Martinez, 38 Cal.2d 556, 241 P.2d 224 (1952), and People v. Holt, 25 Cal.2d 59, 153 P.2d 21 (1944), which were cited in oral argument, and People v. Howard, 211 Cal. 322, 295 P. 333, 336 (1930), which was cited in his brief. . It should be noted that the trial judge had previously refused to permit the prosecution to conduct a similar experiment with Lieutenant Norman which was designed to show that the defendant could reach the injured areas of his body while handcuffed.
f2d_477/html/0608-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "CAMPBELL, Circuit Judge.", "license": "Public Domain", "url": "https://static.case.law/" }	UNITED STATES of America, Appellee, v. Augusto Tarquino Arias FLORES, Defendant-Appellant. No. 72-1175. United States Court of Appeals, First Circuit. Heard Feb. 9, 1973. Decided April 13, 1973. Arturo Aponte Pares, San Juan, P. R., by appointment of the Court, for appellant. Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. CAMPBELL, Circuit Judge. Appellant Arias Flores appeals from a conviction of importing cocaine in violation of 21 U.S.C. § 174, contending that the cocaine should have been suppressed as the product of a search violative of the Fourth Amendment. On March 24, 1970, appellant, a resident of Venezuela, arrived at San Juan International Airport, Puerto Rico, after a flight from Venezuela via Curacao, Netherlands Antilles. An experienced customs agent, Juan Jiminez-Rosario, observed that appellant appeared “very, very nervous” as he awaited inspection of his baggage: “. . .he was looking to all places and his hands were trembling and due to my past experience as a low [law] enforcement officer I noticed him out of the crowd.” Jiminez-Rosario and another agent, Juan del Toro, intercepted appellant as' he left the baggage area and requested that he accompany them into an office. They were joined later by a customs supervisor, Juan Pinol. Jiminez-Rosario asked appellant to empty his pockets. When he had done so, but not completely, Jiminez-Rosario searched the pockets, uncovering about six hundred small “emerald-type stones” and four ladies rings. Jiminez-Rosario checked appellant’s customs declaration sheet and found that these articles had not been declared. Thereupon, “suspicious”, “[d]ue to the circumstances that he had brought these stones without declaring them,” Jiminez-Rosario asked appellant to take off his clothes. The agents noticed a white envelope inside his underpants. Pinol seized it. After a field test disclosed that white powder in the envelope was cocaine, appellant was arrested. Border searches are subject to less stringent constitutional restraints than searches within our borders. Officers may initiate searches on grounds less objective and substantial than required for other searches, and need not procure warrants. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (dictum); see generally, United States v. Glaziou, 402 F.2d 8, 12 (2nd Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969) and cases cited; and Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1007-8 (1968). The initial search of appellant's pockets was clearly justified, especially in light of the objective signs of nervousness detected by the agent. As we said recently, “a customs officer may search an individual’s baggage and outer clothing, in a reasonable manner, based on subjective suspicion alone, or even on a random basis.” United States v. Stornini, 443 F.2d 833, 835 (1st Cir. 1971) (citations omitted). We have not yet determined what grounds less than probable cause may justify a so-called strip search. (In Stornini, we assumed without deciding the validity of the standard adopted by the Ninth Circuit: a “real suspicion”— a “subjective suspicion supported by objective, articulable facts.” United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); United States v. Johnson, 425 F.2d 630 (9th Cir. 1970), cert. granted, 400 U.S. 990, 91 S.Ct. 451, 27 L.Ed.2d 437 (1971), dismissed pursuant to Supreme Court Rule 60, 404 U.S. 802, 92 S.Ct. 38, 30 L.Ed.2d 35 (1971).) In this case we need not attempt to define the minimum showing necessary for a strip search. Wherever the line is ultimately to be drawn, the search here was well inside it. Failure to declare the emeralds and rings exposed them to forfeiture and the defendant to criminal prosecution. 19 U.S.C. §§ 1497, 1498; 18 U.S.C. § 545; 19 C.F.R. § 10.19. We do not say that every minor technical violation of the customs laws necessarily gives ground for a strip search. But we think the possession of several hundred undeclared emerald-like stones does. The nature, location and profusion of the undeclared articles plainly suggested that defendant was consciously engaged in smuggling activities. It was only reasonable to suppose that more contraband might be found on his person. That during the ensuing lawful search the customs officials discovered cocaine instead of jewelry does not make the seizure of the cocaine illegal. Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Alderman v. United States, 394 U.S. 165, 177, n. 10, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). We hold that the search and seizure did not violate the Fourth Amendment. Appellant’s other argument, that the customs officers were required to inform him of his rights prior to the arrest, needs no consideration inasmuch as no prejudicial statements of his were offered into evidence. Affirmed. . Repealed, Publ.L. 91-513, Title III, § 1101(a)(2)(4), Oct. 27, 1970, 84 Stat. 1291. Unlawful importation of cocaine and other drugs is now covered by 21 U. S.C. § 960. . The agent further testified, “The defendant came in, he was waiting in line and he was very nervous like this, he was looking like this, looking this, his eyes and the characteristics of his face and then — his movements and he was not still like the other passengers that were waiting to be, you know, to be waiting for luggage inspection.” . 19 U.S.C. § 482 states: Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law. . . .
f2d_477/html/0610-01.html	Caselaw Access Project	2024-08-24T03:29:51.129235	2024-08-24T03:29:51.129683	{ "author": "PER CURIAM:", "license": "Public Domain", "url": "https://static.case.law/" }	Charles F. ECKERT, Appellant, v. The CITY OF PHILADELPHIA, PA. No. 71-1865. United States Court of Appeals, Third Circuit. Submitted April 6, 1973. Decided May 2, 1973. Charles F. Eckert, pro se. Martin Weinberg, City Sol., John Mattioni, Deputy City Sol., Howard D. Scher, Asst. City Sol., Philadelphia, Pa., for appellee. Before McLAUGHLIN, ROSENN and JAMES HUNTER, III, Circuit Judges. OPINION OF THE COURT PER CURIAM: Appellant, here petitioned the district court to enjoin the City of Philadelphia from enforcing its ordinance which regulates the purchase of firearms and transfer of same. Appellant’s theory in the district court which he now repeats is that by the Second Amendment to the United States Constitution he is entitled to bear arms. Appellant is completely wrong about that. As long ago at least as 1939 the United States Supreme Court held that there must be “ * * * some reasonable relationship to the preservation or efficiency of a well regulated militia”. There is nothing whatsoever of that kind in this appeal. It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution. See United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Actually the City ordinance attacked by appellant has been rendered moot by declaration of the Pennsylvania Superior Court holding that the Philadelphia Ordinance above presented was preempted by an Act of the Pennsylvania General Assembly in 1962. See Commonwealth v. Ray, 218 Pa.Super. 72, 272 A.2d 275 (1970). The judgment of the district court will be affirmed.

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