Datasets:

conceptofmind

/

CAP-Dolma

like 0

f2d_474/html/1374-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Mrs. Cornelius Cuthbertson HILL, Appellee, v. W. A. ROWLAND and B. S. Treadaway, Appellants. No. 72-1258. United States Court of Appeals, Fourth Circuit. Argued Oct. 3, 1972. Decided March 14, 1973. J. J. Wade, Jr., Charlotte, N. C. (R. C. Carmichael, Jr., G. Patrick Hunter, Jr., and Wade & Carmichael, Charlotte, N. C., on brief), for appellants. George S. Daly, Jr., Charlotte, N. C., submitted on brief, for appellee. Frank G. Carrington, Jr., Executive Director, Americans for Effective Law Enforcement, Inc., on brief, for amicus curiae, Americans for Effective Law Enforcement, Inc. Before BOREMAN and BRYAN, Senior Circuit Judges, and CRAVEN, Circuit Judge. BOREMAN, Senior Circuit Judge: This is a civil action wherein the plaintiff, Mrs. Cornelius Cuthbertson Hill, seeks to recover compensatory and punitive damages from the defendants, police officers of the City of Charlotte, North Carolina. On August 18, 1969, Mrs. Hill, black, a 40-year old widow, was employed as a taxi-driver in Charlotte. At about 10 A.M. on that day, she parked her cab across from, and started across the street toward, an establishment known as “Mr. Fred's,” her purpose, as subsequently stated by her, being to arrange with the proprietor to have her shoes repaired at a later date. “Mr. Fred’s” had been under surveillance by the Charlotte police during the preceding week due to an informant’s tip that an illegal lottery was there being operated. On three separate days during the surveillance, and shortly after several other persons had entered and left, Mrs. Hill had been observed entering the premises, staying only one or two minutes, then returning to her taxi and driving away. At the moment of her arrival on the morning of August 18, Charlotte police officers, including defendants W. A. Rowland and B. S. Treadaway, who were inside the premises known as “Mr. Fred’s” executing a search warrant, had seized certain evidence of an illegal lottery and had arrested several persons present including the proprietor who was found with “tickets,” money and an adding machine on a table. Mrs. Hill testified that she had started across the street after parking her cab when she saw a policeman, not in uniform, who was a “boyfriend” of hers leaning across a car parked in front of her cab, and she spoke to him but he did not answer. Someone at that time, “was hollering something about don’t go there, or something.” Mrs. Hill “started back across the street to slap the hell out of him because he didn’t speak to me,” but was, she claimed, grabbed from behind by a white man who pushed her into “Mr. Fred’s.” She was not able to identify the person who had so pushed her and there was no evidence that the officers inside the premises being searched had any knowledge that her entry was involuntary or accomplished by force. Upon her entrance, officers Treadaway and Rowland recognized Mrs. Hill as the black female observed on previous occasions during the surveillance. According to his testimony, officer Treadaway had been told by a reliable informer that she was periodically “taking away the [lottery] tickets.” Mrs. Hill was officially placed under arrest by officer Rowland. Mrs. Hill was searched by a female police officer who was participating in the raid and who testified that she first identified herself as “Officer Gillespie.” No evidence of participation in a lottery was found on plaintiff’s person. A pistol, which was described as a “.38 special” and which she carried in a holster on her hip, was taken from her. Mrs. Hill testified: “And then she [the female officer] started unbuttoning my blouse. I had on a blue blouse and she started unbuttoning it down the front. And then I started cursing and reached for my gun . . . and they grabbed my gun because I was going to shoot anybody trying to take my clothes off.” The female officer denied searching the “upper portion of Mrs. Hill” and testified that the gun was confiscated prior to the search. Mrs. Hill was taken before a Magistrate at the recommendation of defendant Treadaway. Evidence was presented to the Magistrate but, at the request of Treadaway, no warrant was issued for her arrest and she was released. However, the police kept her pistol temporarily and required her to produce evidence of lawful ownership. She was released and upon her return with persuasive evidence of lawful ownership of the pistol it was delivered to her. Mrs. Hill instituted this suit in the district court against the several named defendants and advanced various theories of liability. The case ultimately went to the jury for a determination whether the arresting officers, Rowland and Treadaway, were liable to Mrs. Hill for (1) a violation of her civil rights under 42 U.S.C. § 1983, which violation assertedly arose from her warrantless arrest without probable cause, (2) false imprisonment, and (3) assault and battery, the latter two theories presented in plaintiff’s complaint under the common law of North Carolina. The jury found each defendant liable under the first two theories but not under the third, and further found Mrs. Hill entitled to recover damages in the amount of $2.50 from each of the two defendant officers for each wrong. Rowland and Treada-way prosecute this appeal, not because of the amount of damages awarded but, as they say, because of the principle involved. The issue is not unimportant. It concerns the standards by which police officers are to be governed and which they must observe and satisfy when making an arrest without a warrant if they are to avoid civil liability under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983. In their answer to the complaint, under “First Defense,” the police officers alleged a “good faith” defensé by stating: “ .' . . Plaintiff was temporarily detained in good faith by some police officers on suspicion of operating a lottery, with reasonable grounds and probable cause to do so.” Under “Motions” in their answer, the police officers additionally stated that they were acting upon reasonable grounds and probable cause while attempting to locate and arrest persons charged in warrants with criminal offenses. The defendants requested that the jury be instructed as follows: “4. The defense of good faith and probable cause is available to the defendants, and if you find that any defendant arrested the plaintiff, and that said defendant reasonably believed in good faith that the arrest was constitutional, then it would be your duty to render a verdict for the defendant even though the arrest was in fact unconstitutional.” This requested instruction was based upon Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), a case which arose under § 1983 and which concerned the standard of civil liability for arrests made under a law later held unconstitutional. The Court there stated: “We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.” 386 U.S. at 557, 87 S.Ct. at 1219. The district court refused to instruct the jury as requested for the stated reason that Pierson v. Ray “is not a pertinent authority in this case.” Instead, the court instructed the jury: “The standard for arrest without a warrant amounts, instead, to a requirement that the arresting officer have probable cause and this is an objective standard, not personal to the law enforcement officer, and this standard has been very succinctly expressed by the Supreme Court a few years ago in Beck against Ohio [379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)] as follows: Whether an arrest is constitutionally valid depends upon whether at the moment the arrest was made the officers had probable cause to make it, whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man to (sic) [in] believing that the petitioner had committed or was committing an offense, bearing in mind that as in the case of searches the warrant is the procedure of choice. “ . . . The basic question is not the rights of law enforcement officers nor what the attitude of this community is towards, or the feeling of people of this community towards arrests, but the question is whether as between the individuals here the circumstances gave these officers probable cause to believe that a violation of law was taking place by Mrs. Hill at the time she was arrested. And this is the simplest statement I know to make of the question, the first question you’ve got to decide. “The concept of probable cause is not a personal thing. We are not here trying any case whether the defendants are mean or not, whether they acted in good faith belief that what they were doing was correct. The standard which, as I read the constitution and the decisions, the standard which applies doesn’t challenge the good faith of the defendants. It simply asks you to decide whether under the circumstances, at the time of the arrest, a reasonably prudent man in their circumstances, knowing what they did, had probable reason or probable cause to believe that Mrs. Hill was then and there committing or had at that time committed a crime.” We think the lower court was in error in instructing the jury that the test of liability in this § 1983 action was the objective test of “probable cause” rather than the partly subjective test of the reasonable good faith belief of the police officers in the legality of the arrest. In Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2 Cir. 1972), the court reviewed the defense of good faith and probable cause which “[a]t common law the police officer always had available to him,” stating that such defense “has been consistently read as meaning good faith and ‘reasonable belief’ in the validity of the arrest or search. Restatement (Second) of Torts § 121(b) (1965); 1 Harper & James, The Law of Torts § 3.-18 at 277 (1956).” Bivens, supra, 456 F.2d at 1347. The court held that this defense was available to FBI and Federal Narcotic Agents in civil suits against them for damages for unconstitutional arrest or search. Since federal officers were the defendants in Bivens and were not purporting to act under color of a state statute, ordinance, regulation, custom, or usage, § 1983 was not directly involved. It is clear, however, that the Second Circuit thought the standards for federal and state officers should be the same, Bivens, supra, 456 F.2d at 1346-1347. judge Medina summarized in Bivens: “Therefore, to prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted. We think, as a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection.” 456 F.2d at 1348. We approve the holding in Bivens as reflected in the court’s opinion. We hold that the principles therein enunciated are applicable to the instant case. In her brief Mrs. Hill does not take issue with Bivens, but rather argues that the district judge complied with its requirements since he defined probable cause in terms of “reasonably trustworthy information” sufficient to satisfy a “prudent man” that a crime had been or was being committed. We do not agree. As Judge Lumbard so clearly explained in his concurring opinion in Bivens, 456 F.2d at 1348: “Thus there are two standards to be considered. The first is what constitutes reasonableness for purposes of defining probable cause under the fourth amendment for the protection of citizens against governmental overreaching. The other standard is the less stringent reasonable man standard of the tort action against government agents. This second and lesser standard is appropriate because, in many cases, federal officers cannot be expected to predict what federal judges frequently have considerable difficulty in deciding and about which they frequently differ among themselves. It would be contrary to the public interest if federal officers were held to a probable cause standard as in many cases they would fail to act for fear of guessing wrong. Consequently the law ought to, and does, protect government agents if they act in good faith and with a reasonable belief in the validity of the arrest and search.” We conclude that Judge Lumbard’s analytical statement with respect to standards applicable to federal law enforcement officers should be held to apply with equal force to state law enforcement officers. Bivens has recently been approved and applied by the Sixth Circuit in Jones v. Perrigan, 459 F.2d 81 (1972). And in Richardson v. Snow, 340 F.Supp. 1261 (D.Md.1972), the district court stated its views which we quote with approval as follows: “This court believes that the reasoning of the Second Circuit in Biv-ens, supra, is as valid and as applicable in actions under § 1983 involving state or local law enforcement officials as it is to federal law enforcement officers. As stated in Whirl v. Kern, 407 F.2d 781 at 790 (5 Cir. 1969), ‘An arrest is often a stressful and unstable situation calling for discretion, speed, and on-the-spot evaluation.’ To require the police officer, under penalty of personal liability for damages if he is in error, to make on-the-spot complex and intricate legal determinations of the existence or absence of probable cause under the Fourth and Fourteenth Amendments when the courts, acting in a more leisurely and relaxed atmosphere, have difficulty in making these decisions is to place the policeman in just such a position of acting at his peril as was declared to be intolerable in Pierson v. Ray, supra, 386 U.S. at 555, 87 S.Ct. at 1218. It is no answer to this intolerable burden to cite cases such as Beck v. Ohio, 379 U.S. 89, at 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), where a subjective good-faith test for actions of the policemen in an arrest was rejected since those cases deal with constitutional standards applicable to the admission of evidence in the trial of a criminal case rather than to the question of civil liability of a policeman who, in good faith and with a reasonable belief in the legality of his acts, has attempted to perform his duty to protect society. Such a distinction in this court’s view is entirely compatible with the balancing of the interest qf society in attempting to protect itself from the effects of criminal behavior and of the interests of the individual in the enjoyment of his constitutional rights.” 340 F.Supp. at 1266. In her complaint, and in addition to her claim of a cause of action under § 1983, plaintiff alleged that, on the facts as set forth by her, she had “a right to recover damages for false imprisonment, under the common law of the State of North Carolina.” At trial the defendants requested that the jury be instructed upon North Carolina statutory law governing arrest without a warrant, N.C.Gen.Stat. § 15-41 (1965 Repl.Vol.). The court did instruct the jury, in essence, as to the substance of subsection (1) of the statute but without any elaboration or explanation. The court then instructed the jury further: “[Plaintiff’s] contention also is that the defendants admitted on the spot that they had no basis to keep her and that, whether the original arrest was lawful or not, continued acts of false imprisonment took place, starting from the time they admitted they made a mistake and that everything that happened to her following her search there at the premises, the taking of her to the police station and subjecting her to identification and fingerprint procedures, the extended withholding of her property, that is, the pistol, that all of those things, even on the view of the case presented by the defendants, were unlawful and were violations of her rights, constitutional or otherwise. And on that phase of the question the Court charges you that the fact that somebody is under investigation does not justify his imprisonment and that if you believe the testimony of the defendants on that subject, that taking her to the police station and the other things that happened to her after that were done, such parts of that as you find were done by Mr. Rowland or were supervised or directed by Mr. Treadaway did constitute violations of her rights. This is without regard to what you might find about the lawfulness of the original arrest. “Now, with regard to the circumstances that occurred after the original arrest, here again, as the Court advised you a while ago, unless the original arrests were lawful, there could be no justification for doing the things that were done after she had been searched unless there remained as of the time of the search some reason to keep her, not just suspicion, not just investigation, but some continuing-legal reason within the standards that have been advanced, then there’s been no showing of any basis for her continued imprisonment and she would be entitled to recover for whatever damages she sustained by being taken to the police station and fingerprinted and kept and then having to go to the trouble of getting her gun back.” [Emphasis supplied] In addition to the confusion apparent in the charge as quoted immediately above the court made no attempt to discuss or clarify N.C.Gen.Stat. § 15-41 (1) as the court would interpret and apply it in the context of a civil action such as here involved. Although the “good-faith” issue was discussed at length by counsel and the court in relation to the constitutional question under § 1983, there is nowhere in the record to be found any argument or discussion as to the applicability of the “good-faith” defense to the action for false imprisonment under either the North Carolina statute or the common law. Independent investigation indicates the possibility that conflicting inferences might be drawn from existing authority. Cf. Perry v. Gibson, 247 N.C. 212, 100 S.E.2d 341 (1957), with Hicks v. Niven, 210 N.C. 44, 185 S.E. 469 (1936). In determining the proper disposition of this appeal there is an additional consideration. It is clear from the transcript of the trial proceedings, from the instructions of the trial judge, and from the issues as to liability as propounded to the jury, that the predominant issue at trial was the one presented under § 1983 and the members of the jury were given little or no information or instruction which would enable them mentally to separate successfully the issue of false arrest from the issue of false imprisonment. The court submitted to the jury the following questions as to each defendant, indicating that each question be answered categorically: Was the plaintiff denied due process of law by arrest without probable cause under the circumstances, or otherwise .... Was the plaintiff unlawfully arrested and deprived of her liberty .... The jury answered “Yes” to each question as to each defendant. The first question, it would seem, was designed to present for determination the issue arising under § 1983; the second, apparently, was intended to present for determination the issue of false imprisonment under North Carolina law. Without reference to the law of North Carolina we note that an improper or illegal arrest and a period of detention, of whatever length, may carry with it an implication of false imprisonment. The jury, in answering the second question in the affirmative, may have found that Mrs. Hill was falsely imprisoned due solely to the fact that they had determined that she was arrested without probable cause. The questions to be answered categorically reflect this situation. It would appear that if the first question were answered “Yes” the second could not be answered otherwise than in the affirmative. However, the determination in response to the first question above was made under improper instructions from the court. Thus we find it necessary to reverse and remand for a new trial as to both issues which were determined by the jury in favor of the plaintiff. Reversed and remanded. . “Mr. Fred’s” was a one-story shack of cheap construction. Mrs. Hill did not then have with her the shoes to be repaired. Shoe repair was not done at “Mr. Fred’s.” Mrs. Hill testified that the actual work was done “about a block down the street,” but that pick-up and delivery were accomplished at “Mr. Fred’s” since the repair man had another job and was not always at his shop. . The lottery was referred to during the trial and by the court in its charge to the jury as “numbers rackets” and “butter and eggs racket.” . Plaintiff testified that none of the officers said anything about who they were, and that she did not realize they were police officers until about 15 minutes after entering “Mr. Fred’s” when “a man took out some kind of radio and called for some police cars and that’s when 1 knew it was the police.” . The court expressly stated, “We believe this to be the same defense held applicable to cases arising under Section 1983. Pierson v. Ray, supra, 386 U.S. 547, 87 S.Ct. 1213 (1967).” 456 F.2d at 1347. . § 15-41. When officer may arrest without warrant. — A peace officer may without warrant arrest a person : (1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence.

f2d_474/html/1380-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAYUGA CRUSHED STONE, INC., Respondent. No. 240, Docket 72-1631. United States Court of Appeals, Second Circuit. Argued Dec. 20, 1972. Decided March 8, 1973. Roger Hartley, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., Washington, D. C., of counsel), for petitioner. James L. Burke, Elmira, N. Y., for respondent. Before MOORE, MULLIGAN and TIMBERS, Circuit Judges. MULLIGAN, Circuit Judge: The National Labor Relations Board has petitioned this court pursuant to Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C. § 160(e)), to enforce its order of February 23, 1972 (195 N.L.R.B. No. 108) against Cayuga Crushed Stone, Inc. (Cayuga). The Board affirming the Trial Examiner, found that Cayuga had violated Sections 8(a)(1) and (5) of the Act (29 U.S.C. §§ 158(a)(1) and (5)) by withdrawing recognition of the International Union of Operating Engineers, Local 545 and the International Brotherhood of Teamsters, etc., Local 65, as joint representatives of its employees, before a reasonable period of bargaining had taken place. As an alternative ground, the Board found that Cayuga had insufficient evidence upon which it could question the Unions’ representative status. Since the Board’s findings are based on substantial evidence, we grant enforcement of the Board’s order directing that Cayuga cease and desist from further violations, bargain with the Unions and post the usual notices of the proceedings. Cayuga is engaged in quarrying, crushing and selling crushed stone in South Lansing, New York. On March 29th and 30th, 1971, nine of thirteen employees constituting a concededly appropriate bargaining unit, signed union authorization cards. Eight of the employees designated the Operating Engineers and one the Teamsters as their representative for collective bargaining purposes. The Unions promptly advised Cayuga in a joint letter on March 30, 1971 that they represented a majority of the employees at the quarry in South Lansing and requested recognition as Bargaining Representative for the purpose of entering a collective bargaining agreement concerning wages, hours and working conditions. The Unions also filed a pétition dated April 5th with the Board requesting an election. By letter dated April 6th the Board notified Ca-' yuga of the petition. The letter advised Cayuga of its right to be represented by counsel, adverted to the right of its employees to election information and requested certain data from Cayuga. On April 6th or 7th, 1971, Mr. Besemer, Cayuga’s General Manager, met with representatives of the two Unions and although there was a refusal by the Unions to show the authorization cards to him, he accepted their majority representation and orally agreed to sign a recognition agreement. On April 9th, 1971, the agreement was executed. In essence, it provided that Cayuga recognized the two Unions as bargaining agents and agreed to commence negotiation of a collective bargaining agreement. Since Cayuga had agreed to recognize the Unions, Besemer told a Union representative to cancel the petition for certification. The Unions withdrew the petition and the Board advised Cayuga of this fact on April 15th. The parties met on April 12th, April 29th and May 18th discussing job classifications, pension plans and, at the last meeting, a 16 page contract presented by the Unions. Agreement was reached only on the question of the assignment of overtime work. A May 27th meeting was cancelled and it is undisputed that on or about June 1st, Cayuga determined to withdraw recognition of the Unions. Subsequent efforts by the Unions to communicate with Cayuga, including a further Union demand letter dated June 15th, proved unsuccessful. The alleged reason for the failure of Cayuga to continue negotiations was its belief that the Unions no longer represented a majority of the employees in the unit. Cayuga’s position that the Unions had lost majority support was primarily based on Besemer’s testimony that one employee, Rogers, had indicated that in his view a majority of the workers were not happy with the Unions. Rogers wrote to the Board stating: I and my fellow employees . do not have a Union. We find out [sic] that our boss has agreed to have the Teamsters and Engineers represent us. Most of us do not want this. Will you please send me forms so that we can send them in, and have an election. The Board responded by letter dated June 15th indicating that if the employer had recognized the Unions at a time when the Unions did not represent a majority of the employees they could file a charge: “If you feel there has been a violation of the Act, contact this office and you will be given assistance in filling out and filing of [sic] a charge.” Rogers showed his letter as well as the Board’s response to Besemer. On June 11, 1971, the Unions jointly filed an unfair labor practice charge, and the General Counsel issued a complaint against Cayuga on August 10, 1971. At the hearing held on October 5, 1971, the sole issue to be determined was whether or not Cayuga had refused to bargain in violation of Section 8(a) (5) of the Act. The Board found that Cayuga’s refusal, on June 15, 1971 and thereafter, to bargain at the Unions’ request constituted such a violation. We think the Board’s finding that Cayuga had in fact no reasonable basis to question in good faith the Unions’ majority status is amply supported by the record. (See NLRB v. Rish Equipment Co., 407 F.2d 1098, 1101 (4th Cir. 1969); NLRB v. Master Touch Dental Laboratories, Inc., 405 F.2d 80, 82-83 (2d Cir. 1968)). Rogers, the employee, admittedly could not speak for the majority of the members of the unit and his feeling that most of the members did not want the union, was in effect a personal reaction without any objective substantiation. After the issuance of the order here Cayuga did file a “Motion to Allow Submission of New Evidence” on April 21, 1972. The motion was based upon the receipt of a letter from all of the affected employees announcing that they all had second thoughts about signing the cards and “feel a Union could not help us at this time.” The Board treated the motion as one for reconsideration of the Decision and Order and denied it as lacking in merit. The Board cited Franks Bros. Co. v. NLRB, 321 U.S. 702, 705, 64 S.Ct. 817, 819, 88 L.Ed. 1020 (1944), for the proposition that “ ‘a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.’ ” There is no doubt that if the bargaining relationship between the employer and the Unions had been established by Board certification after an election, the representative status of the Unions absent unusual circumstances would be irrebuttably presumed to continue for one year and after that time the presumption could be rebutted. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). The Board has not fixed any period of mandated collective bargaining where uncertified unions are involved but has maintained that the employer must bargain for a reasonable time. Here the Board found that the three bargaining meetings lasting not more than ten hours, in a one month period, were not adequate. There is no doubt but that an election supervised by the Board which is conducted secretly and presumably after the employees have had the opportunity for thoughtful consideration, provides a more reliable basis for determining employee sentiment than an informal card designation procedure where group pressures may induce an otherwise recalcitrant employee, to go along with his fellow workers. It is further true that Justice Frankfurter in Brooks referred to the solemnity of the election and decertification process in approving the so-called “one year certification” rule of the Board. 348 U.S. at 99, 75 S.Ct. 176. The Court also recognized the fact that the one year rule was not applied by the Board or the courts either before or after the Taft-Hartley Act where the collective bargaining relationship was established by card check rather than a certification election. 348 U.S. at 101 n. 9, 75 S.Ct. 176. See also NLRB v. Gissel Packing Co., 395 U.S. 575, 598-599 & n. 14, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). There is, however, no intimation in the cases that a voluntary recognition after a card check designation, which admittedly creates a lawful bargaining status for the Unions, can be unilaterally disregarded before there has been an opportunity for a reasonable period of bargaining. The rationale of Brooks, as well as the holdings in other circuits in fact compel the conclusion that the Unions’ status must be recognized for a reasonable period despite the loss of majority employee support. From the record it appears that a majority of the employees had voluntarily signed cards which in unambiguous language designated the Unions as representatives for the purpose of collective bargaining. The employer had freely entered into an agreement recognizing the status of the Unions as bargaining agents. Both employer and employees were fully cognizant of their rights. Certainly the employer would have access to counsel who could have advised it of the right to demand an election if there was any question of lack of majority support. Having voluntarily determined that the Unions had a majority status which entitled them to recognition as the representatives of its employees and having foregone the right to request an election, we cannot accede to the proposition that the employer can now unilaterally determine that the Unions no longer represent a majority of the employees and refuse to bargain with them. It may well be that as of April, 1972, Cayuga did have a reasonable basis to determine objectively that the Unions had lost majority status. However, this was after almost a year of failure on the part of Cayuga to negotiate. While the Board here has not found that Cayuga has committed any other unfair labor practices, the refusal to bargain itself, except for a few preliminary meetings, erodes the status of the Unions and discourages union membership. Franks Bros. Co. v. NLRB, 321 U.S. 702, 704, 64 S.Ct. 817, 88 L.Ed. 1020 (1944). We agree that there is an interest in and policy in support of the principle that employees should have a freedom in selecting or rejecting bargaining representatives. However, as Brooks recognized, there is a competing interest in providing stability for bargaining relationships which have been lawfully established. While the procedures giving rise to recognition here were not clothed in the solemnities of an election, there is nothing suspect in the agreements which were freely chosen by the parties who voluntarily rejected the formal election proceedings. It is within the Board’s discretion to determine that the status thus created is entitled to some reasonable period of gestation rather than the abortion proposed. The Board has here been charged with the responsibility of accomplishing the purposes of the National Labor Relations Act and the determination to proceed by ordering bargaining for a reasonable time as well as determining what a reasonable time should be, is properly a decision for the Board and judicial intervention is not appropriate. See NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); cf. Brooks v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 99 L.Ed. 125 (1954). The order of the Board will be enforced. . The thirteen member unit consisted of all employees at Cayuga’s Portland Point plant, except clerks, guards and supervisors. . Cayuga which initially raised jurisdictional questions with respect to the appropriate determination of the time interval for measuring its annual interstate sales (i. e., most recent calendar year versus 12 months immediately preceding the hearing), has withdrawn its objection and concedes jurisdiction. See NLRB v. George J. Roberts & Sons, Inc., 451 F.2d 941, 944 (2d Cir. 1971). . See NLRB v. Frick Co., 423 F.2d 1327 (3d Cir. 1970); NLRB v. San Clemente Publishing Corp., 408 F.2d 367 (9th Cir. 1969); NLRB v. Montgomery Ward & Co., 399 F.2d 409 (7th Cir. 1968); NLRB v. Universal Gear Serv. Corp., 394 F.2d 396 (6th Cir. 1968). . In NLRB v. Gissel Packing Co., 395 U.S. 575, 591, 89 S.Ct. 1918, 1928 (1969) the Court noted the Board’s abandonment of the Joy Silk doctrine (Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949), enforced, 185 E.2d 732, 87 U.S.App.D.C. 360 (1950)) and sanctioned the new Board policy: When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union’s request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under § 9(c)(1)(B). . We note that this rule appears to be in accord with a general Board policy of protecting validity established bargaining relationships during their embryonic stages. See, e. g., Montgomery Ward, 62 L.R.R.M. 1642 (1966); Keller Plastics Eastern, Inc., 157 N.L.R.B. 583 (1966).

f2d_474/html/1385-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Paul GREEN, Defendant-Appellant. No. 72-1908. United States Court of Appeals, Fifth Circuit. March 13, 1973. Rehearing Denied April 9, 1973. Walter G. Arnold, Jacksonville, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., John J. Daley, Jr., Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-ap-pellee. Before GODBOLD, DYER and CLARK, Circuit Judges. DYER, Circuit Judge: Green appeals his conviction of unlawful possession of twenty-nine copper plates made in the similitude of a plate from which genuine obligations and securities of the United States are printed, with the intent to use the plates to counterfeit obligations of the United States, or any part thereof, in violation of 18 U.S.C.A. § 474. Prior to trial, Green moved to suppress all twenty-nine plates, on the ground that they were illegally seized during an unlawful search of his apartment. After hearing evidence on this issue, the trial court denied the motion. Green and the government then stipulated to waive a jury trial, and the case was tried before the district court judge. Green was found guilty as charged and received a five year suspended sentence. We affirm. . In the early afternoon of December 9, 1970, while Green was away, a fire broke out in his apartment on the ground floor of an apartment building in Jacksonville, Florida. Two fire trucks and a number of Jacksonville firemen responded to the alarm. Unable to determine the origin of the blaze, the Fire Chief requested the help of Henry Melzer, the Deputy Fire Chief and Deputy State Fire Marshal for the City of Jacksonville, whose principal duty was to investigate suspicious fires or fires of undetermined origin. By the time Melzer arrived at the scene, the fire had been suppressed. No one occupying the apartment was present, and at this time the occupant’s identity was unknown. Melzer began examining the scene, to determine the cause of the fire, which had been confined to the kitchen. Some of the woodwork was smudged, but the principal damage was to a pasteboard box on the floor that had been virtually reduced to ashes. Melzer briefly inspected the box and then made a tour of the apartment, looking for “hot spots” or other areas in the apartment that might be afire. After determining there were no other danger areas, Melzer returned to the kitchen to examine the box in which the fire seemed to have started in order to determine its cause. His procedure was to have a fireman remove each item in turn from the ashes for Melzer’s inspection. While engaged in this duty, fireman Lee discovered several metal plates and called Melzer’s attention to them. As one of the plates was removed others similar to it were disclosed underneath. The plate was some six to eight inches long and four inches wide, and Melzer noticed the image of a $20 Federal Reserve Note on it. Although Mel-zer was not an expert on counterfeiting, he had on previous occasions worked in cooperation with the Secret Service and was immediately able to tell that the plate was probably a counterfeiting plate. Wanting to alert the appropriate investigative agency, he called Secret Service Agent Varenholt. Melzer described the plate to Varenholt over the telephone and furnished him the address of the apartment. Before going to the apartment to examine the plates, Varenholt discussed the matter with his superior, and they determined not to seek a warrant for seizure of the plates. Whether this decision was based on the belief that they did not possess a sufficient description of the plates to obtain a warrant or on the belief that a warrant was unnecessary because the plates were already properly in the custody of a State officer is unclear. When Varenholt arrived at the apartment, the firemen and trucks were still on the scene. One of the firemen let him into the apartment. Entering the kitchen, Varenholt observed that several firemen were sifting through a large pile of ashes on the floor and placing them in a tub. Melzer handed Varenholt the plate that had already been removed from the ashes, and Varenholt determined on the basis of a quick inspection that it was capable of printing a counterfeit impression. After Varenholt half examined the first plate, the remaining twenty-eight plates were handed to him one by one, each being initialed first by fireman Lee as he removed it from the ashes and then initialed again by Varen-holt as he received it. In addition, a partial impression of the face of a $20 Federal Reserve Note was found amongst the plates. After Varenholt had completed his examination of the twenty-nine plates, he waited for the tenant to return to the apartment. Green had previously come to the apartment, just after Melzer had called Varenholt, but he was told by a fireman at the door that he could not enter while firemen were inside, and he departed. After Varenholt had taken custody of the plates, and while he was waiting for the occupant of the apartment to arrive, Melzer completed his investigation. He concluded that the fire was a result of spontaneous combustion, caused by a chemical reaction between the metal of the copper printing plates, some rags that had been in the box, and possibly cleaning fluid that may have been placed on the plates to preserve them. After Varenholt had waited in the kitchen for a short while, Green returned to the apartment. Varenholt advised him of his rights, and Green made a telephone call to his attorney. Varen-holt informed Green that he had probable cause to arrest him; however, because Green’s attorney assured Varen-holt that Green would surrender himself on the following morning, Varenholt did not arrest him at that time. Green’s argument on appeal is twofold. First, he contends that the twenty-nine plates should have been excluded from evidence because they, were the product of a warrantless invasion of his apartment in violation of the Fourth Amendment. Additionally, he claims that the evidence was insufficient to prove that he had the requisite statutory intent to use the plates found in his apartment for counterfeiting. We disagree. THE SEARCH OF GREEN’S APARTMENT AND THE SEIZURE OF THE COUNTERFEITING PLATES The essential Fourth Amendment issues before this Court are (1) whether the initial warrantless intrusion by the firemen and Melzer was justified; (2) if so, whether the discovery and seizure of the plates were accomplished by actions within the limited scope of the justification for the initial intrustion; and (3) if so, whether a federal officer, who is expert in identification of the type of suspected contraband discovered, must himself secure a warrant before he may enter the premises to confirm that the plates are contraband and to take custody of them when the plates are already legitimately in the- possession of a State officer. The fundamental facts determinative of the validity of the initial entry 'may be succinctly stated. Firemen entered an empty apartment in a multiunit apartment building to extinguish a fire and called the Deputy Fire Marshal when they, including the Fire Chief, could not determine its cause. Although Green concedes that an existing fire in an apartment building is an emergency of sufficient proportions to permit the prompt and warrantless entry of firemen to suppress it, he would require that Melzer have obtained a warrant before he entered to investigate the cause of the fire. The Supreme Court has had occasion to consider a question peripherally related to this in Camara v. Municipal Court, 1967, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and in See v. Seattle, 1967, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. Both eases involved the recurring issue of routine area inspections conducted in the interest of enforcing compliance with municipal building and fire safety codes without warrants. The Court concluded that such inspections were reasonable and consistent with legitimate governmental interest in the protection of the health and safety of the public, but required that any inspection of a particular premises as a part of such a routine area inspection be supported by a search warrant. However, the Court expressly limited this warrant requirement to the routine and general inspection of an entire area for the purpose of insuring general compliance with the safety codes involved- — i. e., in situations where no compelling reason exists necessitating the prompt inspection of a particular premises at a particular time. Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory small pox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle). On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. . Camara v. Municipal Court, 1967, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930. Unlike the area inspection, which does not focus on a particular premises and is conducted without reference to knowledge of a fire hazard at a given location, the investigation of an actual fire is logically and factually inseparable from the fireman’s job of suppressing the blaze. The ordinary fireman is not an expert in the cause of fires. He cannot determine, after he douses the blaze, whether the danger is past or merely hidden, awaiting only a fresh supply of oxygen to set it off again with perhaps disastrous results. A fire might have been caused by any of a myriad of conditions that would not be terminated by simply putting out the flame — e. g., a faulty appliance, defective or worn out electrical wiring, or careless storage of flammable materials. Where the existence of a gravely dangerous condition has already manifested itself in one fire, it would be the height of folly for the firemen to enter, suppress the flames, and leave the premises without assurance that they would not be required to return, perhaps within minutes, to do it all again. Critical to the Supreme Court’s imposition of the warrant requirement in Ca-mara and in See was the recognition that there is nothing in the nature of a routine area inspection that requires immediate entry into a particular structure in the area at a specific time. There is, however, such a necessity in the case of a fire. Until someone expert in the cause of fires arrives, inspects the scene, and determines that the fire has been completely extinguished, the firemen cannot reasonably depart. The imposition of a warrant requirement in such circumstances would immobilize the entire apparatus of fire protection. The absurdity of requiring the fire investigator to secure a warrant in order to search for the fire’s cause is self evident. In the case sub judice the district court correctly observed that “[ ascertaining the cause of the fire was necessary to assure that it was in fact totally extinguished and would not reoccur.” In short, Melzer’s entry was entirely reasonable and his search of the apartment necessitated by the exigencies of the circumstances. Clearly, this is not the type of investigation dealt with in Camara and See and, therefore, is not subject to the rule of those cases. The facts of the ease sub judice present a classic situation for application of the well established plain view doctrine. Melzer was lawfully present in Green’s apartment for the purpose of investigating the cause of the fire. Although without a warrant, his presence was justified by the emergency created by the fire which required prompt action to ensure the safety of the building and of its occupants. The plates seized were unexpectedly uncovered during Melzer’s examination of the box where the fire had apparently started — a course of action distinctly within the scope of the justification for his presence in the first instance. Finally, upon removal of the first plate from the ashes, with the consequent exposure of the others underneath, it was immediately apparent to Melzer that the plates were evidence of the cause of the fire, and his initial judgment was that the plates were for counterfeiting. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 466-471, 91 S.Ct. 2022, 29 L.Ed.2d 564; cf. United States v. Allen, 5 Cir. 1973, 472 F.2d 145; United States v. West, 5 Cir. 1972, 460 F.2d 374. Contrary to Green’s suggestion, the Fourth Amendment does not require that Melzer have halted his investigation once the first counterfeiting plate was uncovered and have obtained a search warrant before continuing. The activity that led to the discovery of the plates was within the scope of the justification for Melzer’s intrusion. Although Mel-zer, as we read the Florida law, had broad powers as a law enforcement officer to make arrests and seizures, his conduct in uncovering and seizing the plates did not exceed the necessary investigative procedures required for him to fulfill his duty as a fire marshal and to accomplish the limited purpose of determining the cause of the fire. Mel-zer’s procedures did not vary from the ordinary and necessary actions of the fire department in such emergencies. In the course of his investigation, it was incumbent upon him to sift the ashes of the box in which it was evident that the fire had been concentrated. In performing his duties as fire marshal, Melzer inadvertently found the metal plates which he determined had partially contributed to causing the fire. Unfortunately for Green, the plates also happened to be contraband. Nor was it necessary for Secret Service Agent Varenholt to have obtained a warrant before he entered the apartment to confirm that the plates were of such quality as to be suitable for printing counterfeit obligations and to take custody of them. As explained above, the apartment had already been lawfully entered and searched. Once Melzer unexpectedly came upon the contraband, he had the authority as a law enforcement officer to seize it. Moreover, he had the duty as a fire marshal to seize all evidence relevant to his investigation of the fire’s cause. Melzer certainly could have carried the plates to the fire station and sent them to the State crime laboratory or to the F.B.I. for chemical analysis. Likewise, he surely could have removed the plates and carried them to the Secret Service’s headquarters, or have handed them to Varenholt outside of the apartment.Thus, Varenholt cannot be constitutionally tripped up at the threshold that he stepped across to make his confirmation and to take custody of the plates from Melzer. The evidence is uncontroverted that this is all that Varenholt did. His conduct inside of the apartment demonstrates that he recognized and accepted the limited mission for which he was legitimately present. Varenholt never left the kitchen area, except once to use the telephone. The situation presented numerous unanswered questions to which a general exploratory search may have provided answers. Nevertheless, Varen-holt opened no doors and examined only the evidence given him by fireman Lee and marshal Melzer. The purpose of a search warrant is to ensure judicial authorization, in advance, of intrusions into constitutionally protected privacy. Where a lawful intrusion has already occurred and a seizure by a State officer has validly taken place as a result of that intrusion, the invasion of privacy is not increased by an additional officer, albeit a federal officer, who is expert in identifying the type of contraband discovered, to enter the premises to confirm the belief of the State officer and to take custody of the evidence. Once the privacy of a dwelling has been lawfully invaded, to require a second officer from another law enforcement agency arriving on the scene of a valid seizure to secure a warrant before he enters the premises to confirm that the seized evidence is contraband and to take custody of it is just as senseless as requiring an officer to interrupt a lawful search to stop and procure a warrant for evidence he has already inadvertently found and seized. Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed. 1067. The apparent conflict between the Constitution and common sense which the plain view doctrine has reconciled is the same misconception which we here seek to dispel. See Mapp v. Ohio, 1961, 367 U.S. 643, 647, 81 S.Ct. 1684, 6 L.Ed.2d 1081. THE EVIDENCE OF UNLAWFUL INTENT Green also argues that there was no substantial evidence that he had the unlawful intent to use the plates found in his apartment for counterfeiting. We find this contention frivolous. Green completely ignores the fact that a partial impression of the face of a $20 Federal Reserve Note was found amongst the plates. Additionally, 18 U.S.C.A. § 474 only requires that one have the intent to use the plates to counterfeit “any part” of an obligation or security of the United States. While this evidence is circumstantial, by its very nature evidence of intent is virtually always circumstantial. Moreover, a careful review of the record convinces us that the evidence was more than sufficient to justify and support the district court’s guilty verdict. Affirmed. . In a technical sense, the State of Florida has not had any Deputy Fire Marshals since 1969, when, in a comprehensive revision of the State Code, the Florida legislature transferred fire prevention duties from the State Treasurer to the newly created Department of Insurance and abolished the title “Deputy Fire Marshal.” “Deputies” thenceforth became known as “agents” of the Department of Insurance but retained all the powers and duties of their former offices, Fla.Laws 1969, ch. 69-106 and Chiefs of fire departments are ex officio agents of the State Fire Marshal. Fla.Stat.Ann. § 633.121. . Fla.Stat.Ann. § 633.14 provides: Agents of the state fire marshal shall have the same authority to serve summonses, make arrests, carry firearms and make searches and seizures, as the sheriff or his deputies, in the respective counties where such investigations, hearings, or inspections may be held; and affidavits necessary to authorize any such arrests, searches or seizures may be made before any magistrate having authority under the law to issue appropriate processes. . Fla.Stat.Ann. § 633.03 provides: The state fire marshal shall investigate the cause, origin, and circumstances of every fire occurring in this state wherein property has been damaged or destroyed where there is probable cause to believe that the fire was the result of carelessness or design. Report of all such investigations shall be made on approved forms to be furnished by the fire marshal.

f2d_474/html/1391-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

BROADVIEW CHEMICAL CORPORATION, Plaintiff-Appellant, v. LOCTITE CORPORATION, Defendant-Appellee. No. 383, Docket 72-1955. United States Court of Appeals, Second Circuit. Argued Feb. 20, 1973. Decided March 13, 1973. See also, D.C., 53 F.R.D. 353. Granger Cook, Jr., Chicago, Ill. (David A. Anderson, James P. Hume, Hume, Clement, Hume & Lee, Ltd., Chicago, Ill., of counsel), for plaintiff-appellant. Walter D. Ames, Washington, D. C. (James H. Marsh, Jr., Watson, Cole, Grindle & Watson, Washington, D. C., and J. Rodney Reck, Newington, Conn., of counsel), for defendant-appellee. Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges. MULLIGAN, Circuit Judge: This is an appeal by Broadview Chemical Corporation (Broadview) from a judgment of the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Chief Judge, filed on May 10, 1972, declaring that certain anaerobic sealant compositions developed by Broadview do not infringe certain patents owned by the appellee, Loctite Corporation (Loctite). The judgment of the district court is affirmed. Although Broadview commenced this action under the Declaratory Judgment Act, 28 U.S.C. § 2201, and succeeded in obtaining an adjudication of non-infringement, its appeal urges that the judgment entered below was erroneous since it was unnecessarily limited in failing to specify why there was no infringement and also in failing to adjudicate that the Loctite patents in question were invalid. We are advised that an understanding of the precise mechanism by which anaerobic sealants function, is not important to the issues on appeal. This of course is a source of deep regret and disappointment but we shall proceed in any event to the non-chemical aspects of the appeal. I The parties to this litigation are hardly strangers to the judicial process. On June 1, 1964 Broadview first filed an action in the District Court of Connecticut seeking a declaratory judgment that the Loctite patents in question were invalid and not infringed by some 32 separate compositions manufactured by Broad-view functioning as anaerobic sealants. This action was terminated by a settlement and the parties thereafter entered into a Consent Decree filed on February 15, 1967, in which Broadview admitted that the Loctite patents were valid and that it had infringed them. On September 21, 1967 Loctite moved to punish Broadview for contempt for violating the Consent Decree by manufacturing and marketing another line of sealant compositions. After trial, Chief Judge M. Joseph Blumenfeld found Broadview to be in contempt for infringing certain Loctite patents. On appeal this Court affirmed the District Court’s finding of contempt for all but two of the Broad-view formulations and remanded the case for further proceedings. Broadview Chem. Corp. v. Loctite Corp., 406 F.2d 538 (2d Cir.), cert. denied, 394 U.S. 976, 89 S.Ct. 1472, 22 L.Ed.2d 755 (1969). Judge Blumenfeld then filed an order on May 10, 1969 enjoining Broad-view from infringing the Loctite patents in suit and further providing that for each violation of this order or the Consent Decree of February 15, 1967, the violator would be bound to pay Loctite $2000.00. Even before the injunction issued, Broadview instituted the present declaratory judgment action seeking an adjudication that certain new anaerobic sealant compositions (KBK) did not infringe the Loctite patents. Judge Blu-menfeld dismissed the cojnplaint and this Court reversed (Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998 (2d Cir. 1969), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970)) finding that there was an existing justiciable controversy and not a moot or academic dispute. This assessment of justiciability by Judge Waterman based in part on the prior history of litigation between the parties, has been more than justified by subsequent events. On'remand Broadview filed an amended complaint on May 11, 1970 seeking a judgment of non-infringement not only with respect to the KBK compositions but also with respect to new (Manaka) compositions. At this point a rash of motions ensued with Broadview arguing that Loctite was unnecessarily delaying an opinion on infringement and Loctite urging that Broadview had added still another formulation (Manaka II) not within the amended complaint. We see no reason to detail the bitter legal exchanges which transpired. Suffice it to say that Loctite gradually, albeit grudgingly, admitted to the non-infringement of its patents as evidenced by a judgment in part entered on June 30, 1971, a judgment in part entered on March 1, 1972 and a final judgment entered on May 10, 1972. In sum, the judgments declare that specified KBK and Manaka sealant compositions of Broadview do not infringe the Loctite patents in suit. It would seem to be undisputed that the entire KBK and Manaka lines submitted by Broadview have been held not to be infringing and that at long last total victory had been achieved. II Broadview claims however that its victory here is Pyrrhic and urges that the court below committed error in failing to include in its judgment that the Broadview formulations do not infringe because they do not employ monomers, inhibitors, initiators and accelerators of the type covered by the claims of the Loctite patents in suit. Broadview now seeks a remand instructing the District Court to enter a judgment detailing the reasons why the patents in issue are not infringed by Broadview’s manufacture or sale of anaerobic sealants made in accordance with either the KBK or Manaka formulations. Appellant cites no authority for the proposition that greater specificity is required in a judgment of this character. The evaluation of non-infringement made by Loctite which Broadview had sought by motion and strenuously sought to expedite was eventually accepted by the Court and vindicated the Broadview formulations. Broadview’s real concern here in our view is that Loctite has sent a letter to its dealers in which it states that although Broadview has submitted certain products which were non-infringing, they were laboratory samples and “we do not know whether they can be used commercially.” The Loctite letter further indicated that it would monitor the Broadview sealants to determine whether their commercialized products infringe the Loctite patents. The letter is authored by Lo'ctite’s Market Manager and its tenor is typically sales oriented exhorting its dealers to stand fast and remain loyal to the Loctite product. It is undisputed that the principal purpose of a declaratory judgment is to clarify and settle disputed legal relationships and to relieve uncertainty, insecurity and controversy. E. Borchard, Declaratory Judgments 299 (2d ed. 1941). The judgment herein our view did clarify and determine the disputed jural relationship. Although the declaratory judgment is a highly commendable and civilized remedy having its genesis in the equitable writs of Quia Timet and Bills of Peace, it is not a panacea and it cannot effectively terminate business frictions any more than it can harmonize personal relationships. See Baumann v. Baumann, 250 N.Y. 382, 165 N.E. 819 (1929). The non-infringement of the formulations in question has been adjudicated but the competition between the parties continues in the market place and it should not be the province of the federal court to act as a continuing monitor or arbiter of the sales claims which either may make. In view of the acrimony which has marked the relationship between the parties for the past nine years, it is questionable whether any declaratory judgment no matter what its contents, will eliminate the ill will which permeates the relationship here. We see no reason to disturb the judgment in the form adopted by the trial court. Ill Broadview’s second argument on appeal is that the court below erred in refusing to hold the Loctite patents invalid. Broadview sought no declaration of invalidity in the complaint or amended complaint below. Broadview simply sought a declaration of non-infringement. There was a motion made to amend the complaint to challenge validity “in the event that Loctite charges that any of such patents are infringed.” However there was no charge of infringement. While the Supreme Court has indicated that it is the better practice for lower courts in infringement suits, to inquire into the validity question, Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 S.Ct. 1143, 89 L.Ed. 1644 (1945), this has not been construed as a peremptory direction but rather a matter of the trial court’s discretion. Thus, where there has been a disclaimer of infringement and the trial court has not adjudicated the issue of validity, this Court need not rule on the question. See McCurrach v. Cheney Bros., 152 F.2d 365 (2d Cir. 1945). Broadview’s sole basis for urging invalidity is the difficulty Loctite encountered in determining whether or not there had been infringement. Assuming arguendo that this is a proper basis upon which invalidity may be established (see Corning Glass Works v. Anchor Hocking Glass Corp., 253 F.Supp. 461 (D.Del.1966), rev’d, 374 F.2d 473 (3d Cir.), cert. denied, 389 U.S. 826, 88 S.Ct. 65, 19 L.Ed.2d 80 (1967)) (a proposition we express no view upon) there is nothing here to establish that the delay or difficulty was of such character. Surely this must depend upon the intricacies and inherent complexities of the invention as well as the number of formulations submitted for analysis and report. Appellant indeed sought a declaration of invalidity as a sanction for Loetite’s alleged dilatory tactics in making the requested evaluation. We cannot determine how much the delay was due to the difficulty in making the tests and how much was prompted by Loctite’s reluctance to finally admit defeat. We finally are faced with the Consent Decree of February 15, 1967 in which the parties to this appeal solemnly agreed that the patents in issue were valid and had been infringed. Does this decree estop Broadview from questioning the validity of the Loctite patents? This question has been decided in this Court in Addressograph-Multigraph Corp. v. Cooper, 156 F.2d 483, 485 (2d Cir. 1946), where we said: [W]e think on grounds of public policy we ought to rule that in a decree, at least in one entered by consent, either an adjudication of infringement, or a grant of some relief from which infringement may be inferred, is essential before any effect of res judica-ta can be given to it on the issue of validity. In that case there was no adjudication of infringement and no res judicata effect was given to the decree. Here of course infringement was adjudicated and the decree recited that Broadview had made a monetary payment for infringement. Appellant urges that Addressogrwph is no longer good law in view of the holding of the Supreme Court in Leaf, Inc. v. Adkins, 395 U.S. 653, 670-671, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), that a licensee is not estopped from questioning the validity of a patent which he recognized in the license agreement. Appellant cites no authority for this extension of Lear to the consent decree cases where there has been a prior adjudication of infringement. Business Forms Finishing Serv., Inc. v. Carson, 452 F.2d 70 (7th Cir. 1971), relied upon by appellant does not repudiate Addressograph but relies on the distinction made there and where there was no finding of infringement, it was held that there was no estoppel to challenge validity. The only other post Lear appellate case we have found is Schnit-ger v. Canoga Elec. Corp., 462 F.2d 628 (9th Cir. 1972), which squarely holds that a prior decree finding infringement and validity is res judicata in a subsequent declaratory judgment action. In light of the record before us which fails to establish any pleading or proof of invalidity, we see no warrant here to extend Lear or to overrule Addresso-graph. We would conclude with the hope that the parties, who have been locked in almost continuous litigation for nine years with four appeals to this Court, will return to their laboratories instead of their lawyers’ offices so that more and better anaerobic sealants might be made available to the public. We have grave doubt, however, that any Pax Anaerobia will ensue. Affirmed. . We do note, however, that on September 16, 1971 this Court affirmed without opinion a determination by the District Court that the Manaka II compositions were within that court’s jurisdiction. A petition for rehearing was denied on October 13, 1971 and the Supreme Court denied a petition for writ of certiorari on February 22, 1972 (405 U.S. 920, 92 S.Ct. 949, 30 L.Ed.2d 790). . On the other hand we recognize that district courts have broad discretion in moulding their decrees to fit the circumstances of the particular case. See E. Borchard, Declaratory Judgments 296 (2d ed. 1941).

f2d_474/html/1396-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNION WATER SUPPLY CORPORATION OF GARCIASVILLE, a Texas non-profit corporation, et al., Plaintiffs-Appellants, v. O. F. DENT and Joe D. Carter et al., Defendants-Appellees. No. 72-2833. United States Court of Appeals, Fifth Circuit. March 7, 1973. Rehearing Denied April 11, 1973. Ed Idar, Jr., Mexican-Am. Legal Def. & Educational Fund, San Antonio, Tex., John A. Pope, Jr., Rio Grande City, Tex., Anthony Ching, Loyola School of Law, Los Angeles, Cal., Howbert A. Steele, Tex. Rural Legal Aid, Inc., Pharr, Tex., George J. Korbel, San Antonio, Tex., B. R. Stewart, Edinburg, Tex., for plaintiffs-appellants. Crawford C. Martin, Atty. Gen., Houghton Brownlee, Jr., Roger Tyler, Asst. Attys. Gen., Timothy L. Brown, Chief Examiner, Tex. Water Rights Commn., Milford Lee Hall, Asst. Chief Examiner, Austin, Tex., for defendants-appellees. Neal King, Mission, Tex., for Cameron County Water Control & Improvement Dist., No. 19, etc., amicus curiae. Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges. PER CURIAM: Appellants Union Water Supply Corporation and others suing individually and on behalf of the class they represent appeal from an order entered in the United States District Court for the Southern District of Texas dismissing their claims and lifting a temporary restraining order formerly imposed by the Court. The lower court found the issues sought to be adjudicated by appellant Union Water Supply res judicata and that the individual Appellants lacked standing to question the constitutionality of the Wagstaff Act. After carefully reviewing the record we perceive no error and therefore affirm based upon the lower court’s opinion. Union Water Supply Corporation v. Vaughan, 355 F.Supp. 211 [S.D.Tex.]. Affirmed.

f2d_474/html/1396-02.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LARDNER ELEVATOR COMPANY, Respondent. No. 72-2005. United States Court of Appeals, Sixth Circuit. March 5, 1973. Peter G. Nash, General Counsel, Patrick Hardin, Associate General Counsel, Marcel’ Mallet-Prevost, Asst. General Counsel, John D. Burgoyne, Jane P. Schlaifer, Attys., N. L. R. B., Washington, D. C., for petitioner-appellant. Cotiechio, Zotter & Sullivan, by W. J. Zotter, Detroit, Mich., for respondent-appellee. Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges. ORDER. This case came on to be heard before a panel appointed pursuant to Rule 3(e) of this Court. The case is before the Court on the application of the National Labor Relations Board for enforcement of its order, issued June 26, 1972, against the respondent company. Reference is made to the Board’s decision and order, reported at 197 NLRB No. 145, for a detailed recitation of the facts. The Court concludes that it is manifest that the questions on which the decision of the Court depends are so unsubstantial as not to need further argument within the contemplation of Rule 8 of the rules of this Court. We find that the decision of the Board is supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It is ordered that enforcement be granted. . “(e) Docket Control. In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 7(e), 8 or 9 or any other rule of this court.”

f2d_474/html/1397-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Thomas E. PAINE et al., Plaintiffs-Appellees, v. BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM et al., Defendants-Appellants. No. 72-2871. United States Court of Appeals, Fifth Circuit. March 9, 1973. Crawford C. Martin, Atty. Gen. of Tex., W. 0. Shultz, II, Asst. Atty. Gen., Austin, Tex., for defendants-appellants. James R. Weddington, Austin, Tex., for plaintiffs-appellees. Before JONES, GODBOLD and IN-GRAHAM, Circuit Judges. PER CURIAM: We are in agreement with the well considered memorandum opinion of the district court, Paine et al. v. Board of Regents of University of Texas System et al., 355 F.Supp. 199 (W.D.Tex., 1972), and its judgment is affirmed.

f2d_474/html/1397-02.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

BAY SOUND TRANSPORTATION CO. et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 72-3208. United States Court of Appeals, Fifth Circuit. April 12, 1973. Rehearing and Rehearing En Banc Denied June 28, 1973. John A. Bailey, Houston, Tex., Benjamin W. Yancey, New Orleans, La., for plaintiffs-appellants. Scott P. Crampton, Asst. Atty. Gen., William S. Estabrook, Charles Barnett, Attys., Tax Division, Dept, of Justice, Washington, D. C., James R. Gough, Asst. U. S. Atty., Anthony J. P. Farris, U. S. Atty., Robert G. Darden, Asst. U. S. Atty., Houston, Tex., Myron C. Baum, Chief, Refund Trial Section No. 2, Meyer Rothwacks, Chief, Appellate Section, U. S. Dept, of Justice, Tax Division, Washington, D. C., for defendant-appel-lee. Before BELL, INGRAHAM and RO-NEY, Circuit Judges. PER CURIAM: We affirm on the basis of the well reasoned memorandum opinion of the district court, Bay Sound Transportation Co. v. United States of America, 350 F.Supp. 420 (S.D.Tex., 1972). The case received comprehensive treatment in the district court and we are unable to perceive error. Affirmed.

f2d_474/html/1398-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Eugene VENABLE, Defendant-Appellant. No. 72-3162 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 9, 1973. Harry H. Root, III, Tampa, Fla. (Court-appointed), for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Ronald H. Watson, Asst. U. S. Atty., Tampa, Fla., 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: The defendant, Joseph E. Venable, appeals from his conviction for interstate transportation of a stolen motor vehicle and for selling a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. §§ 2312, 2313, and 2. The appellant’s trial counsel, having concluded that there is no meritorious basis for the appeal, has moved to withdraw as counsel on appeal and has supplemented his motion with a brief, in compliance with Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The appellant has been advised by the Court of his right to respond to counsel’s motion by raising any points he contends are appealable. The appellant has failed to raise any such points. Having carefully reviewed the entire record, which includes the full trial transcript, we find no arguable merit in the appeal. Accordingly, we grant counsel’s motion to withdraw and dismiss the appeal under Local Rule 20. United States v. Mills, 5 Cir. 1971, 446 F.2d 1397; United States v. Minor, 5 Cir. 1971, 444 F.2d 521; Lemus v. Government of the Canal Zone, 5 Cir. 1971, 443 F.2d 23. Dismissed.

f2d_474/html/1398-02.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

In re Willie Mae Anderson, Bankrupt. Willie Mae ANDERSON, Appellee, v. UNIVERSITY OF TENNESSEE, Appellant. No. 72-2022. United States Court of Appeals, Sixth Circuit. Argued April 2, 1973. Decided April 4, 1973. Francis W. Headman, Knoxville, Tenn., for appellant. Harry J. Bryant, Knoxville, Tenn., for appellee. Before PECK, McCREE and LIVELY, Circuit Judges. ORDER This appeal having come on to be considered on the record on appeal and on the briefs and oral arguments of counsel for the parties, and the Court having been fully advised in the premises having concluded that the case was correctly decided for the reasons set forth in the opinion of District Judge Robert Taylor (345 F.Supp. 840), It is ordered that the judgment of the District Court be and it hereby is affirmed.

f2d_474/html/1399-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Vivien KELLEMS, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 402, Docket 72-2122. United States Court of Appeals, Second Circuit. Argued April 13, 1973. Decided April 4, 1973. David R. Shelton, Washington, D. C., for appellant. Stephen Schwartz, Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-wacks, Leonard J. Henzke, Jr., Tax Div., Dept, of Justice, Washington, D. C.), for appellee. Before KAUFMAN, ANDERSON and OAKES, Circuit Judges. PER CURIAM: The judgment is affirmed on the basis of the Tax Court’s opinion below, 58 T.C. 556. We find Moritz v. Commissioner, 469 F.2d 466 (10 Cir. 1972), cited to us by appellant, to be inapposite.

f2d_474/html/1399-02.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Janell GUERRA et al., Plaintiffs-Appellants, v. Preston H. SMITH et al, Defendants-Appellees. No. 71-2857 United States Court of Appeals, Fifth Circuit. April 10, 1973. Mario O bledo, Mexican American Legal Defense & Educational Fund, San Francisco, Cal., Pete Tijerina, San Antonio, Tex., Alan Exelrod, Michael Men-delson, San Francisco, Cal., for plaintiffs-appellants. Stephen D. Sugarman, Los Angeles, Cal., Arthur Gochman, San Antonio, Tex., for amicus curiae. Crawford C. Martin, Atty. Gen. of Tex.; Pat Bailey, Asst. Atty. Gen., Austin, Tex., for defendants-appellees. Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges. PER CURIAM: Affirmed. See San Antonio Independent School District v. Rodriguez, -U.S.-, 93 S.Ct. 1278, 36 L.Ed.2d 16, decided March 21, 1973.

f2d_474/html/1400-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Kenneth KELLNER, Appellee, v. Leonard R. SAYE, Appellant. No. 71-2571. United States Court of Appeals, Ninth Circuit. April 2, 1973. Morton Galane (argued), Miriam Shearing, Las Vegas, Nev., for appellant. R. L. Gilbert (argued), Morrill, Neb., John H. Pilkington, Morris, Walker & Pilkington, Las Vegas, Nev., for appel-lee. Before CHAMBERS and BROWNING, Circuit Judges, and KELLEHER, District Judge. Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation. PER CURIAM: This jury case is here on appeal from a judgment entered after the granting of motions for directed verdicts. We are satisfied that the trial judge applied the proper rule and had before him a proper record upon which to take the case away from the jury and to decide in appellee’s favor. See Kellner v. Saye, 331 F.Supp. 846, 851 (D.Nev. 1971). The judgment is affirmed.

f2d_474/html/1400-02.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. John Francis HOLLY, Appellant. No. 71-1870. United States Court of Appeals, Fourth Circuit. Submitted Feb. 23, 1973. Decided April 9, 1973. Norman N. Yankellow, Baltimore, Md., on brief for appellant. Stephen H. Sachs, U. S. Atty., and Francis S. Broeato, Asst. U. S. Atty., on brief for appellee. Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges. PER CURIAM: This appeal comes before us on a motion by the Government to dismiss or, in the alternative, for summary affirmance. Upon consideration of the record and the brief filed by the appellant we find no error sufficient to warrant or command reversal. Therefore, we dispense with oral argument and grant the motion of the Government to dismiss the appeal.

f2d_474/html/1401-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

TORO MANUFACTURING CORPORATION, Appellant, v. The GLEASON WORKS, Appellee. Patent Appeal No. 8918. United States Court of Customs and Patent Appeals. March 29, 1973. Thomas A. Lennon, Minneapolis, Minn., attorney of record, for appellant. William K. West, Jr., William T. Bul-linger (Cushman, Darby & Cushman), Washington, D. C., for appellee; Morton A. Polster, Rochester, N. Y., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and ALMOND, Senior Judge. ALMOND, Senior Judge. This is an appeal from the decision of the Trademark Trial and Appeal Board dismissing the opposition of the Toro Manufacturing Corporation to an application of The Gleason Works to register “TOROID” for gears, gear cutters and blades or blade segments for such cutters, asserting first use as July 15, 1966. 167 USPQ 315 (1970). The record reveals that Toro Manufacturing Corporation, appellant-opposer, is the owner of a plurality of registrations of “TORO” for grass cutting machinery, such as engines for power lawn mowers, self-propelled power plants for pulling lawn mowers, hand mowers, and self-contained power mowers, automo-tive vehicles, namely, turf tractors, golf cars, utility cars, and motorized golf carts and snow plows. Inasmuch as appellant’s pleaded registrations antedate appellee’s date of first use, the sole issue for determination is whether or not appellee’s mark so resembles that of appellant as to be likely, when applied to its goods, to cause confusion or mistake or to deceive within the purview of 15 U.S.C. § 1052(d). The Trademark Trial and Appeal Board, one member dissenting, held that: * * * “TORO” and “TOROID”, both of which are words of the English language, do not look or sound very much alike, and the several meanings thereof are not the same. While it is true, as stressed by opposer, that applicant’s mark includes the word “toro”, it is in no way emphasized therein, and, under the circumstances of this case, it is our opinion that this factor is not calculated to cause confusion or mistake or to deceive were these marks to be used for the specified goods. [Citations omitted.] We affirm. In so doing, it is pertinent to point out that the goods of the parties are distinctly different and noncompetitive. TOROID is for gears, gear cutters and blades used in consonance therewith, while TORO covers grass cutting machinery, automotive vehicles and snow plows. The respective goods, therefore, are entirely dissimilar and commercially unrelated. There is no indication of record that the TORO mark is used on gears and, although appellant contends otherwise, we are not persuaded that there is likelihood of confusion merely because appellant’s lawn mowers and other goods sold under the TORO mark contain gears. The decision of the board is affirmed. Affirmed. . Reg.No.529,845 issued August 29, 1950. . Reg.Nos.755,846 and 755,847, both issued September 3, 1963. . Reg.No.808,442 issued May 17, 1966.

f2d_474/html/1402-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

CONSOLIDATED CIGAR CORPORATION, Appellant, v. M. LANDAW LIMITED, Appellee. Patent Appeal No. 8888. United States Court of Customs and Patent Appeals. March 29, 1973. William R. Liberman, New York City, of record, for appellant. J. W. Gipple, Fleit, Gipple & Jacobson, Washington, D. C., of record, for appel-lee. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Associate Judges, and ALMOND, Senior Judge. ALMOND, Senior Judge. This is an appeal from the decision of the Trademark Trial and Appeal Board, 167 USPQ 372 (1970), involving the application of M. Landaw Limited, appel-lee, to register “LITTLE DUTCHMAN” for cigars, asserting first use in 1963, and the opposition thereto by Consolidated Cigar Corporation, appellant, registrant of marks consisting of or comprising the term “DUTCH MASTERS” for cigars. Inasmuch as appellant’s registrations long antedate appellee’s application and the goods of the parties are identical in kind, the board considered the sole issue to be whether or not the resemblances between the marks in issue are such as would be likely to cause confusion or mistake or to deceive within the purview of 15 U.S.C. § 1052(d). In dismissing the opposition, the board held that the contemporaneous use of the marks is not likely to cause confusion or mistake or to deceive inasmuch as LITTLE DUTCHMAN and DUTCH MASTERS do not look or sound alike and create different mental impressions. Appellant argues, with merit we think, that the board erred in deciding that if the mark LITTLE DUTCHMAN were to be used on products identical with those on which DUTCH MASTERS Has been used for more than forty years, confusion, mistake or deception was “not at all likely.” A weighty aspect is the undisputed fact that appellant alone owns and has used a mark incorporating the word “Dutch” in the cigar field. We think this long, uninterrupted use must have made a strong impression on the cigar-smoking public. To those who habitually call for DUTCH MASTERS, the appearance of LITTLE DUTCHMAN cigars at the vending source would more than likely connote and convey the impression that they derive from the same source, thus causing confusion, mistake or deception. It is to be observed that the more prominent part of appellant’s mark is the word “DUTCH.” Similarly, the word “DUTCH” forms, in our view, the most prominent part of appellee’s mark. When DUTCH MASTERS is compared with DUTCHMAN, we think there is little doubt that the conclusion most likely to be drawn is that they designate different cigars from the same source. The inclusion of the word “LITTLE” in appellee’s mark does not alter this view. The word itself is descriptive and alone has no trademark significance. Therefore, the composite mark LITTLE DUTCHMAN viewed in its entirety, we think, suggests that it designates a cigar, perhaps a small or mild one, emanating from the same source as the DUTCH MASTERS cigar. This is a sufficient basis for denying registration of appellee’s mark. See Mead Johnson & Co. v. American Home Products Corp., 461 F.2d 1381, 59 CCPA 1082 (1972). In light of the facts and circumstances revealed by this record, we are of the opinion that the board committed reversible error in holding that the contemporaneous use of the marks in issue is not “at all likely to cause confusion or mistake or to deceive.” In our view, contemporaneous use would be likely to cause confusion, or to cause mistake, or to deceive. The decision of the board is reversed. Reversed. . Reg. Nos. 232,114 issued August 30,1927 and 502,797 issued October 12, 1948.

f2d_474/html/1403-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

AMF INCORPORATED, by change of name from American Machine & Foundry Co., Appellant, v. AMERICAN LEISURE PRODUCTS, INC., assignee by merger and change of name of Goldfish Sailboat Co., Inc., Appellee. Patent Appeal No. 8920. United States Court of Customs and Patent Appeals. March 22, 1973. Walter Lewis, Chicago, Ill., atty. of record, for appellant. Dos T. Hatfield, Washington, D. C., of counsel. Howard E. Moore, Dallas, Tex., atty. of record, for appellee. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Associate Judges. ALMOND, Senior Judge. This appeal is from the decision of the Trademark Trial and Appeal Board dismissing opposition to the application by American Leisure Products, Inc., to register the mark reproduced below for sailboats based on use since October 6, 1967. Appellant’s opposition was based on its ownership of the registered marks for sailboats SAILFISH SPORTABOUT and fish design, ALCORT SUNFISH, ALCORT CATFISH, FLYING FISH, and the following design mark: Appellant asserts that there is actual and likelihood of confusion between its marks, considered individually or as a family of fish names and fish design marks for sailboats, and that sought to be registered by appellee. Both parties took testimony and introduced various exhibits into evidence. On this appeal there is no issue as to priority and appellee conceded that the sailboat sold under the trademark GOLDFISH is similar in appearance and design to appellant’s SUNFISH boat. The question to be resolved is whether, within the meaning of § 2(d) of the Trademark Act (15 U.S.C. § 1052(d)), appellee’s mark so resembles those registered by appellant as to be likely to cause confusion, mistake or to deceive. We believe the answer to that question should have been an affirmative one and, therefore, reverse the decision of the board. The board first concluded from the record that appellant had failed to establish that it had a family of “fish” name trademarks for sailboats. Its reasoning was: * * it is a common practice in the sailboat trade to use names and designs of fish, either alone or in combination, on sailboats as a means of identification therefor. Under such a circumstance, it is difficult to perceive how opposer could possibly acquire a family of marks in either “fish” names or in its composite marks. The board then considered the individual marks owned by appellant relative to that sought to be registered and concluded: ->:• ->:• * applicant’s composite mark does not so resemble “SAILFISH”, “SUNFISH”, “CATFISH” or “FLYING FISH”, and the respective silhouette designs of these fish as to lead to a likelihood of confusion or mistake. We find in the record insufficient evidence to support the conclusion that appellant has failed to establish a family of marks for sailboats in which the word “fish” appears as part of the mark. From the record it appears that appellant has sold more than 50,000 sailboats under its trademarks and total sales have reached millions of dollars. One of appellee’s own witnesses testified that appellant’s SAILFISH and SUNFISH type boats are the largest selling classes of boats in the country. By contrast, sales of appellee’s GOLDFISH, which is a craft similar to the SUNFISH, had not reached 600 units when the pertinent testimony was taken. The record also supports appellant’s contention that it advertised its products as a family. For example, advertising brochures usually describe two or more of the products together. The board apparently agreed, for it said “ * * * there is no doubt but that opposer has advertised its marks as a family of ‘fish’ trademarks.” In its brochures appellant combines its registered trademarks with a fish silhouette corresponding in shape to that of the particular fish name in the mark being promoted. The boats themselves carry on their sails a silhouette of the fish for which they are named. The record against appellant was assessed by the board in the following way: Applicant’s record additionally shows that in past years there has been a “fish” class of sailboats both on the Gulf Coast and in New England and that some of these boats, which picture a fish on the sail, are still in use for sailing purposes. Additionally, there are of record seven third-party registrations for marks which include the word “fish” for sailboats and/or boats. In addition, recent trade publications list various trademarks including “BARRACUDA”, “BONITA”, “PIRATE FISH”, “PORPOISE”, “PUFFIN”, SAILFISH”, “STARFISH”, “STINGRAY” and “SKATE” for sailboats. Pictures of these boats in such publications as “One-Design & Offshore Yachtsman” and the “Sailboat Directory” frequently picture the design of a fish on the upper part of the sail. We do not think the evidence relied upon by the board is sufficient to rebut that of appellant tending to establish its claim that it has a family of marks. Appellee’s own witness testified that the so-called “Fish” classes of sailboats have not been manufactured for at least 20 years. The Gulf Coast variety, once used as an interclub racing boat, has been superseded by another craft. It appears that the New England variety has not been made since the 1930’s and a newer version is now known as the “Marlin” class. At any rate, we do not feel that a class of boats referred to as “Fish” boats diminishes the trademark distinctiveness of fish names having as a part thereof the word “fish” when applied to sailboats. It appears that the board relied heavily upon the existence of third-party trademark registrations in reaching its decision. We have frequently said that little weight is to be given such registrations in evaluating whether there is likelihood of confusion. The existence of these registrations is not evidence of what happens in the market place or that customers are familiar with them nor should the existence on the register of confusingly similar marks aid an applicant to register another likely to cause confusion, mistake or to deceive. In re Helene Curtis Industries, Inc., 305 F.2d 492, 49 CCPA 1367 (1962); J. C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 52 CCPA 981 (1965); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 367 F.2d 324, 54 CCPA 1295 (1967); In re Belgrade Shoe Co., 411 F.2d 1352, 56 CCPA 1298 (1969); Clar-iol, Inc. v. Roux Laboratories, Inc., 442 F.2d 980, 58 CCPA 1170 (1971). We think the listing of trademarks for boats in various trade magazines should be treated in a similar manner as are third-party registrations. They give no indication as to actual sales, when the mark was adopted, customer familiarity with the marks, etc. Their evidentiary scope and effect is merely to show promotion of the listed item in the particular issue of the trade publication where the listing appeared. Gravel Cologne, Inc. v. Lawrence Palmer, Inc., 469 F.2d 1397, 60 CCPA - (1972). The board obviously felt that the multiplicity of fish names used to designate a variety of boats, including' sailboats, weakened any distinctiveness of appellant’s marks. However, we note that most of these marks appearing in the record adopt names of fish which do not include the word “fish” as part of the mark. Yet, it is clear that appellant’s entire advertising effort and marketing scheme is designed to have the public associate with its products only those fish names where the word “fish” forms part of the mark. We see no reason to believe that such a scheme cannot be successful and that words such as SAILFISH, CATFISH and the like cannot be distinguished as a class from fish names such as Barracuda, Puffin, Bonita and the like. It is our view that the evidence compels the conclusion that appellant has established a family of marks made up of fish names having the word “fish” common thereto by virtue of extensive use and advertising. This conclusion is not affected because other parties have also used “fish” as a part of a trademark for boats to an undisclosed extent. Motorola, Inc. v. Griffiths Electronics, Inc., 317 F.2d 397, 50 CCPA 1518 (1963). Having concluded that appellant has established that it possesses a family of “fish” marks, we believe that appellee’s mark GOLDFISH and fish design, used on sailboats similar to those sold by appellant, would appear to many to be a member of appellant’s family of marks. Aside from its rights arising from its registered trademarks, appel- lant has established a practice of employing an appropriate fish silhouette with each fish name it adopts to identify different sailboats. It is precisely such a combination that appellee seeks to register. The board stressed that the actual marks involved can be distinguished and would be distinguished by purchasers. However, the question is not whether people will confuse the marks but whether the marks will be likely to cause confusion, mistake or deception. In re West Point-Pepperell, Inc., 468 F.2d 200, 60 CCPA — (1972). The near identity of the products and the similarity of the marks applied convince us that a likelihood of confusion exists. The decision of the board dismissing the opposition is reversed. Reversed. . 167 USPQ 372 (1970). . Serial No. 284,190 filed November 6, 1967. . Reg. No. 532,849, issued October 31, 1950 to a predecessor-in-title. . Reg. No. 674,879, issued March 3, 1959 to a predecessor-in-title. . Reg. No. 774,866, issued August 11, 1964 to a predecessor-in-title. . Reg. No. 706,912, issued November 8, 1960 to a predecessor-in-title. . Reg. No. 671,114, issued December 16, 1958 to a predeeessor-in-title. . One of appellant’s own trademarks.

f2d_475/html/0001-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Francis M. ROGALLO and Gertrude S. Rogallo, Appellees, v. UNITED STATES of America, Appellant. No. 72-1496. United States Court of Appeals, Fourth Circuit. Argued Nov. 1, 1972. Decided March 6, 1973. Paul M. Ginsburg, Atty., Tax Div., Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and John M. Scott, Jr., Attys., Tax Div., Dept, of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellant. Herbert V. Kelly, Newport News, Va. (Jones, Blechman, Woltz & Kelly and F. O. Blechman and E. D. David, Newport News, Va., on brief), for appellees. Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges. WINTER, Circuit Judge: In a suit by Mr. and Mrs. Francis M Rogallo for a tax refund, the district court entered judgment for the taxpayers. It held that a $35,000 “contribution award” which the Rogallos received from the National Aeronautics and Space Administration (NASA) pursuant to § 306 of the National Aeronautics and Space Act, 42 U.S.C.A. § 2458 (1970), qualified as a prize or award primarily in recognition of scientific achievement and was therefore not includable in the Rogallos’ gross income under IRC § 74(b), 26 U.S.C.A. § 74(b). Appealing, the government contends that § 306 “contribution awards” are primarily compensatory in nature and are therefore includable in gross income. IRC §§ 61(a), 74(a), 26 U.S.C.A. §§ 61(a), 74(a). We are persuaded that the Rogallos’ § 306 award did not meet the stringent tests of § 74(b), and accordingly reverse. I. Francis Rogallo, an aeronautical engineer, was employed by the government at the Langley Research Center, formerly a predecessor and now part of NASA. During his spare time, Mr. Rogallo and his wife pursued their hobby of flying and designing kites. In 1948, the pursuit of this hobby led to the development of the Rogallo Parawing, a flexible kite with the structural characteristics of a parachute and the aerodynamic characteristics of a wing. The Rogallos asked the government to obtain a patent for them, but the government expressed no interest. The Rogallos then patented the parawing at their own expense. By 1963, the government recognized the parawing’s military and space potential and had begun to invest large sums in its development. The Rogallos received no royalties or other compensation from the government. On July 18, 1963, NASA presented the Rogallos with a monetary award having a face amount of $35,000, which, less taxes withheld, was divided equally between them. The award recited that it was made “for the technical contribution entitled ‘flexible kite’ which represents a significant value in the conduct of the aeronautic and space activities of the United States.” The award was made pursuant to § 306(a), which, in pertinent part, provides: [T]he Administrator is authorized, upon his own initiative or upon application ... to make a monetary award, in such amount and upon such terms as he shall determine to be warranted, to any person . . . for any scientific or technical contribution to the Administration which is determined to have significant value in the conduct of aeronautical and space activities . . ..In determining the terms and conditions of any award the Administrator shall take into account— (1) the value of the contribution to the United States; (2) the aggregate amount of any sums which have been expended . for the development of such contribution; (3) the amount of compensation previously received by the applicant for or on account of such contribution by the United States; and (4) such other factors as the Administrator shall determine to be material. The Rogallos executed a royalty-free non-exclusive irrevocable license of their patent in favor of the government. They did so as required by § 306(b), which provides: No award may be made under subsection (a) of this section with respect to any contribution— (1) unless the applicant surrenders, by such means as the Administrator shall determine to be effective, all claims which such applicant may have to receive any compensation . for the use of such contribution . . . by . . . the United States. The taxpayers and the government have stipulated these facts: NASA selected the Rogallos for the contribution award without any action or application on the Rogallos’ part; NASA did not require the Rogallos to render substantial future services as a condition to receiving the award; NASA did not make the award “for an accomplishment in connection with [Mr. Rogallo’s] employment but was developed by the Rogallos on their own time;” and the parawing is in the scientific field of aeronautics. II. IRC § 74(b) excludes from gross income: amounts received as prizes and awards made primarily in recognition of . scientific ... or civic achievement, but only if— (1) the recipient was selected without any action on his part to enter the contest or proceeding; and (2) the recipient is not required to render substantial future services as a condition to receiving the prize or award. IRC Regulation § 1.74-1 (b) restates the tests of the statute and adds another: an award is includable if it is from an employer to an employee in recognition of some achievement in connection with his employment. The Regulation further explains that the award must be made in recognition of “past achievements” and'cites the Nobel and Pulitzer Prizes as the type of award that would qualify for exclusion. The legislative history refers to the same examples. See ELR.Rep.No.1337, 83d Cong., 2d Sess. (1954) and S.Rep.No.1622, 83d Cong., 2d Sess. (1954), reprinted in 3 U.S.Code Cong. & Admin.News, pp. 4163-64, 4813 (1954). These references to the Nobel and Pulitzer Prizes indicate Congress’ intent that the exclusion be available only where the award was gratuitous, rather than compensatory. The stipulated facts establish that the Rogallos’ § 306 award satisfied all the requirements of § 74(b) and Reg. 1.74-1(b) but one, leaving still at issue the requirement that the award be made “primarily in recognition of” rather than in compensation for the Rogallos’ scientific contribution. We turn to resolution of this issue. III. The language, legislative history, and operation of § 306 all indicate that NASA presents the awards not primarily for an act of invention per se, but primarily for the act of contributing an invention or scientific or technical improvement to NASA. Section 306 is entitled “contribution awards.” By its terms, § 306 authorizes the Administrator to make an award “for any scientific or technical contribution to the Administration.” (emphasis added). The conditions enumerated in § 306(a) for determining the amount of the award also implicitly embody the concept of quid pro quo. Thus, the statute instructs the Administrator to consider the value of the contribution to the government, the aggregate amount of the contributor’s expenses, and the “compensation previously received” by the contributor from the United States. § 306(a)(1)-(3). The statute’s emphasis on the value of the contribution to the government and on monies previously received by the contributor tends to rebut the notion that the award was intended primarily to provide gratuitous honorific recognition of achievement. Moreover, § 306(b) imposes a condition precedent to presentation of the award: the inventor or developer must contribute his invention or scientific or technical improvement to the government and must surrender all claims to compensation for its use by the government. This provision stands in sharp contrast to the sheerly gratuitous nature of the Nobel and Pulitzer Prizes which exemplify excludable awards. The legislative history of § 306 supports the conclusion that the- NASA award' is not made primarily to salute scientific achievement. One Congressman, speaking in support of § 306, characterized it as providing “cash incentive awards . . . given to the inventors or firms which make significant technical contributions to the National Space Program.” 104 Cong.Rec. 13988 (1958) (remarks of Congressman Keating). The Conference Report states that § 306 “provides for making awards for scientific and technical contributions.” Conf.Rep.No.2166, 85th Cong., 2d Sess. (1958), reprinted in 2 U.S.Code Cong. & Admin.News, pp. 3199-3200 (1968) (emphasis added). The minutes of the NASA Inventions and Contributions Board, the body which determines the recipients and the amounts of § 306 awards, reveal that notions of quid pro quo and bargain were prominent in its consideration of the Rogallo award. Moreover, the checks which NASA presented at the awards ceremony were not for the $35,000 face amount of the award, but for $28,700, the difference representing federal income tax which NASA evidently considered appropriate to withhold. On the other hand, NASA’s public pronouncements do stress the honorific nature of the award. The taxpayers vigorously urge, and the district court held, that Simmons v. United States, 308 F.2d 160 (4 Cir.1962), forbids consideration of NASA’s motives and thereby renders much of the preceding discussion irrelevant and improper. In Simmons, we were concerned with a prize allegedly for civic achievement. We held that the taxpayer could not exclude a prize presented to him by a brewing company for catching a specially marked fish, under § 74(b), because catching the fish did not qualify as a civic achievement. We went on to hypothesize: But even if a civic purpose could be discerned in the company’s campaign, . it is not the motivations of the donor that are legally relevant. The statute and its legislative history speak only of the character of the recipient’s achievement, and the crucial test is the nature of the activity being rewarded. For example, if Simmons’ achievement cannot be considered one of those enumerated in section 74(b), the exclusion provided in that section would not apply even if the prize were given by the state of Maryland to further a promotional campaign of its facilities. Conversely, if the recipient’s achievement were “civic” in the sense of the statute, he would be entitled to its benefits even though the donor had a commercial purpose in making the award. 308 F.2d at 163. But Simmons is distinguishable from the instant case and the quoted language is not directly applicable. Simmons arose in a context where the prize was obviously gratuitous. It was not given where, as here, a statute made quid pro quo an essential part of the award. Since the brewery neither required nor received anything of value directly from the prize-winner, its motivations for presenting the prize would have been immaterial, even if the prize had been awarded for a bona fide civic achievement. Thus, when we said, “if the recipient’s achievement were ‘civic’ in the sense of the statute, he would be entitled to its benefits even though the donor had a commercial purpose in making the award,” we meant that if the brewery was gratuitously honoring a generally beneficial civic achievement, an ulterior commercial motive such as incidental popularization of its product would be irrelevant. But we did not bar such inquiry where the fact of quid pro quo suggested that the award was not made primarily in recognition of, but primarily in compensation for, the achievement. To hold otherwise would encourage attempts to exclude from gross income, under the aegis of § 74(b), commercial payments disguised as awards made to compensate the putative award-winner for his contribution, or effective sale, of his scientific achievement to the grant- or. For example, if one of the major auto manufacturers presented an award to an inventor who devised a method for limiting auto emissions, but required the inventor to execute a license favorable to the manufacturer as a condition to receiving the award, and if we concluded that the invention qualified as a bona fide scientific achievement, we do not think that Simmons would compel the conclusion that the award was excludable, regardless of the manufacturer’s evident intention to compensate the inventor. To the contrary, we think it reasonably clear that the award would not be excludable from the inventor’s gross income because it was primarily compensatory. The fact that the government presented an award under similar circumstances does not distort these operative principles of § 74(b). Finally, it is urged that since the Rogados had no right of action against the government for use of their patent, and the government could therefore have infringed the patent without compensating the Rogados at all, the § 306 award must be deemed primarily honorific and gratuitous rather than compensatory. We reject this contention. Whether § 1498 represents an assertion of sovereign immunity (so that the Rogados have a right but no judicial remedy), or an assertion that certain patent monopolies were not intended to be effective against the United States (so that the Rogallos have neither right nor remedy) presents an interesting question which we need not decide. See Strategical Demolition Torpedo Co. v. United States, 96 F.Supp. 315, 316-317, 119 Ct.Cl. 291 (Ct.Cl.) cert. denied 342 U.S. 825, 72 S.Ct. 46, 96 L.Ed. 624 (1951); Zimmerman v. United States Government, 422 F.2d 326 (3 Cir.) cert. denied 399 U.S. 911, 90 S.Ct. 2200, 26 L.Ed.2d 565 (1970). In any event, an inventor can attempt to negotiate compensation with the government, and the government may feel some moral compunction to compensate an inventor for its economic emasculation of his patent. Furthermore, § 1498 precludes only judicial relief; it does not preclude legislative relief in the form of a special bill. Finally, the fact that the Rogallos had no judicial remedy to compel compensation does not necessarily render gratuitous or honorific any amount which the government chooses to award them. An employee may have no right or remedy to compel his employer to award him a year-end bonus; but if the employer chooses to do so the award is clearly includable compensation nonetheless. The award received by the Rogallos was an honor, and the Rogallos could well have perceived it solely as such, so that we are sympathetic to their claim. But we conclude that, in fact and in law, the award was not made “primarily in recognition” of their invention of the parawing. NASA made the award not primarily for their act of invention, but for their act of contributing the invention to NASA. Without this contribution and the royalty-free irrevocable license, there would have been no award. The award was not therefore gratuitous and should not be excluded from gross income under § 74(b). Reversed. . 341 F.Supp. 998 (E.D.Va.1972). . The Internal Revenue Service has ruled that § 306 awards do not qualify for IRO § 74(b) exclusion. Rev.Rul. 69-129, 1969-1 Cum.Bull. 35. . § 61. Gross Income Defined. (a) General Definition. — Except as otherwise provided in this subtitle, gross income means all income from whatever source derived § 74. Prizes and awards. (a) General rule. — Except as provided in subsection (b) and in section 117 (relating to scholarships and fellowship grants), gross income includes amounts received as prizes and awards. . Pursuant to Act of July 19, 1952, ch. 950, § 1, 66 Stat. 811 (repealed 1965), the government could grant a patent to a government employee without the payment of fees if his department head certified that the invention was likely to be used in the public interest and if the employee granted the government a royalty-free license to practice the patent. Cf. 42 U.S. C.A. § 2457 (1970). . At oral argument, the government suggested that it had no obligation to pay royalties because it had not yet used the parawing, but was merely developing it. Whether or not the government would have paid royalties when it began to use the parawing, the Rogallos had no right to sue the government for royalties since Mr. Rogallo was a government employee and the parawing was related to his official functions. 28 U.S.O.A. § 1498 (Supp. 1, 1952), as amended, 28 U.S.O.A. § 1498 (Supp. 1, 1972). That section provides: This section shall not confer a right of action on any patentee . . . with respect to any invention discovered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials or facilities were used. See infra pp. 5 n. 9, 6-7. . Were it not for this stipulated fact, the cases of Griggs v. United States, 314 F.2d 515, 161 Ct.Cl. 84 (1963) and Denniston v. Commissioner of Internal Revenue, 41 T.C. 667 (1964), would be highly relevant. These cases held that § 74(b) did not permit the exclusion of an award pursuant to the Government Employees Incentive Awards Act, 5 U.S.C.A. § 2123 (1958), as amended 5 U.S.C.A. §§ 4502-4505 (1967). However, both cases turned on a finding that the award was made in connection with the recipient’s employment. IRC Reg. 1.74-1 (b). . Cf. Bingler v. Johnson, 394 U.S. 741, 89 S.Ct. 1439, 22 L.Ed.2d 695 (1969), holding that the recipient of a fellowship cornpensatory in nature could not exclude it from gross income pursuant to IRO § 117, 26 U.S.C.A. § 117 (pertaining to the exclusion of scholarships and fellowship grants). Compare Rev.Rul. 57-19, 1957-1 Cum.Bull. 33 (college teacher ruled not taxable on award paid by charitable foundation for outstanding teaching, the ruling stating that the recipient had not “done any special work specifically designed to win the award”) with Rev.Rul. 57-460, 1957-2 Cum.Bull. 69 (college teacher ruled taxable on receipt of supplement to salary for one year in recognition of outstanding performance even though funds for award were given to employing institution by an individual). . In contrast, although not necessarily dis-positive, the Nobel and Pulitzer Prizes are flat sums irrespective of the achievement’s value, the recipient’s expenses, or prior compensation. . Admittedly, in this case, since the Rogallos had no right of action against the government for the use of their patent, 28 U.S.O.A. § 1498 (see n. 5 supra), they did not give up a judicially enforceable right by executing the royalty-free license. But, in cases not covered by § 1498, e. g., where the inventor is not a government employee, or where the invention is not related to his official functions, the surrender required by § 306(b) may represent a significant economic consideration. . NASA Inventions and Contributions Board Minutes: The problem confronting the Board was to balance an early award in the interests of acquiring rights for the Government as against waiting for results of full-scale tests to see if one had underestimated the value. [I]t would be necessary to determine from Mr. Rogallo whether he would accept this amount. Mr. Rogallo is aware of the stipulation contained in § 306 of the NASA Act requiring the recipient of an award to surrender all claims which he may have to receive any compensation [I]f the Board delayed too long, Mr. Rogallo would get into so strong a position that he would not be interested in giving the Government any rights. [B]oth tangible and intangible benefits were involved in the Rogallo invention, and that Mr. Rogallo is in an extremely strong position in case he does not wish to accept the proposed award. . For example, Dr. Dryden, the NASA official who presented the award, stated: I am able to affirm that the award was voluntarily presented ... in recognition of [the Rogallos] past accomplishments and not as consideration for the royalty-free license under the Rogallo patents. . 28 U.S.C.A. § 1498. See n. 5 supra. Myers v. United States, 177 F.Supp. 952, 147 Ct.Cl. 485 (1959); Stub v. United States, 119 F.Supp. 206, 127 Ct.Cl. 710 (1954). . For the legislative history, see H.R. Rep.No.1726, 82nd Cong., 2d Sess. (1952), reprinted in 2 U.S.Code Cong. & Admin. News, pp. 2322-24 (1952). . See the Minutes of the NASA Board, n. 10 supra, which graphically demonstrate NASA’s cognizance of and responsiveness to the position from which the Rogallos could have bargained. . A special bill for tax relief was filed on behalf of the Rogallos in Congress. H.R. 9566, 90th Cong., 2d Sess. (1969). . During oral argument, we asked the government to submit a post-argument memorandum indicating its views as to the applicability of the income-averaging provisions of IRC § 1302, 26 U.S.C.A. § 1302. The government responded, stating that certain conditions to the application of § 1302 were met but that the record did not permit any conclusion with regard to the remaining condition. The government also called attention to procedural difficulties in invoking § 1302 and the reasons why it concluded that taxpayers could not claim capital gain treatment under IRC § 1235, 26 U.S.C.A. § 1235. We express no view on these various points in this opinion.

f2d_475/html/0007-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant, v. Marciano Haw HIBI, Petitioner-Appellee. No. 72-1562. United States Court of Appeals, Ninth Circuit. Feb. 8, 1973. Joseph Sureck, Regional Counsel (argued), I & NS, San Pedro, Cal., Stephen M. Suffin, I & NS, San Francisco, Cal., James L. Browning, Jr., U. S. Atty., William B. Spohn, Asst. U. S. Atty., San Francisco, Cal., Richard Kleindienst, Acting Atty. Gen., Dept, of Justice, Washington, D. C., for respondent-appellant. Donald L. Ungar (argued), Milton T. Simmons, of Phelan, Simmons & Ungar, San Francisco, Cal., for petitioner-appellee. Before BARNES and TRASK, Circuit Judges, and EAST, District Judge. Honorable William G. East, Senior United States Disti-ict Judge, District of Oregon, sitting by designation. TRASK, Circuit Judge: This is an appeal from an order granting the petition for naturalization of Marciano Haw Hibi, a Philippine native, over the recommendation of the Naturalization Examiner of the Immigration and Naturalization Service that the petition be denied. The basis for the petition was Hibi’s service in the Armed Forces of the United States during its war with Japan. The issues on appeal involve the discretion, if any, invested in the Commissioner of Immigration and Naturalization and the Attorney General under section 705 of the Naturalization Act of 1940. Also, whether the Immigration Service failed in its duty to carry into effect the purposes of section 702 of the Act, and thus should be estopped from asserting delay in filing as a basis on which to reject this petition for naturalization. Hibi, the petitioner, entered the United States on April 25, 1964, as a temporary business visitor. On September 13, 1967, he petitioned for naturalization under sections 701-705 of the Nationality Act of 1940, based upon his military service in the Armed Forces of the United States. The Naturalization Examiner found the petitioner to be ineligible under sections 701 and 702 of the Nationality Act of 1940. The district court ordered that the petition be granted, finding the petitioner eligible under section 702 of the 1940 Act. The issue there, as here, concerned the timing of the filing of the petition, since it was filed long after the expiration of section 702 (December 31, 1946), and subsequent to the enactment of section 310(e) of the present Immigration and Nationality Act which precludes the naturalization of anyone except in accordance with present requirements. Section 702 was a measure which offered American citizenship to non-citizens serving in the Armed Forces of the United States overseas during World War II who, by reason of their overseas service, were not free to appear before a regular naturalization court in the United States. The district court expressly found that the petitioner had never been advised of his right 'to be naturalized while he was on active duty with the United States Army, the only time during which he could have qualified under section 702, and that he would have applied had he known of the opportunity and were the means available for him to apply. The trial court concluded that the Immigration Service failed in its duty to effectuate the provisions of section 702, and thus deprived the petitioner of a fair opportunity to apply for naturalization. Acting on principles of equity, the trial court held that the government should be estopped from alleging that the filing deadline in section 701 has passed or that 8 U.S.C. § 1421(e) precludes this petition, and that therefore, the petitioner should not be barred from citizenship by the late filing of this petition. We agree. Petitioner, a native of the Philippines, enlisted in the United States Army, Philippine Scouts, in 1941. The Scouts were always a part of the Army of the United States, as contrasted with the army of the Commonwealth of the Philippines, a much larger group organized by and under the control of the Philippine Government. The Scouts were dispersed during the Japanese occupation of the islands, but when the United States Army returned, petitioner rejoined and served until his discharge on December 6, 1945. After spending some time at his mother’s home in the outlying provinces, petitioner alleges that he first learned that he had missed any naturalization opportunity when he returned to Manila late in 1946 or early 1947. A letter of inquiry to the American Embassy produced a mimeographed answer informing him only that the quota on those born in the Philippines was heavily oversubscribed. Due to the Japanese occupation of the island, naturalization under section 702 had been delayed until 1945. Following resolution of eligibility questions in early 1945, authorization was sent to an American vice-consul to commence naturalization proceedings. The Commissioner of Immigration, in a letter of September 13, 1945, indicated that this authority had not yet been exercised. Additionally, he noted political considerations that some officials of the Philippine Government were voicing in making objections to Filipino naturalizations. He suggested to the Attorney General that the situation might best be handled by revoking the authority of the then Naturalization Examiner and “omitting to designate” any successor. The result of this of course, was to render section 702 completely ineffective. Subsequently, revocation of authority was sent, and naturalizations ceased October 27, 1945. A naturalization examiner was later sent to the Philippines, in August of 1946, about a year after the war had ended and some eight months after petitioner’s discharge. This decision appears to have had some basis in the Service’s conclusion that members of the Philippine Commonwealth Army were no longer eligible for naturalization under section 702. The determination did not affect the much smaller number of Philippine Scouts, and many Scouts who had re-enlisted or who were still on active duty were then naturalized. Petitioner alleges that at no time prior to his discharge was he ever made aware of his eligibility for naturalization under section 702. The Army had a regulation requiring that notice be given aliens, at the time of their induction or enlistment, of their rights to apply for naturalization, and requiring a notation to that effect in the alien’s service record. Petitioner had enlisted before this regulation took effect; it is not clear whether this notice was required to have been given when he rejoined the Army upon its return to the islands in 1945. It is not disputed that at no time were notices posted on his unit’s bulletin board, application forms distributed, announcements made to his unit, nor were any notations made in his service record to indicate that petitioner had been told about the law. Section 705 was not discretionary but imposed a legal duty upon the Commissioner of Immigration to make the benefits of sections 701 and 702 available to all qualified applicants. The duty to this petitioner was to make a representative available to naturalize non-citizen applicants while they were still serving in the armed forces. As the district court found, by revoking the authority of the only representative who could have naturalized the petitioner while he was still in the army, the Service failed in its duty to carry into effect the purposes of section 702, and thus denied petitioner of a fair opportunity to apply for naturalization during the only time he could apply. The government argues that a broad amount of discretion was invested in officials to effect the implementation of this Act. We have been cited to no statutory language, nor can we find any ourselves, that gave either the Attorney General or the Commissioner of Immigration the authority to revoke, on his own initiative, the authority of the only person designated to perform naturalizations in the Philippines. We thus reject the government’s contention that an official of the executive branch could unilaterally nullify this Act of Congress. We agree with the district court that the government should be estopped from alleging, as to this applicant, that the filing deadline set forth in section 701 has passed, or that denial of the petition is required by section 310(e) of the present Immigration and Nationality Act. The petition should be granted. This court has not hesitated to invoke equitable relief to permit one to obtain his rights of citizenship where those rights have been denied due to erroneous action on the part of administrative officials. Thus in Tejeda v. United States Immigration & Naturalization Service, 346 F.2d 389 (9th Cir. 1965), the plaintiff contended he had been a permanent resident but was denied re-entry because of misadvice of the American Consul. The court remanded for findings as to these asserted facts saying: “If the properly developed factual findings reveal that petitioner made a bona fide effort to re-enter in 1947 or 1948 and failed to obtain reentry due to the misadvice of the American Consul, the respondents should be precluded from denying petitioner what was rightly his — reentry as a non-quota immigrant in 1947 or 1948 under 22 U. S.C. § 1281.” Tejeda v. United States Immigration & Naturalization Service, supra, at 394. See also, Hetzer v. Immigration & Naturalization Service, 420 F.2d 357 (9th Cir. 1970). The record shows that procedures were set up to notify noncitizens in a position similar to that of the petitioner of their right to apply for naturalization. The record shows further that these procedures were not effectively carried out, at least for this petitioner. This lack of notification was clearly prejudicial. Even if he had been notified, however, because of the conduct of certain officials, petitioner would probably have been denied the opportunity to apply for naturalization. Because the conduct of these officials was in derogation of their duty to carry out an Act of Congress, and because petitioner has been prejudiced by this conduct, the appellant is not entitled to immunity from equitable estoppel in this case. See Gestuvo v. District Director, Immigration & Naturalization Service, 337 F.Supp. 1093 (C.D.Cal. 1971). The judgment of the district court is affirmed. . Pertinent portions of Sections 701, 702 and 705 of the Act are as follows: “Sec. 701. . . . [A)ny person not a citizen regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who shall have been at the time of his enlistment or induction a resident thereof and who (a) was lawfully admitted into the United States, including its Territories and possessions, or (b) homing entered the United States, ineluding its Territories and possessions, prior to September 1, 19Jf3, being unable to establish lawful admission into the United States serves honorably in such forces beyond the continental limits of the United States or has so served, may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention, no certificate of arrival for those described in group (b) hereof, and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner; (3) the petitioner shall not be required to speak the English language, sign 1ns petition in his own handwriting, or meet any educational test; . . . ” “Sec. 702. During the present war, any person entitled to naturalization under section 701 of this Act, who while serving honorably in the military . . . forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a, naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship: . . . ” “Sec. 705. The Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms, and shall make such rules and regulations, as may be necessary to carry into effect the provisions of this Act.” (Emphasis supplied) . Section 310(e) of the present Immigration & Nationality Act, 8 U.S.C. § 1421(e) provides: “Notwithstanding the provisions of section 405 (a), any petition for naturalization filed on or after September 21, 1961, shall be heard and determined in accordance with the requirements of this subchapter.” . The War Department issued Circular No. 382, September 21, 1944, relating to procedures for naturalization, which instructed : “Commanding officers of all echelons will designate an appropriate individual, properly instructed, to inform non-citizens of their right to apply for citizenship, to assist such persons who desire to make application, and to expedite by all possible means completing action on the application.”

f2d_475/html/0011-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Dominador C. NICOLAS and Salome L. Nicolas, Petitioners-Appellants, v. DISTRICT DIRECTOR, UNITED STATES IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee. No. 72-1042. United States Court of Appeals, Ninth Circuit. Feb. 8, 1973. Hiram W. Kwan (argued), Los Angeles, Cal., for petitioners-appellants. Rex Heeseman, Asst. U. S. Atty. (argued), Frederick M. Brosio, Jr., Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., Henry E. Peterson, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Joseph Surreck, Atty., I&NS, San Pedro, Cal., Stephen Suffin, Atty., I&NS, San Francisco, Cal., for respondent-appellee. Before BARNES and TRASK, Circuit Judges, and EAST, District Judge. Honorable William G. East, Senior United States District Judge, District of Oregon, sitting by designation. ORDER OF REMAND This case is remanded to the United States District Court for further consideration in the light of United States Immigration and Naturalization Service v. Marciano Haw Hibi, 475 F.2d 7 (9th Cir.), decided this day.

f2d_475/html/0012-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Edgar G. DAILEY, Plaintiff-Appellee, v. TRANSITRON ELECTRONIC CORPORATION, Defendant, and Transitaron Overseas Corporation, Defendant-Appellant. No. 72-3323 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 15, 1973. Horace C. Hall, III, Carlos M. Zaffirini, Laredo, Tex., for defendant-appellant. J. G. Hornberger, Lazaro Garza-Gongora, Jr., Laredo, Tex., 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. WISDOM, Circuit Judge: .In this case an employee sues his former employer for breach of an employment contract. The district court, 349 F.Supp. 797, held that the contract was governed by the laws of Texas and not the laws of Mexico. The sole issue before us on appeal is whether the district court correctly concluded that the laws of Texas were applicable. We affirm. I. The plaintiff, Edgar Dailey, is a mechanical engineer and a citizen of the United States. The defendant, Transitron Overseas, is a wholly owned subsidiary of Transitron Electronics. Both are Delaware corporations with their home offices in Massachusetts. Transitron Overseas has a permit to do business in Mexico. Transitron Mexicana, S.A., is organized under the laws of Mexico and is located in Nuevo Laredo, Mexico, immediately across the border from Laredo, Texas. Of the forty-seven thousand shares outstanding of Transitron Mexicana, S.A., six shares are owned by individuals and the rest are owned by Transitron Electronics. Other subsidiaries of Transitron Electronics conduct business in many locations throughout the United States, Transitron Overseas buys piece parts from other Transitron subsidiaries and transports them into Mexico where they are assembled by Transitron Mexicana, Title to the pieces remains in Transitron Overseas. The assembled goods are then resold to the subsidiary from whom the pieces were originally bought. II. While the plaintiff was residing in California, he was visited by Mr. James Von Horz, vice-president of Transitron, who asked if the plaintiff had an interest in being employed by the defendant. Initially they discussed transferring the plaintiff to Kansas City or Mineral Wells. After further negotiations they orally agreed that the plaintiff would become director of engineering of the Mexican subsidiary. In January and February 1969, the plaintiff travelled to Laredo, Texas, to establish residence and take his pre-employment physical. The plaintiff received a written offer of employment dated February 3, 1969, on Transitron Mexicana stationery, from John Zimmerman, the manager of the Nuevo Laredo plant, and an employee of the Transitron Overseas Corporation. During the month of February 1969 the plaintiff started to work for the defendant corporation but continued to maintain his residence in Laredo, Texas. April 17, 1969, a contract of employment between the plaintiff and the Transitron Overseas Corporation was signed in Nuevo Laredo for three years service. The form of contract was prepared by an employee of the defendant who copied it from a form used by Transitron Electronics Corporation. The plaintiff moved to Nuevo Laredo in July or August 1970 and was discharged by the defendant a short time afterwards in September 1970. The defendant employer paid the plaintiff by checks drawn on a United States bank, deducting United States soeial security and withholding taxes from his paycheck. Transitron Electronics Corporation paid unemployment compensation taxes on his wages. When discharged he applied for and received benefits with the Texas Employment Commission in Laredo, Texas. He has never received any benefits whatsoever under Mexican law, was never paid by Transitron Mexicana, S.A., and was not eligible for social security benefits in Mexico. He has never filed a Mexican income tax return but has paid all income taxes in the United States. III. In a diversity suit, a federal district court must apply the conflicts rules of the forum state. Klaxon Company v. Stentor, 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. Texas, the forum state here, follows the traditional rule of applying the law of the place of performance or the law of the place where the contract was made, in the absence of a contrary manifestation of intent by the parties. Austin Building Co. v. National Union Fire Ins. Co., Tex.Sup.Ct.1968, 432 S.W.2d 697. This traditional rule is not conclusive but is presumptively applied if the parties’ intent is not determinable. Thus, before deciding where a contract was made or where it was to be performed, we look to the parties’ intent. Here, that second step is not reached because of the overwhelming relationship of the parties to Texas and the United States. See Res. of Conflicts 2d, §§ 6, 188, 196; Leflar, American Conflicts Law, § 103 False Conflicts (1968). The plaintiff is a citizen of the United States and the defendant is a Delaware Corporation. The plaintiff contracted with the Delaware corporation and not with the Mexican corporation. In every respect he was treated as an employee of the Delaware corporation and subject to the rights and liabilities of an employee within the United States. In no way was he treated as a Mexican employee. The Mexican plant at which he worked was, but for six nominal shares, owned wholly by the Delaware parent corporation. Cf. Hellenic Lines v. Rhoditis, 1970, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252. All the parties with whom he negotiated were employees of the parent corporation or one of its subsidiaries within the United States, though some were also employed by the Mexican corporation. What is more, the contract was to be partially performed in Texas. A second significant route to determining intent is the presumption that the parties intended to make a legally binding agreement. Teas v. Kimball, 5 Cir. 1958, 257 F.2d 817, 823; Texas Gas Utilities Co. v. Barrett, Tex.Sup.Ct.1970, 460 S.W.2d 409; Grace v. Orkin, Tex.Civ.App.1953, 255 S.W.2d 279. Article 40 of the Mexican New Federal Labor Code limits the duration of employment contracts to one year. Here, the contract was for three years and was enforceable in Texas since the writing satisfied the statute of frauds. Texas Business and Commerce Code, § 26.01 V.T.C.A.; Vernon’s Texas Civil Statutes Art. 3995, 26 Tex.Jur.2d 242 (Statute of Frauds § 89). Furthermore the statute of limitations in Mexico for breach of employment contract is two months, a period which the plaintiff failed to satisfy. That limitation period has been held to be substantive and not procedural. Gillies v. Aeronaves de Mexico, S.A., 5 Cir. 1972, 468 F.2d 281. In the district court below the jury found for the plaintiff and awarded him $34,579.99 for the employer’s breach. We conclude that the intent of the parties was to be bound by the law of Texas. We need not reach any further questions of Texas conflicts rules. Affirmed.

f2d_475/html/0015-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Eldo GROGAN and Mrs. Effie Grogan, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 72-2791. United States Court of Appeals, Fifth Circuit. March 16, 1973. Rehearing Denied April 9, 1973. W. Woodrow Stewart, Joe K. Telford, Gainesville, Ga., for plaintiffs-appellants. John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Dennis M. Donohue, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendantappellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. GOLDBERG, Circuit Judge: “It must often be said of the Internal Revenue Code of 1954, that of all the good intentions with which the road to hell is paved, this represents the best. Certainly the intention of Section 481 to codify case law and ad-' ministrative interpretation is a pavement block all its own. Hopefully, the courts will offer judicial arbitration of interpretations of the statute in the near future. In the meantime, we must live with codified confusion instead of uncodified chaos.” —William H. Fletcher Many courts have already faced the task of interpreting Section 481, and this is yet another case raising novel questions regarding the application of that statute. The precise issue before us is whether the transformation of a taxpayer’s interest in pre-1954 inventories and receivables — from that of a sole proprietor to that of a partner with a 91.6 percent interest in a partnership that now owns the items — justifies including those items when computing taxable income at the time Section 481 adjustments are made, even though those amounts would have been excluded had taxpayer’s sole proprietor status continued unchanged. The question seems never to have arisen before, and its resolution is not easy. The district court, 846 F.Supp. 564, held that the partnership was a new entity, distinct from the individual taxpayer, and that therefore taxpayer did not strictly satisfy Section 481’s terms and conditions and was not entitled to exclude the pre-1954 amounts. We disagree, and we find that the policies implicit in the statute are better served by allowing taxpayer to exclude from consideration in the year of change those partnership inventories and receivables that were previously owned by taxpayer and that were on hand before the statute took effect in 1954. I. BACKGROUND The central problem at which Section 481 is directed is the potential over-taxation, under-taxation, or loss (for income tax purposes) of items such as inventories and accounts receivable at the time a taxpayer changes his method of reporting. When a cash-basis taxpayer switches to the accrual basis, for example, the following problem is likely to arise: “If in the year of change the taxpayer deducts his opening inventory and does not report as income accounts receivable at the close of the preceding taxable year, [absent some adjustment] there is a double deduction of the inventory to the extent it was paid for and deducted in previous years, and an entire omission from income of the accounts receivable at the close of the last taxable year in which the cash basis was used.” To meet this problem before Section 481 was enacted in 1954, the Commissioner adopted the practice of granting his consent to a voluntary change in accounting methods only if the taxpayer agreed to transitional adjustments to prevent items from being taxed twice, deducted twice, or omitted altogether. See, e. g., American Automobile Ass’n v. United States, 1961, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109. Following a period of uncertain and inconsistent treatment of cases where the change was not voluntary, the uniform rule emerged that “when the Commissioner compelled the change in the method of accounting, adjustments could not be required as to prior years.” E. g., Commissioner v. Dwyer, 2 Cir. 1953, 203 F.2d 522. Specifically taking note of the state of the law as judicially interpreted, the Congress enacted Section 481 of the Internal Revenue Code of 1954: § 481. Adjustments required by changes in method of accounting (a) General rule. — In computing the taxpayer’s taxable income for any taxable year (referred to in this section as the “year of the change”)— (1) if such computation is under a method of accounting different from the method under which the taxpayer’s taxable income for the preceding taxable year was computed, then (2) there shall be taken into account those adjustments which are determined to be necessary solely by reason of the change in order to prevent amounts from being duplicated or omitted, except there shall not be taken into account any adjustment in respect of any taxable year to which this section does not apply unless the adjustment is attributable to a change in the method of accounting initiated by the taxpayer. (b) Limitation on tax where adjustments are substantial.— . . . . We have previously said of this statute, “By § 481 the 1954 Code expressed the legislative policy that no item should be omitted and no item should be duplicated as a result of a change in a method of accounting or reporting income for taxation. The provisions were to apply both in the ease where the taxpayer voluntarily changes his accounting method with the consent of the Commissioner and also in the case where a change in the method is required by the Commissioner.” Commissioner v. Welch, 5 Cir. 1965, 345 F.2d 939, 942. But the statute clearly left intact the case law holding that changes in accounting and reporting not initiated by the taxpayer could not justify making adjustments as to pre-1954 amounts. By its very terms the statute requires that “there shall not be taken into account any adjustment in respect of any taxable year to which this section does not apply unless the adjustment is attributable to a change in the method of accounting initiated by the taxpayer.” The impact of the statute is clearly to allow some amounts of income to escape taxation. Where the taxpayer had inventories or accounts receivable on hand on December 31, 1953, for example, those amounts cannot be used to compute Section 481 adjustments when the taxpayer later changes his method of reporting unless the taxpayer initiates the change. Congress was well aware of this result when it enacted the statute, and the Senate Finance Committee report on this section of the Code expresses an unequivocal intention not to impose a burden, as to pre-1954 items, “that would be harsher on taxpayers in most instances of involuntary change than the results of recent court decisions.” With that understanding of the effect Section 481 may have in some circumstances, we turn now to the particular facts of the case before us. II. THE OPERATIVE FACTS Taxpayer, Eldo Grogan, is a Georgia-poultry farmer who beginning sometime prior to 1950 operated as a sole proprietor a business that had (1) a broiler-growing portion, and (2) a feed mill portion. He kept his books and records and filed his income tax returns on the cash receipts and disbursements method of accounting. Taxpayer has always used the calendar year as his annual accounting period. On December 31, 1953, taxpayer’s sole proprietorship had accounts receivable totaling $86,957.56 for poultry sold, accounts receivable totaling $172,545.69 representing feed and chickens furnished to contract growers, and a feed inventory of $2,000. There were no accounts payable on that date. In November of 1959, taxpayer’s wife and her brother, William Mills, as trustee for taxpayer’s three minor children, formed a partnership known as the Grogan Poultry Company. The Grogan Poultry Company acquired the broiler-growing portion of taxpayer’s business. The Grogan Poultry Company used the accrual method of accounting. On January 2, 1962, taxpayer and his brother, A. J. Grogan, as trustee for taxpayer’s three minor children, formed a partnership known as the Grogan Feed Company. Taxpayer contributed the feed mill portion of his proprietorship to the Grogan Feed Company. On the same day, taxpayer made gifts of $6,000 to each of his three minor children and permitted his brother, as trustee for the children, to invest the $18,000 total by purchasing a “share” of the Grogan Feed Company. As a result of these transactions, taxpayer owned a 91.6 percent interest in the Grogan Feed Company and his children owned the remaining 8.4 percent interest. The Grogan Feed Company elected to use the cash receipts and disbursements method of accounting. The Grogan Feed Company sold practically all of its feed to the Grogan Poultry Company. Because it used the accrual method of accounting, the Grogan Poultry Company deducted the amounts of its purchases in the year of purchase and carried them on it books as accounts payable until paid. Because it used the cash basis method of accounting, the Grogan Feed Company did not report its sales to the Grogan Poultry Company until the accounts were actually paid. In 1963 the Commissioner of Internal Revenue examined the tax returns filed by taxpayer and by the Grogan Feed Company for the years 1959 through 1962. The Commissioner made certain adjustments to reflect income but did not change the method of accounting used by the Grogan Feed Company. In 1966 the Commissioner examined taxpayer’s individual returns and the Grogan Feed Company’s partnership returns for the years 1963 and 1964. Pursuant to Section 446(b) of the Internal Revenue Code of 1954, the Commissioner changed the partnership’s method of accounting for 1963 and all future years from the cash method of accounting to the accrual method. The Commissioner asserted that the change was necessary because the cash method of accounting did not properly reflect the partnership’s income. Invoking Section 481(a), the Commissioner included all of the Grogen Feed Company's receivables, as of December, 1963, as already accrued income. It is stipulated that some of these items were attributable to pre1954 years, i. e., they were accrued when taxpayer was still operating as a sole proprietor. The Commissioner’s Section 481(a) adjustments resulted in additional income in the amount of $159,011.57 being included in the Grogan Feed Company’s partnership return. Based on these adjustments, the Commissioner assessed tax and interest against taxpayer for his distributive share of the partnership’s additional income. Taxpayer paid the additional income taxes, penalties, and interest in the total amount of $123,330.93 then filed a claim with the Internal Revenue Service for a refund. Following the denial of that claim, taxpayer filed this action. The court below, acting on stipulated facts, entered a judgment denying the refund, and this appeal followed. III. THE DISTRICT COURT’S REASONING The United States District Court recognized the central issue presented by this case, and stated the positions of the parties regarding the resolution of that issue as follows: “Plaintiffs argue that under section 481, defendant had no right to include in Grogan Feed Co.’s partnership income for 1963 its inventory and deferred receivables as of December 31, 1963, without giving credit for the inventory and deferred receivables of Eldo Grogan’s proprietorship as of December, 1953. Defendant contends that the Grogan Feed Co. partnership is, for the purposes of section 481(a), a distinct entity, i. e., a “taxpayer”, separate from its individual partners and different from its predecessor sole proprietorship; that, since the partnership did not exist prior to 1962, no portion of the adjustment in dispute can actually be attributed to pre-1954 receivables of the partnership, and, thus, the partnership was due no credit for such items.” Finding no cases in point, the court turned for guidance to three “somewhat analogous” cases: Pittsfield Coal & Oil Co., 25 Tax Ct.Mem. 11 (1966); Estate of Biewer, 41 T.C. 191 (1963); and Ezo Products Co., 37 T.C. 385 (1961). In each of these cases a successor in interest to one who had owned receivables in 1953 was denied the benefit of the exclusionary provision of Section 481(a) when adjustments were later made to the successor’s returns. The court below correctly read these three cases to stand for the general proposition that a new taxable entity, separate and distinct from the previous owner of pre-1954 receivables, cannot invoke the exclusionary language of Section 481(a). Recognizing that partnerships are sometimes treated by the Code as “entities” and at other times as mere “conduits” to the partners, the District Court nevertheless concluded that the Grogan Feed Company partnership “is not for the purposes of section 481 a mere continuation of its predecessor proprietorship, but a separate entity not entitled to the benefit of its predecessor’s pre-1954 taxable years . . . ” Based on this reasoning, the court held that Section 481(a) justified adjusting taxpayer’s income for the year of change without excluding the pre-1954 amounts. Judgment was entered accordingly, and the ameliorative provisions of Section 481(b) were then applied. IV. THE APPLICABLE LAW As was the District Court, we are unable to discover any previously decided cases that are dispositive of the precise issue before us. We disagree with the District Court, however, regarding the approach to be used in determining whether taxpayer can invoke the exclusionary provisions of Section 481(a). The court below reasoned that because a partnership is sometimes considered a “taxpayer” under the Code, the use of the word “taxpayer” in Section 481(a) must, on the facts of this case, refer to the partnership itself. That premise led to the conclusion that because the partnership did not own the amounts in question on December 31, 1953, the exclusionary provisions of Section 481(a) are unavailable. We disagree with this approach, and‘we find that to allow the labeling of the successor’s status to govern the issue of tax liability is to exalt form over substance. The proper inquiry is whether the person who will be liable for the tax occasioned by Section 481 adjustments can invoke the exclusionary provisions of Section 481(a). The obvious import of the exclusionary language of Section 481(a) is to excuse from taxes on pre1954 receivables and inventories any person who (1) owned those amounts on December 31, 1953, and (2) would be liable for taxes on them solely because of a Section 481 adjustment not initiated by the taxpayer. The unfairness that Section 481 was trying to avoid would not be availed if Grogan, as an individual taxpayer, is not to be treated as such because he became a partner. To put the matter in its clearest light, it is undisputed that if Grogan had sold 8.4 percent of his receivables, he would nonetheless be entitled to claim the benefit of the Section 481(a) exclusion for pre1954 amounts as to the remaining 91.6 percent. This approach is entirely consistent with the cases relied upon by the District Court. None of the prior cases have involved a change in form from an individual to a partnership. Rather, the benefit of Section 481 (a)’s exclusion for pre-1954 amounts has been denied only where the transmutational change in status was from a sole proprietorship to a corporation, from a sole proprietorship to a decedent’s estate, or from a partnership to a corporation. In each of these instances, the successor was itself taxable tin the amounts it had acquired. But the interests of a shareholder and of a sole proprietor áre of different species, as is also true of an estate based upon the holdings of a decedent. Here, however, the interest as partner was the same as it was as proprietor, at least for Section 481 tax treatment. Both before and after Grogan formed the partnership, he was personally liable for any tax upon the receivables — only the percentage of his ownership has been altered by the change in status. The benefit bestowed by Section 481 (a)’s exclusionary clause is personal to the one who owned the amounts in pre-1954 years. The partnership’s adjusted income may indeed include the entire amount of income added by reason of the Section 481 adjustment. But when computing the individual tax liability of the partners, Grogan, and only Grogan, may claim the Section 481(a) exclusion, for only Grogan owned the receivables prior to 1954. We do not read or apply Section 481(a) in a semantic seance, finding that “a partnership is not a proprietorship” and therefore the statute’s exclusionary effects are to be given no substance. Instead, we focus on the real out-of-pocket taxpayer and find him to be Grogan, be he a 100 percent proprietor or a 91.6 percent partner. The principal intent on the part of Congress in enacting Section 481 was to ensure that after 1954 no item should escape taxation or be over-taxed or under-taxed at the time a taxpayer changes his method of accounting or reporting income, regardless of who initiated the change. But we cannot overlook the clear expression in the statute of a secondary intent to excuse liability for taxes on pre-1954 amounts that become taxable solely by reason of Section 481 adjustments where (1) the taxpayer owned the amounts before 1954, and (2) the taxpayer did not initiate the change. The primary purpose is to prevent either inequitable taxation or windfalls from accruing to taxpayers. The government here would have us disregard the secondary intent of the statute and award the government a windfall of its own. In wrestling with this problem, the Congress knew that a cut-off date would involve a windfall. It may not have measured meteorologically the statute’s tornadle impact in every case, and it may not have forecast this exact chicken-farmer case. But the Congressional scissor-hold that threw out pre-1954 inventories and receivables was not a foul throw — it was a permissible pinning down, openly seen and openly arrived at by the Congress, of all such future amounts. Congress knew that there were golden eggs that it would neither count nor recoup, but in order to pluck the feathers of varying hues from all future pullets with equity when accounting changes were made, either voluntarily or forced, Congress decided that a few Grogans would be able to feather their nests. A temporary disequilibrium was to be permitted in order to establish a future certainty and tranquility when the winds of accounting changes swept the tax atmosphere. The case must’ be reversed and remanded to the District Court for a re-computation of Eldo Grogan’s proper tax liability in accordance with this opinion. Reversed and remanded. . Fletcher, Section 481: Changes in Accounting Methods, N.Y.U. 18th Inst, on Fed. Tax 161 (1960). . See, e. g., cases compiled in 2 Mertens, Law of Federal Income Taxation §§ 12.21, 12.21a. . The court below stated the issue as follows : “In light of the facts and arguments, the Court is presented with this novel question, which both parties agree is not governed by any existing precedent: Where a person who has operated a business as a sole proprietorship joins with other persons to operate the same business as a partnership and where the former sole proprietor owns an interest of more than 90% in the capital and profits of the partnership, is the partnership a continuation of the sole proprietorship for the purposes of I.R.C. § 481(a) so that pre-1954 inventories and accounts receivable of the proprietorship may be credited against the partnership’s inventories and accounts receivable in 1968, the year in which the government changed the partnership’s accounting method from cash to accrual'1” . For an excellent “capsulated discussion of the statutory-decisional background” of Section 481 see Commissioner v. Welch, 5 Cir. 1965, 345 F.2d 939, 942-943. See also Yager, The Dilemma Under Section 481, N.Y.U. 16th Inst, on Fed. Tax 565, 566-569 (1962). . 2 Mertens, Law of Federal' Income Taxation § 12.21 at 100. . Compare Ross v. Commissioner, 1 Cir. 1948, 169 F.2d 483, with Fowler Bros. & Cox, Inc. v. Commissioner, 6 Cir. 1943, 138 F.2d 774. Bee also Goodrich v. Commissioner, 8 Cir. 1957, 243 F.2d 686. . Commissioner v. Welch, 5 Cir. 1965, 345 F.2d 939, 942. . See S.Fin.Comm.Rep. on H.R. 8300, 83d Cong., 2d Sess., U.S.Code Congressional & Administrative News at pp. 4696—4697 (1954); H.R.Rep. No. 1337, H.R. Ways & Means Comm.Rep. on H.R. 8300, 83d Cong., 2d Sess., U.S.Code Congressional & Administrative News at 4075 (1954). . The language reading “unless the adjustment is attributable to a change in the method of accounting initiated by the taxpayer” was added by the Technical Amendments Act of 1958, Title I of Pub. Law 85-866, § 29(a) (1), and made retroactive to January 1, 1954. Id. § 29(d) (1). Bee also id. § 29(d) (2). . Subsection (b) contains various limitations on the amounts by which liability for taxes can be increased by using subsection (a) and sets out procedures for “softening” the tax blow when subsection (a) is applied. . The new provisions apply to taxable years beginning after December 31, 1953, and ending after August 14, 1954, the date of the enactment of the 1954 Code. 26 U.S.C. § 7851(a) (1)(A). . See note 8 supra. . S.Fin.Comm.Rep. on H.R. 8300, supra note 8, at 4697. . “Taxpayer” refers to Eldo Grogan. His wife, Effie Grogan, is a party to this action only because joint returns were filed for the years in question. . A partnership itself is riot subject to income tax. 26 U.S.O. § 701. Rather, each partner is taxed on his distributive share of the partnership’s income, regardless of whether it is actually distributed. See 26 U.S.O. § 702(a); Treas.Reg. § 1.702-1 (a). . See note 3 supra. . See, e. g., 26 U.S.O. § 703(b); Demirjian v. Commissioner, 3 Cir. 1972, 457 F.2d 1, 5-6; Brookshire v. Commissioner, 4 Cir. 1960, 273 F.2d 638; Swartz v. Commissioner, 42 T.C. 859 (1964). . See, e. g., 26 U.S.C. §§ 701, 702. . See note 10 supra. Taxpayer is satisfied with the court’s application of Section 481(b) and does not appeal from that part of the judgment. . Pittsfield Coal & Oil Co., 25 Tax Ct. Mem. 11 (1966). . Estate of Biewer, 41 T.C. 191 (1963). . Ezo Products Co., 37 T.C. 385 (1961). See also Dearborn Gage Co., 48 T.C. 190 (1967). . Commissioner v. Welch, 5 Cir. 1965, 345 F.2d 939; Graff Chevrolet Co. v. Campbell, 5 Cir. 1965, 343 F.2d 568. Cf. Falk v. Commissioner, 5 Cir. 1964, 332 F.2d 922. . “We have seen that under the [prior law] if the Commissioner forced a taxpayer to change ids accounting method from cash to accrual, the taxpayer would escape forever taxation upon the inventory or accounts receivable which existed at the beginning of the year of change.” Yager, supra note 4, at 568-569. . “The section included, however, a very important limitation upon the principle that income should not be omitted and deductions should not be duplicated. Section 481(a) (2) created an “Iron Curtain,” December 31, 1953, for calendar-year taxpayers, by providing that adjustments to income for the year of change should be limited to those which are attributable to years subject to the 1954 Code. By this provision, Congress in effect forgave the tax liability which should have been paid upon inventories and accounts receivable which had been accumulated for years by cash-basis taxpayers.” Yager, supra note 4, at 569-570. . “[I]t seems clear from the statute and the appropriate Committee Reports that Congress fully realized that, by creating the December 31, 1953 cut-off date in Section 481, it was permitting a taxpayer to avoid taxation on pre-1954 inventory completely . . ." Yager, supra note 4, at 573.

f2d_475/html/0022-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Carl Eugene PHILLIPS, Appellant, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Appellee. No. 72-1660. United States Court of Appeals, Fourth Circuit. Argued Dec. 4, 1972. Decided March 14, 1973. Willard J. Moody, Portsmouth, Va. (Raymond H. Strople, Moody, McMurran & Miller, Portsmouth, Va., on brief), for appellant. Aubrey R. Bowles, Jr., Richmond, Va. (Aubrey R. Bowles, III, Richmond, Va., on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges. BUTZNER, Circuit Judge: Carl Eugene Phillips appeals from a judgment entered upon a jury verdict in favor of the Chesapeake and Ohio Railway Company denying him recovery for injuries he suffered in two unrelated accidents. He principally complains about the district court’s refusal to submit to the jury the issue of negligence with respect to the first accident and the issue of compliance with the Safety Appliance Act with respect to the second. He also assigns error to the admission and exclusion of evidence and to several of the court’s instructions. Because the evidence presented factual issues for determination by the jury, we reverse and remand for a new trial. I The court limited the question of the C&O’s liability for Phillips’ first accident to the Safety Appliance Act. In determining whether the ease should also have been submitted to the jury under the Federal Employers’ Liability Act, we “look only to the evidence and reasonable inferences which tend to support” Phillips’ claims. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949). Phillips was working as a field brakeman on a crew that was moving bad-order cars to a shop track at the C&O Fulton Yard, Richmond, Virginia. His job was to stop the bad-order cars from rolling back if they failed to couple with stationary cars already on the shop track. Testimony about the accident was in dispute, but Phillips’ version was as follows: A bad-order car failed to couple after being twice kicked to the shop track. On both occasions Phillips tried unsuccessfully to stop the car by placing a two-by-four under the wheels. On the third attempt to place the car on the shop track, the conductor in charge told him to mount the car and brake it. He did as he was told, but the brake failed to hold. Fearing a collision, he jumped off and injured himself. At trial, the conductor denied he ordered Phillips to ride the car, but he admitted that it was dangerous to ride cars being kicked to the shop track. Phillips contends that the evidence was sufficient to submit C&O’s negligenee under the Federal Employers’ Liability Act to the jury in three respects: (1) failure to provide adequate instruction and training; (2) failure to promulgate and enforce safety rules; and (3) failure to'provide a safe place to work. The Supreme Court has restricted the power of a trial judge to withdraw a negligence issue under the Act from the jury: “Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.” Rogers v. Pacific R. R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Applying this standard, we believe Phillips was entitled to have the jury determine the issue of negligence. Phillips’ contentions that the C&O was negligent in failing to provide adequate training and to promulgate and enforce safety rules are closely related. Phillips was eighteen years old, and he had received only four days training. He claimed that he had never been warned that mounting a ear being kicked to the shop track was unsafe, nor had he been furnished a rule book prohibiting this practice. The C&O introduced some of its rules, but these did not include a regulation that forbade riding cars being kicked to the shop track. However, one of C&O’s witnesses admitted that the practice was unsafe. From this evidence, the jury could have found that the railroad had failed in its duty to train Phillips how to work safely as a brakeman on the shop track. Cincinnati, N. O. & T. P. Ry. v. Davis, 293 F. 481, 484 (6th Cir.1923); Erie R. R. v. Collins, 259 F. 172, 177 (2d Cir. 1919). The same evidence would have enabled the jury to find that the C&O was negligent in failing to promulgate and enforce adequate safety regulations. Kimbler v. Pittsburgh & L. E. R. R., 331 F.2d 383, 386 (3d Cir. 1964). Phillips’ testimony that he was ordered to ride a car being kicked to the shop track, admittedly an unsafe practice, was sufficient to entitle him to have the jury decide whether the railroad, through its conductor, assigned him to an unsafe place to work. Moreover, the testimony of Phillips’ father provided an additional reason for submitting the case to the jury on the grounds that the C&O failed to provide a safe place to work or that the conductor was negligent. Phillips’ father, who had some 27 years experience as a brakeman, was offered as an expert witness. He testified that, although kicking cars was normally a safe railroad practice, kicking bad-order cars to the shop yard was unsafe because the track was on an incline and the cars had something wrong with them. The district court excluded this testimony because Phillips was unable to prove that the car he was riding was defective. The evidence should not have been excluded. The C&O’s conductor in charge of the operation knew that many of the bad-order cars had safety defects, although he was unable to testify about the condition of this car. He also knew that it was dangerous to ride a car on the shop track. After two vain attempts to stop the car with a two-by-four, it should have been apparent to the conductor that this car, loaded with scrap iron, was too heavy to be controlled by chocking. From these facts the jury could have found that the railroad was negligent because its conductor ordered the car kicked to the shop track a third time instead of shoving it in by the locomotive, an operation that would have safely controlled the movement of the car. The evidence conflicted on many of these points, and the railroad raised doubts about the credibility of Phillips’ testimony. But since fair-minded men could differ over the evidence and the inferences that could be justifiably drawn from it, the issue of negligence under the Federal Employers’ Liability Act should have been submitted to the jury. “To deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.” Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943). II Several months after the first accident, Phillips returned to work and was injured while uncoupling cars. His job on this occasion was to pull the cut lever that releases a pin and uncouples the ear. Phillips testified that he pulled the cut lever and gave the engineer a signal. However, the pin fell preventing the car from uncoupling. He jumped back, pulled the cut lever again, and felt a sharp pain in his leg as he stepped away. There was testimony that it is abnormal, though not unknown, for a pin to fall after it has been released to uncouple a car. The district judge ruled this evidence was insufficient to show that the coupler was defective, He, therefore, refused to submit to the jury Phillips’ claim that the C&O had failed to comply with the Safety Appliance Act, and he limited the jury’s consideration of the second accident to the question of the C&O’s negligence under the Federal Employers’ Liability Act. The Safety Appliance Act imposes liability for defective uncoupling devices whether or not the railroad employee is going between cars to uncouple them when he is injured. Southern Pac. Co. v. Mahl, 406 F.2d 1201, 1204 (5th Cir. 1969). Furthermore, the mere failure of a safety device to operate properly at the time the employee is injured is sufficient to show that it is defective even if it operates properly before and after the incident in question. Myers v. Reading Co., 331 U.S. 477, 483, 67 S.Ct. 1334, 91 L.Ed. 1615 (1947). Therefore, testimony that the pin fell abnormally and prevented the cars from uncoupling was sufficient to submit the issue of liability under the Safety Appliance Act to the jury. Cf. Penn v. Chicago & N. W. Ry., 335 U.S. 849, 69 S.Ct. 79, 93 L.Ed. 398 (1948), rev’g 163 F.2d 995, 997 (7th Cir.1947). Ill Phillips’ other assignments of error require but brief comment. He complains that admission in evidence of a written statement he gave a C&O investigator following his first accident is barred by Virginia law. The district judge carefully reviewed the federal decisions on this issue. He correctly treated the problem as one of federal law under Rule 43(a) of the Federal Rules of Civil Procedure and properly held the statement admissible. Scarborough v. Atlantic Coast Line R. R., 190 F.2d 935, 941 (4th Cir. 1951). We find no merit in Phillips’ insistence that the district court should have held him free of contributory negligence as a matter of law. With respect to the claims under the Federal Employers’ Liability Act, this issue presented a question for the jury. The district court instructed the jury that Phillips did not assume the risk of danger of injury. It added, however, that if Phillips’ injuries were caused by normal risks or hazards which were inherent in the work, and not by the railroad’s negligence or violation of the Safety Appliance Act, Phillips could not recover. This explanation was likely to confuse rather than instruct the jury. Because the doctrine of assumption of risk played no part in the case, all reference to it and to risk inherent in the work could have been omitted from the charge without detracting from it. We find no merit in Phillips’ other assignments of error. The judgment is reversed, and the case is remanded for a new trial. . Section. 1 of the Federal Employers’ Liability Act provides: “Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars . . . .”45 U.S.C. § 51 (1970). . The term “bad-order” cars included ears needing safety repairs as well as cars requiring only minor alterations, such as addition of loading racks. There is no evidence why the car on which Phillips was riding at the time of the accident had been sent to the shop track. . To “kick” a car to the shop track, an engine pushes it towards the track. When the engine stops, the car is allowed to roll freely to stationary cars with which it is supposed to couple on contact. . 45 U.S.C. § 2 (1970) provides: “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” . Va.Code Ann. § 8-293 (1950) provides in part: “. . . [I]n an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case.”

f2d_475/html/0026-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Kermit STUBBLEFIELD, Petitioner-Appellant, v. J. D. HENDERSON, Warden, U. S. Penitentiary, Atlanta, Georgia, Respondent-Appellee. Nos. 72-2812, 72-2813. United States Court of Appeals, Fifth Circuit. March 1, 1973. Kermit Stubblefield, pro se. John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. PER CURIAM: This appeal comes before us under the provisions of Local Rule 9(c)(2), the appellant having failed to file a brief. We affirm the judgment below. Appellant, an inmate of the federal penitentiary in Atlanta, Georgia, filed his complaint in the district court alleging that he has been denied the assistance of another inmate to type letters on legal matters. The district court dismissed the petition without prejudice to refile upon exhaustion of administrative remedies. Appellant sought relief from the Bureau of Prisons, which advised him that regulations at Atlanta provide that typewriters and typists are available only for preparation of writs, not for letters. Appellant then refiled his petition in the district court, and the petition was dismissed. It is well established that an inmate has no federally protected right to the use of typewriters to prepare legal writs. Williams v. United States Department of Justice, 5th Cir. 1970, 433 F.2d 958; Durham v. Blackwell, 5th Cir. 1969, 409 F.2d 838; see also Tarlton v. Henderson, 5th Cir. 1972, 467 F.2d 200. It follows, therefore, that an inmate has no federally protected right to use typewriters for correspondence, whether personal or legal. The judgment below is affirmed. Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9 (c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.

f2d_475/html/0027-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Geoffrey Michael AVERY, Defendant-Appellant. No. 72-3716 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 20, 1973. Rehearing and Rehearing En Banc Denied May 8, 1973. Gardner W. Beckett, Jr., St. Peters-burg, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiffappellee. 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: Geoffrey Michael Avery was convicted of knowingly and wilfully failing and refusing to perform a duty required of him by law, that is, he failed and refused to report to Local Board #30, St. Peters-burg, Florida, in violation of § 462(a), Title 50 App., United States Code. The appellant now claims that although he made no effort of any kind whatever to assert such a status he should have been entitled to a conscientious objector classification. The appeal falls squarely within the decision of this Court in United States v. Taylor, 5 Cir., 1971, 448 F.2d 349. Consequently, the judgment of the District Court is Affirmed.

f2d_475/html/0027-02.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AERO-MOTIVE MANUFACTURING COMPANY, Respondent. No. 72-1697. United States Court of Appeals, Sixth Circuit. Argued Jan. 29, 1973. Decided Feb. 8, 1973. Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Patrick Hardin, Alan D. Cirker, Charles N. Steele, N. L. R. B., Washington, D. C., Jerome H. Brooks, Director, Region 7, NLRB, Detroit, Mich., for petitioner. Darrel D. Jacobs, Michael F. Ward (Huston & Jacobs), Kalamazoo, Mich., for respondent. Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges. ORDER This case is before the court upon the application of the National Labor Relations Board for enforcement of its order reported at 195 N.L.R.B. No. 133. Reference is made to the reported decision of the Board for a recitation of pertinent facts. We agree that the respondent company was guilty of violating §§ 8(a) (1) and (5) of the Act as found by the Board. The majority of the panel is of the view that this court must enforce, albeit reluctantly, the order that the company pay $100 plus interest to those who engaged in the strike, did not receive the $100 bonus and were recalled to work on or before March 9, 1972. The award to non-strikers was made after a new collective bargaining agreement had been signed. The Board has broad discretion in formulating orders remedying unfair labor practices. Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 346-347, 73 S.Ct. 287, 97 L.Ed. 377 (1953); Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 194-195, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). Further, there appears to be no practical alternative to the remedy prescribed by the Board. It is ordered that enforcement be granted. Because of the violence and threats to the personal safety and property of non-strikers which occurred while the strike was in progress, Chief Judge Phillips would deny enforcement of sub-paragraph (a) of paragraph 2 of the order of the Board, as amended April 17, 1972, but would enforce the remainder of the Board’s order.

f2d_475/html/0028-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Eugene TANNENBAUM, Defendant-Appellant. No. 72-2385 Summary Calendar. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Daniel S. Pearson, Miami, Fla. (Court-Appointed but not under Act), for defendant-appellant. Robert W. Rust, U. S. Atty., Robert C. Byrne, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before GEWIN, AINSWORTH and SIMPSON, 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: The defendant, Eugene Tannenbaum, was convicted by a jury on two counts of willful misapplication of bank funds, 18 U.S.C. § 656, and three counts of making or causing false entries to be made in a bank ledger, 18 U.S.C. § 1005. Concurrent two year sentences were imposed on each count. On this appeal, Tannenbaum contends that the evidence was insufficient to show that: (1) a connection existed between the misapplication of the bank funds and his status as a bank officer and director, and (2) the entries on the bank ledger were false entries within the meaning of 18 U.S.C. § 1005. Having carefully reviewed the record in this case, we find that the jury was properly instructed as to the elements of each offense and that its verdict was amply supported by the evidence. If we were to uphold Tannenbaum’s contentions on the facts of this ease, the criminal statutes involved would become nullities. Judgment affirmed.

f2d_475/html/0029-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Alma F. ANDERSON et al., Plaintiffs-Appellees, v. SALT LAKE CITY CORPORATION and Salt Lake County, Defendants-Appellants. Nos. 72-1286, 72-1287. United States Court of Appeals, Tenth Circuit. Argued and Submitted Sept. 18, 1972. Decided March 16, 1973. Ray L. Montgomery, Asst. Salt Lake City Atty., and Merrill K. Davis, Deputy, Salt Lake County Atty. (Jack L. Crellin, Salt Lake City Atty., and Carl J. Nemelka, Salt Lake County Atty., with them on the briefs), for defendants-appellants. Bryce E. Roe, Salt Lake City, Utah (Willi,am G. Fowler, Salt Lake City, Utah, with him on the brief), for plaintiffs-appellees. Before MURRAH, SETH and DOYLE, Circuit Judges. MURRAH, Circuit Judge. The Boards of Commissioners of Salt Lake City and Salt Lake County informally permitted the Fraternal Order of Eagles to erect on city-county courthouse grounds a permanent 3 x 5-foot granite monolith inscribed with a version of the Ten Commandments and certain other symbols representing the All Seeing Eye of God, the Star of David, the Order of Eagles, letters of the Hebraic alphabet, and Christ or peace. After erection of the monolith in a prominent place near the courthouse entrance, the Commissioners of the City formally authorized the installation and maintenance of lighting equipment to illuminate and enhance the display, at City and County expense. Similar monoliths have been erected in public places across the United States and Canada— nine of them in Utah — as part of the Eagles’ established and continuing “youth guidance program,” and “. . . to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life.” The plaintiffs, all residents and taxpayers of Salt Lake County, brought this suit seeking removal of the monolith and an injunction prohibiting the City and County from permitting erection or' maintenance of any similar monument on public land, alleging that the presence of the monolith is a violation of the Establishment Clause of the First Amendment, United States Constitution, and Article 1, Section 4, of the Utah Constitution. Upon trial, the court, 348 F.Supp. 1170, held that the message conveyed by the monolith was “clearly religious in character;” that by their actions the Boards of Commissioners must be deemed to have adopted the program of the Order of Eagles, with the purpose and primary effect of advancing the cause of religion and certain religious concepts, thus inhibiting the ideas of persons with alternative beliefs, contrary to the prohibitions of the Establishment and Free Exercise Clauses of the First Amendment. Judgment was entered for the plaintiffs. We cannot agree, and, therefore, reverse the judgment. The City and County challenge the standing of the plaintiffs to bring this suit, alleging lack of a proper nexus between plaintiffs’ status and the alleged constitutional infringement, and failure to show any direct injury. But we think the requisite standing is clearly conferred by non-economic religious values when the plaintiffs assert a litigable interest under the Establishment and Free Exercise Clauses of the Federal Constitution. E. g., Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944, 946 (1970), citing Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965). We think the plaintiffs have standing based on their beliefs about religion to question whether those beliefs have been infringed upon by an alleged use of public property for religious purposes. We do not understand either the City or County to contend that the erection and maintenance of the monolith was not done under color of state law, in the constitutional sense in which the question is presented here for decision. Cf. Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360 (1969), cert. denied, Eugene Sand & Gravel v. Lowe, 397 U.S. 1042, 90 S.Ct. 1366, 25 L.Ed.2d 654 (1970); Allen v. Hickel, supra, 424 F.2d at 947; and Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The City and County do invoke the abstention doctrine, contending that the federal court should have stayed its hand while the matter in issue is litigated in the state courts under the similar clauses of the state and federal constitutions. But this is not a ease or circumstance calling for abstention of the exercise of federal jurisdiction. The right asserted here is a basic First Amendment right, of which the federal court has jurisdiction, and, although a like provision of the state constitution is involved, proper resolution of the federal right is not conditioned upon resolution of any state question, law, or constitution. See, e. g., Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971); Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), quoting Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.C.Kan.1945); and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). This brings us to the point of applying the Establishment Clause to the facts 'in this case. Surely nothing we can say at this time or place concerning the scope and effect of the Establishment Clause can serve to add to what has already been so prolifieally said elsewhere. From Everson v. Board of Education, supra, to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court has treated the Establishment and Free Exercise Clauses under various factual situations with perplexing diversity of views. But throughout all these scholarly and authoritative writings runs a strain of consistency — one clear and distinct tenet of which we can be sure — the Constitution mandates complete government neutrality in religious matters. See, e. g., Everson v. Board of Education, supra; and Abington School Dist. v. Schemp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). The government may not “. pass laws which aid one religion, aid all religions, or prefer one religion over another . . . .” Everson v. Board of Education, supra, 330 U.S. at 15, 67 S.Ct. at 511. Nor can one cent of taxpayers’ money be devoted to religious purposes. E. g., Douglas, J., concurrence, Lemon v. Kurtzman, supra, 403 U.S. at 640, 91 S.Ct. 2105, and Everson v. Board of Education, supra, 330 U.S. at 16, 67 S.Ct. 504. In Lemon v. Kurtzman, supra, Chief Justice Burger reviewed and summarized the case history of the Establishment Clause. Said he, “[o]ur prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. . Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” 403 U.S., at 614, 91 S.Ct., at 2112. Writing in the same case, Mr. Justice Brennan delineated pertinent standards in these words, “[w]hat the framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.” 403 U.S., at 643, 91 S.Ct., at 2126, quoting Abington School Dist. v. Schemp, supra, 374 U.S. at 294-295, 83 S.Ct. 1560 (concurring opinion), and Walz v. Tax Commission, 397 U.S. 664, 680-681, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (concurring opinion). From all that has been said, “[t]he test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.” E. g., Abington School Dist. v. Schemp, supra, 374 U.S. at 222, 83 S.Ct. at 1571. In applying this test, we must strike a balance between that which is primarily religious and that which is primarily secular, albeit embodying some religious impact. A tempered approach obviates the absurdity of striking down insubstantial and widely accepted references to the diety in circumstances such as courtroom ceremony, oaths of public office, and on national currency and coin. E. g., Allen v. Hickel, supra, 424 F.2d at 949. Overzealous rigidity may diminish or ultimately destroy the bulwark we have erected against governmental interference in matters of religion. Walz v. Tax Commission, supra 397 U.S. at 669, 90 S.Ct. 1409. We know that “[t]he Government may depict objects with a spiritual content, but it may not promote or give its stamp of approval to such spiritual content.” Allen v. Hickel, supra 424 F.2d at 948. The decisions involving factual relationships more closely bearing upon our own case suffer from a lack of unanimity of reasoning and results. A brief reference to those cases serves to bring our case into constitutional focus. A string of lights in the form of a Latin Cross on the side of a courthouse was not a violation of the Establishment Clause because its primary purpose was found to be seasonal decoration of the downtown area for the benefit of business. See Paul v. Dade County, 202 So. 2d 833 (Fla.App.1967), cert. denied, 207 So.2d 690 (Fla.1967), cert. denied, 390 U.S. 1041, 88 S.Ct. 1636, 20 L.Ed.2d 304 (1968). In Allen v. Hickel, supra, the plaintiffs objected to the annual erection of a creche on federal land, as part of a continuing seasonal pageant initiated in 1954. The trial court granted defendants’ motion for summary judgment on grounds that the creche was only one of a group of symbols intended to represent the way Americans celebrate a particular holiday season. The Court of Appeals reasoned that the absence of evidence precluded determination of the “purpose and primary effect” of the creche, and accordingly remanded the case. Plaques were subsequently installed at the display explaining the secular purpose and history of the pageant. On remand the trial court recognized the religious significance of a nativity scene, but, in view of the additional secular significance of the creche in the over-all circumstances of the pageant, held that the religious effect was not substantial, hence the creche was not proscribed. See Allen v. Morton, 333 F. Supp. 1088 (D.C.D.C.1971). In another ease involving issues similar to those we face here, Lowe v. City of Eugene, supra, the city issued permits for erection of a permanent cross in a municipal park. Despite contentions by the city that the cross was to be a war memorial and an attraction for local business, and that the erection did not involve public expense, the court ordered removal of the monument on grounds that the cross represented preferential treatment of particular religious ideas by the municipality. In another case, an Oklahoma City resident and taxpayer brought a suit seeking an injunction to prevent the city or its officials from maintaining a 50-foot-high Latin Cross at the municipal fairgrounds. The Supreme Court of Oklahoma, affirming unanimously the sustaining of defendant’s general demurrer on grounds that the cross was displayed in a “secular environment” and displayed sectarian ideas only in a “most evanescent” manner, emphasized that the action was brought only under the Oklahoma Constitution, and did not involve a question of federal relief. Meyer v. Oklahoma City, 496 P.2d 789 (Okl.1972), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244. It is against this background that we determine the “purpose and primary effect” of the subject monolith. The exact origin of the Ten Commandments is uncertain, but testimony in the record aids the supposition that a large portion of our population believes they are Bible based. Even so, an ecclesiastical background does not necessarily mean that the Decalogue is primarily religious in character — it also has substantial secular attributes. Indeed, one of the plaintiffs in our case, a lawyer, admitted while testifying that, “. . . the Ten Commandments is an affirmation of at least a precedent legal code.” Although one of the declared purposes of the monolith was to inspire respect for the law of God, yet at the same time secular purposes were also emphasized. It is noteworthy that the Order of the Eagles is not a religious organization— it is a fraternal order which advocates ecclesiastical law as the temporal foundation on which all law is based, but this creed does not include any element of coercion concerning these beliefs, unless one considers it coercive to look upon the Ten Commandments. (Although they are in plain view, no one is required to read or recite them. Cf., e. g., Cohen v. State of California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).) So the Decalogue is at once religious and secular, as, indeed, one would expect, considering the role of religion in our traditions. After all, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). “It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are ‘earnestly praying, as in duty bound, that the Supreme Lawgiver of the Universe . guide them into every measure which may be worthy of his [blessing...]" Abington School Dist. v. Schemp, supra, 374 U.S. at 213, 83 S.Ct. at 1566, quoting Memorial and Remonstrance Against Religious Assessments, as cited in Everson v. Board of Education, supra, 330 U.S. at 71-72, 67 S.Ct. 504 (appendix to dissenting opinion). “The history of man is inseparable from the history of religion.” See Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 1268, 8 L.Ed.2d 601 (1962). It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era. See, e. g., Griswold, Absolute is in the Dark — A Discussion of the Approach of the Supreme Court to Constitutional Questions, 8 Utah Law Rev. 167, 173-176 (1963). The wholesome neutrality guaranteed by the Establishment and Free Exercise Clauses does not dictate obliteration of all our religious traditions. See, e. g., Griswold, supra. Although an accompanying plaque explaining the secular significance of the Ten Commandments would be appropriate in a constitutional sense, we cannot say that the monument, as it stands, is more than a depiction of a historically important monument with both secular and sectarian effects. No one can be the judge of his own objectivity. It may well be that in this blurred, indistinct area of our national life and environment, opinions about the purpose and effect of the monolith are influenced by orthodox or unorthodox propensities. But be that as it may, we are brought to the conclusion that the monolith is primarily secular, and not religious in character; that neither its purpose or effect tends to establish religious belief. The judgment of the District Court is, accordingly, reversed. . For example: In Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L. Ed. 711 (1947), Jackson and Rutledge, JJ., filed separate dissenting opinions; in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), Black, Frankfurter and Jackson, JJ., each filed a separate dissenting opinion; in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), Harlan, J., joined Frankfurter, J., in an 83-page dissenting opinion with two appendices; in Abington School Dist. v. Schemp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), Douglas, Brennan and Goldberg, JJ., each concurred separately, while Stewart, J., dissented ; in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), Brennan, J., concurred specially, Harlan, J., wrote a separate opinion, and Douglas, J., dissented; and, in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), Black, J., joined Douglas, J., in a special concurrence, while Brennan and White, JJ., wrote separate opinions. . See, e. g., J. Stamm and M. Andrew, The Ten Commanments in Recent Research 22-28, et seq. (2d ed. 1962).

f2d_475/html/0034-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

W. S. SHAMBAN AND COMPANY, a corporation, Appellee, v. COMMERCE AND INDUSTRY INSURANCE COMPANY, a corporation, and Does I through V, Appellant. No. 26863. United States Court of Appeals, Ninth Circuit. March 12, 1973. Rehearing Denied May 14, 1973. David C. Bogert (argued), Richard B. Wolf, of Long & Levit, Los Angeles, Cal., for appellant. Herbert N. Wolfe (argued), of Low & Stone, Beverly Hills, Cal., for appellee. Before BARNES and WALLACE, Circuit Judges, and ENRIGHT, District J udge. The Honorable William B. Enright, United States' District Judge for the Southern District of California, sitting by designation. PER CURIAM: This appeal resulted from an action brought by W. S. Shamban and Company against its insurance carrier for breach of the insurance provisions in which the insurance carrier, Commerce and Industry Insurance Company, failed to pay to its insured amounts due under a business interruption policy in force during a fire at the Fort Wayne, Indiana, plant of plaintiff. On April 12, 1967, a fire at plaintiff’s plant damaged one production oven and temperature control mechanism of the oven, together with machinery used for processing metal parts. In addition, a recently installed device known as a “Gatlin Gun Sintering Rack,” used in a revolutionary method for producing “core molded” tubes was destroyed. At the time of the loss there was in effect a policy of insurance between plaintiff, as insured, and defendant, as insurer, under which defendant agreed to indemnify plaintiff for business interruption loss caused by such a fire. More specifically, the policy insured plaintiff against: “direct loss of earnings on operations which, had they not been prevented would have taken place during . . . the length of time which would have been required with the exercise of due diligence and dispatch to repair, rebuild or replace such of the described property as has been damaged.” The policy defined “loss of earnings” as: “the loss to the insured disclosed by comparing actual income and expense . for whatever period is affected with estimated income and expense for the same period assuming there had been no loss.” Plaintiff was awarded judgment in the sum of $121,000 by the trial court. Appellant before this court contends the lower court improperly computed appellee’s losses for two reasons. First, defendant maintains that in making Finding of Fact Number 6, the trial court improperly relied upon an unrepresentative prior year’s increase in estimating lost sales for the period of business interruption (suspension period). Secondly, defendant argues that in Finding of Fact Number 6(c), the lower court erred in impliedly determining that plaintiff would have earned 27.58% more sales revenue during the suspension period without incurring any additional labor costs. The lower court determined that the suspension period was three and one-half months. Following the formula required in the insurance contract, the court projected sales revenue for this period using Shamban Company’s sales performance record as a gauge. Specifically, the court used the rate of growth of sales reflected in the 12 months immediately preceding the suspension period. This figure was 27.58%. Appellant insurance company objects to this figure as being unrepresentative of the company’s growth record. Appellant aptly points to the growth rate in the year ending March 31, 1966, being 15.79%, and in the year ending March 31, 1965, being 15.79%. Thus, defendant argues, 1967 was an exceptional year which should not be exclusively used. On the other hand, defendant offers little persuasive evidence that such a growth rate would not continue, at least over the short run. It should be remembered that the base year elected by the trial judge was the 12 month period immediately preceding the fire and ensuing suspension period. Accordingly, we find that the trial court’s findings on this issue are supported by the evidence, and we concur in those findings. Rule 52(a) Federal Rules Civil Procedure, 28 U.S.C.A.; Ruud v. American Packing & Provision Company, 177 F.2d 538 (9th Cir. 1949). Defendant, on appeal, also contends that the lower court erred finding that plaintiff would have earned 27.58% more sales revenue during the three and one-half month suspension period without incurring any additional labor cost. Defendant’s argument that this finding is not supported by the evidence is well taken. Both parties agree that plaintiff is entitled to be reimbursed only for the difference between projected sales revenue and projected cost of goods sold. In this case the trial judge apparently found there would be no concomitant rise in labor cost with a 27.58% rise in sales. Plaintiff contends this result is supported by evidence of record that the new Gatling Gun process greatly increases productivity. We cannot agree. As defendant points out, the Gatling Gun process is only one stage of production. In fact, the Gatling Gun stage requires only ten persons, whereas the machining stage requires 80 persons, and the finishing stage requires 25 persons. In the absence of contrary evidence, it is logical to project a rise in labor costs in the machining stage and the finishing stage production even if the Gatling Gun stage could effect increased output with no extra labor costs. In fact, the evidence did reveal that some departments at the plant were already working overtime prior to the fire. Evidence adduced at trial indicated that direct cost of goods sold including labor costs was about 50% of sales revenue for the previous 12 months. The trial court in its Finding of Fact Number 6(c), however, determined that the sum of the continuing costs and expenses which would have attended plaintiff’s lost sales equalled only 35% of the revenue from such sales. We recognize that we must view the record in the light most favorable to sustain the lower court’s judgment for plaintiff, and Finding of Fact 6(c) of the District Court must be sustained unless “clearly erroneous.” Rule 52(a) Federal Rules of Civil Procedure, 28 U. S.C.A.; County of Ventura v. Blackburn, 362 F.2d 515 (9th Cir. 1966). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Company, 333 U.S. 364 at 395, 68 S.Ct. 525 at 542, 92 L.Ed. 746 (1948). Appellant contends that the standard of review stated in Rule 52(a) has a diminished function in a case such as this, where the lower court’s fact-finding is based on interpreting data with the aid of expert witnesses rather than judging the credibility of witnesses. Citing the view expressed by the late Judge Frank in Orvis v. Higgins, 180 F.2d 537, 539 (2nd Cir. 1950), appellant urges this court to disregard the trial court’s findings. See also Pacific Vegetable Oil Corp. v. Commissioner of Internal Revenue, 251 F.2d 682 (9th Cir. 1957), Pacific Portland Cement Co. v. Food Machinery & Chem. Corp., 178 F.2d 541 (9th Cir. 1949). The late Judge Clark who drafted Rule 52(a) seemed, however, to be of the opinion that the “clearly erroneous” test should be applied on review even in a case not involving the credibility of witnesses. This court in Lundgren v. Freeman, 307 F.2d 104, 113 (9th Cir. 1962) addressed itself to this question and observed, “It seems to us that the Clark view is favored by history.” We have adhered to this position subsequently. United States v. Ironworkers Local 86, 443 F.2d 544, 549 (9th Cir. 1971). We, therefore, decline to review the evidence de novo and substitute our judgment for that of the trial judge. After reviewing the record, we are left with the definite and firm conviction that the trial court made a mistake in finding that there would be absolutely no increase in cost, in spite of a 27.58% increase in sales. The trial court should reconsider the evidence on costs and make a new finding in relationship thereto. Affirmed in part and reversed in part.

f2d_475/html/0037-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America and Elmer W. Holmes, Internal Revenue Agent, Internal Revenue Service, Plaintiffs-Appellees, v. L. Barbee PONDER, Jr., Defendant-Appellant. No. 72-2773 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 15, 1973. Rehearing Denied April 12, 1973. L. Barbee Ponder, Jr., pro se. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept, of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Elmer W. Holmes, Agent, I. R. S., Baton Rouge, La., Mary Williams Cazalas, Joseph R. McMahon, Jr., Asst. U. S. Attys., New Orleans, La., for plaintiffsappellees. Before WISDOM, GODBOLD and RONEY, Circuit Judges. Rule 18, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: This is an appeal from an order of the District Court requiring taxpayer to comply with an Internal Revenue summons issued under the authority of 26 U.S.C.A. § 7602. We affirm. 1. There was no abuse of discretion in the denial of taxpayer’s motion for a change of venue. Although a District Court may, for the convenience of parties and witnesses, transfer the action to any other District where it might have been brought, 28 U.S.C.A. § 1404(a), a motion for a change of venue is addressed to the sound discretion of the Court, and the denial of the motion will not be overturned on appeal in the absence of an abuse of discretion. Metropolitan Life Ins. Co. v. Jones, 442 F.2d 1043 (5th Cir. 1971); Nowell v. Dick, 413 F.2d 1204 (5th Cir. 1969). 2. Relying on the fact that the return day specified in the summons was a legal holiday, which date was later changed by means of a letter from the agent issuing the summons, taxpayer asserts that the summons was invalid. Under the circumstances of this case, the District Court committed no error in denying the motion to dismiss the summons. Taxpayer, a practicing lawyer, appeared on the date specified in the supplementary letter, yet he did not question at that time the validity of the summons. By failing to object, taxpayer waived the right to assert this defense. 3. The attorney-client privilege is no defense to the summons. The' privilege applies to communications between lawyer and client, and, to come within the scope of the privilege, an attorney must show that the communication was made to him confidentially, in his professional capacity, for the purpose of securing legal advice or assistance. See e. g., Colton v. United States, 306 F.2d 633 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963). The identity of a client is a matter not normally within the privilege, Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965), cert. denied, 382 U. S. 1028, 86 S.Ct. 648, 15 L.Ed.2d 540 (1966), nor are matters involving the receipt of fees from a client usually privileged, see United States v. Finley, 434 F.2d 596 (5th Cir. 1970). The summons here at issue sought only financial records limited to cancelled checks, bank statements, duplicate deposit slips, and general ledger and cash receipts and disbursements journals, and taxpayer failed to carry his burden of proving that these records fell within the attorney-client privilege. Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963); cf. United States v. Johnson, 465 F.2d 793 (5th Cir. 1972). 4. Taxpayer’s Fifth Amendment privilege against self-incrimination is not a defense to the summons. Although the summons seeks personal financial records, taxpayer made no showing that his claim of privilege was justified. As we stated in United States v. Roundtree, 420 F.2d 845 (5th Cir. 1969), “[the witness’] remedy is not to voice a blanket refusal to produce his records or to testify. Instead, he must present himself with his records for questioning, and as to each question and each record elect to raise or not to raise the defense. The district court may then determine by reviewing . . . [the witness’] records and by considering each question whether, in each instance, the claim of self-incrimination is well founded.” 420 F.2d at 852. See also United States v. Johnson, supra. Instead of selectively invoking his Fifth Amendment privilege, taxpayer broadly claimed the privilege. He neither specified particular documents nor advanced any evidence indicating how production of the requested documents and records would incriminate him. 5. Finally, the summons was not invalid because it sought copies, not original records. Taxpayer’s contention that the order violates the “best evidence” rule is wholly meritless. The “best evidence” rule is a rule of admissibility and is limited to situations involving the proof of the contents of a writing. United States v. Duffy, 454 F.2d 809 (5th Cir. 1972). Affirmed. . § 7602. Examination of books and witnesses Eor the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— (1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and (3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry. Aug. 16, 1954, c. 736, 68A Stat. 901.

f2d_475/html/0040-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. George Robert IRONS and Loretta Fay Irons, Appellants. No. 72-1309. United States Court of Appeals, Eighth Circuit. Submitted Dec. 6, 1972. Decided March 9, 1973. Certiorari Denied June 18, 1973. See 93 S.Ct. 3020. Jack S. Nordby, St. Paul, Minn., for appellants. J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before MEHAFFY, BRIGHT and STEPHENSON, Circuit Judges. MEHAFFY, Circuit Judge. Defendants, George Robert Irons, Jr. (hereafter Irons) and his wife, Loretta Fay Irons (hereafter Mrs. Irons), were convicted by trial to a jury under an indictment which charged them with a violation of 18 U.S.C. § 2113(a) for attempting to commit a felony by entering the State Bank of Dennison, Minnesota, the deposits of which were insured by the Federal Deposit Insurance Corporation. Each defendant was sentenced to a term of two years. Mrs. Irons’ sentence contained a proviso that after she had served six months of her sentence the remainder was to be suspended and she was placed on probation for eighteen months. Defendants were jointly tried and represented by the same appointed counsel. Upon the close of the government’s case defense counsel moved for a judgment of acquittal in behalf of Mrs. Irons. This motion was denied and was followed by a motion for severance with the request that the case against Mrs. Irons be submitted to the jury at that point. This motion also was denied. There had been no request for separate counsel at any level prior to this time. Apparently after the close of the government’s case defense counsel concluded that the government had failed to make a case against Mrs. Irons and that her best interests would be served by resting her case at this point. Thereafter Irons took the witness stand as the only witness for the defense. For reasons hereinafter set forth, we sustain the conviction of Irons and reverse the conviction as to Mrs. Irons. The issues on appeal are the sufficiency of the evidence to sustain the conviction in both cases and whether defendants were denied their right to separate attorneys. The case against Irons. The offense was committed in the small village of Dennison, Minnesota, a community of some two hundred fifty residents, approximately fifty miles south of Minneapolis-St. Paul. The few business buildings of Dennison are located on Dennison’s Main Street and run for about five blocks. They include the State Bank of Dennison. Eugene Gillispie, an employee of the local grain elevator, also serves Dennison as its constable and only law enforcement officer. The constable and his wife were at home and had fallen asleep while listening to television. The constable’s home is on Thorpe Street, one block east of Main Street and parallel to it, and is approximately three hundred fifty feet from the rear of the bank building. Mrs. Gillispie awakened at about 3:00 a. m. and noticed a station wagon on her front lawn. The constable went outside.to observe, took the license number of the station wagon, went back in the house, armed himself and called the Northfield, Minnesota police, giving them the license number on the station wagon which was registered in the name of Irons. The constable then took a position where he could observe the figures in the shadows at the rear of the bank building. There is a path that runs across the vacant area in an east-west direction from the rear of the bank to the constable’s home. This property is virtually vacant but does contain a storage shed or two. When the constable and his wife first stepped outside his house, they heard a steady pounding noise emanating from the direction of the rear of the bank. This pounding continued up until the arrival of the Northfield police. Additionally, the constable observed a flashlight in operation. Upon the arrival of the North-field police the pounding ceased and two figures were seen to emerge from the shadows behind the bank and run in the direction of the station wagon parked on the lawn of the constable’s house. The vantage point from which the constable was looking gave him an unobstructed view of the rear of the bank. He observed that the two figures paused a moment by the storage shed and continued to run in the direction of the station wagon. When the two figures were about thirty feet from the constable he ordered them to stop but one of the figures ran off and the other (Irons) continued towards the constable feigning intoxication. Not only the constable but Clifford Witt, a deputy sheriff, testified that there was nothing to indicate Irons’ intoxication. In their investigation of the area the officers found a gaping hole approximately two feet by three feet in the rear wall of the bank building and some burglar tools, including an eight pound maul, a punch bar and a piece of pipe. The officers observed a reddish substance or dust on Irons’ pants and shoes which resembled the brick dust on the rear wall of the bank. Their search of Irons’ station wagon produced a police radio with inoperative batteries and the dome light cover which was found on the rear seat without a light bulb in its receptacle. When the officers were canvassing the wooded area, they found Mrs. Irons lying on the ground behind a tree. This was approximately ten minutes after the officers had arrived. It was at this point that the government rested and counsel elected not to put Mrs. Irons on the stand. Irons categorically denied that he participated in the crime or ever was near the rear of the bank building. If the jury saw fit to believe the testimony of the constable and officers, we have no alternative but to affirm his conviction. We must view the evidence in the light most favorable to the jury verdict, United States v. Skillman, 442 F.2d 542 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), and we must accept all reasonable inferences that tend to support the jury’s action. See United States v. Lodwick, 410 F.2d 1202, 1204 (8th Cir.), cert. denied, 396 U.S. 841, 90 S.Ct. 105, 24 L.Ed.2d 92 (1969); Phelps v. United States, 160 F.2d 858 (8th Cir. 1947). This is a case where there could be no doubt about the commission of the crime or that Irons was one of the principals in the guilty act. The constable had taken a position that would permit him to see the figures emerge from the rear of the bank building upon the arrival of the police cars from Northfield. He had the two in his vision from the time the figures first emerged from the shadows at the rear of the building until they came within thirty feet of him and he ordered them to halt whereupon one took off in another direction but Irons continued until met by the constable and other officers. If the government’s case had not been nearly as strong, Irons’ testimony about leaving his home in St. Paul en route to another state without luggage and stopping in Dennison where he had never been before, had no relatives and did not even know anyone there, merely because he had learned from a waitress that they could find a dance in progress in the little village of Dennison, is certainly somewhat incredible and did not impress the jury. The case against Mrs. Irons. Mrs. Irons was found behind a tree in the wooded area between the rear of the bank and the station wagon that belonged to her husband in the constable’s yard. This places her at the scene of the crime and no doubt with knowledge that a crime was being committed but nothing more. The government contended that she was serving as a lookout and should be convicted under 18 U.S.C. § 2, the aider and abettor statute. There is no evidence that she participated in the criminal act either before or at the time it was committed. She did not have the flashlight which was in use by one of the figures who was seen to depart from the rear of the bank. The canvass of the officers immediately made of the entire area disclosed nothing but her presence. She had nothing to signal with. It is well settled that absent some evidence of participation we cannot sustain the conviction. United States v. McDonnell, 472 F.2d 1153 (8th Cir. 1973); United States v. Thomas, 469 F.2d 145 (8th Cir. 1972); United States v. Hill, 464 F.2d 1287 (8th Cir. 1972); United States v. Kelton, 446 F.2d 669 (8th Cir. 1971); Baker v. United States, 395 F.2d 368 (8th Cir. 1968). Single attorney representation of co-defendants. There was no suggestion at any time prior to trial when defendants were represented by retained counsel or by court appointed counsel in this case that there was any need for separate counsel or separate trial, and, of course, no indication that there might possibly be a conflict of interests. We have held in an exhaustive opinion, United States v. Williams, 429 F.2d 158 (8th Cir.), cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253 (1970), that joint representation of co-defendants is not per se violative of the sixth amendment and that no reversible error is committed by the district court in assigning a single attorney to represent two or more defendants in a pending criminal action absent evidence of an actual conflict of interests or evidence pointing to a substantial possibility of a conflict of interests between the co-defendants. Our disposition of Mrs. Irons’ case makes unnecessary any lengthy discussion of this subject as there remains no substantial possibility of prejudice or justification for disturbing the judgment of the conviction as to Irons. Compare Glasser v. United States, 315 U.S. 60, 77, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359, 361 (1965). Accordingly, the judgment is affirmed as to George Robert Irons and reversed with the order to dismiss as to Loretta Fay Irons. . In the district court defendant’s name appears as George R. Irons, Jr. and on appeal the “Jr.” is omitted. Reference is to the same party.

f2d_475/html/0043-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

John A. KLOSTER, Appellant, v. S. S. CHATHAM and Waterman Steamship Corporation, Appellees. No. 72-1839. United States Court of Appeals, Fourth Circuit. Argued Feb. 7, 1973. Decided March 7, 1973. John J. O’Connor, Jr., Baltimore, Md. (O’Connor & Preston, P. A., Baltimore, Md., on brief), for appellant. Randall C. Coleman, Baltimore, Md. (Ober, Grimes & Shriver, Baltimore, Md., on brief), for appellees. Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and BRYAN, District Judge. PER CURIAM: John Kloster, a longshoreman, brought this action for injuries he received while loading pipe from a gondola ear into the S.S. CHATHAM. Kloster alleged unseaworthiness and negligence of the ship’s crew in permitting mooring lines to become slack. The slack, he claims, allowed the CHATHAM to be washed against the pier by the wake of a passing vessel. This movement, he says, caused the ship’s hoisting line to dislodge a section of pipe which struck him. The district court found neither unseaworthiness nor negligence. However, deeming the ease to involve a pierside injury, the court dismissed the suit for lack of admiralty jurisdiction on authority of Victory Carriers v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), and Snydor v. Villain & Fassio et Compania Internazionale di Genova Societa Reunite di Naviagaione S.P.A., 459 F.2d 365 (4th Cir. 1972). While Kloster’s complaint against the ship and its gear was sufficient" to state a claim within the admiralty jurisdiction of the district court, the findings of fact on the merits of the case are not clearly erroneous. Accordingly, the judgment of the district court is affirmed.

f2d_475/html/0044-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Abraham Pina MORENO, Defendant-Appellant. No. 72-2484. United States Court of Appeals, Fifth Circuit. March 12, 1973. Rehearing Denied April 10, 1973. Stanley D. Rosenberg, San Antonio, Tex. (Court-Appointed), for defendant-appellant. William S. Sessions, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee. Before GEWIN, BELL and GOD-BOLD, Circuit Judges. GEWIN, Circuit Judge: In this appeal we are asked to decide the constitutional propriety of an airport search and seizure, the fruits of which resulted in Abraham Pina Moreno’s arrest and non-jury conviction under 21 U.S.C. § 841(a)(1) for the unlawful possession of 86.6 grams of heroin with an intent to distribute. Important questions of public policy are involved in this case. Resolution of the primary issue presented requires this court to perform the difficult and sensitive task of balancing the individual rights protected by the fourth amendment against the overwhelming public interest in effective protection from the threat posed by air piracy, a crime that has terrorized and threatened the lives of many people in recent years. The danger and the harm continue to be of national concern. For reasons which will be fully developed in subsequent discussion, we find that the search and seizure in this case did not offend the fourth amendment. Accordingly, we affirm the judgment of the district court. I On January 21, 1972 Moreno arrived in San Antonio International airport aboard a Braniff Airlines flight from which he was observed deplaning by Deputy U. S. Marshal Granados, a member of the airport’s Anti-Air Piracy detail, who had 20 years experience as a law enforcement officer. When Moreno came into the lounge area, Granados noticed that he appeared to be looking for someone and was unusually wary of the airport security guards. He was visibly nervous as he proceeded into the main terminal area and Granados saw that this condition became more pronounced when he realized that he was under surveillance. Shortly thereafter he entered a taxicab and left the airport. About two hours later, Moreno returned and once again Granados began observing him. He went first to the Braniff ticket counter and got in line. Obviously very nervous, he switched from one line to another, several times before going to the Southwest Airlines counter where he finally bought a ticket. After purchasing the ticket he headed toward the gate of Southwest Airlines, looked straight at Officer Granados who was walking towards him, and he then went into a restroom located nearby. Granados noticed that he seemed to be protecting or covering something, and inside the restroom where he was able to get a closer look, he saw that there was a prominent bulge on the left side of Moreno’s coat. This aroused his suspicion that Moreno might be carrying some kind of weapon or explosive device that could be used in an air piracy attempt. Thereupon Granados approached Moreno, identified himself and inquired whether anything was wrong. Moreno said he was a little nervous, adding that he had just arrived in San Antonio the day before and taken a taxicab to the Baptist Memorial Hospital downtown. He was unhappy with the taxicab fare that he was charged for the trip back to the airport. This account aroused Granados’ suspicion still further because he knew that Moreno had arrived in San Antonio only a few hours earlier and that he had gone to a bus station upon leaving the airport and not to the hospital as he claimed. After being asked twice to produce some identification, Moreno did so only after substantial hesitation. Finally, he removed a wallet from the inside left pocket of his coat and gave it to Granados who by then was concerned that he might attempt to escape. Officer Granados stated that after he received the identification papers, Moreno “started to turn” and that he thought Moreno was going to attempt to “run out of the restroom” because there were several doors “leading outside from that restroom.” At this point Grenados signaled another officer “to come give me a hand with him.” Officer Chapa then joined Granados and they escorted Moreno to the security office. At that point, Moreno was informed that he could make any complaints that he might have at the airport security office. At the preliminary hearing in this case, the evidence showed that Granados ordered Moreno to go to the security office and would have used any force necessary to prevent him from running away. As soon as they reached the security office a pat down search was conducted after which Moreno was asked what he had in his inside coat pocket. He pulled out some papers which obviously were not the cause of the bulge. He was then ordered to take his coat off and the ensuing search yielded three cellophane wrapped packages which contained the heroin involved in this case. Prior to trial, Moreno filed a motion to suppress as to the heroin seized in the airport search. He contended that even if there were sufficient circumstances to justify a stop and frisk, the detention and subsequent search went far beyond the constitutionally permissible intrusion contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In denying the motion, the district court recognized “the strong need for reasonable searches and seizures in furtherance of the public interest against air piracy.” Accordingly, it concluded that the arresting agents were reasonably justified in believing that Moreno might be armed and dangerous and in stopping and searching him pursuant to that belief. II After careful analysis, it is our considered judgment that the disposition of this case is controlled by the rationale and teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 884 (1968) and subsequent decisions of circuit courts construing Terry in the context of an airport search. United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971). While we are fully aware of the sheer urgency of the current air piracy problem, we do not believe that fact alone is sufficient justification for a warrantless airport search. In our resolution of this issue it is important to review and analyze the considerations which lay at the heart of the Terry decision. In balancing the fourth amendment interests at stake against the practical requirements of effective law enforcement, the Supreme Court measured the constitutionality of the police officer’s conduct by the following standard: whether the facts available to the officer at the moment of the seizure or the search would justify a man of reasonable caution in the belief that the action taken was appropriate. 392 U.S. 1, at 22, 88 S.Ct. 1880, 20 L.Ed.2d 889, at 906. Even though a serious intrusion upon the sanctity of the person was involved, the Court gave its approval to a limited weapons search of a suspect who was under investigation for possible criminal activity. It did so despite the fact that at the time the police officer had no probable cause to make an arrest. In reaching this conclusion, the court emphasized that the intrusion entailed by this search had been strictly confined to what was minimally necessary not only to insure the personal safety of the investigating officer, but also the safety of others. Indeed the safety of others is repeatedly mentioned throughout the opinion. In short, the scope of the search was consistent with the valid purpose for whch it was initiated. Although the personal safety of the police officer is a valid governmental interest at stake in deciding the proper scope of a warrantless airport security search, that is not the only governmental interest involved. Of equal importance to airport security searches is the central purpose of thwarting air piracy which often involves the safety of passengers and crew on tremendous aircraft after the plane is airborne with a heavy cargo. At this point in time the security officer is usually safe in the airport. However, the “others” involved, the passengers and the crew, are in the air. III Although the problem of aerial hijacking is well known to the public, we think it appropriate, nevertheless, to single out our reasons for treating airport security searches as an exceptional and exigent situation under the Fourth Amendment. At the core of this problem is the hijacker himself. In some cases he is a deeply disturbed and highly unpredictable individual — a paranoid, suicidal schizophrenic with extreme tendencies towards violence. Although the crime of air piracy exceeds all others in terms of the potential for great and immediate harm to others, its undesirable consequences are not limited to that fact. Among other things, it has been used as an avenue of escape for criminals, a means of extorting huge sums of money and as a device for carrying out numerous acts of political violence and terrorism. Perhaps most disturbing of all is the fact that aerial hijacking appears to be escalating in frequency. We do not think that it is unrealistic to say that the current situation has approached the crisis stage for law enforcement officials in this country. Apart from the unusual dangers inherent in the crime itself, aerial hijacking has created equally unusual detection problems. Unlike most other crimes, hijacking is one in which secrecy is not a principal concern. Once the hijacker decides to act, he doesn’t care if there are numerous witnesses. Indeed, according to the pattern developed thus far, he prefers as many as possible because each one is a potential hostage to shield him from apprehension until he can be flown to a political sanctuary or place of concealment. Obviously, in order to jeopardize the lives and safety of the smallest number of people, the hijacker must be discovered when he is least dangerous to others and when he least expects confrontation with the police. In practical terms, this means while he is still on the ground and before he has taken any overt action. Clearly, this would not be an easy objective to accomplish under the best of conditions. But amidst the rush and the congestion of many airports, this task is vastly complicated. Airport security officials have the awesome responsibility of ferreting out hijacking threats from among thousands of passengers while at the same time avoiding any undue disruption to this nation’s heavy flow of commercial air traffic. Inseparably related to this is the fact that the hijacker’s modus operandi is designed to take optimum advantage of these pressures. The hijacker prefers the anonymity of the crowd where he is but a part of the blend. The hiding place of his weapons is the commonplace accessory of air travelers everywhere— the overnight bag, the briefcase, the overcoat or other clothing. His arsenal is not confined to the cumbersome gun or knife; for modern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube. A detonator planted in a fountain pen is all that is required to set it off. Unfortunately, society’s law enforcement capabilities have not caught up with these problems. It is in this context that we must assess the constitutionality of the search of Moreno. IV Under the fourth amendment, whenever it is practicable an impartial magistrate should make the initial determination whether probable cause exists to justify an intrusion upon the sanctity of the person or the home. The Supreme Court, however, has long recognized that under certain circumstances adherence to the warrant requirement is not vital to the protection of the values implicit in the fourth amendment. See, e. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (automobile search); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to arrest). In cases such as this one, where a warrantless search is conducted, it is necessary to strike a cautious balance between the competing interests of law enforcement and the right of the individual to be left alone. In doing this, we must be mindful of the fact that the constitution does not forbid all searches and seizures, only unreasonable ones. Elkin v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669, 1680 (1960). Thus, reasonableness is the ultimate standard by which we must be guided in determining the constitutional propriety of the airport search which resulted in Moreno’s arrest and conviction for heroin possession. Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930, 941 (1966). See also United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir. 1972). In the case at hand, Officer Granados maintained constant surveillance on Moreno while he was in the airport area. One of the first things he observed was his unusual nervousness, a condition that seemed to intensify after Moreno realized that he was being watched. On the basis of information obtained from the taxicab dispatcher, Granados learned that when Moreno left the airport he had been taken to a downtown bus station in San Antonio. Upon his return about two hours later, Moreno seemed as anxious as before, changing waiting lines several times at one ticket counter before going to another airline to make his purchase. When Moreno walked into the restroom after starting toward the airline gate, Granados, a member of the airport’s anti-air piracy detail, observed a prominent bulge on the left side of his. coat about which he seemed unusually apprehensive. It was at this point that the decision was made to approach Moreno to investigate his behavior. With respect to the validity of the officer’s initial action in making the stop, we think that the principles reflected in the Supreme Court’s “stop and frisk” decisions are relevant. As was observed in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, 616, 617 (1972): “ ‘[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest.’ 392 U.S., at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct. at 1881, 20' L.Ed.2d at 907. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Under the circumstances known to Granados, and particularly in light of his special responsibility for the prevention of air piracy, we think that he acted reasonably. Moreno’s nervousness, coupled with the bulge in his coat pocket and the fact that he had just purchased an airline ticket and headed in the direction of the airline gate are circumstances which supported""Granados’ belief that this man might pose an air piracy threat. His investigatory action was neither arbitrary nor impulsive. It came only after cautious surveillance which revealed devious and suspicious conduct. We think it was entirely consistent with the officer’s lawful duties. Tragic experience has taught us more than once that such deterrence must begin before the hijacker is about to step onto the plane. Due to the gravity of the air piracy problem, we think that the airport, like the border crossing, is a critical zone in which special fourth amendment considerations apply. It is the one channel through which all hijackers must pass before being in a position to commit their crime. It is also the one point where airport security officials can marshal their resources to thwart such acts before the lives of an airplane’s passengers and crew are endangered. In applying Terry were we to hold that airport security officials must always confine themselves to a “pat down” search where there is a proper basis for an air piracy investigation, we think that such a per se restriction in the final analysis would be self-defeating. We have already pointed out that the hijacker can conceal explosives or weapons in places which might be overlooked in the course of a cursory pat down. It should be emphasized that such a search is not primarily for the investigating officer’s protection, but rather for the protection of a distinct and uniquely threatened class — this nation’s air carriers, their crews and passengers. Relating these principles to the case at hand, we find that the invasion of Moreno’s personal sanctity entailed by his detention and search did not offend the fourth amendment. Once confronted by the police, he appeared evasive and hesitant and lied about his destination when he was taken by taxi into downtown San Antonio. These responses reinforced Granados’ original belief that Moreno should be investigated. We are not alarmed by the fact that Moreno was taken from the restroom to the airport security office before being searched. The permissibility of that intrusion cannot be gauged strictly on a temporal and spatial basis. Such a mechanistic approach is not the essence of the reasonableness determination. In view of the midafternoon congestion of the airport, we think the procedure followed by Granados and his fellow officer fell within proper bounds. A brief isolation of Moreno for the purpose of the search served to neutralize any threat that he might pose to others if he, in fact, was armed and dangerous. It should not be dismissed lightly that most hijackers are seriously disturbed, desperate people to whom the possibility of death is not always a deterrent. Furthermore, we believe that in virtually all cases the individual searched would prefer the privacy of the security office to the public place even though it involves a temporary surrender of personal liberty. If anything, the minor, but constitutionally acceptable indignity incident to an airport search conducted in that manner is diminished rather than heightened by such a procedure. Finally, the fact that Moreno was required to remove his coat to facilitate the search is of no consequence under the circumstances of this case. His devious conduct, hesitation, and suspicious actions constituted sufficient reasons to support the officer’s decision to determine exactly what was causing the bulge in his coat. Airport security officials had a legitimate interest in making a conclusive determination with respect to Moreno’s conduct and presence in the airport. The removal of Moreno’s coat was a necessary step in this determination, particularly in view of his refusal to remove the contents of his coat pocket after he was asked to do so. V Having concluded that the heroin admitted into evidence in this case was the product of a valid search, we hold that the trial court did not err in denying Moreno’s motion to suppress. We likewise find no error with respect to Moreno’s second contention that the evidence was insufficient to establish beyond a reasonable doubt an intent to distribute the heroin. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. McGlamory, 441 F.2d 130, 134-135 (5th Cir. 1971). Judgment affirmed. . 21 U.S.C. § 841(a)(1) provides as follows : “(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally'— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or . . . ” . The decision in Terry does not constitute an erosion or dilution of fourth amendment prohibitions against unreasonable searches and seizures. The opinion emphasizes the sacred right of fourth amendment principles which are designed to assure full expectations of privacy. Chief Justice Warren flatly rejected the suggestion that by the use of the terms “stop” and “frisk” the conduct of police in making a search and seizure is outside the fourth amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We quote his emphatic language : “We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and pros'ecution for crime —‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” 392 U.S. at 16-17, 8S S.Ct. at 1877, 20 L.Ed.2d 903. The decision gives full consideration to fourth amendment concepts in dealing with the problem presented. In resolving the issues, the Court gave careful consideration to the following factors : 1. The governmental interest which allegedly justifies official intrusion upon the constitutionally protected rights of the private citizen. 392 U.S. 21, 22, 88 S.Ct. 1879, 1880, 20 L.Ed.2d 905, 906. 2. The reasonableness of the police conduct involved after careful consideration of all the circumstances surrounding the particular governmental invasion of a citizen’s personal security. 392 U.S. 23, 88 S.Ct. 1881, 20 L.Ed.2d 907. 3. Whether the facts available to the officer at the moment of the seizure or the search, “warrant a man of reasonable caution in the belief” that the action taken was appropriate. 392 U.S. 22, 88 S.Ct. 1880, 20 L.Ed.2d 906. 4. A valid governmental interest is the effective detection and prevention of crime and pursuant to that purpose a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. 392 U.S. 22, 88 S.Ct. 1880, 20 L.Ed.2d 906-907. 5. An experienced police officer is charged with the duty to investigate suspicious behavior under certain conditions in order to prevent or detect criminal activity. 392 U.S. 23, 88 S.Ct. 1881, 20 L.Ed.2d 907. 6. In situations in which an officer justifiably suspects criminal activity a search and seizure is authorized, in the absence of probable cause, in order to protect the officer and other prospective victims of violence. 392 U.S. 24, 88 S.Ct. 1881, 20 L.Ed.2d 907-908. 7. If the facts justify an officer’s belief that he is dealing with an armed or dangerous individual he is authorized to conduct a limited search of that individual in the absence of probable cause even though he is not absolutely certain that the individual is armed; “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” 392 U.S. 27, 88 S.Ct. 1883, 20 L.Ed.2d 909. 8. There is no hard and fast rule which will provide a ready solution of problems arising from search and seizure on every occasion, but each case must be decided on its own facts. 392 U.S. 30, 88 S.Ct. 1884, 20 L.Ed.2d 911. . For an exhaustive study of the psychological makeup of the air pirate see, D. Hubbard, The Skyjacker: His Flights of Fantasy (1971). Equally vivid in presenting the same picture is an article which appeared in The National Observer, Nov. 11, 1972, at 6. It tells the startling tale of a Washington bureaucrat, Charles Tuller, whose smouldering resentment and frustration led him to commit air piracy. In his wake, he left a Houston ticket agent dead. The frightening part of this account is that Charles Tuller was an unobtrusive, ordinary man — in appearance at least no different from any other air traveler of today. . There have been 387 air piracy attempts since the initial one in 1930; of those, about two dozen, all of them recent, have been for extortion purposes. Time, Nov. 27, 1972, at 22. According to one very recent article, $12.7 million in extortion demands have been made against U.S. airlines, only about half of which has been recovered. Aviation Week & Space Technology, Nov. 20, 1972, at 14. . A recent example was the successful takeover by Palestinean terrorists of a German airliner carrying 11 passengers. With the passengers as hostages, they forced German authorities to release three of their imprisoned comrades who were participants in the slaying of members of the Israeli Olympic team in Munich this past summer. Time, Nov. 13, 1972, at 29. . The airline industry’s response thus far has been to implement a number of sophisticated measures to enable airport security officials to cope with the air piracy threat. These measures include the use of hijacker behavioral profiles, a metal sensitive device known as a magnetometer and, on an experimental basis recently, portable x-ray machines. Law enforcement officers with experience over long years of service have proved to be highly valuable in this effort. In addition, the Federal Aviation Administration has recently required airlines to conduct systematic searches of all carry-on baggage for all flights. See Aviation Week & Space Technology, August 21, 1972 at 28; Id. Sept. 4, 1972 at 28. In spite of the deterrent potential in these measures, they are not used by all airlines in all airports domestic and international. Hence, a kind of security gap still plagues the many earnest, but uncoordinated, attempts to bring air piracy under control, . In Terry v. Ohio, 392 U.S. 1, 5, 88 S.Ct. 1871, 20 L.Ed.2d 889, 896 the circumstances observed by the officer were described as follows: “He explained that he had developed routine habits of observation over the years and that he would ‘stand and watch people or walk and watch people at many intervals of the day.’ He added: ‘Now, in this case when L looked over they didn’t look right to me at the time.’ His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. T get more purpose to watch them when I seen their movements,’ he testified.” . Customs officials conducting border searches have always been exempt from the usual fourth amendment requirement that searches be based on probable cause. Aside from the historical argument that this exception has always been recognized, it is also justified by the vital national interest in preventing illegal entry and smuggling, particularly of narcotics. Although under some circumstances searches can be conducted away from the border crossing area, all persons searched must be shown to have come through that critical zone to make this exception to the warrant requirement applicable. The mere suspicion of possible illegal activity is enough cause to justify a border search. See United States v. Warner, 441 F.2d 821, 832 (5th Cir. 1971); Validity of Border Searches and Seizures by Customs Officers, 6 A.L.R.Fed. 317 (1971). Our discussion of border searches is by way of analogy. We do not propose to substitute the “suspicion standard” applicable in border search cases for the Terry v. Ohio standard which is the basis for our decision.

f2d_475/html/0052-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Michael E. REMMERS, Appellant, v. Lou V. BREWER, Warden, et al., Appellees. No. 72-1490. United States Court of Appeals, Eighth Circuit. Submitted Feb. 13, 1973. Decided March 12, 1973. J. Jane Fox, Iowa City, Iowa, for appellant. Loma Lawhead Williams, Asst. Atty. Gen., Des Moines, Iowa, for appellees. Before GIBSON and ROSS, Circuit Judges, and BENSON, Chief District Judge. PER CURIAM. Michael E. Remmers, a prisoner in the Iowa State Penitentiary, filed his pro se complaint in United States District Court, alleging a deprivation of his civil rights under 42 U.S.C. § 1983. The complaint included allegations, rather in-artfully drawn, that he had been denied due process of law and the right to counsel in a prison disciplinary hearing; that the solitary confinement he received after such hearing was cruel and unusual punishment; that he was denied freedom of speech and press because he was punished because of the content of & newspaper article about prison life which he authored; and that his letters to his church, his attorney, and a state senator were censored and interfered with by prison authorities. The trial court, upon its own motion, before any process was served and without any notice to Remmers, permitted the filing of the complaint in forma pauperis and dismissed the complaint for failure to state a claim upon which relief could be granted. Remmers subsequently filed an amended civil rights complaint which the trial court treated as a motion to reconsider and which it promptly denied without hearing or notice. The trial court granted leave to appeal in forma pauperis. We reverse and remand with directions to hold an evidentiary hearing. We first note that the complaint was dismissed prior to service of process and without notice to Remmers. The Ninth Circuit has held that the least that is required when a civil rights complaint is filed, is that process issue and be served as required by F.R.Civ.P. 4(a), and that notice be given to the plaintiff of the proposed dismissal permitting him to respond thereto in writing. See e.g., Sanders v. Veterans Administration, 450 F.2d 955, 956 (9th Cir. 1971); Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970); Dodd v. Spokane County Washington, 393 F.2d 330, 334 (9th Cir. 1968); Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 1965); Harmon v. Superior Court, 307 F.2d 796, 798 (9th Cir. 1962). See also Cooper v. United States Penitentiary, 433 F.2d 596-597 (10th Cir. 1970); Wilson v. United States, 433 F.2d 597-598 (10th Cir. 1970). Cf. Brown v. Strickler, 422 F.2d 1000, 1002 (6th Cir. 1970). In Gutensohn v. Kansas City Southern Ry. Co., 140 F.2d 950, 953-954 (8th Cir. 1944), this Court indicated that notice and an opportunity to respond is a prerequisite to dismissal for failure to state a cause of action in a civil case. Cf. Lewis v. Chrysler Motors Corp., 456 F.2d 605 (8th Cir. 1972). As the Court stated in Harmon v. Superior Court, supra, 307 F.2d at 798: “The court cannot know, without hearing the parties, whether it may be possible for appellant to state a claim entitling him to relief, however strongly it may incline to the belief that he cannot. . . . “The right to a hearing on the merits of a claim over which the court has jurisdiction is the essence of our judicial system, and the judge’s feeling that the case is probably frivolous does not justify by-passing that right. Appellant is entitled to have process issued and served, and to be heard.” This Court has not heretofore specifically adopted the rule promulgated by the Ninth Circuit, and in this case we prefer to rely on substantive rather than procedural reasons for reversal. First, plaintiff alleged that he had been denied due process of law in his prison disciplinary hearing. As we said recently in Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973): “The degree of due process which a state must afford the inmates within its prisons before punishing them or depriving them of privileges is in a state of flux. See, e.g., Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970), and compare, Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970), cert. denied, 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972); Lathrop v. Brewer, 340 F.Supp. 873 (S.D.Ia.1972); Beishir v. Swenson, 331 F.Supp. 1227 (W.D.Mo.1971). “We are not prepared, in the absence of a record and in view of the uncertain state of the law, to approve or disapprove of Iowa’s procedures governing prison discipline. Accordingly, we vacate the order of dismissal and remand this case for further proceedings. The plaintiff should have the opportunity to present his case either by testimony, or, if the facts are not disputed, through affidavits or other proof which might support a summary judgment.” That case differed from this case in that process was served and the motion to dismiss was filed by the defendant. A hearing must be held to determine what procedures were followed in the hearing given to Remmers and whether those procedures comport with the procedural due process requirements of the fourteenth amendment. Remmers also claimed a violation of his first amendment rights by not being allowed to have an article published without fear of physical retaliatory actions by prison authorities. The trial court’s order bases its dismissal to some extent on the fact that “plaintiff does not deny that the article was smuggled illegally out of the institution. . . . ” However, the trial court does not disclose the evidentiary basis for its implied finding that the punishment meted out was for smuggling the article out of prison rather than for the content of the article itself as alleged by Remmers. Prisoners do not lose all of their first amendment rights upon entry into prison, although the rights are subject to reasonable regulations. See e.g., Gray v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Sostre v. McGinnis, 442 F.2d 178, 202-203 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). An evidentiary hearing should be held in this case to determine (1) what the prison rules and practice are in regard to expression and publication of prisoner’s view points; (2) whether those rules and practice are in derogation of the first amendment rights of the prisoners; and (3) if the rules and practice are constitutionally permissible, whether they were correctly applied to Remmers in this case. A hearing is also required to determine the truth or falsity of Remmer’s allegations relating to censorship of and interference with his letters to his attorney, to his church, and to his state senator, and to determine the reasonableness of state prison regulations relating thereto. In Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972), this Court reversed and remanded for an evidentiary hearing a case wherein an inmate of the Federal Medical Center, in a self-styled habeas corpus petition, alleged that his right to access to the courts, right to effective assistance of counsel, and right to free exercise of religion, were denied when officials read and inspected incoming mail from attorneys and from petitioner’s Orthodox Moslem advisers. For the reasons hereinbefore expressed, the judgment of dismissal is reversed with directions to permit the issuance of process and the filing of responsive pleadings after which an evidentiary hearing shall be held on the allegations made in Remmer’s amended complaint. . The trial court did not invoke the provisions of 28 U.S.C. § 1915(d) by finding that the action was frivolous or malicious. Such a finding permits a trial court to dismiss the action, despite the initial permission to proceed in forma pauperis. . Implicit in the following discussion is the principle that F.R.Civ.P. 12(b) (6) motions are viewed in the light most favorable to the plaintiff, with every valid doubt resolved in his behalf, as to whether the complaint states any valid claim upon which relief can be granted. See e. g., 5 C.Wright and A.Miller, Federal Practice and Procedure, § 1357 at 601 (1969). This principle is applicable to prisoner civil rights cases. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

f2d_475/html/0055-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DEUTSCH and Alan Brooks, Defendants-Appellants. No. 72-1779. United States Court of Appeals, Fifth Circuit. Argued Feb. 5, 1973. Decided March 9, 1973. Charles E. Wood, J. C. Rary, Atlanta, Ga., Court-appointed, C. Ronald Ellington, Court-appointed, and Roger Groot, Professors of Law, University of Georgia, Wayne McCormack, Athens, Ga., for defendants-appellants. John W. Stokes, Jr., U. S. Atty., George H. Connell, Jr., Gale McKenzie, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee. Before ALDRICH, SIMPSON and CLARK, Circuit Judges. Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation. ALDRICH, Circuit Judge: Defendants Brooks and Deutseh were jointly indicted in two counts for violation of 18 U.S.C. § 201(b) (3): count one for, during the period between November 16 and December 8, 1970, offering to pay a postal employee the sum of $50. for each credit card he should abstract from the mail and deliver, and count two, for giving a postal employee $50. “with intent to induce [him] to do an act in violation of his lawful duty.” Defendants were found guilty by a jury on both counts and given concurrent sentences. They appeal. To some extent the evidence was in sharp dispute. The postal employee, one Morrison, testified that on November 16, 1970 Brooks, in the company of Deutseh, went up to him while his delivery truck was parked on a country road having his “break” and offered to buy all the credit cards he could get for $50. apiece. Brooks testified he approached Morrison because he was smoking, and had long hair, and he thought he might sell him some marihuana. Subsequent encounters occurred, with no transactions taking place, and ultimately, on December 7, Brooks (who was always accompanied by Deutseh) gave Morrison $50. Morrison testified it was paid with the statement that it was “to prove we mean business.” Brooks, on the other hand, testified it was merely a loan out of kindness because Morrison was having trouble paying doctors’ bills. The next day, pursuant, according to Morrison, to prearrangement, the parties met again, Morrison with two credit cards in his pocket, obtained from his superiors. The government agents, who Morrison’s superiors had arranged for, jumped the gun and arrested Brooks and Deutseh before any transaction had taken place. Brooks was found to have exactly $100. on his person. Defendants’ first complaint is that the indictments are duplicitous. We do not agree. This is not a case where the two offenses merged, as in Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (unlawful entry into bank, and robbery of bank); Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (stealing and receiving the same property). If defendants had purchased cards on two separate days, there would have been separate offenses. Here defendants performed different acts, on different days, each a separate offense. The offer on November 16 was a completed offense. United States v. Jacobs, 2 Cir., 1970, 431 F.2d 754. Three weeks later, when nothing had materialized, defendants made a payment as earnest money. This was a new matter. Cf. United States v. Barnes, 9 Cir., 1970, 431 F.2d 878. Defendant Deutsch asserts that he committed no offense. The mere fact that he was present on every occasion, and standing sufficiently close to hear all the conversations, would not have been enough. However, his providing the transportation facilitated the events. Furthermore, Morrison was not shaken with respect to his testimony that Brooks said the payment was to show that “we” mean business. Under all the circumstances, although the question may be close we believe the jury could conclude that the plural was accurate, and that Deutsch attended for a purpose. See, in general, United States v. Garguilo, 2 Cir., 1962, 310 F.2d 249; United States v. Bickford, 1 Cir., 1971, 445 F.2d 829, cert. denied 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262. Nor, while we are on the subject of Deutsch, do we see any prejudicial error in the charge. Brooks presents an esoteric argument on entrapment which we cannot agree with. It hinges around the claim that Morrison, by asserting that he had a sick wife, induced Brooks to transfer the money. The difficulty with this argument is that, unlike the drug cases that defendant cites, the transfer of funds was not unlawful in itself. If it was a simple loan, as Brooks contends, there was no offense, entrapped or otherwise. If it was a payment in connection with the purchase of cards, there was no entrapment. Brooks does not claim that he was induced to purchase cards in order to help Morrison meet his bills, or to make a loan with the objective. Whatever question such a set of facts would have presented is not before us. We are, however, troubled by one matter. Before trial defendants moved for the production of Morrison’s personnel file, for “insight into the character of said prospective witness,” citing Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The U. S. Attorney responded, “This office does not have the personnel file of D. F. Morrison.” The court ruled, “[T]he prosecution cannot be compelled to disclose something which it does not have. Furthermore, the Post Office Department does not appear to be an arm of the prosecution as contemplated by Brady.” We find no reference in Brady to an arm of the prosecution. It was a Post Office employee who had been sought to be bribed. The government cannot compartmentalize the Department of Justice and permit it to bring a charge affecting a government employee in the Post Office and use him as its principal witness, but deny having access to the Post Office files. In fact it did not even deny access, but only present possession without even an attempt to remedy the deficiency. Cf. Barber v. Page, 1968, 390 U.S. 719, 723-724, 88 S.Ct. 1318, 20 L.Ed.2d 255. We do not suggest by citing Barber that the government was obliged to obtain evidence from third parties, but there is no suggestion in Brady that different “arms” of the government, particularly when so closely connected as this one for the purpose of the case, are severable entities. And, of course, the Brady rule requires the government to supply evidence useful to the defendant simply for impeachment purposes. Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104. The government argues that defendant has “failed to show that the records which he sought to inspect contained anything favorable to him.” This is true, but it is not the answer to Brady. The burden is on the government to produce, not on the defendant. The statement is doubly ingenuous as, again, the government stops here — it does not assert the lack of favorable evidence in the record. But if there is any burden on the defendants of suggesting a possibility of favorable evidence we note the evasive testimony of Morrison at the trial. Q. Have you ever had any problems with the Supervisor? A. No, sir. Q. About your appearance, or anything? A. Personal appearance where they thought my hair may be too long. It was unjustified. Q. Justified? A. Unjustified. I had been down to see Mr. Camp. He said there was nothing wrong with it. We could not say there were in fact “problems” on this somewhat self-contradictory testimony, particularly problems of a serious nature, but they were certainly not negatived. Morrison was the government’s whole case. While we do not think Brooks’ testimony very credible, the defendants were entitled to try. The question comes, what next? Defendants are not entitled to a new trial unless they were in fact deprived of something of value. We remand the case to the district court for examination of the personnel file to determine if it would have afforded useful cross-examination. If not, the judgments stand; otherwise the convictions are to be vacated and a new trial ordered. Cf. Campbell v. United States, 1961, 365 U.S. 85, 98-99, 81 S.Ct. 421, 5 L.Ed.2d 428; United States v. Hand, 5 Cir., 1973, 472 F.2d 162. If the district court finds against the defendants, but there is a desire on their part to appeal, the court should vacate the judgment of conviction and re-enter it. Campbell, ante; Kolod v. United States, 1968, 390 U.S. 136, 138, 88 S.Ct. 752, 19 L.Ed.2d 962. . We are, of course, not concerned with loans made to an official who had governmental duties towards the lender. . Nor are we impressed by the government’s argument that having been denied Rule 16 production, defendant was at fault for not seeking a subpoena duces tecum — for which it relies on a case which did not even consider the question because the record showed that the defendant in fact had the information. (United States v. Smith, 6 Cir. 1968, 399 F.2d 896). One, improperly court-rejected, demand is enough.

f2d_475/html/0058-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HIJOS DE RICARDO VELA, INC., and Vela Distributing Corp., Respondents. No. 72-1084. United States Court of Appeals, First Circuit. Heard Feb. 8, 1973. Decided March 5, 1973. John D. Burgoyne, Washington, D. C., with whom Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Judith Wilkenfeld, Washington, D. C., were on brief, for petitioner. Pedro E. Purcell Ruiz, Santurce, P. R., with whom George L. Weasler, Santurce, P. R., was on brief, for respondents. Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges. PER CURIAM. The National Labor Relations Board (the “Board”) has made application under Section 10(e) of the National Labor Relations Act (the “Act”) for enforcement of its order dated November 30, 1971, requiring the respondent companies affirmatively to remedy unfair labor practices which a Board Trial Examiner found them to have committed. The respondents now concede that they are a single integrated employer, as the Examiner found. They also concede that the evidence presented to the Examiner “clearly establishes” that Joseph A. Crespo — an employee of the respondents whom they discharged because of his union membership and activities— was not a “supervisor” as defined in Section 2(11) of the Act. Only one issue remains of the three originally raised in the respondents’ exceptions to the Trial Examiner’s Proposed Report and Recommended Order. That is whether the Trial Examiner’s refusal to postpone the hearing was an abuse of discretion. If a continuance had been granted, respondents now assert that they were “ready, willing and able” to present evidence that Crespo was a supervisor, notwithstanding his contrary testimony and that of fellow-employees. As it was, the hearing took place in the absence of the respondents’ officers and counsel. We hold that the Trial Examiner acted fairly and within her authority in denying a continuance. On April 28, 1971, the Board’s Regional Director issued a complaint against the respondents, giving written notice that a hearing would be held in Hato Rey on Wednesday, May 26, 1971, (the hearing site was a very short distance from the office of respondents’ counsel in Santurce). On May 1, 1971, the respondents filed an answer. On Friday, May 21, 1971, shortly before 5 p. m., respondents’ counsel telephoned the Board’s regional office and unsuccessfully sought a postponement of one week or more, asserting that he had conflicting engagements during the forthcoming week. He next telephoned the Trial Examining Division in Washington with the same request, but was told that since a trial examiner had been assigned, the matter was out of its hands. The attorney then conveyed the request for postponement in a letter addressed to the regional director. The letter was received on Monday, May 24. A reply telegram was sent that day denying the postponement “without prejudice to being renewed before the Trial Examiner at the opening of hearing.” On Tuesday, May 25, respondents’ counsel went to the offices of the Board and introduced himself to the Trial Examiner. He made no mention to her of any request for a postponement. On Wednesday, May 26, the hearing opened at the appointed time and place. Everyone was present except the respondents’ counsel and their presidents, both of whom had been subpoenaed to attend. The Examiner delayed the hearing to afford respondents’ attorney further opportunity to appear or explain his failure to do so. About an hour later, a telegram was received from counsel stating that he could not attend for reasons previously advanced to the regional office counsel, and requesting a postponement until any day after June 5 except June 9. The Examiner asked government counsel to state the “reasons previously advanced” by the respondents. Counsel reported as follows: respondents’ counsel had made a collective bargaining commitment; he first had said he would be able to resolve the conflict or at least have his associate present at the hearing; on Friday he had advised the regional office he would not be able to resolve the conflict and had sought a postponement; the regional office had said it would agree to a one-day postponement, but respondents’ counsel had declined to accept that. Government counsel reported having phoned the office of respondents’ counsel that morning and having been told the latter was unavailable and could not be reached. The examiner then denied the postponement, so notifying respondents’ counsel by telegram and telephone. She proceeded with the hearing. Late the next day, the hearing still continuing, government counsel telephoned the office of respondents’ counsel. He was out. A message was left that the hearing had been adjourned until 11 a. m. on Friday, and to put in a defense if he desired. No further word was received. On Friday, government counsel advised the Examiner that the regional office had just been told by respondents’ counsel that the latter had sent a telegram requesting that, at the close of General Counsel’s case, he be given an indefinite postponement. The regional attorney had suggested that respondents’ counsel appear personally and give his grounds for the request. To this suggestion, respondents’ counsel was reported to have replied that he did not have the time to come over, he had more important matters to attend to, and did not want to be bothered in coming. Thereafter the Examiner, at 12:20, recessed until 4 p. m., stating that if the request for postponement had by then been received, she would rule on it, depending upon its nature and the reasons advanced for postponement. Respondents’ attorney was so advised by telephone; and at 1:49 p. m. a telegram was received from him moving that the hearing be postponed for “a reasonable time so counsel can order transcript and otherwise present defenses.” Government counsel, at 4 p. m., also reported receiving a phone call from respondents’ counsel that he would not be coming in at 4 p. m. The Examiner then ruled to deny any postponement, “as no adequate reason has been presented for his failure to appear at any time during the hearing in person and to advance reasons to warrant granting a postponement.” Some two months later, respondents’ counsel filed with the Trial Examiner a motion to reopen the record. The motion was denied as was a later request to the Board to remand to the Examiner. The Examiner neither abused her discretion nor denied due process to the respondents in refusing to postpone the proceedings. Given the lateness of the initial request, it was appropriate for Board officials to refer it and counsel to the designated Trial Examiner for a ruling. Nothing thereafter justified counsel’s studied refusal personally to present, on the record and in the presence of the other interested parties, his reasons for a continuance. Nothing suggests that the Examiner was unprepared to give fair consideration to whatever facts might have been presented favoring postponement. The General Counsel would apparently have acquiesced in at least a one-day postponement. The Examiner’s responsibility was to weigh the inconvenience and possible unfairness to others of a postponement against the particulars of counsel’s asserted hardship. She had every right, under the circumstances, not to credit counsel’s telegraphic fait accompli. Barring illness or other like emergency not present here, those responsible for hearings and trials may insist upon the personal appearance of counsel seeking a continuance. Counsel had an associate, and could have engaged other co-counsel in the unlikely event that his calendar was so crowded as to preclude his appearing even for the limited purpose of requesting a continuance. Had he so appeared, we do not intimate that the Examiner would have been bound to grant the request; that was a matter within her sound discretion. But his absence entitled her to assume the worst about his motives. We do not see, in fairness to the government and the charging party, how the Examiner could have acted differently. See N. L. R. B. v. Taxicab Drivers Union, Local 777, 340 F.2d 905, 908-909 (7th Cir. 1964). N. L. R. B. v. Somerville Buick, Inc., 194 F.2d 56, 59 (1st Cir. 1952). N. L. R. B. v. Somerville Cream Co., 199 F.2d 257, 258 (1st Cir. 1952). Lloyd A. Fry Roofing Co. v. N. L. R. B., 222 F.2d 988, 940 (1st Cir. 1955). As counsel and the respondents had ample notice and were afforded opportunity to be heard, they were not denied due process simply because they chose not to attend. See N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 25, 47, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Nor were the Examiner and Board under any obligation to permit respondents to cure their default in a reopened proceeding. Some penalty should attach to taking up our time with such a meritless contention. N. L. R. B. v. Smith & Wesson, 424 F.2d 1072, 1073 (1st Cir. 1970). The order will be enforced and the Board will be awarded double costs. . 29 U.S.C. § 160(e). . 29 U.S.C. § 152(11). Apart from the concession, our review of the transcript satisfies us that substantial evidence supports the finding that Crespo was not a supervisor. The Board’s order requires his reinstatement. . Counsel states in an affidavit that after introducing himself he went to look for opposing counsel so as to bring him back before the Examiner for discussion of a postponement. Being unable to locate opposing counsel, he left. Counsel attributes his reticence to ethical qualms about ex parte discussions. We can perceive nothing that would have prevented his telling the Examiner that he would like to see her about a postponement, with other counsel, at her and their earliest convenience; nor can we see why he failed to file a written motion placing the postponement request formally before her. . We are unmoved by the suggestion that the Examiner had a duty sua sponte to check the Board’s files to see if other matters were demanding of counsel’s time. It was counsel’s responsibility to call such matters to the Examiner’s attention. Nor, after absenting himself, can counsel now complain of alleged self-serving statements made out of his presence to the Examiner by government counsel.

f2d_475/html/0061-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Roberto SANCHEZ-RODRIGUEZ, Defendant-Appellant. No. 72-2900. United States Court of Appeals, Ninth Circuit. March 7, 1973. Mobley M. Milam, San Diego, Cal., for defendant-appellant. Harry D. Steward, U. S. Atty., Michael E. Quinton and Stephen G. Nelson, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee. Before HAMLEY and WALLACE, Circuit Judges, and REAL, District Judge. Honorable Manuel L. Real, United States District Judge, Central District of California, sitting by designation. REAL, District Judge: Appellant was charged in a twelve-count indictment with one count of conspiracy (18 U.S.C. § 371) and eleven counts of transporting aliens (8 U.S.C. § 1324(a)(2)). He was convicted by a jury and now claims on appeal several errors which invalidate the conviction. We affirm. On June 5, 1972 at approximately 2:30 A.M. Border Patrol Agents while sign-cutting five or six miles north of the United States-Mexico border near Campo were led to Highway 80 where they saw a pickup truck stop and leave. Shortly, a Pontiac went by. Near the Boulder Oaks campground Border Patrol Agents stopped the pickup truck and discovered illegal aliens. A co-defendant, Jose Garcia-Suazo, was driving the truck. Appellant's car was stopped and searched. In the search there was discovered a suitcase belonging to co-defendant Garcia. Upon a motion to suppress, the trial judge suppressed the admission of the suitcase. During the trial co-defendant Garcia testified on behalf of the government and totally implicated the appellant in the arrangements and pickup of the illegal aliens. Appellant testified at his trial denying any knowledge of the conspiracy and transportation of the illegal aliens. He offered the explanation of his presence upon Highway 80 as attempting to deliver a suitcase given to him by one Blanca in Tijuana. During pretrial proceedings, appellant requested and was denied permission to go to Mexico to attempt to find Blanca to corroborate his story. An investigator employed by appellant testified that he had found Blanca in Mexico but that she refused to come to the United States to testify. Appellant’s assignments of error claim, (1) he was deprived of due process — his conviction resulting from an illegal arrest and use of evidence derived therefrom, (2) the court’s denial of the motion to allow him to go to Mexico deprived him of his Sixth Amendment right to obtain witnesses on his behalf, (3) the prosecutor’s argument deprived him of his Sixth Amendment right of confrontation, and (4) the court’s refusal to give a mere presence instruction and modification of the accomplice instruction was error. We consider them seriatim: 1. Illegal arrest. An illegal arrest does not a fortiori preclude prosecution and conviction. Green v. United States, 460 F.2d 317 (5th Cir. 1972). Here the court suppressed the evidence obtained as the result of the arrest (legal or illegal) of appellant. Appellant further complains that the questions of the prosecutor put to co-defendant Garcia while he was on the stand about the location of his suitcase was error. Appellant complains for the first time on appeal of the impropriety of these questions and cannot now be heard to complain, United States v. Machado, 457 F.2d 1372 (9th Cir. 1972); United States v. Jeffery, 473 F.2d 268 (9th Cir. 1973). More to the point counsel for appellant cross-examined codefendant on this testimony. Appellant himself testified concerning the suitcase in the explanation of his presence on Highway 80 at the time of his arrest. Appellant cannot now be heard to complain of the failure of his own trial strategy. 2. Denial of Motion to go to Mexico. Appellant’s witness was located and refused to come to the United States because “She was afraid that her husband would beat her up”. The trial court acted properly in refusing to allow a Mexican National to leave the jurisdiction of the United States with unresolved charges against him. An investigator employed for the purpose of finding Blanca afforded appellant all his Sixth Amendment rights. A continuance of the trial date was given permitting the investigator time to accomplish the proposed investigation. The record is totally devoid of appellant’s attempt to use the procedures made available to him by Rule 15 of the Federal Rules of Criminal Procedure. That procedure would have assured him of the testimony he claimed was so vital to his defense. There was no constitutional infirmity in the court’s refusal to permit appellant to personally go to Mexico. 3. Prosecutor’s argument. During pretrial proceedings appellant and the government entered into a stipulation concerning the testimony of the alien witnesses so they could be returned immediately to Mexico. This stipulation provided that none of the aliens could testify they knew appellant. In apparent contravention of the stipulation, the prosecutor argued that not knowing the appellant did not in fact mean they could not identify him. Objection was made by appellant’s counsel and the court immediately instructed the jury and restated the stipulation and the nature of stipulated evidence as testimony. The error, if any, was neither significant nor prejudicial particularly since identification of the appellant was not necessary in any way to sustain the conviction on count one (conspiracy). Co-defendant Garcia’s testimony in itself was sufficient to convict. If the argument by the prosecutor was not totally dissipated by the corrective action of the court, it was so insignificant that counsel for appellant did not consider it of sufficient gravity to move for a mistrial. Appellant’s counsel appears to have been satisfied at the trial. We agree. 4. Court’s instructions. The court’s addition that “It is for you, the jurors, to determine whether or not the testimony of an accomplice is supported by other evidence in the case” clearly imports the jury’s function as finders of the facts. The instruction is proper. The failure to give a “mere presence” instruction is not error in light of the evidence and the consideration of the charge of the court to the jury in its entirety. The record does not disclose the objection of appellant’s counsel to the proposed addition to the “accomplice” instruction or the omission of the “mere presence” instruction. It is not plain error. The judgment is affirmed.

f2d_475/html/0065-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Joseph N. PALLADINO, Joseph N. Palladino, Jr., Appellants. No. 72-1005. United States Court of Appeals, First Circuit. Argued Dec. 4, 1972. Decided Feb. 22, 1973. Judgment Vacated June 25, 1973. See 93 S.Ct. 3066. Herald Price Fahringer, Jr., Buffalo, N. Y., with whom John A. Pino, Boston, Mass., was on brief, for appellants. Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Defendants, father and son, were convicted jointly by a jury on three counts of a nine-count indictment charging the mailing of obscene matter in violation of 18 U.S.C. § 1461, and were sentenced respectively for four and two years. The critical questions on appeal are whether the materials found obscene are constitutionally protected as a matter of law; whether proof of pandering was admissible, “the crime of pandering” not having been charged; and whether the government was obliged to proffer expert testimony on the three components of obscenity — dominant prurient appeal, patent offensiveness exceeding community standards, and utter lack of redeeming social value. Several other issues of lesser import will be discussed briefly. The evidence for the prosecution consisted of the materials charged as being obscene, some additional materials evidencing the manner of distribution, testimony by four recipients, including one government agent who ordered books under a false name, and evidence that defendants, through their company, Granite Mail Order House, Inc., had engaged in large-scale mailing operations. The defense evidence consisted of comparative materials which had been found non-obscene by various courts as well as a recent issue of Playboy magazine designed to demonstrate contemporary community standards. The district court directed verdicts of acquittal on three counts which were largely duplicative of others. The jury acquitted on one count charging the mailing of a deck of playing cards illustrating various positions of sexual intercourse and on two counts charging the mailing of advertising circulars. The Materials The materials found to be obscene were five books and a mailing consisting of three brochures. The latter and two other sets of mailed brochures found not obscene evidenced the tenor of the marketing of the books. Each book will be briefly discussed, together with reference to it in the brochures. The three brochures in the mailing found obscene will be described separately. “A Report on Denmark’s Legalized Pornography” is a 560 page, hard cover volume. The first 494 pages consist of 264 pages of interviews on the subject of Denmark’s recent scatological equinox; two Gallup polls on the legalization of pornographic books and pictures; two articles in the Danish Review concerning Danish attitudes toward pornography; and a 180 page “Pornography Report of the Penal Code Council”. The last 65 pages of the book consist of a collection of advertisements of pornographic materials. The first half of this section is devoted to many small black-and-white advertisements. The second half consists largely of full-page magazine advertisements in color portraying, inter alia, actual sexual intercourse, acts of fellatio, lesbianism, cunnilingus, and group sexual activity by three and four persons. A brochure advertised this book with the lead-off text: “New in America — SEE FOR THE FIRST TIME — THE NO HOLDS BARRED ILLUSTRATIONS from Scandinavian magazines and SEX PERIODICALS — MANY IN FULL COLOR .... ORGIES — EVERY SEX NOVELTY about which you have heard whispers . . . .’’At the bottom of the advertisement there is reference to “the most important social revolution of our time” and the interviews, articles, and penal code report. “Scandinavian Pornography” is also a lengthy hard cover book of some four hundred pages. After 110 pages devoted to a history of “The Fanny Hill Case”, a subsequent potpourri includes brief sections of “Inside a Porno Shop”, “Copenhagen Sex Fair”, some thirty pages of Danish and Swedish magazine illustrations, 140 pages of interviews, “Swedish Porno Cartoons”, comments by a Danish Supreme Court Justice on proposals to reform the Danish Penal Code concerning pornography, and a Ministry of Justice Report, sixteen pages of covers of magazines which had been banned, and a final thirty-one page section of black and white pictures from a Danish magazine. The photographs, while less explicit than those in the Danish “Report”, display genitalia and simulated intercourse, with a sprinkling of sadomasochism, lesbianism, and bestiality. The cartoons run a similar gamut with flagellation added. The blurb in the brochure, after headlining “CANDID ILLUSTRATIONS, NEVER SEEN IN THE U.S.A. BEFORE”, and mentioning a report “under the new freedom”, reads: “Fantastically detailed sex cartoons [sic] strips, illustrating sado-masochism, lesbianism, shocking eroticism .... Drawing depicting a variety of sexual deviations, and strange sex acts . . . Every Sex Act — natural and perverse “Anal and Oral Love” is a two volume, paperback work, running to some 380 pages of text and over 120 illustrations devoted to a historical account of various love practices connoted by its title. The chapters treat in a literate, although undocumented, fashion with sex practices from early man, through the major ancient civilizations, up to Victorian times. The last chapter, an effort to carry the story into the current era, is set in larger type, makes little pretense at scholarship, and consists mainly of supposed case histories of present-day male homosexuals. The illustrations are all drawn from sculpture or graphic art, from ancient to contemporary, and depict a wide variety of anal and oral sexual activity. A sizeable selected bibliography is contained in each volume. “Anal and Oral Love” is advertised in a brochure announcing “Here are the hard ones setting the new pace! They’re heavyweight and hard-crusted books that are boldly unique”. The blurb describes the work as a “2 volume picture book”, and then describes it as “The ‘definitive’ sexual survey of man’s most off-beat sex acts” which “spells out what The Kinsey Report only hinted about!” The advertisement also contains two explicit drawings of fellatio and sodomy. The fourth work, a paperback book entitled “Animals as Sex Partners” contains 191 pages of text on supposed contemporary case histories narrating experiences in bestiality, with less than a dozen illustrations from artistic works. This is heralded in a full page advertisement as a “Sex Slammer”, “an erotic shocker making others tame and childish by comparison!” A lengthy extract of one encounter is reproduced, together with two illustrations. The brochures advertising these books were enclosed in envelopes to the addressee with no external identification save the name and address of defendants’ company. They contained a note to “purchaser” that the material described was not obscene, that minors should not order the material, and that one could have his or her name removed from the mailing list by sending back the mailing. The mailing charged in Count IX, which was found to be obscene consisted of three brochures. One advertised “The Photographic Deck of Sexual Love”, with a number of photographs depicting a man and a woman in various sex positions; the full deck itself was found nonobscene by the jury in acquitting on a different count. A second advertised “My-O-My” magazine on one side, wherein three groups of nude males were photographically portrayed, and covers of six other magazines on the reverse side showing mostly couples in various amorous poses. The most flamboyant brochure advertised on one side “For the Super-Sensual”, the book “Sex Tools for Erotic Pleasure”, with a photograph, a listing of various sex gadgets under the blurb, “A New High in Orgasms”, and some textual descriptions. On the reversed side are advertised, as “a masterpiece of sensuality” “The Come Freak”, the revelations of an insatiable woman, with textual examples; and “The Middle-Aged Pervert”, characterized as “A Raging Inferno of Sexual Demands!”, again accompanied by textual extracts. Also listed are brief descriptions of eight other books including “Inside the Sex Deviate”, “Anatomy of Nine Perverts”, “The Sexmasters Guidebook”, and “The Orgasm Masters”. Protection as a Matter of Law Our first task is to address the issue whether, as a matter of law, any of these materials are non-obscene and therefore protected by the First Amendment. The three-fold test of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), is semantically clear: (1) do the materials, taken as a whole, appeal primarily to prurient interests of the average adult (or, if directed to deviants, to the prurient interests of the intended group, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966)?; (2) are the materials patently offensive because they affront contemporary community standards relating to sexual matters?; and (3) are the materials utterly without redeeming social value? We recognize our nondelegable duty to decide, even as against a contrary jury verdict, that a given work is non-obscene, if we are so convinced. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Unfortunately, we are unable to resort to a simple matching exercise as we did in Hunt v. Keriakos, 428 F.2d 606 (1st Cir. 1970), comparing the materials at issue here with similar ones given absolution by the Supreme Court or even by other courts. The comparative materials submitted in evidence by the defendants comprise such magazines as those we found non-obscene in Hunt, supra, portraying either women or men, with genital areas exposed, but no action suggested. A film, “Wild Man and Bride”, held not obscene in Commonwealth v. Palladino, 1970 Mass.Adv.Sh. 1127, 260 N.E.2d 653, was described by the district court as merely portraying “a nude man and woman cavorting on a bed kissing and caressing”, without sexual congress. Defendants have sought to assist by including in their brief a catalogue of cases in which the Supreme Court, federal courts of appeal, federal district courts, and state appellate courts have held various materials . non-obscene. From our reading, we have not been able to identify publications held non-obscene as a matter of law, which, as do most of these here, combine text, often pedantic; photographs and illustrations depicting not only actual copulation but also a range of deviant practices from fellatio and sodomy to bestiality and group orgies; and such merchandising brochures as those before us. Defendants also advance the proposition, said to be substantiated by the cases in their catalogue, “Essentially, any book that deals seriously with the subject of sex, no matter how frankly, must have some redeeming social value .... By its sweeping action, the Supreme Court has left us with the inescapable conclusion that the printed word simply cannot be obscene .... The fact that [these publications] may contain illustrations of the subject matter in no way detracts from their redeeming social value.” We confess that we are not certain whether the law presently protects all printed works involving solely textual material. Compare Ginzburg v. United States, 383 U.S. 463, 499 n. 3, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (Stewart, J., dissenting), with Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967), rev’ing United States v. West Coast News Co., 357 F.2d 855 (6th Cir. 1966). More importantly, we doubt whether a “serious” discussion in print is sufficient in all cases to save a publication which also contains concededly or obviously obscene, unrelated illustrations or photographs. But see United States v. 35 MM. Motion Picture Film, 432 F.2d 705 (2d Cir. 1970); United States v. Stewart, 336 F.Supp. 299 (E.D.Pa.1971). Yet we do not here decide whether a part so dominates that whole that the whole may be said to be “utterly” without redeeming social value. Rather, even on the assumption that the books in issue might, if standing alone, not be obscene, we tend to think that all but one of them are the “close cases [where] evidence of pandering may be probative with respect to the nature of the material in question”, Ginzburg, supra, 383 U.S. at 474, 86 S.Ct. at 949, and which are for the jury to decide, after hearing the proper evidence. Defendants claim that the indictment failed to charge “the crime of pandering” or the conduct upon which the crime of mailing obscene matter could be based, appealing to the language of the Court in Ginzburg that “the prosecution charged the offense in the context of the circumstances of production, sale, and publicity . . . . ” 383 U.S. at 465, 86 S.Ct. at 944. Wholly apart from the fact that there is no separate crime of pandering, the indictment in Ginzburg was no more explicit in its pandering aspect than that in this case; indeed, the instant indictment went further than Ginzburg’s in alleging the mailing of obscene circulars. Defendants cannot claim surprise. The issue was thoroughly aired in pre-trial proceedings and argued constantly during trial. While United States v. Pinkus, 333 F.Supp. 928 (C.D.Cal.1971), did hold for the proposition that pandering must be charged in the indictment, it erroneously stressed the Ginzburg language above quoted as implying the presence of pandering language in the indictment. We agree with Judge Frankel that “conduct” tests are not, strictly, elements of obscenity but “only permissible kinds of relevant evidence which may serve in a close case to tip the balance toward a finding of obscenity” [emphasis in original], Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288, 294 (S.D.N.Y.1969) (three-judge court), aff’d, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970). With respect to “A Report on Denmark’s Legalized Pornography” and “Scandinavian Pornography”, the bulk of each book is informative concerning the issues revolving about sexual freedom and the photographs, though approaching the extreme in explicitness, are not unrelated to the subject being discussed. But, as our above discussion of the advertisements indicates, the books were exploited by defendants, as was “The Housewife’s Handbook on Selective Promiscuity” in Ginzburg, the purveyors’ deliberate emphasis being “the sexually provocative aspects of the work”. 383 U.S. at 472, 86 S.Ct. at 948. As for “Animals as Sex Partners”, this work seems to have no historical or literary value, consisting of supposed case histories, and in any event was exploited as a “Sex Slammer” and “erotic shocker”. We cannot say that they are constitutionally protected as a matter of law. Of the brochures charged by Count IX, one must be non-obscene. Since the jury found “The Photographic Deck of Sexual Love” itself not obscene, it is difficult to see why a partial presentation thereof, consisting simply of sex positions, could be. However, neither the advertisements for the magazines nor the brochure, advertising “Sex Tools for Erotic Pleasure”, “The Come Freak”, and “The Middle-Aged Pervert”, seem to us to have much claim to protection as a matter of law under any one of the Roth-Memoirs tests. With reference to “Anal and Oral Love”, we take a different view, although without any deep sense of certainty. Not having had the benefit of any expert testimony for or against its meeting the Roth-Memoirs standards, we are left with the two volumes themselves. They purport to be and are a cohesive and comprehensive account of certain types of age-old sexual conduct, drawing on the literature and art of several countries and epochs. While, for all we know, the dominant theme may be prurient and the discussion may exceed national standards in their offensiveness, we cannot say that it is utterly without redeeming social value any more than was “Fanny Hill”. Memoirs, supra. We therefore hold that both volumes of “Anal and Oral Love” are non-obscene as a matter of law. Sufficiency of the Evidence By now it should be clear that we feel singularly unequipped to give intelligent review of the jury’s implicit findings that the publications charged in Counts II, IV, and IX failed all of the Roth-Memoirs tests, in the context in which they were merchandised. No one of the publications could be simply dismissed as “hard core” pornography. To track the Solicitor General’s descriptive catalogue in Ginzburg, which Mr. Justice Stewart approved, 383 U.S. at 499 n. 3, 86 S.Ct. at 957, the Danish and Scandinavian books do contain “photographs with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and . . . scenes of orgy-like character.” They also contain gross comic book drawings of the same “activities in an exaggerated fashion”. But they are part of an elaborate and documented review of social and legal change. The “Sex Tools” brochure and “Animals as Sex Partners” come close to being verbal descriptions of “such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value”. These two publications, however, pose the problem of determining whether there is a dominant theme which appeals to the prurient interest of a deviant sexual group. Indeed, the Danish and Scandinavian books also deal, to a lesser extent, with such deviant practices as fellatio, lesbianism, flagellation, and bestiality. Unlike the situation in Mishkin, supra, 383 U.S. at 510, 86 S.Ct. 958, 16 L.Ed.2d 56, there was no proof, beyond the materials themselves, of prurient appeal to any deviant group. See n. 7, infra. The present case was tried as carefully and competently as an appellate court could wish. The district court, particularly, exercised exceeding care to provide a fair trial and clear instructions. And it cannot be said that the jury, which acquitted on three of six counts presented to it, was undiscriminating. While the defense submitted advance requests for instructions in the event that expert witnesses were used, citing United States v. Klaw, 350 F.2d 155 (2d Cir. 1965), no such experts were offered. One of several grounds for defendants’ motion for acquittal at the end of the prosecution’s case, not argued in any detail, was the failure to offer expert testimony on dominant prurient appeal, national standards, and redeeming social value. Although it seems unfortunate to change the ground rules after a trial as well run as this one, we have come to the point where, so long as the tests for obscenity remain the present sophisticated triology, we think fundamental fairness, and therefore due process, requires the intervention of experts. If we are mistaken in that conclusion, we have such doubts about our own unassisted ability to give obscenity cases informed judicial review, that we reach the same result through our supervisory power. In saying this we are under no illusion that “experts” will render the process of adjudicating obscenity a completely rational one, at either trial or on appellate review. There will be problems attendant on qualifying experts, difficulty in confining them to testimony within their competence and directed to subordinate factors bearing on the ultimate question, contradictory testimony and confusion, and perhaps much testimonial nonsense. Nevertheless, we think that the several applicable tests can have a chance of being fairly applied only if jurors and judges are exposed to opinions and made to think about whether the “dominant” theme is an appeal to “prurient interests” and, if so, to what groups; whether material is “patently offensive” because it affronts “contemporary” and national standards relating to the description of sexual matters; and whether material is “utterly without redeeming social value”. Such matters as prurience, deviant attitudes, national standards of acceptability, and redeeming social value are far removed from the thought and experience of the average jury. Jurors, it seems to us, need assistance in wrestling with such issues fully as much as they need assistance in evaluating an insanity or other mental or emotional illness defense. The classic argument is set forth in Klaw, supra. That court, after rehearsing the multiplicity of questions to be answered, concluded, “Having in mind the constitutional contrictions on the breadth of legislation affecting the freedom of expression, if appeal to prurient interest — on either an ‘average man’ or a ‘deviant typical recipient’ basis — is the statutory concern, then it seems desirable, indeed essential, that such appeal to someone be shown to exist.” 350 F.2d at 165-166. It then added, “And if proof of prurient stimulation and response is generally important, it is particularly necessary when the prurient interest may be that of a deviant segment of society whose reactions are hardly a matter of common knowledge.” Id. at 166. The role of the expert would not be to give an opinion “which expresses his legal judgment concerning the dominant theme’s appeal to prurient interest, but to provide the trier of fact with a sufficiently full array of professional observations in order to render unlikely a hasty assumption that the publication at issue will affect everyone it reaches in the same way, under all circumstances.” Stern, Toward a Rationale for the Use of Expert Testimony in Obscenity Litigation, 20 Case Western L.Rev. 527, 549 (1968). We also deem experts important, although in varying degree, to guide juries through the other two branches of the Roth maze. National standards are, to say the least, elusive beasts. A determination of whether a document exceeds the national level of tolerance requires some exposure not just to publications of national or broad regional scope, but also to the views, attitudes, habits, and tastes of other communities with different climates, cultures, and histories. As the concurrence in Groner, supra n. 5, at 72, recognized, a Boston jury, perhaps unfairly sterotyped as puritanical, may well, if left to its own concepts of offensiveness, produce a different verdict on the same manuscript than that of a jury elsewhere. If we are to prevent uneven and hence unequal application of the same federal law, we must have experts to advise the jury, and the no less limited appellate judges, as to the contemporary national standards. In this we agree with Mr. Justice Frankfurter’s observation in Smith v. California, 361 U.S. 147, 165, 80 S.Ct. 215, 225, 4 L.Ed.2d 205 (1959) (concurring) that “community standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts.” See also Ross, Expert Testimony in Obscenity Cases, 18 Hastings L.J. 161, 174-177 (1966). Social value, most particularly, is a subject requiring careful delineation. It is axiomatic First Amendment doctrine that the majority may not prescribe what is valuable expression. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Thus if we are to prevent the obscenity law’s unusual provision for judgment of a publication’s value from becoming the passing majority’s tool for repressing expression it finds distasteful, unusual, discomforting, or simply threatening, we must have witnesses, with psychological, sociological, medical, historical, or literary expertise, to explain objectively the total absence of redeeming social value. See generally Stern, supra. While the required use of experts will not make obscenity decisions easy, they will, we think, make the process of decision a more structured one. In any event, the alternative is, as the court said in Klaw, the less acceptable one of res ipsa loquitur. The jury in the present ease was handed the four books, comprising almost 1500 pages, and the set of brochures, was given an hour’s worth of careful instruction, and was expected to rise above its personal preferences and day-to-day experiences, take the national pulse, sense what was not merely shocking to it but prurient to the group or groups being appealed to, and identify any possible redeeming social value. If this seems like being cast loose on a windless sea, appellate courts are in an even less enviable position, for juries at least have, by virtue of their selection, some sense of sharing values with some community. We are completely sympathetic with the court in United States v. Groner, supra, at 2284, which said, “Without some guidance from experts or otherwise, we find ourselves unable to apply the Roth standard with anything more definite or objective then our own personal standards of prudence and decency, standards which should not and cannot serve as a basis for either denying or granting first amendment protection to this or any other literature.” We therefore reverse and remand for retrial. In the light of our discussion of protection as a matter of law, the government may still press the three counts of mailing obscene matter on which the jury convicted the defendants. However, since we hold both volumes of “Anal and Oral Love” protected as a matter of law, and since the jury here necessarily held the advertisement for “The Photographic Deck of Sexual Love” not obscene, the government may not again introduce these materials into evidence to establish the crime of mailing obscene matters. We do not accept the defendant’s contention that the government must limit each count to a single document, or alternatively that if multi-document counts are permitted, the jury must be instructed that it can only convict if all of the documents in a particular mailing are obscene. The offense is the mailing of obscene material; hence all matters in a single mailing may be charged in one count and guilt found if any one of them is obscene. Since a retrial is possible, we deem it important to comment on the court’s instruction that the jury, in addition to answering the Roth-Memoirs trilogy of questions, or as an aid to answering them, should determine whether the Danish and Scandinavian books were “legitimate” publications or whether the written material was “simply the excuse for sale of these most vivid” photographs at the end of the book. The Supreme Court in Ginzburg threw some doubt on this kind of approach, absent evidence of pandering. 383 U.S. at 471, 86 S.Ct. 942, 16 L.Ed.2d 31. While the problem of assessing the whole, when the parts are disparate, is a vexing one, it nevertheless seems inconsistent with the prescribed tests, which speak in terms of effect, to ask a jury to speculate on questions of purpose and good faith. A question arising during the trial as to the court’s in camera examination of a juror who had indicated his discomfort with the subject matter is now moot. Should such a situation again arise, inquiry should be made in the presence of counsel. United States v. Larkin, 417 F.2d 617 (1st Cir. 1969). Defendant’s challenge to the constitutionality of 18 U.S.C. § 1461 on the ground that Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), voids any governmental power to restrict distribution of obscene materials to consenting adults is, for the present at least, foreclosed by United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). All other objections have been considered and are found to be without merit. Judgment reversed. Case remanded for proceedings consistent with this opinion. LEVIN H. CAMPBELL, Circuit Judge (concurring). I would be tempted to follow Judge Aldrich’s dissenting views were I not of the opinion that the law, as it now stands, precludes our doing so. However, were I to do so it would be with these qualifications: I think the most potent objection to the Roth test rests on the virtual impossibility of applying it. “Obscenity” or “pornography” is not a word susceptible to close analysis and definition. Essentially they are pejoratives, indicating material which arouses disgust in someone. Unless one is to sanction banning all materials which any substantial body of opinion might regard as disgusting— a position inviting an intolerable degree of censorship in view of the many different standards today prevailing, and one properly rejected by the Supreme Court —one is left with the virtually impossible task of selecting out that which is “really” bad from that which is not quite so bad. Experts may help in bringing about a more sophisticated consideration of the issue, but I agree with Judge Aldrich that they will not meet the problem. Assuming, then, that we may have to give up the attempt, what then ? I think that society should be allowed to regulate somewhat the display and circulation of highly offensive materials although not to ban them. Modern advertising in a market economy is a potent and intrusive force. It would be unfortunate if our society, already dominated by Nielsen ratings and televised fantasies of violence and unreality, should be further dominated by the fantasies of inventive merchants of smut. I think that families are entitled, if the legislature so determines, to a reasonable degree of protection from unsolicited materials, and from the unregulated intrusion by entrepreneurs of pornography into their daily lives through the mails and media, including, at some future time, the omnipresent TV set. Should the unsatisfactory effort to separate “hard core” from protected materials ever be abandoned, I think that attention might be focused on working out principles permitting reasonable restrictions on the most blatant public advertising and display of pornography. Admittedly the problem of definition would remain: but I think a somewhat looser definition would be permissible since the type of regulation I have in mind would relate only to the more intrusive forms of publicity and would fall considerably short of outright banning. While consenting adults should be free to receive and see what they want, I do not think that society is constitutionally required to surrender all attempt at control over the milieu within which its children are reared. ALDRICH, Senior Judge (dissenting). I do not, of course, disagree about children. It is difficult to disagree at all with the decision of the court unless one is to take the stand that hard core pornography is no longer to be considered unlawful. So far as the large scale, colored, and highly focused pictures, and the scenes they portray, in the case at bar are concerned, it is hard to think of what, other than scatological, has been omitted. Nevertheless, I confess that the full freedom advocated by the great majority of its members, see Presidential Report of the Commission on Obscenity and Pornography (1970), though said to be “among the most controversial reports ever produced by an official government body,” has much to recommend it, not only to avoid sporadic and highly selective enforcement that is eryingly conspicuous, and probably inevitable, but because I believe that public surfeit will more nearly effect a cure than will any process of judicial sanction. I must wonder, too, not only with the Commission majority, but with that well known nonlibertine Billy Graham, whether pornography is objectionable other than as a matter of aesthetics, and is but a reflection of contemporary behavior rather than a cause. If pornography, privately enjoyed, is not harmful, what is the need for a “redeeming social value”? More important, on what basis is a value judgment to be formed? If pornography is to be prosecuted it is perhaps more logical to have juries weigh expert opinion than to apply, unaided, their own individual concepts. Yet, having dealt with experts in this field for over three decades, I am not sanguine enough to think that much will be accomplished. Even if any are found qualified to expound a national standard, cf. Jacobellis v. Ohio, 1964, 378 U.S. 184, 194-195, 84 S.Ct. 1676, 12 L.Ed.2d 793, how much weig-ht will an average juror attach to the witness’ appraisal if it differs from his own? We have insisted upon experts in patent cases, e.g., Contour Saws, Inc. v. L. S. Starrett Co., 1 Cir., 1970, 428 F.2d 314, 319, but that is to fill a conceded void. Will not the average juror, whether assisted or not, still not know anything about art, but know what he doesn’t like? But deeper than the matter of experts, without in any way criticizing the scholarship of the court’s opinion, or its legal correctness in the light of judicial precedents, I wonder if we are not deluding ourselves. If a deck of cards illustrating 52 positions of sexual intercourse is not obscene — I reject the thought that the cards have a redeeming social value because of their obverse side — presumably because they are “straight,” although we are told that many persons consider positions other than the “missionary” unnatural; if two volumes illustrating oral and anal congress, although these are classic “unnatural” acts, are obscene in the jury’s mind, but not in the court’s because of their art, or the accompanying text, on what rational basis can one decide whether an “appendix” of 30 pages of graphic photographs of so-called unnatural and other acts is obscene? I resist the temptation to repeat the list of cases favoring the defendant to be found in defendants’ brief herein. Whether publishers of putative pornography are jailed or not has come to be a game of chance played with prosecutors, juries, courts, and finally, with all respect, with the Supreme Court, whose ultimate wisdom permits it to perceive what is, hard core and what is not. In the light of the First Amendment protection afforded to any speech falling short of pornographic condemnation, one may envisage the chilling effect that this uncertainty engenders. When, however difficult the boundary was to define, a large area of writing and illustration was considered impermissible, such nubilation had to be tolerated. With the area shrunk to its present proportions, the price seems very high. Finally, I hope that the pandering rule, except insofar as it serves to protect from affront persons who, understandably, wish to be left alone, will go by the board. Is this to be the one field where seller’s talk is forbidden? Is a book any dirtier because the vendor says it is? The concept of a subjective test is reminiscent of the Expurgated Mother Goose, which, with tongue-in-cheek, was advertised as omitting “salacious” words. E.g., “Georgie Porgie, pudding and pie, _ed the girls and made them cry.” Since a reader with “lascivious thoughts,” would readily supply, at that time unprintable, words, did this become an obscene book? Much current pornographic material is, to many, highly offensive. But offensiveness is not the measure of free speech, Cohen v. California, 1971, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, and centuries of history demonstrate that what is one man’s poison is another man’s position. I wonder if the time has not come when consenting adults should not only be permitted to read what they choose, Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, but should be free to purchase it. It is true that in United States v. Reidel, 1971, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813, the Court refused to apply Stanley to afford rights to a seller, direct or indirect. The opinion suggests to me an unwillingness to consider the readers’ rights as a matter of standing. See 402 U.S. at 355-356. The defense of standing has been rapidly eroding. Compare Arnold Tours v. Camp, 1970, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179, where it might be said that Court adopted the position which only the minority was willing to take the previous term in Data Processing Service v. Camp, 1970, 397 U.S. 150, 167, 90 S.Ct. 827, 25 L.Ed.2d 184. Defendants in the case at bar, quite apart from their own claims to freedom of speech, would appear to have the same standing to represent the rights of a purchaser as had the defendant in Eisenstadt v. Baird, 1972, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349. Having milder reservations than my brethren, I would order judgment for the defendants. . Count II charged the obscenity and mailing of “A Report on Denmark’s Legalized Pornography”, “Scandinavian Pornography”, and a two volume work, “Anal and Oral Love”. Count IV charged the mailing of a paperback book, “Animals as Sex Partners”. Count IX covered the mailing of three brochures: an advertisement for “The Photographic Deck of Sexual Love”; an advertisement for, principally, three books — “Sex Tools for Erotic Pleasure”, “The Come Freak”, and “The Middle-Aged Pervert”; and an advertisement for the magazine “My-O-My” and six other magazines. . We have previously held that in federal prosecutions the referent for such standards is the nation. Excellent Publications, Inc. v. United States, 309 F.2d 362, 365 (1st Cir. 1962). The question whether the standard in a state prosecution is national or local is presently pending decision by the Supreme Court. Miller v. California, - U.S. -, 93. S.Ct. 2607, 37 L.Ed.2d - (1973). . We discuss subsequently whether we may properly consider the manner of merchandising. . Professors Lockhart and McClure came to the same conclusion: “[I]f the Supreme Court should go beyond hard-core pornography in categorizing the obscene ... it is hard to see how material' could be intelligently appraised for obscenity or how an appellate court could intelligently review obscenity decisions without the evidence of competent critics or experts. We think the admission of such evidence, when proffered by either side in an obscenity case should be made a constitutional requirement.” Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 99 (1960). . We thus follow those federal, United States v. Klaw, 350 F.2d 155 (2d Cir. 1965); United States v. Groner, 475 F.2d 550 (5th Cir. 1972), reargument granted; see also Luros v. United States, 389 F.2d 200 (8th Cir. 1969), and state courts, e. g., California (In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968); In re Harris, 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305 (1961), vacated and remanded on other grounds, 374 U.S. 499, 83 S.Ct. 1876, 10 L.Ed.2d 1044 (1963)); Maryland (Dunn v. State Board of Censors, 240 Md. 249, 213 A.2d 751 (1965)), which have required expert testimony for either of these reasons. For statutory authorization for expert testimony, see Mass. Gen.Laws Ann. ch. 272, § 28F. . Two helpful commentaries are Stern, Toward a Rationale for the Use of Expert Testimony in Obscenity Litigation, 20 Case Western L.Rev. 527 (1968); Ross, Expert Testimony in Obscenity Cases, 18 Hastings L.J. 161 (1966). See also Note, The Use of Expert Testimony in Obscenity Litigation, 195 Wis.L.Rev. 113. Although Ross and Stern disagree as to which elements of the test require expert testimony, in our view the basic rationale requires experts on each element of the criminal concept. . The government concedes the viability of Klaw for “esoteric” materials aimed at a deviant group, assuming that this ease does not involve such. But, as the passages quoted above make clear, the rationale, while “particularly necessary” when the materials are intended for deviants, also applies to appeals to average prurience. We think this ease illustrates the unworkability of hinging the requirement for experts to the kind of intended recipients, for most of the materials contain a mixture of “normal” and “deviant” appeals. We note that Klaw would not apply to such “hard core” materials as color slides depicting erotic acts, United States v. Wild, 422 F.2d 34 (2 Cir.), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971). See also United States v. Manarite, 448 F.2d 583, 593 (2d Cir.), cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d 264 (1971). . He adds the necessary caveat, “Of course the testimony of experts would not displace judge or jury in determining the ultimate question whether the particular book is obscene, any more than the testimony of experts relating to the state of the art in patent suits determines the patentability of a controverted device.” 361 U.S. at 165, 80 S.Ct. at 225. . Defendants assert that the Supreme Court in Wiener v. California, 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539 (1971), found the magazine “My-O-My” not obscene as a matter of law. Since neither the Supreme Court’s order nor the summary of the ruling below, 40 U.S.L.W. 3240 (U.S. Nov. 16, 1971), indicate anything in that regard, and the lower court’s opinion is not published, we are not sure if this is so. If, however, the defendants could establish at a new trial that this was the ruling, the district court could black out the side of the advertisement dealing with “My-O-My.” . Greenleaf Classics, Inc., edition (1970) p. 8, Foreword of D. H. Gilmore. : Concededly, public surfeit is not imminent, see Sexploitation: Sin’s Wages, Newsweek, Feb. 12, 1973, p. 78. . Foreword, n. 1, at 11. . A risk enabling them to milk the public, as did bootleggers during Prohibition. Op. cit. ante, at 9; see, also, n. 2.

f2d_475/html/0078-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Joseph W. SAVAGE, Petitioner-Appellant, v. J. D. HENDERSON, Warden, United States Penitentiary, Atlanta, Ga., Respondent-Appellee. No. 73-1092. United States Court of Appeals, Fifth Circuit. March 14, 1973. Joseph W. Savage, pro se. John W. Stokes, U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. PER CURIAM: This appeal is taken from an order of the district court dismissing the mandamus petition of a federal prisoner seeking credit under 18 U.S.C. § 3568 on his federal sentence for time spent in state custody. The government has moved to remand the case for findings, admitting that appellant has alleged facts which, if true, would entitle him to relief. We grant the motion and remand the ease. While on mandatory release from a ten-year federal sentence for unlawful sale of heroin imposed on November 20, 1959, the appellant was charged with robbery by Michigan state authorities. While in state custody awaiting trial on the state charge, the United States Board of Parole filed a detainer against him on December 20, 1967. Appellant plead guilty to the state charge on March 26, 1968, and on April 26, 1968, he was sentenced to a ten-to-fifteen year term of imprisonment. On August 2, 1972, appellant was paroled to federal authorities on the detainer warrant. In his petition filed below, appellant alleged that he is entitled to credit on his federal sentence for the time spent in state custody from the date the federal detainer was filed against him until his release from his state sentence. Appellant contended that throughout this period he was in custody “in connection with” the 1959 federal sentence “by virtue of the Federal Parole Board detain-er warrant.” He alleged that while in state custody awaiting trial he was prepared to make bond, but the federal detainer prevented him from doing so. It is frivolous to suggest that appellant is entitled to credit for that period of time when he was serving his state sentence. As the district court stated, “the mere act of filing a detainer did not convert the state custody for robbery into federal custody in connection with the unlawful sale of heroin.” As to time served in state custody and credited on the state sentence, the judgment of the district court is affirmed. Appellant would, however, be entitled to credit for any time he spent in state custody, unable to make bond solely because of the federal detainer warrant. Taylor v. United States, 5th Cir. 1972, 456 F.2d 1101; Ballard v. Blackwell, 5th Cir. 1971, 449 F.2d 868; Davis v. Attorney General, 5th Cir. 1970, 425 F.2d 238. We therefore vacate the judgment below and remand to the district court for further inquiry and findings on the question of whether appellant’s confinement while awaiting trial is attributable to the federal detainer. O’Connor v. Attorney General, 5th Cir. 1972, 470 F.2d 732; Taylor v. United States supra; Ballard v. Blackwell, supra. Should the district court determine that appellant had been given credit on his state sentence for the time in jail awaiting trial, appellant will not be entitled to credit for that time on his federal sentence. Vignera v. Attorney General, 5th Cir. 1972, 455 F.2d 637; Radcliffe v. Clark, 5th Cir. 1971, 451 F.2d 250. Vacated and remanded.

f2d_475/html/0079-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Earl WHITE, Plaintiff-Appellant, v. Dr. Glen E. PADGETT et al., Defendants-Appellees. No. 72-1597. United States Court of Appeals, Fifth Circuit. March 2, 1973. Rehearing Denied April 3, 1973. Edwin A. Green, II, Tallahassee, Fla., for plaintiff-appellant. W. Robert Olive, Jr., Dept, of Legal Affairs, Tallahassee, Fla., Ben F. Barnes, Thomas C. Wilkinson, Marianna, Fla., J. Ben Watkins, Steve M. Watkins, Tallahassee, Fla., for defendants-appellees. Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges. RIVES, Circuit Judge: Predicating jurisdiction on 28 U.S.C. § 1343(3), plaintiff White brought this action for deprivation of his civil rights under 42 U.S.C. § 1983. Defendants claimed that the complaint failed to state any specific acts which would make them liable under 42 U.S.C. § 1983, quoted in the preceding note, and for- that reason moved to dismiss the complaint. The district court granted defendants’ motion without prejudice to the filing of an amended complaint. Plaintiff then filed an amended complaint more specifically, albeit succinctly, stating his claim as follows: “That the Defendants * * * are sued in their official and individual capacities as members of the Inquisition of Incompeteney Committee. “At all times mentioned herein, the Defendants were acting under the col- or of state statute * * *. “That on the 21st day of August, 1965, Plaintiff was adjudged incompetent based on a petition filed in Jackson County [Florida] and was confined to Escambia General Hospital in Escambia County, Pensacola, Florida. “That Florida Statutes 394.22(6) [F.S.A.] require the appointment of a committee and the Defendants herein were appointed to that committee; that said statute further requires each member of the committee to examine the person to be committed; that the Defendants herein did not comply with said statute, that is to say, that they did not within a reasonable time after notice of their appointment proceed to make such examination of said person as will enable them to ascertain thoroughly his mental and physical condition as of the time of the examination; that each of the Defendants signed their names to a report specifically stating that they had examined the Plaintiff as required by statute when in fact they had not. “That the Plaintiff * * * was not appointed a guardian and therefore could not bring a civil action against any person or persons until after the year 1970 at which time his competency was restored; that the Statute of Limitations did not start running until after 1970. “That the Defendants, through the above action, have caused the Plaintiff to suffer a deprivation of his rights, privileges and immunities secured by the Constitution of the United States of America, particularly the rights, privileges, and immunities secured by the Fifth and Fourteenth Amendments to the Constitution of the United States.” (Emphasis added.) Defendants moved to dismiss the complaint as amended, again insisting that it failed to state a claim upon which relief can be granted, but this time claiming (1) that the plaintiff’s action was barred by the statute of limitations, and (2) that the defendants acted in a quasi-judicial capacity and hence are immune from liability for damages. The district court granted the defendants’ motion and dismissed the amended complaint, this time with prejudice. In its order the district court stated that: “this Court is of the view that the amended complaint fails to state a claim upon which relief can be granted and that the amended complaint must be dismissed. Mills v. Small, 446 F.2d 249 (9th Cir. 1971); Bartlett v. Weimer, 268 F.2d 860 (7th Cir. 1959). “Recognizing that the bar of the statute of limitations is an affirmative defense ordinarily raised and considered once defensive pleadings have been disposed of, this Court nonetheless further finds at this juncture that the statute of limitations would be a bar to maintenance of this action. Mills v. Small, supra.” (R. 94.) This appeal ensued. Two issues are briefed and argued by the parties, viz.: (1) whether plaintiff’s claim is barred by a statute of limitations, and (2) whether the defendants are immune from liability for damages. We hold with the defendants on limitations and do not reach the question of immunity vel non. Plaintiff’s Claim Is Barred by Limitations As the district judge observed, “ * * * bar of the statute of limitations is an affirmative defense * *» [R- 94. gee Rule 8(c), F.R. Civ.P.] However, the complaint is subject to dismissal under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief can be granted when the affirmative defense clearly appears on the face of the complaint. The present action was commenced by the filing of the original complaint on June 23, 1971 (R. 4). The complaint affirmatively alleged the date of August 21, 1965, as the time at which plaintiff was adjudged incompetent and confined to Escambia General Hospital. The time intervening between the two dates last mentioned is five years, ten months and two days. Apparently in an effort to justify such a long delay, the plaintiff averred in his amended complaint that no guardian was appointed for the plaintiff and he “* * * therefore could not bring a civil action against any person or persons until after the year 1970 at which time his competency was [judicially] restored; that the Statute of Limitations did not start running until after 1970.” For reasons presently to be stated we conclude that, in taking that position, the plaintiff misapprehended the controlling principles of law. Neither the plaintiff nor the defendants dispute the law as stated in plaintiff’s brief at page 25: “There is no federal statute of limitations for claims brought under 42 U.S.C. § 1983 and 1985 thus the applicable Florida statute is to be borrowed. O’Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Beard v. Stephens (5th Cir., 1967) 372 F.2d 685. Cf. McGuire v. Baker (5th Cir., 1970) 421 F.2d 895.” The parties are also in agreement, and necessarily so, that the applicable Florida statute is not one providing limitations for the recovery of real property, but is either subsection (4), as claimed by the plaintiff, or subsection (5) (a), as claimed by the defendants, of Florida Statutes Annotated § 95.11. In pertinent part that statutes provides: “Actions other than those for the recovery of real property can only be commenced as follows: “(4) Within four years. — Any action for relief not specifically provided for in this chapter. “(5) Within three years. “(a) An action upon a liability created by statute, other than a penalty or forfeiture.” Section 95.11 contains no provision suspending or tolling the limitation period because of disability arising from insanity or from any other cause. In Florida the only limitation statute suspended or tolled by insanity or other disability is that applicable to the recovery of real property. The pertinent part of that statute is quoted in the margin. That difference in the Florida limitation statutes resulted in a holding by the Supreme Court of Florida, that a plaintiff’s disability by reason of insanity existing when his right of action for slander of title accrued could not toll the running of the statute of limitations, the court reasoning as follows: “It is clear that his action was barred unless his insanity tolled the statute. “The general rule is that unless a statute of limitations contains a saving clause, relief from its provisions [on] account of disability will not be granted. The statute in question contains an exception relative to recovery of real property but it does not help appellant who claims damages for slander of title. When the legislature refuses to write exceptions into the act the courts have consistently refused to do so. 34 American Jurisprudence, page 162, Section 201; Dobbs v. Sea Isle Hotel, Fla., 56 So.2d 341. See also Faulk & Coleman v. Harper, Fla., 62 So.2d 62. In this holding we do not overlook appellant’s contention that Section 95.20, F.S.A., authorizes this action. This statute has to do with actions for recovery of real property while the action here is based on tort and is not covered by the last-cited statute.” Carey v. Beyer, Fla.1954, 75 So.2d 217, 218. The strictness with which limitation statutes are construed in Florida is illustrated by a recent case, Gasparro v. Horner, Fla.Dist.Ct.App., 4th Dist., 1971, 245 So.2d 901, in which, over a vigorous dissent, a Florida court held that the cause of action of a minor, who had been orphaned in an accident occurring more than four years prior to commencement of the action but who had been adopted approximately 21 months after the accident, accrued on the date of the accident rather than the date of the minor’s adoption, and the action was barred by the four-year statute of limitations. On rehearing the majority said: “As to whether the plaintiff’s disability of infancy operated to toll or suspend the running of the Statute of Limitations 51 Am.Jur.2d, Limitation of Actions § 138 (1970) states: “ ‘While most courts give recognition to certain implied exceptions arising from necessity, it is now conceded that they will not, as a general rule, read into statutes of limitation an exception which has not been embodied therein, however reasonable such exception may seem and even though the exception would be an equitable one. The modern rule of construction in this respect is that unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, it must receive a general construction, and the courts cannot arbitrarily subtract therefrom or add thereto. Undoubtedly a hardship will result in many cases under this rule, but the court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial * * *.’ A study of Chapter 95, F.S. reveals neither express nor implied terms which would by reason of infancy toll the running of the particular period of limitation here involved.” [Emphasis that of the Florida court.] 245 So.2d at 905. In the district court (R. 46) the plaintiff relied upon and quoted the statute prescribing the effect of a judgment adjudicating a person to be mentally incompetent : “(10) Effect of judgment.— “(a) After the judgment adjudicating a person to be mentally incompetent is filed in the office of the county judge, such person shall be presumed to be incapable, for the duration of such incompetency, of managing his own affairs or of making any gift, contract, or any instrument in writing which is binding on him or his estate. The filing of said judgment shall be notice of such incapacity.” 14A F.S.A. § 394.22(10)(a). The presumption created by that statute is not stated to be a conclusive presumption, but may, we think, be rebutted by plaintiff’s evidence, Indeed, the present plaintiff successfully followed that course in the petition which he himself filed to set aside the judgment finding him to be a mental incompetent. In re White, Fla.Dist.Ct.App., 1st Dist., 1970, 230 So.2d 480. Further, since under F.S.A. § 394.22(10) (a) the effect of the judgment adjudicating plaintiff to be a mental incompetent was no more than to create a rebuttable presumption of his continuing incompetency, its effect on tolling a statute of limitations cannot depend on the adjudication of incompetency without more, but ultimately turns on whether plaintiff was in fact mentally incompetent. Compare Woodruff v. Shores, 1945, 354 Mo. 742, 190 S.W.2d 994. Ironically, in order to recover on the merits of his claim against the defendants, the plaintiff would probably have to prove just the opposite, that is, that he was mentally competent. In his brief on appeal, the plaintiff urges a theory different from that stated in his amended complaint for tolling the statute of limitations: “The transaction beginning on September 16, 1965, when the appellant was arrested and confined in jail pending the hearing on his competency, and running until he was released from Escambia Hospital on August 30, 1965, as ‘. . . competent . . .’ was all one uninterrupted continuous transaction. For a period of fourteen days the appellant was uninterruptedly confined as an incompetent. The judicial machinery had been set in operation by the petition of his wife and was continuing to grind out the ‘mental examination,’ the hearing, the reevaluation by the hospital staff at Escambia General Hospital, and ultimately his release from that hospital. The relevance of these facts to the subissue here being considered is simply that after fourteen days of confinement culminating in his release and armed with the letter from the examining physician from the hospital, the appellant left the hospital under the impression that all the wrongs had been corrected by his release. Some ten months later when he attempted to register to vote and was told that he could not vote because he was still incompetent he realized that he had in fact been injured by the negligent acts of the defendants. It was May of 1966 when he registered to vote that the appellant learned for the first time of his injury. It is his contention under the facts and the law that the statute of limitations, whatever its length, did not begin to run until this time.” (Plaintiff’s brief, p. 21.) We do not agree. Assuming arguendo that defendants have no immunity, plaintiff’s amended complaint clearly stated injury by false imprisonment during the period that he was forcibly confined in the Escambia Hospital. Beckham v. Cline, 1942, 151 Fla. 481, 10 So. 2d 419. However, even if plaintiff were sound in his argument that the statute of limitations did not begin to run until May, 1966, he then delayed until June 28, 1971, that is for more than four years, before filing his original complaint against the defendants. Even the plaintiff does not contend for a period of limitations longer than four years. In a third theory advanced by plaintiff, he relies upon Mizell v. North Broward Hospital District, 5 Cir. 1970, 427 F.2d 468, to insist that the limitation period was tolled during the pendency of the state proceeding to vacate the incompetency order. That proceeding extended over a period of one year and ten months. If that time is deducted from the total period of delay, plaintiff would be charged with a culpable delay of more than three but less than four years. We forego discussing why, in our opinion, plaintiff’s reliance on Mizell is misplaced, because we reject plaintiff’s attempted differentiation of Nevels v. Wilson, 5 Cir. 1970, 423 F.2d 691, and adhere to the holding of that case that the three-year statute is applicable to claims under 42 U.S.C. § 1983. In Mills v. Small, 9 Cir. 1971, 446 F.2d 249, cited by the district court, the Ninth Circuit also adopted a state statute which covered a liability “created by statute.” If we have not discussed all of the arguments to avoid the limitations bar which the admirable ingenuity of plaintiff’s present counsel has developed, we have considered them all and have found each insufficient. The judgment is Affirmed. . “The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person: “(3) To 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.” . “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.” . Under Rule 12(b)(6), F.R.Civ.P. . The part of plaintiff’s amended complaint which we have emphasized tracks the following language in 14A. F.S.A. § 394.22 (6) (a) : ‘•The examining committee, within a reasonable time after notice of their appointment, shall proceed to make such examination of said person as will enable it to ascertain thoroughly his mental and physical condition as of the time of the examination.” . See Rule 12(b)(6), F.K.Civ.P. . Attached to plaintiff-appellant’s brief are 17 exhibits consisting of certified copies of documents from his “Inquisition of Incompetency” and from the proceedings in the Florida state courts on his “Petition to Void Order Adjudging Incompetency.” The defendants moved to strike these exhibits because they are not a part of the record in this case, were never a part of the proceedings in the district court, and were not considered by the district judge. The plaintiff responded, insisting that the exhibits are relevant and are simply the documents which reflect the facts and the judicial findings of the state courts. Prior to submission of this appeal, we ordered that the defendants’ motion to strike be carried with the case. Now we find that the exhibits are not essential, and that this appeal cud be and is determined on the strict record alone. The defendants’ motion to strike is therefore practically moot, and need not be decided. However, we note that plaintiff gets the benefit of most of the exhibits because their substance is reflected in one or the other of two published opinions of the District Court of Appeal of Florida, First District, dated respectively January 20, 1970, 230 So.2d 480, and June 18, 1970, 237 So.2d 55. . Freund v. Insurance Co. of N.A., 5 Cir. 1967, 370 F.2d 924; Mills v. Small, 9 Cir. 1971, 446 F.2d 249; 5 Wright & Miller, Federal Practice & Procedure § 1270, pp. 289, 300 n. 6, § 1226, p. 101 n. 11. . “95.20 Real actions; adverse possession against persons under disability “(1) If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title shall descend or accrue, either: “(a) Within the age of twenty-one years; “ (b) Insane; or “(c) Imprisoned, The time during which said disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced, or entry or defense made, within the period of seven years after such disability shall cease, or after the death of the person entitled who shall die under such disability ; but such action shall not be commenced, or entry or defense made, after that period. “(2) But adverse possession as hereinbefore defined for thirty years shall confer title even as against persons under the disabilities mentioned in this section. “(3) A married woman may prosecute any action concerning her land, in her own name, and without joining her husband.” 7 F.S.A.1972 P.P.

f2d_475/html/0085-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

ABBOTT REDMONT THINLITE CORPORATION, Plaintiff-Appellant, v. Rudolph R. REDMONT and Circle Redmont Corporation, Defendants-Appellees. No. 338, Docket 71-1565. United States Court of Appeals, Second Circuit. Argued Jan. 16, 1973. Decided March 13, 1973. Jerrold Morgulas, New York City (M. Carl Levine, Morgulas & Foreman, New York City, of counsel), for plaintiff-appellant. David F. Dobbins, New York City (Royall, Koegel & Wells, New York City, of counsel), for defendants-appellees. Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges. OAKES, Circuit Judge: The issue here presented is whether the appellees, Rudolph R. Redmont and Circle Redmont Corporation, deprived the appellant, Abbott Redmont Thinlite Corporation, of a business opportunity in which it had a “tangible expectancy,” and thereby violated Redmont’s obligations as a former officer-employee of appellant. Burg v. Horn, 380 F.2d 897, 899 (2d Cir. 1967); Blaustein v. Pan American Petroleum & Transport Co., 293 N.Y. 281, 300, 56 N.E.2d 705, 713-14 (1944); Guth v. Loft, Inc., 23 Del.Ch. 255, 270-71, 5 A.2d 503, 510-11 (Sup.Ct.1939); see I. Hornstein, Corporation Law and Practices § 441. This court’s jurisdiction rests on diversity of citizenship. 28 U.S.C. § 1332. The opinion below is reported at 324 F.Supp. 965 (S.D.N.Y.1971). Appellee Redmont, who had previously worked in the glass block business, joined appellant Abbott in 1960 as president of Abbott Redmont Thinlite Corporation. Abbott Redmont’s business consisted of furnishing and installing glass block skylights, including toplights (glass blocks set in aluminum grids, generally used in schools) and rooflights (glass blocks set in anti-corrosive concrete grids, generally used in sewage plants). The method used to sell these lights was to discover through trade journals and other sources what construction projects were in the course of design. Once aware of this, Abbott would contact the architect who was in the process of working up the designs for those projects, and attempt to convince him to write into the design the use of skylights and other specifications which Abbott’s products line would fulfill. Part of appellee Redmont’s job was to contact such architects and to convince them of the advisability of employing Abbott’s products in their final design. As of the time in question, up to and including the date when Redmont quit his employ with Abbott and began his own company, Circle Redmont Corporation (Circle), Abbott was the sole distributor in the metropolitan New York area for the particular products with which this action is concerned. Therefore, once the proper requirements were, or named product was, written into the architect’s specifications, to all intents and purposes Abbott was assured of the required subcontract. Once Abbott’s products had been incorporated into the plans and specifications by the architect, the projects were then in the regular course put out for bid to general contractors. When the general contractor was chosen Abbott would enter into a formal subcontract with the general contractor to furnish and install the Abbott product. There are five projects here involved. Appellee Redmont, while in the employ of Abbott, had proceeded to contact the architects for each of these five projects and to write Abbott product specifications into each of the projects. In each case Redmont had also prepared a bid for submission to the general contractor who had been successful in obtaining the general construction contract (or the owner himself if the owner chose to build without a general contractor). Redmont concededly retained knowledge of the amounts of the bids which he had prepared while in Abbott’s employ after his employment ceased. In early 1966 Owens-Illinois, the producer of the glass block used in all of Abbott’s products, announced that it was discontinuing the production of glass block. Soon afterward, in February, 1966, Products Research Corporation (PRC), which made the aluminum grids for the toplights and inserted the Owens-Illinois glass block in the grids and from which Abbott purchased the complete toplight sections, informed Abbott that as a result of Owens-Illinois’ action, it was leaving the glass block business. In March, 1966, George Abrams, executive vice president of Abbott, told Redmont that if he wanted to stay with Abbott he would have to take a cut in salary. As an alternative Abrams offered Redmont the opportunity of buying Abbott’s rooflight inventory at cost and going into business for himself. Redmont and Abrams entered into a series of negotiations concerning (1) the possibility of an agreement whereby Redmont would purchase appellant’s roof-light inventory; and (2) the possibility that Redmont would assume all of appellant’s outstanding skylight contracts and share the profits. None of Abbott’s proposals were acceptable to Redmont and he left Abbott'on April 1, 1966. Meanwhile Abbott had put in protective orders with PRC for the four top-light jobs as to which it now seeks an accounting. On May 18, 1966, however, PRC sent a letter to Abbott referring to these and other orders from Abbott “which we have not entered because we have received no shop drawings,” and advising Abbott that a failure to receive shop drawings by June 6, 1966, would result in a cancellation of the orders. There is no evidence that Abbott ever found another supplier of either roof-lights or toplights after June 7, 1966, or that it furnished shop drawings to PRC by the deadline date of June 6, 1966. Redmont, meanwhile, had established his own company, Circle, and had found another source of supply for rooflights and toplights. On the dates given below, Redmont, acting by and for Circle, entered into contracts for toplight and rooflight work on projects for which he had persuaded the architects to write in Abbott product specifications while working for Abbott: As stated, the central questions for determination here are whether Abbott Redmont Thinlite Corporation had a “tangible expectancy,” Burg v. Horn, supra, 380 F.2d at 899, in the five contracts listed above and whether Redmont violated his fiduciary duty by diverting that expectancy to his own profit. Although Redmont had left the employ of Abbott at the time he contracted with the general contractors for these projects, he was taking advantage of a corporate opportunity which he had helped obtain for Abbott and which would have almost certainly been Abbott’s but for Redmont’s departure. Redmont, we believe, had an obligation which carried over after he left Abbott not to exploit projects which would have clearly brought profits to Abbott but for his competition. Cf. Guth v. Loft, Inc., supra; Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, J.) (joint venturers). S. W. Scott & Co. v. Scott, 186 App.Div. 518, 174 N.Y.S. 583 (1919), relied on by the court below for its conclusion to the contrary, dealt with insurance underwriting and soliciting, a highly competitive business and one in which “expectancies” were hardly “tangible.” Here, on the other hand, until Redmont went into business there was no competition and once Abbott’s specifications were written into the architect’s plans it was almost a certainty that Abbott would get the final subcontract to install its lights. While occasionally the architect’s specifications would be changed, the record shows that this happened very rarely. Thus, it was not merely an “expectancy,” but almost a certainty that Redmont’s work on these five deals would secure the final contract for Abbott. In Scott the employee took no business from his employer which would not likely have been won away by some other underwriter once the employee departed. Redmont did take business which, but for his entry into direct competition with Abbott, would have been Abbott’s if Redmont had not departed. Concededly, this difference in degree of likelihood of realizing income diverted by the alleged fiduciary resulted from the difference in the market structure here and that in Scott. The degree of likelihood of realization from the opportunity is, however, the key to whether an expectancy is tangible. A Massachusetts opinion with which we agree, and believe New York courts would agree if presented with the issue, American Window Cleaning Co. v. Cohen, 343 Mass. 195, 201, 178 N.E.2d 5, 9 (1961), bears this out in holding that knowledge that a pre-contract relationship between an employer and an irregular customer was likely to ripen into contract was “special corporation information” and cannot be exploited by an ex-officer of the corporation. The high degree of likelihood that, but for Redmont’s competition, Abbott would have been awarded these contracts is combined here with the fact that Redmont benefited by information as a result of his employment at Abbott —knowledge of the details of the specifications, knowledge of the contractor’s requirements, knowledge of Abbott’s probable costs — which made Abbott peculiarly vulnerable to his competition on the specific deals here in question. While this is not the kind of information that, like customers’ lists, is “confidential” in the sense of the term that might in and of itself create liability on use, Restatement, Agency (Second) § 396(b) and Comment (1958), it was information obtained in the course of his employment. A former employee may, of course, go into competition with his ex-employer and can use general information concerning the method of business and names of customers of his ex-employer in his new venture. Id. But he cannot, as here, utilize specific information he obtained during his employment to deprive his ex-employer of customers with whom he knows a deal is in the process of completion. The use of specific information on deals in progress obtained while in Abbott’s employ, and the degree of likelihood that but for Redmont’s competition Abbott would have been awarded the contract, dictate our holding that Redmont violated his fiduciary obligations to Abbott by submitting competing bids. But Abbott had a “tangible expectancy” in the four toplight contracts only until June 7, 1966, when PRC can-celled Abbott’s toplight orders, leaving Abbott without a source of supply. Abbott had ample warning from PRC that these orders would be cancelled if Abbott did not submit shop drawings to PRC by June 6, 1966. Abbott’s failure to submit the requested drawings constitutes intentional abandonment, cf. International News Service v. Associated Press, 248 U.S. 215, 240, 39 S.Ct. 68, 63 L.Ed. 211 (1918); Foulke v. New York Consolidated Railroad Co., 228 N.Y. 269, 273, 127 N.E. 237, 238 (1920), of its contract rights in the toplight projects on which contracts were signed after that, i.e., the Junior High School 144 project and the Riverdale Girls School project. It is not clear from the record how long Abbott retained its supply of glass blocks for rooflights for the Manhattan Pumping Station, the one roof-light project after Owens-Illinois went out of the glass block business. Absent any such supply, Abbott cannot complain of any loss by misappropriation of its “opportunity” since it would have abandoned the opportunity in any event. On this the record is not clear. We reverse as to the Plainfield Public Library and Oakland High School projects, affirm as to the Junior High School 144 and Riverdale Girls School projects, and remand for further findings in respect to the Manhattan Pumping Station project and for the award of damages in accordance with this opinion. . Job Type Plainfield Library ......... Toplight Oakland High School...... Toplight Junior High School 144 .... Toplight Riverdale Girls School...... Toplight Manhattan Pumping Station Rooflight . For “rooflight” jobs, Abbott bought its own glass block directly from Owens-Illinois. . Corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests. While technically not trustees, they stand in a fiduciary relation to the corporation and its stockholders.....The rule that requires an undivided and unselfish loyalty to the corporation demands that there shall be no conflict between duty and self-interest. The occasions for the determination of honesty, good faith and loyal conduct are many and varied, and no hard and fast rule can be formulated .... If an officer or director of a corporation, in violation of his duty as such, acquires gain or advantage for himself, the law charges the interest so acquired with a trust for the benefit of the corporation, at its election, while it denies to the betrayer all benefit and profit .... The rule, referred to briefly as the rule of corporate opportunity, is merely one of the manifestations of the general rule that demands of an officer or director the utmost good faith in his relation to the corporation which he represents. Guth v. Loft, Inc., 23 Del.Ch. 255, 270-71, 5 A.2d 503, 510 (Sup.Ct.1939). . The dictum in Duane Jones Co. v. Burke, 306 N.Y. 172, 189, 117 N.E.2d 237, 245 (1954), which suggests the defendants there would not have been liable had they waited to compete until after they left Duane Jones Co. is not to the contrary. In fact the defendants there had not waited to compete until they left the company. Nothing in the opinion deals with the question what the rule of law would be had this factual showing of pre-separation competition not been made.

f2d_475/html/0090-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. David Wayne GLOVER, Appellant. No. 73-1052. United States Court of Appeals, Fourth Circuit. March 21, 1973. Frederick D. Greco, McLean, Va. (Court-appointed counsel), on brief, for appellant. Brian P. Gettings, U. S. Atty., David H. Hopkins, Asst. U. S. Atty., on brief, for appellee. Before WINTER, CRAVEN, and BUTZNER, Circuit Judges. PER CURIAM: David Wayne Glover was convicted following a plea of guilty of conspiracy to counterfeit obligations of the United States in violation of 18 U.S.C. § 371 (1969). His case was referred to the probation officer for a presentence report and the ensuing sentence of the court was for three years. Glover’s attorney does not seek a copy of the presentence report; rather, he speculates that the sentence must have been imposed on the basis of inaccuracies in the report. Our examination of the presentence report, Baker v. United States, 388 F.2d 931, 933 (4 Cir. 1968), and the transcript does not disclose the presence of false or misleading information that would constitute a violation of due process in the several respects suggested by counsel. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Accordingly, we dispense with oral argument and grant the government’s motion for summary affirmance. Affirmed. WINTER, Circuit Judge (concurring specially): My own views that a presentence report should be freely exhibited to counsel for a defendant have been previously expressed in my special concurrence in Baker, and I continue to adhere to them. I join in the judgment of the court, but I call attention to the fact that this case is a good example of two additional reasons why disclosure should be the rule rather than the exception. First, if full disclosure is withheld, appellate review to determine if Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) has been met, as suggested in the majority opinion in Baker, 388 F.2d at 933, is stimulated. What lawyer, court appointed or privately employed, would forego such review when he may be charged with incompetence for failure to invoke it should it subsequently be established that the sentencing judge relied upon erroneous data in the presentence report? Second, and intimately connected with the first consideration, unmeritorious appeals are encouraged. This appeal has been found to be lacking in merit. But how can counsel be expected to exercise professional judgment in advising whether an appeal should be taken when he is denied access to the facts on which to base his judgment? Current workloads show clearly that additional appeals, and especially unmeritorious additional appeals, are the last things which should be encouraged.

f2d_475/html/0091-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. James Edward BROWN, Appellant. No. 71-2451. United States Court of Appeals, Ninth Circuit. Feb. 27, 1973. Robert L. Bouchier (argued), Palo Alto, Cal., for appellant. Michael C. Solner, Asst. U. S. Atty. (argued), Eric A. Nobles, Darrell W. MacIntyre, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, KOELSCH and KILKENNY, Circuit Judges. PER CURIAM: Appellant was convicted of armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d). The lower court denied appellant’s motion to suppress certain items seized shortly after his arrest. Appellant claims that the government failed to establish probable cause for his arrest because the warrant and its supporting affidavit were not presented and no independent evidence of probable cause was introduced. Under these circumstances, the interests of justice require remand for the limited purpose of determining the existence of probable cause. United States v. Smith, 456 F.2d 1236 (CA9 1972). At the hearing on remand additional evidence may be presented by both sides on the issue of probable cause. We find appellant’s other contentions to be without merit. Remanded for further proceedings consistent with this opinion.

f2d_475/html/0092-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Richard M. PENTA, Defendant, Appellant. No. 72-1331. United States Court of Appeals, First Circuit. Argued Jan. 5, 1973. Decided March 7, 1973. Paul F. Sweeney, Boston, Mass., for defendant, appellant. Richard E. Bachman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. In June, 1970, appellant Penta was convicted of fraudulently possessing and transferring counterfeit Federal Reserve Notes in violation of 18 U.S.C. §§ 472 and 473. His sole defense was that he was entrapped by an alleged government agent. We affirmed the conviction in December, 1970, in an unpublished memorandum and order. Subsequently, in May, 1972, in a post-conviction collateral proceeding, the Massachusetts Supreme Judicial Court reversed earlier state court convictions of appellant in the mid-1960’s for concealing stolen motor vehicles, on the basis that some of the evidence introduced resulted from an illegal search and seizure. Commonwealth v. Penta, 1972 Mass.Adv.Sh. 1015, 282 N.E.2d 674. Since these convictions had been used in the 1970 federal trial to impeach appellant’s credibility, he moved for a new trial and appeals from the denial thereof. Initially we are met with the government’s contention, superficially appealing, that appellant may not be heard to complain about the use of the state convictions by the prosecutor on cross-examination since his own trial counsel elicited admissions of these convictions from him on direct examination. While there is some authority for the view that a defendant who first raises the issue of his prior convictions cannot complain of prosecutorial reference thereto, that rule is based upon the premise that the convictions were properly admissible in the first place to impeach the defendant’s credibility and might have been inquired into by the prosecutor in the face of a defendant’s silence on direct examination. Bohol v. United States, 227 F.2d 330 (9th Cir. 1955); United States v. Menk, 406 F.2d 124 (7th Cir. 1968) cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969). That is a far cry from what we take to be the claim here: that while the state convictions may have been properly admissible at the time of the federal trial, their subsequent reversal requires a new federal trial. Moreover, we cannot fault appellant’s trial counsel who, apparently acting in good faith, introduced into evidence appellant’s prior state convictions, so as to prevent the prosecutor, on cross-examination, from stunning the jury by being first to bring these skeletons out of what otherwise might have been viewed as the defendant’s deceptively clean closet. We thus address appellant’s argument. Appellant does not deny that he committed the act in question, but rather argues that he was entrapped by one O’Connell, a former business associate acting as a government agent. His story is that O’Connell owed him several thousand dollars, which O’Connell said could be paid only if appellant helped him, as a middleman, to sell counterfeit money. O’Connell supposedly approached appellant on December 3, 1969, with this request which was allegedly consistently refused until December 10, the morning of the sale. From the testimony of government agent Hurley it appears that O’Connell first told Hurley on December 9 that an unnamed friend of his wished to sell counterfeit money. At that time Hurley told O’Connell that he “would see what [he] could do for [O’Connell]” on account of his help. Late at night, after viewing samples of the counterfeit money, Hurley instructed O’Connell how to continue dealing with appellant and set up a meeting preceding the sale. Appellant’s name was never revealed to Hurley, despite his continual questioning, until one hour before the meeting on December 10. At the conclusion of appellant’s testimony his trial counsel asked him about his prior convictions and parole status, all of which he openly admitted. Assuming arguendo that after O’Connell’s December 9 visits with Hurley he could be said to have become a government agent — an issue sent to the jury — only then would appellant’s credibility be crucial to his defense-of entrapment. See generally Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). In that situation, appellant alleges — and we will assume so at this juncture — that the evidence of prior convictions must have affected the jury’s view of his veracity. Consequently we must determine if the subsequent reversal of those convictions requires a new trial on the counterfeiting charge. It has recently been decided that if a conviction is based in part, on the use of prior convictions which are constitutionally invalid due to lack of counsel and which were introduced to impeach a defendant’s credibility, it must be set aside if there is no harmless error. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). See also Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). While the Supreme Court had before it in Loper the broad question “Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case”, in its resolution of that issue in the particular fact situation before it, the Court drew exclusively upon the rationale behind the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which “goes to ‘the very integrity of the fact-finding process’ in criminal trials” and recognizes that convictions of uncounseled defendant lack reliability. Loper, supra, 405 U.S. at 484, 92 S.Ct. at 1019. Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969), involving a factual situation virtually identical to the one before us now, addressed the problem of prior convictions subsequently found invalid because of an illegal search or seizure and could find no controlling distinction between Fourth and Sixth Amendment rights which would support a conclusion different from Burgett, the predecessor to Lo-per. It said that “while it is true that the use of evidence resulting from an unlawful search and seizure is less likely to affect the integrity of the fact-finding process than the denial of counsel at trial . . . the creation of such a constitutional hierarchy is not part of the rationale of Burgett.” Id. at 316. In light of subsequent developments involving the exclusionary rule and Stacks’ omission of any discussion of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), see infra, we feel compelled to examine anew the issue in Stacks. We agree that the use of evidence obtained from an unlawful search and seizure has a definite influence on the fact-finding process, but in a very different way from deprivation of counsel. Such evidence tends to make the resulting conviction more, not less trustworthy. There is no lack of reliability as there was in Loper. If the use of appellant’s prior state convictions, subsequently found to suffer from a constitutional defect, require that his federal conviction be vacated absent harmless error, it is only because the fruits of the poisonous tree now contain this additional genus. But an'examination of the roots of that tree and recent actions to limit its growth require rejection of appellant’s claim. The exclusionary rule has been called a deterrent against future illegal police conduct. “Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). And long ago, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), established the rule as a remedy for violations of the offender’s Fourth Amendment rights. When these principles are examined in an effort to apply the exclusionary rule here, they give little support to appellant. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) permitted the introduction into evidence of a confession relating to the offenses charged which was uncoerced, hence apparently trustworthy, but otherwise inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The confession was used as a means of impeaching a defendant who had testified falsely on direct examination as to matters bearing quite directly on those offenses. But cf. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). And earlier Walder allowed the admission of evidence which was illegally seized in a prior unrelated action to impeach a defendant who had testified falsely on direct examination as to matters collateral to the trial at which the evidence was admitted. Concededly, the otherwise inadmissible but trustworthy confessions and physical evidence in Harris and Walder were used to directly contradict specific false statements made on direct examination, and not to attack the defendant’s credibility in a more general manner. Yet it appears that the controlling rationale was that the valuable aid to assessing the defendant’s credibility should not be lost “because of the speculative possibility that impermissible police conduct will be encouraged thereby . . . . [Sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” Harris, supra, 401 U.S. at 225, 91 S.Ct. at 645. We think that the deterrent effect in instances like the one before us is similarly speculative. If the exclusionary rule’s application in these circumstances is sought to be justified as a remedy for violation of appellant’s Fourth Amendment rights many years ago by Massachusetts police, we think that the suggested cure is worse than the disease. First, appellant has already received a remedy which is the most appropriate — his prior convictions were reversed. But more fundamentally, at the time of the federal trial the Massachusetts Supreme Judicial Court had already affirmed appellant’s state convictions. Commonwealth v. Penta, 352 Mass. 271, 225 N.E.2d 58. (1967). There was not the least hint or suggestion that those convictions were invalid. The situation is far different from cases like Loper where a trial judge could rather easily resolve a deprivation of counsel claim by reference to a defendant’s sworn statements and trial court records of prior convictions. It would play havoc with our court system to require a judge to conduct side-trials into the allegedly invalid prior convictions to determine the legality of a search or seizure. See United States v. Wendt, 347 F.Supp. 647 (N.D.Ga.1972) (dictum). We do not think that the theoretical possibilities regarding additional police deterrence or the need to effectively remedy violations of Fourth Amendment rights can serve as the justification for imposing such heavy burdens on our courts. Nothing we have said so far is meant to suggest that we would condone introduction of the state convictions had they been overturned, on the basis of the illegal search, prior to the time of the federal trial. We note that appellant did not testify falsely on direct examination as to matters which could be specifically contradicted by reference to the prior convictions or acts as was done in Walder and Harris where the Court desired to prevent the affirmative use of perjured testimony by a defendant. No case has gone so far to suggest that the prosecution might introduce what has already been determined to be illegally obtained evidence from prior unrelated acts or convictions to impeach generally a defendant’s credibility and this contention appears to have been rejected in People v. Taylor, 104 Cal.Rptr. 350, 501 P.2d 918 (1972). In that situation the exclusionary rule does not interfere with the orderly functioning of the judicial system. Additionally, a contrary holding might otherwise affect the defendant’s choice of whether to testify in his own behalf. Harris, supra, 401 U.S. at 230, 91 S.Ct. 643, 28 L.Ed.2d 1 (Brennan, J., dissenting). We only go so far as to hold that a conviction which may have been influenced by the use, for general impeachment purposes, of prior convictions, which have been subsequently overturned on constitutional ’ grounds . relating to an illegal search or seizure, may properly stand. To the extent that we may be incorrect in reading the recent Supreme Court holdings as requiring rejection of appellant’s claim, we still believe that the use of the prior convictions constituted harmless error beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 258 (1972). First, appellant’s credibility on his entrapment defense was greatly harmed by evidence relevant to predisposition that he had been charged with possession of burglar tools in the past. Second, his story was contradicted directly in part by government agents who testified to appellant’s suede coat being dry — though he alleged having walked some three blocks in a rainstorm to the place of the sale — and to his having stated, after being warned of his right to remain silent, that he had been sent out with some money to obtain some bread and had returned with neither money nor bread — a fact appellant denied at trial. Though appellant may have been incorrect in his testimony on these points and still may have been capable of being believed as to his story of entrapment in the main, we think that the use of the convictions when considered in this context added no more than minimally to the enormous damage already done to his credibility. Affirmed. ALDRICH, Senior Judge (concurring). I am happy to go along with the court’s opinion, but I believe there is a shorter approach. The close decision in Loper seems clearly to have turned on the lack of integrity, or reliability, of the prior fact finding process. Since the Court has given retroactive effect to Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Doughty v. Maxwell, 1964, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650, reversing Doughty v. Sacks, 1963, 175 Ohio St. 46, 191 N.E.2d 727; see Pickelsimer v. Wainwright, 1963, 375 U.S. 2, 3-4, 84 S.Ct. 80, 11 L.Ed.2d 41 (Harlan, J., dissenting), the Loper holding is a logical extension of that case. The Court, however, has not given retroactive effect to Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; see Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Desist v. United States, 1969, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, and the reasons given by the Court for distinguishing Gideon from Mapp convince me that, with due respect to Beto v. Stacks, 5 Cir., 1969, 408 F.2d 313, the nature of the constitutional defect does make a difference in this kind of case. Basically the Mapp rule was of constitutional proportions because of its prophylactic importance, rather than because of its prejudicial effect on the defendant’s trial. See 367 U.S. at 652, and at 656, 81 S.Ct. 1684, quoting from Elkins v. United States, 364 U.S. 206 at 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669. Even though in the case at bar the vulnerable prior conviction was post Mapp, I cannot believe the Court would apply the Loper rule in a Fourth Amendment case. Indeed, we may be said to have foreshadowed this distinction in Gilday v. Scafati, 1 Cir., 1970, 428 F.2d 1027. . The search warrants involved did not comply with Mass.Gen.Laws ch. 276, § 2B, which, as it has not been contended otherwise, we take to furnish constitutional minima. . Of course, where a defendant’s counsel introduces prior convictions which ho knows to be illegal or which so appear on their face — e. g., those resulting from deprivation of counsel — then there is a far greater reason to accept the government’s estoppel argument. While there might be the possibility that a defense lawyer could, where the legality of the prior convictions is less clear, seed the record with anticipated errors relating to the prior convictions, and upon his client’s couviction seek to attack the prior convictions in (be hope that if successful, the subsequent conviction would also fall, that game of Russian roulette seems improbable, and, in any event, our disposition here removes that concern. . O’Connell, who did not testify in this case, subsequently received a reward of $2000. . The Court in Loper, supra, 405 U.S. at 482 n. 11, 92 S.Ct. 1014, 31 L.Ed.2d 374, noted this distinction in contrasting the use of uncounseled convictions to impeach general credibility in the case before it with the more specific contradictions in Harris and Walder. While an argument can be made to the contrary, we do not think, because of the policies underlying application of the rule of exclusion for illegal search, that this footnote should be considered as requiring a finding of error where prior convictions, used only for general impeachment purposes, are subsequently reversed ; nor because of the entire thrust of the text in Loper, do we think that the footnote should be read as indicating that Loper applies in a Fourth Amendment as well as a Sixth Amendment context. . Appellant waited until November, 1970, to challenge these convictions in a federal habeas corpus suit winch was dismissed without prejudice in March, 1971, for failure to exhaust state remedies. We need not reach the question whether the exclusionary rule might have some application where an appeal or some other proceeding which challenges the legality of the prior convictions on search and seizure grounds is pending. Cf. F.R.Evid. 609 (e). . If Taylor is correct, there would seem to be a prohibition on prosecutorial reference to either the voided prior convictions or evidence discovered as the result of an illegal search or seizure in an effort to impeach generally.

f2d_475/html/0097-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Vincent ROLLINS, Defendant-Appellant. No. 72-1532. United States Court of Appeals, Ninth Circuit. March 2, 1973. Rehearing Denied May 4, 1973. Douglas J. Sorensen (argued), of Romines, Wolfman, Tooby, Eiehner, Sorensen, Constantinides & Cohen, Menlo Park, Cal., for defendant-appellant. Robert E. Carey, Jr., Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiffappellee. Before HAMLIN and GOODWIN, Circuit Judges, and CRARY, District Judge. Honorable E. Avery Crary, United States District Judge, Central District of California, sitting by designation. CRARY, District Judge: This appeal is from conviction, after non-jury trial, for violation of 50 U.S.C. App. § 462(a), refusal to submit to induction. The appellant alleges error as follows: (1) The induction order was invalid because his local board failed to refer him to a medical advisor for interview after the board was notified of appellant’s claim he was suffering from diabetes mellitus as set forth in his classification questionnaire, Selective Service Regulation, Section 1628.-2(b). (2) Appellant was prejudiced by the failure of his local board to provide an interview with the board’s medical advisor. Appellant registered with his local board on November 13, 1967. On February 8, 1968, he filed his classification questionnaire wherein he stated that he had a physical condition which, in his opinion, would disqualify him for service in the Armed Forces, “Diebeitis melitus (physician’s statement sent 1/10/68.” The Selective Service file evidences five reports on consultations between appellant or his parent and Doctors Dewey and Felsovanyi. The dates of these consultations appear to have been on April 1, April 3, April 13, June 5 and September 9, all in 1967. These reports were received by the local board on January 12, 1968. The first reference to the possibility of appellant suffering from diabetes appears in the third report where the doctor states: “probable pre-diabetes with hypoglycemic type of sugar tolerance curve and orthostatic hypotension.” That report states the patient was placed on a modified protein diet and that he was to be rechecked in a few months. The last physician’s report, dated September 9, 1967, being a report of Dr. Felsovanyi, states: “Seems to be feeling all right. He is very rude and hostile. Need not return.” On June 12, 1968, the appellant was classified I-A and ordered for pre-induction physical examination on June 30, 1969. It appears from the doctor’s report of September 9, 1967, supra, that there was no basis for determining that the appellant, when classified I-A on June 12, 1968, was suffering from a disqualifying ailment. After appellant was ordered for preinduction physical examination he was sent to the Armed Forces Examining and Entrance Station (AFEES) for further processing on August 19, 1969. On August 22, 1969, he underwent examination and a special series of tests at Letterman General Hospital, San Francisco, California, and was found acceptable for induction. The medical report and clinical record, dated August 26, 1969, in appellant’s Selective Service file, contains the following entries: “ * * * No evidence of diabetes mellitus, reactive hypoglycemia or postural hypotension * * * Fit for induction.” The report of 26 August 1969 also states the appellant had been told by a physician that “ * * * he had diabetes although not confirmed by lab. tests; * * G. mother reportedly diabetic req. insulin for control.” The exhaustive tests made at Letterman General Hospital and the results of such tests and examination are set forth in detail in the Selective Service file and confirm the diagnosis that there was no evidence the appellant suffered from diabetes mellitus, reactive hypoglycemia or postural hypotension. He was first ordered to be inducted in April, 1970. The record contains no basis in fact to support appellant’s claim that he might have been classified I-Y if he had been referred to a medical advisor in June or July, 1968. The required significant possibility of classification I-Y is not present. United States v. Pace, 454 F.2d 351, 356 (9th Cir. 1972). The filing of the within opinion has awaited the en banc opinion of this Court in the case of United States of America v. D’Arcey, 471 F.2d 880 (9th Cir. 1972). In the D’Arcey ease, the AFEES, on July 18, 1967, reported the appellant, who had registered on March 18, 1967, “physically disqualified — re-examination believed justified.” That examination was for voluntary enlistment in the Marine Corps. The record of the examination indicated that a question was raised concerning a claimed condition of hypoglycemia or hyperinsulinism. A statement of the registrant’s physician, filed with the board about May 1, 1968, confirmed his claimed condition. The board did not order him to present himself for a medical interview but directed him to report for preinduction physical examination on June 27, 1968. In ruling that the board’s failure to order the registrant to present himself for interview with the medical advisor to the local board constituted a denial of due process, it is stated in the opinion: “To the extent that any of them (cases cited) can be read as indicating that a local board, acting under form 32 C.F.R. § 1628.2(b) and related regulations, can deny a medical interview to a registrant who has presented evidence of disqualification before an examination by AFEES, we overrule them. We hold that a registrant is entitled to a medical interview prior to being ordered for a physical examination when there is evidence of a recognized disqualifying medical condition or physical defect that has not been the subject of a previous examination or evaluation by AFEES.” [Emphasis added.] In the case at bench, it appears the appellant had not “ * * * presented evidence of disqualification before examination by AFEES * * * ” nor was there “ * * * evidence of a recognized disqualifying medical condition or physical defect * * * ” presented to the board before examination by AFEES. Assuming Rollins was entitled to a medical interview under the rule in D’Arcey, we conclude that the omission was harmless in view of the comprehensive examination given him in lieu of an interview and in view of the fact that an interview in the circumstances of this case could not have changed the result of the administrative proceedings. We further conclude that the medical advisor could not have better protected the appellant’s rights than to request the study and testing which he underwent, as noted above. It follows that the appellant was not prejudiced by not having a medical interview prior to being ordered for physical examination, as he received all the consideration and benefits that could have been afforded to him by any medical advisor. Viewing the evidence most favorable to the Government, as we are required to do, the conviction of the appellant by the District Court is affirmed. GOODWIN, Circuit Judge (specially concurring). I concur in the affirmance. I cannot agree, however, that Rollins forfeited his right to a medical interview for failure to present “evidence” of a disqualifying condition. The local board “shall” order a registrant to report for a medical interview if he “claims” a disqualifying defect. 32 C. F.R. § 1628.2(b). While United States v. D’Arcey, 471 F.2d 880 (9 Cir., 1972) (en banc), held that the registrant is entitled to a medical interview if he presents “evidence” of a defect, the purpose of D’Arcey was to implement rather than to narrow Reg. 1628.2(b). In using the word “evidence,” D’Arcey was merely stating the rule in light of the situation presented in that case. Moreover, assuming that Rollins was required to submit some evidence of his claimed defect, I am not persuaded that he failed' to do so. The initial reports of the doctor indicated that Rollins may have had the claimed condition. The final report may be interpreted to mean that the claimed condition has been determined not to exist, but an equally reasonable interpretation is that Rollins was asymptomatic under the diet prescribed and that he need not have returned unless his symptoms reappeared. Nevertheless, I am in full accord with the result reached by my brethren. Normally, the fact that a registrant is subsequently found physically acceptable at the' Armed Forces Entrance and Examination Station does not mean that he was not prejudiced by the denial of medical interview. As we stated in United States v. Baray, 445 F.2d 949 (9th Cir. 1971), and reiterated in D’Arcey. x * x Unlike the preinduction physical examination in which hundreds of registrants may be examined by several doctors in a day’s processing, the medical interview gives the registrant the opportunity to have a single doctor focus his attention on the registrant’s condition and make a specific finding thereon * * 445 F.2d at 954. Here, however, Rollins received an in-depth examination of his specific condition at Letterman General Hospital. This examination far exceeded any that could have been conducted in connection with a medical interview. See 32 C.F.R. § 1628.3(a) (1969). For this reason I believe that we would be elevating form over substance to treat the omission of the interview as a denial of due process. . Whenever a registrant who is in class I-A, class I-A-O, or class 1-0 claims that he has one or more of the disqualifying medical conditions or physical defects which appear on the list described in Section 1628.1, the local board shall order him to present himself for interview with the medical advisor to the local board at the time and place specified by the local board by mailing to such registrant a Notice to Registrant to Appear for Medical Interview (SSS Form 219). 32 C.F.R. 1628.2(b). [Rescinded Aug. 20, 1970.]

f2d_475/html/0100-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. DIANOVIN PHARMACEUTICALS, INC., et al., Defendants-Appellants. No. 72-1326. United States Court of Appeals, First Circuit. Heard Feb. 8, 1973. Decided March 16, 1973. Frank Carbo, Santurce, P. R., for appellants. Howard S. Epstein, Atty., Antitrust Div., Dept, of Justice, with whom Thomas E. Kauper, Asst. Atty. Gen., Antitrust Div., Julio Morales Sanchez, U. S. Atty., Gregory B. Hovendon, Chief, Consumer Affairs Section, Alvin L. Gottlieb, Deputy Asst. Gen. Counsel, Joanne S. Sisk, Chief, Appellate and Special Proceedings Branch, and Jeffrey B. Springer, Atty., Food, Drugs, and Product Safety Division, United States Department of Health, Education, and Welfare, were on brief, for appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. This is an appeal by a Puerto Rico drug manufacturer, Dianovin, and its president, from an order of the district court reinstating its earlier permanent injunction restraining them from activities violative of the Federal Food, Drug and Cosmetic Act (the “Act”). Appellants’ principal contention is that the district court lacked jurisdiction, there having been no showing at the hearing on reinstatement of the injunction that the drug there in issue (vitamin K for injection) entered interstate commerce after its manufacture by Dianovin. They assert further that Congress may not regulate what they describe as a local manufacturer solely manufacturing for local consumption, and that the drugs manufactured were “new drugs”. Finally, assuming jurisdiction, they say the evidence was insufficient to warrant the injunction. We affirm. This is not an appeal from an original injunction. The proceeding and order before us were upon a motion of the United States Attorney, made on February 5, 1971, to reinstate a permanent injunction which originally was entered against the appellants on February 17, 1969. The earlier injunction had been entered after hearing and was with the consent of the defendants. Thereafter, on June 29, 1970, in an order entered by the district court (reciting the consent of all parties including the appellants, who appeared through counsel), the original injunction was suspended until further order of the court, its terms to “revert to their full force and effect at such time as the government presents evidence to this court: “a. that the methods used in and the facilities and controls used by the defendants for the manufacture, processing, packing and holding of drugs do not conform to and are not operated in conformity with current good manufacturing practices, or b. that any drug manufactured by the defendants is found by the government to be adulterated or misbranded within the meaning of the law, provided that all administrative proceedings be exhausted It seems obvious, if there is ever to be progress in litigation, that the issue before the court on the motion to reinstate was a narrow one: whether there were present any of the conditions provided in the June 29, 1970, order as causing a reversion of the injunction. That was all. The government did not have to retry its earlier case, nor reprove jurisdiction. At the hearing the government more than met its burden. We have reviewed the complete and careful findings of the district court; they are supported by substantial evidence. They establish that the appellants’ methods, facilities and controls used for the manufacture, processing, packing and holding of vitamin K (Menadione Sodium Bisulfite) injection, a drug within the meaning of 21 U.S.C. § 321(g), did not conform to current good manufacturing practices. They further establish misbranding and adulteration of the same drug within the meaning of the Act. As provided in the consent order of June 29, 1970, any of these findings justified reinstatement of the earlier injunction. Only after the hearing did appellants raise “jurisdictional” objections, based primarily upon the government’s failure to show that the vitamin K for injection entered interstate commerce after manufacture. The short answer is that the government had no reason at the hearing to try to do so. Jurisdiction had long before been settled — by the district court’s 1969 findings that drugs were distributed, and components received, in interstate commerce, from which the appellants did not appeal, and by the consented-to order of permanent injunction which recited that the court “has jurisdiction of the subject matter herein and of all persons or parties hereto.” We do not say that the injunction could be reinstated by showing the mishandling of some previously unmentioned drug over which the court clearly lacked jurisdiction. But Menadione Sodium Bisulfite injection was one of the drugs complained of in the original 1969 proceeding, where jurisdiction was conceded. The government, on its reinstatement motion, had no duty whatever to reestablish the interstate connections of the drug; at very most, if appellants, at this late date, had wished to raise a jurisdictional defense, the burden of proving the necessary facts was theirs. Even, however, on the conceded facts relating to the interstate connections of vitamin K for injection, appellants’ jurisdictional argument fails. It is undisputed that the raw material vitamin K utilized in the production of vitamin K injectible was received in interstate commerce. Following a commonly-known formula, appellants would mix the ingredients with liquid and place the resulting solution in ampules for sale. Adulteration or misbranding resulting from the doing of an act “with respect to, a . . . drug . . ., if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce” is a prohibited act. 21 U.S.C. § 331 (k). Apart from the fact that the end product — vitamin K for injection — was a drug, as defined in 21 U.S.C. § 321(g)(1), being in the National Formulary, its component raw materials were likewise drugs, being “articles intended for use as a component” of such a drug. 21 U.S.C. § 321(g)(1)(D). We see no point in restating the principles we recently set forth in United States v. Cassaro, Inc., 443 F.2d 153 (1st Cir. 1971). Although dealing with flour held after interstate shipment (which the defendant made into bread and rolls for local sale), the case is controlling. The appellants’ use of components shipped in interstate commerce to make vitamin K for injection brought their activities within § 331(k), and conferred jurisdiction to restrain violations thereof upon the district court. 21 U.S.C. § 332. As in Cassaro, we see nothing in § 331 (k) or the district court’s action transgressing the proper limits of authority conferred by the Commerce Clause. The district court already having subject matter jurisdiction under the prior proceeding, and the appellants’ most recent improper activities being related to a drug within the court’s jurisdiction, it could plainly reinstate the original injunction for breach of the conditions of its suspension. Appellants’ “new drug” argument is of no help to them. See 21 U. S.C. § 321 (p). All drugs whether old or new are subject to the prohibition against adulteration or misbranding. See 21 CFR 1.106(b) (3) (ii) for special labelling requirements applicable to prescription new drugs. The issue is irrelevant to reinstatement of the injunction. The same may be said of appellants’ last-minute attempt to attack the terms of the injunction. It is the same injunction entered without appeal and with their consent in 1969. Through counsel they agreed in 1970 that it could be reinstated upon a showing of the activities which were here abundantly demonstrated. The evidence of seriously deficient conditions and practices at appellants’ plant, coupled with a history of unsuccessful efforts to obtain compliance by appellants with laws designed to protect the health and lives of the public, more than warranted injunctive relief. See United States v. Diapulse Corporation of America, 457 F.2d 25, 28-29 (2nd Cir. 1972). We find no attempt to impose “colonial rule” upon Puerto Rico, as appellants suggest. To the contrary, were the citizens of Puerto Rico to be denied the protection of food and drug laws, enacted for the safety of all United States citizens, wherever residing, they could quite properly complain. Affirmed. Costs to appellee. . United States v. Dianovin Pharmaceuticals, Inc., 342 F.Supp. 724 (D.P.R.1972). . 21 U.S.C. § 301 et seq. . The court recited in its 1969 Order of Permanent Injunction that both defendants had appeared; that the court had heard testimony and received evidence; that it had issued Findings of Fact and Conclusions of Law ; and that the defendants had consented to the entry of a Permanent Injunction. No appeal was taken. . The June 29, 1970 order followed a hearing on June 11, 1970 at which counsel for appellants stated, in part, that “we [the Assistant United States Attorney and himself] have been conferring about the case and we have come to the stipulation as pointed out to the effect there would be a reinstatement of the injunction if in the future it is found that the operation of Dianovin Pharmaceuticals did not comply with the law as he has pointed out.” . See, also United States v. 39 Cases Mich. Brand Korleen Tablets, 192 F.Supp. 51 (E.D.Mich.1961), aff’d sub nom. United States v. Detroit Vital Foods, Inc., 330 F.2d 78 (6th Cir. 1964), cert. den. 379 U.S. 832, 85 S.Ct. 63, 13 L.Ed.2d 40 (1964); United States v. 40 Cases . . . Pinocchio Brand 75% Corn . . . Oil, 289 F.2d 343 (2nd Cir. 1961), cert. den. 368 U.S. 831, 82 S.Ct. 54, 7 L.Ed.2d 34 (1961); Palmer v. United States, 340 F.2d 48 (5th Cir. 1964), cert. den. 382 U.S. 903, 86 S.Ct. 238, 15 L.Ed.2d 156 (1965); United States v. Allbrook Freezing & Cold Storage, Inc., 194 F.2d 937 (5th Cir. 1952).

f2d_475/html/0104-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Hunter CARLTON and William Thomas Roberts, Defendants-Appellants. No. 72-2455. United States Court of Appeals, Fifth Circuit. March 19, 1973. Brenda M. Abrams, Miami, Fla. (Court appointed), for Carlton. J. V. Eskenazi, Federal Public Defender, Miami, Fla. (Court appointed, but not under act), for Roberts. Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for defendants-appellants. Robert W. Rust, U. S. Atty., Bruce E. Wagner, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge. GROOMS, District Judge: Appellants Carlton and Roberts were jointly indicted and tried in the Southern District of Florida on a two-count indictment which charged them with the possession of counterfeit money in violation of 18 U.S.C.A. § 472 and with conspiracy to violate that section in violation of 18 U.S.C.A. § 371. Carlton was convicted on both counts, Roberts on the conspiracy count only. Each was sentenced to four years on the conspiracy count. Carlton was sentenced to twelve years on the possession count to run concurrently with his sentence for conspiracy. Shortly thereafter Carlton was indicted in the Middle District of Florida for the possession of counterfeit money. The events upon which the possession in this case was based occurred in the latter part of January and the first part of February 1971, and involved certain counterfeit ten, twenty and fifty-dollar bills. The events upon which the prosecution in the Middle District was based occurred in the latter part of February 1971, and involved counterfeit twenty and fifty-dollar notes, with Serial Nos. F4142467A and G03979195A, respectively. The counterfeit money which is the subject of both indictments was from the same issue. Carlton was also indicted in the Middle District for the violation of Title 18 U.S.C.A. § 474 involving the possession of an obligation made in part after the similitude of an obligation of the United States, being the reverse side of a ten-dollar U. S. Treasury obligation. He entered pleas of not guilty in both Middle District cases, but later moved to withdraw his plea in the former case. While his motion was pending he was tried and convicted in this case, following which he was permitted to withdraw his plea of not guilty. The indictment in that case was then dismissed. Sentence was imposed on his plea in the other case. Both appellants challenge the legal sufficiency of the evidence to sustain their convictions. Carlton asserts double jeopardy as to the possession count by the trial of this case pending his plea of guilty on the possession count in the Middle District. During late January or early February Carlton rented a house trailer which was parked on Hialeah Speedway property in Hialeah, Florida, in the Southern District of Florida. Shortly after he vacated the trailer items used in the process of printing were discovered in the trailer. Green ink stains, one of the two basic colors used in counterfeiting, were found on certain of the items. During the occupancy of the trailer by Carlton, Roberts was present at the trailer and was observed in the company of Carlton. Some sixty days later when the trailer was moved, a fifty-dollar counterfeit and parts of counterfeit bills were found on the ground beneath the area where the bathroom of the trailer formerly stood. The pipe from the bathroom emptied on the ground at that point. Roberts admitted to the agent that he had assisted Carlton in setting up a printing press in the trailer and furnishing him with printing supplies, but denied any knowledge of the counterfeiting operation and claimed that he thought Carlton was setting up a legitimate print shop. Two of Roberts’ fingerprints in green ink were found on an A. B. Dick Blanket Wash can in the trailer. The counterfeit bills, negatives and plates found in the suitcase seized in the Middle District, the pieces of the bills found on the ground at the trailer site, and a bill which was passed in Hialeah were from a common source. A Kodak filter selector envelope and two sheets of A. B. Dick yellow masking paper containing negatives of counterfeit notes were found in the suitcase. The former contained a fingerprint of Carlton, and the latter two fingerprints and a thumbprint of Roberts. As stated by this court in United States v. Warner, 441 F.2d 821, 825 (5 Cir.), the test for the sufficiency of the evidence is: “. . . whether, taking the view most favorable to the Government, a reasonably-minded jury eould accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir. 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir. 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir. 1967, 374 F.2d 878, 881.” The procedure for the appellate review of the sufficiency of the evidence was set out in Odom v. United States, 377 F.2d 853, 855 (5 Cir. 1967), as follows: “ ‘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, 1941, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704. Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt. Rua v. United States, 5 Cir. 1963, 321 F.2d 140; Riggs v. United States, 5 Cir. 1960, 280 F.2d 949. In Judge Thorn-berry’s words, ‘. . . the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.’ Williamson v. United States, 5 Cir. 1966, 365 F.2d 12, 14.” And as we announced in United States v. Sidan-Azzam, 457 F.2d 1309 (5 Cir. 1972): “We recognize the well established rule'that there the evidence relied on to sustain a verdict is circumstantial it must be such that the trier of fact could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt. Surrett v. United States, 421 F.2d 403 (5th Cir. 1970); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960).” Applying these tests we conclude that the evidence was sufficient to sustain the jury’s verdict as to each of the appellants on the conspiracy count. Roberts contends that since he was acquitted on the substantive count of possession he could not be guilty of conspiracy to possess the counterfeits. This contention cannot be sustained. An acquittal on a substantive offense does not preclude a verdict of guilty on a count charging a conspiracy to commit such substantive offense. Castro v. United States, 296 F.2d 540 (5th Cir.); United States v. Vastine, 363 F.2d 853 (3rd Cir.); United States v. Marcone, 275 F.2d 205 (2nd Cir.), cert. denied 362 U.S. 963, 80 S.Ct. 879, 4 L.Ed.2d 877; Coy v. United States, 5 F.2d 309 (9th Cir.); United States v. Waldin, (D.C.Pa.) 149 F.Supp. 912, aff’d 253 F.2d 551 (3 Cir.), cert. denied 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147. The essence of the crime of conspiracy is the agreement and not the commission of the crime which is the object of the conspiracy. United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211. It is immaterial to the commission of the crime of conspiracy whether the object of the conspiracy is achieved. Rabinowich, supra ; Castro v. United States, supra; and Williams v. United States, 179 F.2d 644 (5th Cir.). There must of course be an overt act done in pursuance of the conspiracy, but such act need not constitute the very crime which is the object of the conspiracy, Rabinowich, supra. As regards the sufficiency of the evidence to sustain his conviction on Count 2 for the possession of counterfeits, Carlton is confronted with the facts that a fifty-dollar counterfeit, and many pieces of counterfeit tens, twenties and fifties were found on the ground at the point where the toilet in the trailer at Hialeah emptied; that the pieces were matted with the residue of sewage; and that the counterfeit bill and pieces bore sundry printing defects identical to those on the bills of like denominations and plates contained in the suitcase seized in the Middle District. The defects were attributable to the fact that all the bills of the same denomination were made from the same negative or photograph. All of the notes were printed on Crane’s Crest, a wool finished paper. Carlton’s stay in Hialeah preceded his stay in the Tampa area. The evidence as to the existence of the counterfeits, the photographs, negatives, and plates, Carlton’s connection with them, and the common genesis of all the counterfeits, including those found at the location of the trailer in Hialeah, when weighed with all the other evidence, if believed by the jury, was sufficient to establish Carlton’s prior' possession within the Southern District. The jury’s verdict on Count 2 attested that belief. It will not be disturbed. This brings us to the final question — the plea of double jeopardy. The test of double jeopardy was pronounced in Bacom v. Sullivan, 200 F.2d 70 (5th Cir.): “To constitute double jeopardy, it is not enough that the second prosecution arise out of the same facts as the first. It must be for the same ‘offense.’ The same act may constitute an offense against two separate statutes. The recognized test for determining the identity or separateness of offenses charged in two indictments is whether or not the same proof will sustain a conviction under both, or whether one requires proof of facts not required by the other. Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Mc-Ginley v. Hudspeth, 10 Cir., 120 F.2d 523.” It must be shown that the two offenses are in law and fact the same. Hattaway v. United States, 399 F.2d 431 (5 Cir.). The fifty-dollar note found at the trailer site bore Serial Number G03979195A. There were a great many fifties bearing this serial number. One of the pieces of a twenty bore Serial Number F1414246 . Hundreds of the twenties bore the number F14142467A. There were many tens bearing the Serial Number C02227833A. None of the tens were included in the Middle District possession indictment. Different times and locations were charged in the two indictments. In Riadon v. United States, 274 F.2d 304 (6th Cir.), the court expressed the view that where the two indictments, or trials, were for the same offense a plea of guilty puts the accused in jeopardy. The court added gratuitously that as long as the plea was permitted to stand that jeopardy would result even though the plea be withdrawn. However, the court affirmed the conviction, pointing out that the acts of possessing and passing the counterfeit bills were neither on the same day nor at the same place, although the notes were probably printed from the same plate. In conclusion the court aptly observed that: “It would be an unwelcome result and do great injury to the public interest if it were made possible in the application of the double jeopardy provision of the Fifth Amendment for a counterfeiter to plead guilty of possession or transfer of one, or a small number of illicit securities, and thereby secure immunity from prosecution in a subsequent passing or possession of an unlimited number of counterfeited obligations of the United States. This would indeed be what Mr. Justice Black in a different setting in Wade v. Hunter, 336 U.S. 684, 691, 69 S.Ct. 834, 838, 93 L.Ed. 974, denominated as ‘the mechanical application of an abstract formula.’ ” The case of United States v. Nickerson, 211 F.2d 909 (7th Cir.), involved two indictments charging violations of Title 18 U.S.C.A. § 659. The first indictment, in the Northern District of Illinois, charged the possession of 300 bottles of whiskey on November 19, 1952. The second charged the possession of 23 Yz cases of whiskey in the Eastern District of Illinois on November 18, 1952. The accused claimed that the offenses charged arose out of the same act and constituted double jeopardy. The court did not agree with the claim, and refused to vacate the convictions. We cannot agree with the appellant that he was placed in double jeopardy by virtue of his pleas of guilty in either of the Middle District cases. In view of this conclusion we withhold comment respecting the prosecution’s contention of waiver of the plea in the possession case. The convictions as to both appellants are Affirmed. . “The conspiracy, however fully formed, may fail of its object, however earnestly pursued; the contemplated crime may never be consummated; yet the conspiracy is none the less punishable.” Id. . The offset process employed in printing all the notes was to take a photograph of a genuine note and from the negative make one or more plates from which the bills were printed. . The “A” is indiscernible from the Exhibit. . The “7A” is missing from the Exhibit. . Possession of goods, stolen from an interstate shipment.

f2d_475/html/0108-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Johnnie WILSON, Defendant-Appellant. No. 72-1213. United States Court of Appeals, Ninth Circuit. Feb. 13, 1973. Rehearing Denied March 13, 1973. Joseph P. Hennessey (argued), Billings, Mont., for defendant-appellant. Keith L. Burrowes, Asst. U. S. Atty. (argued), Otis L. Packwood, U. S. Atty., Billings, Mont., for plaintiff-appellee. Before BARNES and BROWNING, Circuit Judges, and WOLLENBERG, District Judge. Honorable Albert C. Wollenberg, United States District Judge, Northern District of California, sitting by designation. PER CURIAM: Appellant was convicted of transporting two “gambling devices” (coin-operated “Bonanza” and “bead ball” machines) in interstate commerce in violation of 15 U.S.C. § 1172. The judgment is affirmed for the reasons stated in the district court’s findings of fact, conclusions of law, and memorandum opinion reported at 355 F.Supp. 1394. Dissenting in part, Judge Barnes concludes that the “Bonanza” machine, equipped with the set of coupons constituting Government Exhibit 1, is not a “gambling device” as defined in 15 U.S. C. § 1171. This conclusion rests entirely on the premises that no “element of chance” is involved because the player sees exactly what he is going to get before he invests his 25 cents. Exhibit 1 consists of 1500 coupons. Of these, 1386 are “merchandise” coupons good for 50 cents credit on a purchase of $10.00 or more at a store other than that in which the “Bonanza” machine was placed. The remaining 114 are “dollar value” coupons redeemable immediately for from 50 cents to $31.00 in cash. Since the minimum “dollar value” coupon could be exchanged immediately for 50 cents cash, it can be safely assumed that when a player began to play, the coupon he saw, and would receive for his 25 cents, was a “merchandise” coupon good for 50 cents credit on a purchase of $10.00 or more in some other store. However, he would also get a look at the next coupon, which, for another 25 cents, might entitle him to as much as $31.00 cash. The district court could reasonably conclude that most players put their first 25 cents in the “Bonanza” machine because of the “element of chance” that thé next coupon, thus exposed, would entitle them, for another 25 cents, to a guaranteed payment of 50 cents to $31.00. The ordinary “slot machine” could be readily converted to pay off only if the player dropped in a second coin after the rollers stopped. Since no one would leave a winning combination on the machine in such circumstances, the player would always know exactly what he was going to get when he put in each of the two coins: nothing the first time; and whatever the showing combination entitled him to the second time. Yet clearly playing such a “slot machine” would involve an “element of chance.” This would be so even though the non-paying combinations on such a quarter slot machine gave the player a coupon entitling him to 50 cents credit on a $10.00 purchase from some other local merchant. Judge Barnes agrees that Marvin v. Sloan, 77 Mont. 174, 250 P. 443 (1926), and Ferguson v. State, 178 Ind. 568, 99 N.E. 806 (1912), “require the result expressed by the district court,” but finds these decisions inapplicable because of a difference in the definition of “gambling devices” in the state statutes involved in these eases. The cases cannot be distinguished on this ground. Both turned on whether playing a device that allowed the player to see what he was going to get before he deposited his money involved an “element of chance” —exactly the question presented here. Both courts answered in the affirmative. As the Supreme Court of Indiana said in Ferguson v. State, 99 N.E. at 807: “. . . the fact that the machine would indicate the reward before it was played makes no difference. The inducement for each play was the chance that by that play the machine would be set to indicate that it would pay checks on the following play. The thing that attracted the player was the chance that ultimately he would receive something for nothing.” This is the overwhelming weight of authority. Appellant cites no cases to the contrary. Judge Barnes cites none. United States v. Five Gambling Devices, 252 F.2d 210 (7th Cir. 1958), and Hannifin v. United States, 248 F.2d 173 (9th Cir. 1957), concern the meaning of the term “insignia,” not “element of chance.” Affirmed. BARNES, Circuit Judge (concurring and dissenting): Appellant was prosecuted in eleven substantive counts of a violation of 15 U.S.C. § 1172. All counts were dismissed during the trial on motion of the government except one and nine. Jury was waived and appellant was convicted on each count. He appeals. Count One charged the transportation in interstate commerce “of four bead-ball machines.” (Ex. 7). Count Nine charged the transportation in interstate commerce “of two Bonanza machines.” (Ex. 8). I Briefly, the “bead-balls” are dispensed by the Victor Vendor (Ex. 7) when the Victor machine is played by the insertion of a coin (quarter). Each bead-ball contains a “number” on a paper slip in its center, which is compared with the numbers on a placard inside the glass front of the machine to determine if the person receiving the number has won. If he does, he is paid the amount listed on the placard. (Findings IV and V, Ct.Tr., p. 57) Thus, the element of chance is clearly present in the Victor machine. It is nothing more than a sophisticated mechanical punch board. I would affirm the conviction holding that its shipment across the particular states herein involved constituted a violation of 15 U.S. C. § 1172. United States v. Brown, 156 F.Supp. 121 (N.D.Iowa 1957). II I come to the contrary conclusion with respect to Exhibit 8 — the Bonanza machine. The trial court’s Findings of Fact XIII is as follows: “Government Exhibit 8, the ‘Bonanza’ machine, was operated by placing a quarter in the machine, which activated a mechanism to dispense a coupon. If properly placed in the machine, this coupon was visible through a glass viewer in the top of the machine prior to the insertion of the quarter. After the ticket has been dispensed, the next ticket to be dispensed (upon the insertion of another quarter into the machine), is then in view behind the glass viewer on the top of the machine cabinet.” (Ct.Tr., p. 58). I accept that finding as accurate. I likewise accept Findings of Fact XIV and XV. Yet I find therein no support for the District Court’s Conclusions of Law 4, that an untestified to “intent” changed a non-gambling device into a prohibited gambling device. The key language of the definition of what constitutes a “gambling device” under 15 U.S.C. § 1172 is the delivery when operated, of money or property “as the result of the application of an element of chance.” 15 U.S.C. § 1171(a). When the player can look into the Bonanza machine, and see before he deposits his quarter what he will receive, i. e., 50 cents or more credit on a purchase of $10.00 worth of goods, he does not get anything by an element of chance, when he operates it. It is undisputed a player receives exactly what he pays his quarter for. Not all the exhibits in this case were originally forwarded to this court. By stipulation between the parties in open court it was agreed that Exhibit 1 (the tickets shipped by the defendant across state line) should be forwarded to this court. I have examined them, and their format is described in the margin. Despite the failure of proof of any element of chance in the Bonanza machine, the trial court relied (in its written opinion) on two cases, Marvin v. Sloan, 77 Mont. 174, 250 P. 443 (1926) and Ferguson v. State, 178 Ind. 568, 99 N.E. 806 (1912); stating that in those cases “the courts found that similar machines were gambling devices.” They were, however, decided under the respective states’ definition of gambling devices. We agree with the trial judge that the two cases cited support, and would here, require the result expressed by the district court, provided the definition of “gambling devices” was the same in those states as in the federal statute. But they were not. I agree each play is a complete act, and that it may be only preliminary to a future play. It also may not. If it is not, can the machine, without a second play, be classified as a gambling device, when no “application of an element of chance” exists, either as to the first player, or any possible next or second player ? If a machine is so constructed as to eliminate “an application of an element of chance”, then it does not and cannot violate the federal statute upon which this prosecution is based. If the statute so fails, it is not our duty to enlarge its meaning by judicial fiat, nor to strain an interpretation of plain language on moral grounds; that is a matter for Congress to consider. To say that the machine “allures” the player into continuing to play as does the court in City of Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842 (Kan.City App.1913), seems to me to beg the point at issue. Obviously most humans would be pleased to receive “something for nothing”. This one cannot do with certainty at the Bonanza machine. If one plays long enough, he loses. And each time he plays he knows precisely what he is paying and what he is getting. There is no illegality in a machine selling $10.00 worth of merchandise or $100 cash for 25 cents; provided both parties are willing and the price to be paid and the amount of value to be delivered are plainly and unequivocally designated and described before the contract is consummated by the “play” of the machine. III—Intent I do not here decide whether the Bonanza machine could be operated as a gambling device, with the use of different equipment than that here furnished, or if used in a different manner. Such different operation might well be a violation of Arizona State, County, or City law. But it does not, of necessity, or beyond a reasonable doubt, establish that the Bonanza machine, as herein played, violated § 1172 of 15 U.S.C: Appellee urges that: “The fact that either the Victor Vendor or the ‘Bonanza’ could have been used in a legal manner does not change their character, determined by intent on the date of shipment. United States v. Three (3) Trade Boosters, M.D.Pa. (1955) 135 F.Supp. 24.” (Appellee’s Brief, p. 8) Apparently the trial court approved this theory, and rested its decision thereon, holding in its opinion that the shipping of the Victor machines took place “with the intent that they be used as gambling devices.” (Ct.Tr., p. 65). I do not believe my brothers can find such an intent on a bare record. No such intent is mentioned as to the “Bonanza” machine in the Opinion (Ct.Tr., p. 65) dated October 18, 1971, but reference is made to both machines in the Court’s Conclusions of Law 2 and 4 (Ct. Tr., p. 59). And I recognize such latter conclusions are binding; if supported by the evidence. I asked counsel at oral argument what proof of intent there was in the record. I received no answer from the government. I have, therefore, gone carefully over the record. I find a lack of proof of intent to violate § 1172 in anything defendant or any witness, said or did. I do not find in the record any direct or circumstantial factual indication of an intent on the defendant’s part to ship the Bonanza for use as a gambling machine or that it was to be used with other or different equipment so as to result in a gambling device. I find no evidence in the record from which such intent may be inferred, so as to transmute a non-gambling device into a gambling device, within the statutory definition. There is not the slightest evidence that the defendant had knowledge that the Bonanza had been or was being used with its tickets inserted “upside down”. In this criminal case, there is simply not enough evidence to support beyond a reasonable doubt, the theory of an inferred intent. The malefactor in this case, if he exists, is the operator who placed the tickets in the machine upside down, so the player could not see what he was to receive. IV I have thus far discussed state cases. I have found no federal cases, interpreting, as have the majority, the precise language with which we are here concerned. The Slot Machine Act of 1951 contained several loopholes, caused by the failure of Congress to achieve its purpose when it failed to accurately define what constituted “a gambling device”. Congress did not seek to eliminate gambling per se. For example, it sought to write the statute around the pari-mutuel machine. This concern is vividly portrayed in the House Committee Report, H.R.Rep.No.1828, 87th Cong., 2d Sess. 6 (1962), which appears at 1962 U.S.Code Cong. & Admin.News 3809. (See Lion Manufacturing Corp. v. Kennedy, 117 U.S.App.D.C. 367, 330 F.2d 833, 835 (1964), and particularly Note 5, p. 837, with its reference to the heavy burden of proof placed on the government by the looseness of the statutory language, with its resulting “protection for the individual”.) The case of United States v. Branson Distributing Company, 398 F.2d 929 (6th Cir. 1968) at p. 943, supplies us with advice as to how intent is to be determined, but deals with machines clearly depending mostly on chance and a little on skill. The federal case closest to ours (but still different) seems to be United States v. 11 Star-Pack Cigarette Merchandiser Machines, 248 F.Supp. 933 (E.D.Penn.1966). It dealt with 15 U.S. C. § 1171, et seq., but with a differently operated machine, which was “activated) by [the] element of chance” whether an additional free package of cigarettes was delivered. See also United States v. Two Coin-Operated Pinball Machines, 241 F.Supp. 57 (W.D.Kentucky 1965). In United States v. Five Gambling Devices, 252 F.2d 210 (7th Cir. 1958) (one of the few cases of this type reaching the Circuit Courts), the Seventh Circuit reversed the District Court’s decision that the machine therein described was “a gambling device” and hence subject to forfeiture. It was not (said Judge Hastings) under 15 U.S.C. § 1171(a)(1), because the machine did not come within the specific language of that statute; i. e., it did not have “a drum or reel with insignia, thereon” (emphasis is the court’s) as required by the statute, (id., p. 211) It had been conceded that “the person who operates the machine may become entitled to receive money or property as the result of the application of chance.” (id., p. 212) Yet the court held “with regret” (id., p. 213) that the animals shown (monkey, cat, etc.), were not “insignia”. — hence “the trial court erred in holding that the five machines in question are gambling devices within the meaning of 15 U.S.C. § 1171(a)(1).” (id., p. 213) “The Johnson. Act” (along with its successor now constituting § 1171, et seq. of 15 U.S.C.) being penal in character must be strictly construed. United States v. One Electronic Pointmaker, 149 F.Supp. 427, 429 (N.D.Ind.1957) and cited with approval, United States v. Five Gambling Devices, supra. The only case we have found in this Circuit dealing with §§ 1171 and 1172 is cited with approval in United States v. Five Gambling Devices, supra, 252 F.2d at 213. Both cases espouse the strict rule: “[A] statute whereby a man may be deprived of his personal property by way of a punishment should be construed with strictness; hence those who assume authority to take possession of such property should have clear warrant for [this] action.” Hannifin v. United States, 248 F.2d 173, 175 (9th Cir. 1957). In Hannifin, it was also stated: “Nothing could be clearer than that the machine with its two mechanisms is a device primarily to be used as it was used for gambling, the results admittedly being so arranged that the owner will always have more points than the player. Being a very costly and intricate device, giving such profit to the one party over the other, and consisting of over 100 interlocking parts it obviously would not be purchased for family entertainment. Likewise it is clear that the numbers attached to the revolving reels are an essential part of the gambling device for without them there would be no profitable gain to the owner from its operation by the player.” Despite this, this Court held in Hannifin, that a device “primarily to be used for gambling”, does not fall within the prohibition of the statute because “Congress has so overparticularized the requirement for forfeiture” that the machine there involved “is outside its (the statute’s) terms.” {id., p. 175). I would hold that same situation here exists. The judgment should be reversed as to Count Nine, with the Bonanza machine and equipment ordered returned to its owner. . 15 U.S.C. § 1172 prohibits (with exceptions) the transportation of gambling devices across state lines. 15 U.S.C. § 1171 defines “gambling device” as any slot or other machine, which entitles or delivers to a player “money or property”, “as the result of the application of an element of chance.” (Emphasis added) . “A person obtaining a dollar value coupon from Government Exhibit 8 was paid in cash in the amount listed on the particular coupon by the establishment where the machine was located.” (Findings of Fact XIV, Ct., p. 58) “The coupons contained in Government Exhibit 1 were printed by employees of the defendant, under the direction of the defendant, contained dollar value coupons at periodic intervals throughout each bundle of 1,500 coupons, which totalled $238.00 for each bundle of 1,500 coupons and were designed, printed, and intended to be used in a ‘Bonanza’ machine exactly like Government Exhibit 8.” (Findings of Fact XV, Ct. Tr., p. 59) . “The ‘Bonanza’ machine, as designed and intended to he used, constituted a gambling device when shipped in violation of Title 15 U.S.C. § 1172.” (Emphasis added.) (Conclusion of Law No. 4, Ct. Tr., p. 59) . Plaintiff’s Exhibit 1 consisted of one package of five flat “rolls” of printed tickets, each ticket in each “roll” joined to another in continuous sequence. Each flat roll was numbered differently, as follows : A 2562 to A 2567, inclusive, and each contained approximately 1,000 tickets. Each 1,000 (N 1500) coupons carried the same number (shown above) on its right side; and on the left: “Void for other than purposes intended or where prohibited, taxed or restricted.” Most coupons have on the printed legend on their face at the top, “This coupon good for”, and at the bottom there was printed: “Good on regular price only; sale merchandise excluded — One coupon per purchase.” Most coupons then had mimeographed on their face in the center below the top printing the following: “Fifty Cents to apply on purchase of Ten Dollars or More. Valid in listed stores.” Some coupons had mimeographed on their faces, in the center “$1.00 value”, or some larger sum. None of the five flat “rolls in Ex. 1 had printing on the back of the tickets.” They could not have been placed upside down without either placing all that way, or breaking the continuous line of tickets. . In some states the statutes are similar; but most state statutes, particularly in the earlier cases, differ markedly from the Federal statute. Many states have no definition of what constitutes a gambling device. Several prohibit “gambling” or “lotteries” or “gambling devices”. In Marvin v. Sloan, supra, the court said, “Undoubtedly the machine in question is a gambling device within the contemplation of section 11159, supra.” The statute involved was Montana R.C. 1921, § 11159-60, which prohibited “any slot machine, punch board or other similar machine or device.” In Ferguson v. State, supra, the statute was Indiana’s § 2474 of Burns Ann.St. of 1908. That statute prohibited “the keeping of devices for gaming.” (99 N.E. p. 806). 8ee also State v. McTeer, 129 Tenn. 535, 167 S.W. 121 (1914); Painter v. State, 163 Tenn. 627, 45 S.W.2d 46 (1932); Lang v. Merwin, 99 Me. 486, 59 A. 1021 (1905); City of Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842 (Kan.City App.1913); Comm. v. Gritten, 180 Ky. 446, 202 S.W. 884 (1918); State v. Johnson, 15 Okl. Cr. 460, 177 P. 926 (1919); State v. Ellis, 200 Iowa 1228, 206 N.W. 105 (1925); Zaft v. Milton, 96 N.J.Eq. 576, 126 A. 29 (Ch.1924); Cagle v. State, 18 Ala.App. 553, 93 So. 206 (1922); Sheetz v. State, 156 Ark. 255, 245 S.W. 815 (1922); Brockett v. State, 33 Ga.App. 57, 125 S.E. 513 (1924); Tonahill v. Molony, 156 La. 753, 101 So. 130 (1924); People ex rel. Verchereau v. Jenkins, 153 App.Div. 512, 138 N.Y.S. 449 (N.Y.A.D.1912). The basic theory of these cases is well expressed in State v. Googin, 117 Me. 102, 102 A. 970, 971 (1918). “But respondent says the gum machine involves no element of chance; that each play of the machine is a completed transaction, and shows precisely what the player is to receive, and what the machine is to give; that there is no contract, expressed or implied, that the player shall have a second or third play to avail himself of the opportunity of obtaining the trade checks; that, this being so, there is no element of chance. But the fallacy of this contention is found in the assumption that the machine deals with the individual, whereas by its method of operation, of necessity, it deals with the public. . . . If the player does not win the first time, he knows he can repeat till he does win. It is therefore quite apparent that it is the prize, and not the gum, that invites the public. Accordingly, while each play is a completed act, it may be only preliminary to the future play, by the same person, which will bring forth the coveted prize, the chance in this operation being, not in the visible play . . . but in the invisible play by which the machine may turn up a visible prize to be captured on the next play. , If a play turns up no premium, neither party loses. If it does turn up a premium, then the machine loses on that particular play.” (Emphasis added.) This presents an interesting study in human psychology, and perhaps, semantics, but does it establish a violation of the Federal Criminal Statute “as the result of the application of an element of chance?” First, we fail to see why the person first using the machine is an “individual”, as opposed to a member of “the public.” Secondly, the statement asserts, “If the player does not win the first time, he knows he can repeat until he does win.” This is simply not true here. If he “played” every ticket in this particular machine he would “invest” (if 1,500 tickets were in the machine) $375.00, and would receive a certain “pay off” of $238.00 (Plaintiff’s Ex. 1 and R.T. 64, 11. 10-19), and no more. (From 1,000 tickets in a machine, the play would cost $250.00, and the payoff be $176.00 (R.T. 65)). . The stipulation (01. Tr. pp. 34 and 35) does not refer to intent. Messrs. Donkel, Salazar, Bingham and Larson testified only as to the Victor Vendor. Witness Florian testified he “played” the “Bonanza” machine (then known to him as the Desert Showcase Merchant Machine), at the Talk of the Town Tavern, without seeing what he was getting, because “the tickets are upside down. All I seen is a blank piece of paper.” He then arrested the local operator under a City of Phoenix ordinance. Witness Bratcher had several Bonanza machines, but never put the tickets in upside down. (R.T. 44). Without objection, this witness testified the Department of Public Safety of the State of Arizona had ruled the Bonanza legal to operate. Mr. Estes testified only with respect to the Victor Vendor (Ex. 7). Mr. Raszler, the addressograph operator, told how he handled the printed tickets, placing on them the redeemable amounts. He had never seen tickets placed in the Bonanza upside down. (R.T. 68, 11. 14-17). This was the government’s case. Nowhere appears a single word as to defendant’s intent to use the machines for gambling purposes. The defendant called Officer Florian as a hostile witness. He did not touch upon intent. The defendant also testified. He denied any intent to use, or to have the machines be used, for gambling. (R.T., p. 85, 11. 1 to 19; p. 87, 11. 15-16). Mr. Wilson also testified he had sought and received an opinion on January 20, 1965, from the United States Treasury Department that the Bonanza machine was not taxable as a gambling machine. That opinion was later revoked. . Compare the facts in United States v. Kokin, 365 F.2d 595 (3rd Cir. 1966), cert. den. 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448.

f2d_475/html/0115-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Gary Lamont THOMAS, Appellant. No. 72-1663. United States Court of Appeals, Tenth Circuit. Argued and Submitted Feb. 22, 1973. Decided March 23, 1973. Thomas W. Brooks, Overland Park, Kan. (Jon S. Willard, Overland Park, Kan., with him on the brief), for appellant. Edward H. Funston, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., and Glen S. Kelly, Asst. U. S. Atty., with him on the brief), for appellee. Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge. BRATTON, District Judge. The appellant was convicted upon an indictment charging him with armed robbery of a bank in violation of 18 U. S.C.A. § 2113(a), (d) and 18 U.S.C.A. § 2. On this appeal, he first argues that the receipt into evidence of a conversation had between the appellant and a Deputy United States Marshal, while he had appointed counsel and in the absence of such counsel, was reversible error. This issue arose as a result of the transportation of Thomas by two Deputy Marshals from the United States Magistrate’s court in Belleville, Illinois, , to the St. Clair County Jail in that city, ' following a removal hearing on the charge of which he now stands convicted. The Marshals had previously arrested Thomas on the charge here involved and had brought him to the jail from an Illinois penal farm. After the removal hearing, and while the appellant was being taken back to jail, he said he couldn’t understand how he could be tried for the bank robbery case, since the charge had earlier been dismissed, unless one of his partners on the job was going to testify against him. Appellant had been advised of his rights when he was picked up at the jail to go to the Magistrate’s office and again at the removal hearing. A lawyer was appointed to represent him at the removal hearing. During the course of the trip back to jail, neither Marshal asked appellant any question, and, indeed, one of the Marshals said nothing at all. The other Marshal’s only comment was his response, “I don’t know,” to appellant’s question concerning the ability of the United States Attorney to prosecute him for the offense when the charge had previously been dismissed. The court below held a full hearing on the issue and correctly found that appellant had freely and voluntarily made the statements with full knowledge of his Miranda rights and without any interrogation by the officers. Hence, there is lacking any deliberateness on the part of the federal officers, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1963), is not applicable. The set of circumstances here presented does not raise the issue decided in United States v. Thomas, 474 F.2d 110 (10th Cir. 1973). What transpired on the return trip to jail cannot be characterized as an in-custody interview of appellant conducted by agents of the prosecuting party in the absence of and without the knowledge of his counsel. Hence, the ethical question raised in Thomas is not present in this appeal. Appellant next argues that the Government should have made both Marshals available at trial. Only the Marshal who had made a comment during the trip back to the jail was called as a witness by the prosecution. The record reflects that the defense made no motion under Fed.R.Crim.P. 17(b) or (f) either to subpoena the second Marshal or to depose him. Further, no motion was made at trial for a continuance so that the attendance of the second Marshal could be secured. The assertion that the defense was assured that both Marshals would be made available at trial is not supported by the record. The defendant testified in his own behalf and controverted what the Marshal who testified had said. To assert, as is here being done, that examination of the second Marshal might furnish further evidence as to what actually transpired is to indulge in speculation. This claim raises no meritorious issue. Appellant next advances the argument that certain exculpatory evidence was included in F.B.I. laboratory reports that was not made available for defense purposes. The specific allegation is that the clothing examined in the F.B.I. laboratory contained Caucasian hair, as well as Negro hair. Appellant is Negro. Under the Omnibus Hearing Report, the Government’s file was continuously available for inspection. The defense was never refused anything that was requested. There was simply no request for the information that now is thought to be important. Appellant’s next charge of error is that there was a break in the chain of custody with regard to certain real evidence offered at trial. Suffice it to say that the record below reflects that this contention is unfounded. Nor is there any merit to his contention that the prosecution failed to establish that more than $100.00 was taken away from the bank during the robbery. The bank sustained a loss of more than $12,000.00 in the robbery, $3,000.00 of which was recovered outside the bank immediately after the robbers fled from the bank. Finally, appellant asserts that the court erred in refusing to give its requested instruction dealing with the Miranda warning in connection with the admissions made to the Deputy Marshal. The court gave an instruction which advised the jury that the circumstances surrounding such an admission must be carefully scrutinized to determine whether the statement was voluntarily made. The jury was also instructed that, if the evidence did not convince its members beyond a reasonable doubt that the admission was made voluntarily, the admission should be entirely disregarded. The court’s instructions were proper and fully protected appellant’s interest. Affirmed.

f2d_475/html/0117-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

James W. GALLAGHER and Claude M. Gallagher d/b/a Better Foods, Plaintiffs-Appellees, v. The UNENROLLED MOTOR VESSEL RIVER QUEEN (HULL NO. A-68184) et al., Defendants. Glens Falls Insurance Company, Appellant. No. 72-2193. United States Court of Appeals, Fifth Circuit. March 9, 1973. William A. Harrison, Houston, Tex., for appellant. John P. Forney, Houston, Tex., for Gallagher and others. James H. Garst, Houston, Tex., for Courtesy Ford. B. Buck Pettitt, Houston, Tex., for Smith and River Queen. Before COLEMAN, MORGAN and RONEY, Circuit Judges. PER CURIAM: Plaintiffs sued to recover possession of their 38-foot pleasure motor boat, RIVER QUEEN, which one defendant, a marina operator, had sold to the other defendants. Judgment was entered for plaintiff against the purchasers on the finding that the marina operator had no right to sell the plaintiff’s vessel, and against the marina operator in favor of the purchasers who had paid for the boat which they could not keep. The purchasers appeal on the ground that they acquired all rights to RIVER QUEEN under Section 2.403(b) of the Uniform Commercial Code (adopted in Texas as Texas Business and Commerce Code, Title 1, § 2.403(b)) which provides: “(b) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.” We find no error in the District Court’s conclusion that “. . . Plaintiffs did not entrust the vessel River Queen to Defendant Smith as a merchant within the meaning of Section 2.403 of the Uniform Commercial Code. Plaintiffs rented a stall at Defendant Smith’s marina to keep this vessel. This defendant operated several businesses at this one location. His business of renting stalls for vessels was separate and apart from his business as a boat repair. [By inference, the Court concluded that the renting of stalls was also separate and apart from his business as a boat merchant.] The River Queen was kept at this marina pursuant to a verbal rental contract.” We affirm the judgment on the findings of fact and conclusions of law entered by District Judge Carl O. Bue, Jr. The Court also properly denied the defendant’s motion to set aside the judgment for lack of admiralty jurisdiction. As Judge Bue ruled, “[i]t is a fundamental principle that admiralty has jurisdiction in a possessory suit by the legal owner of a vessel who has been wrongfully deprived of possession. Ward v. Peck, 59 U.S. (18 How.) 267 [15 L.Ed. 383] (1856); Rea v. The Steamer ECLIPSE, 135 U.S. 599 [10 S.Ct. 873, 34 L.Ed. 269] (1890); 1 Benedict on Admiralty § 73, at 154-56 (6th ed. 1940). This is the situation here. The legal principles contained in the cases cited by defendant in support of its motion are readily distinguishable from the circumstances of this case. In this lawsuit plaintiffs alleged and the Court so found, that legal title to the vessel was in the plaintiffs at all times without limitation. The determining factor which rules out the applicability of defendant’s authorities to the present factual situation is that in a true possessory libel action, as here, the force which comes into play to divest the legal owner of possession of the vessel comes from an extrinsic source. Here this force which wrongfully deprived or divested plaintiffs of possession was the act of a thief — the defendant, Robert E. Smith. See Atamanchuck v. Atamanchuck, 61 F.Supp. 459 (D.N.J.1945); The Tietjen & Lang No. 2, 53 F.Supp. 459 (D.N.J.1944). Compare Ryan v. Spaniol, 193 F.2d 551 (10th Cir. 1951); Silver v. The Sloop Silver Cloud, 259 F.Supp. 187 (S.D.N.Y.1966); The Captain Johnson, 64 F.Supp. 559 (D.N.J.1946); The Managua, 42 F.Supp. 381 (S.D.N.Y.1941). Additionally, this Court is not divested of admiralty jurisdiction by defendant’s allegations of equitable title to the vessel urged in defense of plaintiffs’ claim of legal title. Chirurg v. Knickerbocker Steam Towage Co., 174 F. 188 (D.Me.1909). See Swift & Company Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 692 [70 S.Ct. 861, 94 L.Ed. 1206] (1950).” Affirmed.

f2d_475/html/0119-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

David KASNER and Joan Kasner, Plaintiffs-Appellants, v. H. HENTZ & CO. and Ralph Nernberg, Defendants-Appellees. No. 72-1575. United States Court of Appeals, Fifth Circuit. March 15, 1973. Rehearing Denied April 4,1973. Michael Nachwalter, Miami, Fla., for plaintiffs-appellants. Sidney M. Aronovitz, Miami, Fla., for defendants-appellees. Before BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges. INGRAHAM, Circuit Judge: Plaintiffs-appellants, customers of H. Hentz & Co., a brokerage firm, brought suit against the firm and Ralph Nernberg, its registered agent, to recover damages allegedly occasioned by Nernberg’s false dealings and breach of trust in handling plaintiffs’ discretionary stock account. More particularly, plaintiffs sought damages from Nernberg and Hentz on three theories: (1) violations of 15 U.S.C. § 78 j, 15 U.S.C. § 78o(c) (1)-(2) and Securities Exchange Commission Rules 10b-5 and 15(c)(1)-(2) promulgated thereunder; (2) negligent failure to properly supervise and administer a discretionary account in violation of New York Stock Exchange Rules 401 and 405 and (3) violations of the applicable securities laws, Florida Statutes Annotated § 517.301. Jurisdiction was asserted and is found under 28 U.S.C. §§ 1331 and 1337; § 22(a) of the Securities Act of 1933 [15 U.S.C. § 77v(a)], and § 27 of the Securities Exchange Act of 1934 [15 U.S.C. § 78aa], Pendent jurisdiction over plaintiffs’ counts alleging state securities law violations and common law negligence is also present. McCurnin v. Kohlmeyer & Co., 477 F.2d 113 (5th Cir., 1973). The gravamen of plaintiffs’ complaint was that after suffering near disastrous losses in the stock market with a portfolio structured for a market decline, Dr. and Mrs. Kasner approached their broker Nernberg in September of 1969, intending to direct him to liquidate their holdings. Rather than lose an actively trading account and its attendant commissions, Nernberg, plaintiffs’ allege, induced the Kasners to give him trading authority over their stock portfolio and to restructure it for a rising market. Plaintiffs testified that when they approached Nernberg to liquidate their holdings, he said to them: “And he said to me this would be [the] worst mistake you could make. Let me turn it around, and I’ll make your money back in two years; and that he would be the manager of the account. He would take it off my hands, I wouldn’t have to worry about it, I could go back to my doctoring, and I wouldn’t have to look at these statements — I couldn’t read anyway — No matter what they said, I couldn’t read these statements; I didn’t understand them. And so he offered me to take it over, he would manage it — he was an expert, a professional. I’d already learned that I could not handle the account any more; I was an amateur. I couldn’t learn enough to handle this stuff. So — And here he was offering me to take it off my hands, take it over, make money back in two years. “I said, ‘Fine, then take it over,’ and that’s essentially how he got the account.” In support of the Kasner’s allegations that Nernberg had induced them to remain in the market with a disastrous result, plaintiffs introduced the discretionary authorization they had executed in Nernberg’s favor in September of 1969. They also introduced evidence which showed that when signed over to Nernberg’s discretion plaintiffs’ portfolio, though below margin requirements, had a net equity in excess of $50,000. Less than nine months later, after active trading by Nernberg and maintenance calls, plaintiffs’ equity in the account had been reduced to about $3000. Plaintiffs further showed that all transactions occurring in this period of time were initiated solely by defendant Nernberg under the supervision of Hentz & Co. and that plaintiffs had continued the account only at Nernberg’s insistence. In defense of the action Hentz relied on the testimony of Nernberg that he had not guaranteed results, nor that he had fraudulently or negligently managed the account. Defendants further relied on evidence that in the course of the decline in plaintiffs’ equity, they had sent plaintiffs numerous notifications that their account was declining. The defense contended that given such knowledge plaintiffs could not justifiably have relied on Nernberg’s management. At the close of the testimony on defendants’ motion, the district court granted a directed verdict for the defendants. We reverse as jury questions on several controverted facts appear in this record. Boeing v. Shipman, 411 F.2d 865 (5th Cir., 1969), required that the case be submitted to the jury, the appropriate forum for determination of whether false statements were made, if so whether they were material, and if plaintiffs were justified in their reliance thereon. Evans & Co. v. McAlpine, 434 F.2d 100 (5th Cir., 1970); Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876 (2nd Cir., 1972); Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F.Supp. 107 (N.D.Ala., 1971); Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (N.D.Cal., 1968); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bocock, 247 F.Supp. 373 (S.D.Tex., 1965). In arguments over the motion for directed verdict, plaintiffs suggested that the case already tried be sent to the jury which had heard it, then should the verdict be against defendants the court could properly consider a defense motion for a judgment n. o. v., which, should the court grant it and later be reversed, would obviate the need for a retrial. This suggestion was not followed and we consequently must remand this cause for re-trial. The order of the district court is reversed and the cause remanded.

f2d_475/html/0121-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Louis WAGNER, Defendant-Appellant. No. 72-1512. United States Court of Appeals, Tenth Circuit. Submitted Jan. 12, 1973. Decided March 12, 1973. Rehearing Denied April 27, 1973. John C. Humpage, Topeka, Kan., for defendant-appellant. Kirby Patterson, Washington, D. C. (Robert J. Roth, U. S. Atty., D. Kan., George S. Kopp, Atty., and James Twitty, Sp. Atty., Dept, of Justice, on the brief), for plaintiff-appellee. Before MURRAH, SETH and BARRETT, Circuit Judges. MURRAH, Circuit Judge. This is an appeal by Louis Wagner from judgments of conviction by a jury on two counts of attempting and conspiring to introduce, and of actually introducing, contraband amphetamine drugs into the United States Penitentiary at Leavenworth, Kansas, in violation of 18 U.S.C. §§ 2, 371, and 1791. It is undisputed that a conspiracy existed, and that drugs were smuggled illegally into the penitentiary. The decisive question here is whether the evidence presented was sufficient to prove that Wagner was a party to the plot. The evidence consisted of the testimony of co-conspirators, and of Wagner’s name endorsed on a cheek from a co-conspirator. The sufficiency of this evidence turns on the admissibility of the co-conspirators’ implicating testimony, and this depends upon proof that Wagner did, indeed, cash the check. He denies doing so, hence, his complicity in the conspiracy hinges largely upon the identification of his endorsement on the co-conspirator’s check. On trial; the court admitted records from other court cases bearing signatures of Wagner’s name, for use as comparisons with the endorsement on the check. Using these records and handwriting exemplars given by Wagner as standards for comparison, a qualified handwriting expert testified that the endorsement on the co-conspirator’s check was Wagner’s signature. Wagner contends the signatures on the records used for these comparisons were not properly authenticated, and, therefore, should not have been used for the comparison. To be admissible and usable as a standard of comparison, for the purposes of opinion evidence on a questioned writing, the specimen must first be authenticated. Authentication means proof of authorship, and whether a writing has been properly authenticated is a matter for the court to decide, according to no precise formula, but based upon proof to its satisfaction. See, e.g., Withaup v. United States, 127 F. 530, 535 (8th Cir. 1903); and United States v. White, 444 F.2d 1274, 1280 (5th Cir. 1971). The crucial question of authorship in our case is presented in these precise circumstances. When the documents were first offered, Wagner’s counsel objected to their admission, for lack of authentication. Pursuant to a colloquy between court and counsel, the documents were, however, finally admitted as public records, without any determination of the genuineness of the signatures thereon. Wagner’s counsel agreed to their admission as such, with the observation that he would “fight it out with the handwriting expert.” Several admittedly genuine exemplars of Wagner’s signature were also admitted, along with the check bearing the questioned endorsement. When the expert was called, he stated that he had previously examined, for purposes of comparison, all of the exhibits, i.e. the endorsed check, the signature exemplars, and the public records. When the expert was asked if he had an opinion as a result of the examination, counsel objected, and was granted permission to ask a preliminary question. The witness was then asked if the opinion he would give was confined singularly to the exemplar, and whether he could state an opinion without utilizing the signature on the public records. When the expert answered that he would need the signatures on the public records to form an opinion, Wagner’s counsel objected to the expert’s opinion on grounds that the signatures on the public records had not been authenticated. The court thereupon observed that “[i]t was admitted by the court because it was a public document that showed what purported to be the signature .... The only relevance is the purported signature on a public document. And the document purports to have the signature of the defendant Wagner upon it.” The objection was overruled, and the expert witness proceeded to testify that he made a “side-by-side comparison” of the endorsement on the check “with the known material,” i.e. the public documents and the exemplar. At this point the court intervened to instruct the jury in conventional language concerning the weight to be given expert testimony. The expert witness was then permitted to express the opinion that the questioned endorsement on the check was prepared by the writer of the material found on the other exhibits. He further testified that the exemplars were in and of themselves reason to believe that Mr. Wagner endorsed the check, but because of Mr. Wagner’s “fluid handwriting style, ... it was necessary” to resort to the “undictated handwriting,” i.e. the public documents; considering the exemplars and the public documents together, he was able to determine that the questioned check was, indeed, signed by Mr. Wagner. It is, thus, manifest that the handwriting expert’s opinion is based, in part, upon a comparison of signatures not proved to be genuine or admitted into evidence as such. The trial court’s ruling admitting Wagner’s “purported” signature as a standard of comparison clearly indicates that the court misconceived the established rule governing authentication in cases of this kind. Not having been proved to be genuine, the signatures on the public documents were inadmissible as standards of comparison. In these circumstances the foundation for the expert’s opinion cannot stand, and his opinion falls with it. The opinion evidence was erroneously admitted, it was prejudicial, and the ease must, accordingly, be reversed for a new trial. . Section 2 provides that whoever causes to be committed or commits an offense against the United States is punishable as a principal. Section 371 provides that if two or more persons conspire to commit any offense against the United States, or to defraud the United States or any agency thereof, and one or more of such persons act in furtherance of the conspiracy, each shall be fined a maximum of $10,000 or imprisoned not more than five years, or both, unless the offense is a misdemeanor. Section 1791 provides in presently material part that anyone who, in contravention of any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce anything into or upon the grounds of any Federal penal or correctional institution shall be imprisoned not more than ten years.

f2d_475/html/0124-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The DOW CHEMICAL COMPANY, Appellant, v. DART INDUSTRIES, INC., Appellee. BRAND PLASTICS COMPANY et al., Appellees, v. The DOW CHEMICAL COMPANY, Appellant. Nos. 71-1371, 71-1372. United States Court of Appeals, Ninth Circuit. Feb. 20, 1973. Rehearing Denied April 5,1973. Neal A. Waldrop (argued), of Harness, Dickey & Pierce, Detroit, Mich., William Howard Nicholas, of Nicholas, Kolliner, Myers, D’Angelo & Givens, Los Angeles, Cal., William M. Yates, Sidney J. Walker, Midland, Mich., Naylor & Neal, San Francisco, Cal., for appellant. Carl Hoppe (argued), James F. Mitchell, San Francisco, Cal., David S. Romney, Richard E. Lyon (argued), Roland N. Smoot, of Lyon & Lyon, Los Angeles, Cal., Grant A. Brown, Arthur G. Gilkes, Ralph C. Medhurst, Chicago, 111., for appellees. Before ELY, TRASK, and WALLACE, Circuit Judges. PER CURIAM: The patent involved in this suit is Number 2,694,692. The District Court held that the patent was invalid, anticipated by certain prior arts and embracing a procedure that would have been obvious to one skilled in the prior art. The appellant vigorously challenges this conclusion, but we are not persuaded that we should disturb it. The trial was extensive, consuming some twenty days, with highly expert, opposing opinions expressed by different witnesses presented by the competing parties. This being true, we cannot hold that the District Court’s finding of fact in this respect was clearly erroneous. We take a different view on another argument advanced by the appellee, an argument aimed at the District Court’s finding that this was an “exceptional” case under 35 U.S.C. § 285 and leading to the District Court’s conclusion that approximately one million dollars should be awarded as attorneys fees to the appellees and paid by the appellant. To substantiate such fees, there must be precise findings that clearly show the necessary prerequisites. See Florida Brace Corporation v. Bartels, 332 F.2d 337 (9th Cir. 1964). Here, there were no findings of the requisite precision, and we are persuaded that even had such findings been made, they would have lacked sufficient evidentiary foundation. We have carefully examined the record, particularly that concerned with the appellant’s negotiations with the patent office and its procurement of the patent in suit. We are left with the definite conviction that there was no palpable fraud committed by the appellant in respect to these negotiations and that, on the whole, the conduct of it and its attorneys was essentially fair. Nothing of significance was concealed from the patent office. This is not that type of an exceptional case in which one procuring and seeking to protect its patent should be compelled to absorb the expense of attorneys’ fees incurred by its adversaries, and the District Court’s conclusion to the contrary is reversed. Cf. Locklin v. Day-Glo Color Corp., 468 F.2d 1359 (9th Cir. 1972). Upon remand, the judgment of the District Court will be modified accordingly. Affirmed in part; reversed in part, with directions. WALLACE, Circuit Judge (concurring:) I concur in the opinion except I am not persuaded that given findings which meet the test of Florida Brace Corporation, the evidence would not be sufficient to sustain the award of attorneys’ fees under Shingle Product Patents v. Gleason, 211 F.2d 437, 441 (9th Cir. 1954).

f2d_475/html/0125-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Luke Joseph RENER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 72-3715 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 28, 1973. Luke Rener, pro se. Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Harry Koch, Asst. U. S. Atty., Dallas, Tex., for respondent-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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: The district court denied Rener’s petition for writ of error coram nobis. We affirm. Rener is confined in the Texas Department of Corrections by virtue of his convictions for attempted burglary and possession of narcotics. In his petition for coram nobis relief he sought to have a previously served federal conviction vacated on grounds that the 1952 conviction for possession of untaxed marihuana was invalid under the decision of Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. The district court denied relief, finding that Rener had failed to present any “compelling circumstances” which would justify the grant of the extraordinary remedy of coram nobis. We agree. Nowhere in the pleadings filed below did Rener allege that he is subject to any adverse effects emanating from the prior federal conviction. On the basis of the respondent’s answer filed in the district court stating that Rener was convicted and sentenced on four felony offenses subsequent to the 1952 conviction, it appears unlikely that such is the ease. The writ of error coram nobis should only be allowed to remedy manifest injustice. Cf. Reyes Correa-Negron v. United States, 5 Cir. 1973, 473 F.2d 684. Its purpose is not to burden courts with the rendition of “futile decrees.” Rodgers v. United States, 5 Cir. 1971, 451 F.2d 562, 563; United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248. For the first time on appeal, Rener attempts to raise the point that the 1952 conviction was used to enhance his present state sentence. We decline to consider this argument since the issue was never raised in the proceedings below. Reyes Correa-Negron v. United States, supra; United States v. Hall, 5 Cir. 1971, 440 F.2d 1277; Hemming v. United States, 5 Cir. 1969, 409 F.2d 11. The judgment appealed from is affirmed. Affirmed. . Rener was convicted under 26 U.S.C. § 2593(a), which has since been repealed. Thereafter, the provisions of § 2593(a) were contained in 26 U.S.C. § 4744, which has also been repealed. . The district court, apparently under the erroneous impression that Rener had been convicted under the provisions contained in 21 U.S.C. § 176a, made the incorrect observation that the challenged conviction was valid since the Leary presumption of illegal importation was not used against him.

f2d_475/html/0127-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Joseph R. THOMPSON, Appellant, v. David E. GROSHENS and Elmer Lentz. No. 72-1517. United States Court of Appeals, Third Circuit. Argued March 6, 1973. Decided March 6, 1973. E. J. O’Halloran, Philadelphia, Pa., for appellant. Cecil Maidman, Asst. Atty. Gen., Herman Rosenberger, 2nd, Dante Mattioni, Philadelphia, Pa., J. Shane Creamer, Atty. Gen., Harrisburg, Pa., for appellee, David E. Groshens. John A. Lord, Philadelphia, Pa., for appellee, Elmer Lentz. Before GIBBONS and HUNTER, Circuit Judges and MUIR, District Judge. OPINION OF THE COURT PER CURIAM: This is an appeal from an order of the district court which denied appellant’s motion for the convening of a three-judge district court and dismissed his complaint, 342 F.Supp. 516. The complaint alleges that Pa.Stat.Ann. tit. 18, § 4733, which provides a summary remedy against husbands for support of a wife and children, is unconstitutional. Proceedings brought pursuant to the Pennsylvania statute are pending in the Montgomery County Court of Common Pleas. In an earlier stage of the Commonwealth nonsupport proceeding the appellant made the same challenges to the constitutionality of the Pennsylvania statute as are here presented. They were rejected in the Common Pleas Court and on appeal to the Pennsylvania Superior Court. The Supreme Court denied certiorari. See Thompson v. Thompson, 217 Pa.Super. 874, 272 A.2d 189 (1970) (per curiam), appeal dismissed and cert. denied, 405 U.S. 971, 92 S.Ct. 1191, 31 L.Ed.2d 245 (1972). While the nonsupport case was pending on appeal the appellant’s wife filed a petition in the Court of Common Pleas seeking an increase in support payments. Since his constitutional attack had already been rejected by the Court of Common Pleas, appellant sought, by this injunction action against the Judge and the Chief Domestic Relations Officer of the Court, to collaterally attack the earlier judgment in a federal court proceeding. In ruling on a motion to convene a three-judge district court, the inquiries of a single district judge are limited to (1) whether the constitutional challenge to the statute is substantial, and (2) whether the complaint alleges a basis for equitable relief. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam). In deciding the second question the district court’s inquiry is properly at least as probing as in its determination of the first. Majuri v. United States, 431 F.2d 469 (3d Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Here the pleadings before the district court established that the appellant had been afforded a full opportunity to litigate his constitutional contentions in the Pennsylvania courts, and had lost. A complaint alleging that he should be permitted to relitigate those contentions in a federal injunction action does not state a basis for equitable relief. Certainly no injunction could issue enjoining on constitutional grounds the enforcement of a statute in face of a decision, binding on this apellant, that the statute is constitutional. The complaint, therefore, was properly dismissed by a single district court judge. In view of the foregoing we have no occasion to pass upon the additional grounds for dismissing the complaint set forth in the opinion of the district court, except to note that we do not agree with those parts of that opinion referring to lack of jurisdiction. A dismissal of the action with prejudice would not have been proper if the court lacked jurisdiction.

f2d_475/html/0129-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Frederick H. MURRAY et al., Plaintiffs-Appellants, v. WILSON OAK FLOORING CO., INC., a corporation, Defendant-Appellee. No. 71-1353. United States Court of Appeals, Seventh Circuit. Argued Sept. 22, 1973. Decided March 5, 1973. Rehearing March 30, 1973. David Ruttenberg, Chicago, Ill., for plaintiffs-appellants. James T. Ferrini, Stephen D. Marcus, Chicago, Ill., for defendant-appellee. Before SWYGERT, Chief Judge, CUMMINGS and SPRECHER, Circuit Judges. SWYGERT, Chief Judge. This appeal concerns a diversity suit in tort. Plaintiff, Frederick H. Murray, appeals from a judgment non obstante veredicto entered on motion of the appellee, Wilson Oak Flooring Co., Inc. The sole issue presented is whether the district court, on the facts of the case, properly granted a judgment notwithstanding the verdict. Both sides agree that the law of Illinois governs the resolution of this issue. I The facts are undisputed for the most part. The plaintiff was the owner of a small brick residential property located in Chicago. On the evening of October 3, 1969, Murray was preparing to install a parquet-wood flooring on a portion of the second floor of this building, pursuant to a plan for overall remodeling. He planned to use Latex “45” Adhesive to hold the flooring in place. Both the flooring and the adhesive had been received by Murray as a gift from the Kingston Tile Company, one of his business associates. Kingston, however, neither manufactured nor was the primary distributor of these items; both, instead, bore the label of Wilson, for whom the adhesive was manufactured on a private label basis by the Chicago Mastic Corporation. Affixed to the five-gallon can of Latex “45” Adhesive were two labels, one of which, bright red and diamond shaped, set forth its message in boldface black letters having the following content, size and arrangement: Another label was affixed to the opposite side of the can. White with red lettering, it set forth, in part, this message: Prior to spreading any of the mastic, Murray thoroughly familiarized himself with the contents of these lables. The second floor of the Wieland building was in the shape of an elongated rectangle. The front one-third of the floor was comprised of a living room, a work room and an entry hall; the middle one-third contained a combination billiards and dining room, a kitchen, and a storage-utility room. Murray planned to install parquet floor on the area described by the entry hall and the billiards-dining room, which he realized would require the spreading of adhesive on the floor adjacent to the kitchen and the storage-utility room. The following floor plan, taken from an exhibit introduced at trial, indicates the arrangement of these areas; the crosshatched section represents part of the area which Murray intended to cover with parquet flooring: The kitchen, linked to the billiards-dining room by a doorless cased opening, contained a built-in stove and oven, each of which was fitted with pilot lights: two for the stove and one for the oven. Housed in the storage-utility room were a furnace and a water heater, both gas-supplied and furnished with single pilot lights. Unlike the kitchen, however, this room was separated from the billardsdining area by a door, nailed into place and tightly fitted into the door frame except at the bottom, where a horizontal gap existed about the width of a finger. On the night of October 3, all of the pilot lights servicing these various appliances were lit and functioning, with the possible exception of the furnace light. Murray was aware of this fact when he began to apply adhesive to the front-most portion of the entry hall at approximately 6:00 P.M. on October 3. Three hours later he had applied adhesive to most of the area he intended to cover with flooring, working his way from his starting point back toward the kitchen and bathroom. The area was not entirely covered, however. Murray left himself an eight to ten inch path along the wall separating the billiards-dining area from the kitchen and storage-utility room, evidently to allow his return to the front of the apartment without having to tread on wet adhesive. Unfortunately, this path was never used. While on his knees near the bathroom door, facing the front of the building and nearly finished with applying mastic, Murray heard an explosive noise, later described by him as a “whompf”. This was accompanied by a bright orange flame, which Murray first observed about five feet in front of him at a location marked by an “X” on the floor plan. In an ensuing fire, Murray sustained burns which resulted in his permanent injury. This suit for damages followed. Evidence produced at trial established that the warnings placed on the can of Latex “45” Adhesive were not in conformance with either the Federal Hazardous Substances Labeling Act, 74 Stat. 372 (1960), or the Illinois Hazardous Substances Labeling Act, Ill.Rev.Stat. Ch. IIV/2 § 251 et seq. To comply with those Acts, a product having the combustibility of Latex “45” — equivalent to that of gasoline — would have required labeling which read “danger” rather than “caution” and “extremely flammable” rather than “inflammable”. The evidence also established that the fire was caused when combustible vapors from the adhesive came in contact with one of the lit pilot lights, the most likely candidate being the pilot light of the water heater in the storage-utility room. Expert witnesses for both sides testified that Latex “45” emits a heavy and highly combustible vapor capable (1) of traveling for some distance along a floor from the point at which the mastic is spread, (2) of burning with explosive force upon encountering any form of exposed flame, and (3) of transmitting that flame back to the body of spread adhesive. Thus the water heater pilot was chosen as the most likely site for generating the explosion not only because it was substantially closer to the mastic than the stove pilot lights but because it was much nearer to the floor than the pilot lights on the stove, and therefore more likely to contact low-lying vapors easily capable of traveling under a door. After hearing all of the evidence, the jury in the cause returned a verdict in favor of Murray, and assessed damages against Wilson in the sum of $20,429.00. Wilson then filed a motion for a judgment in its favor non obstante veredicto which was granted by the district judge. He based his decision on the following facts: [T]he plaintiff Frederick H. Murray admitted on the trial that at the time of the occurrence there were burners blazing and that he knew they were there. The product was plainly marked as inflammable. Said plaintiff’s action was clearly a contributing cause of the explosion and fire that occurred, and he was therefore guilty of contributory negligence herein. By “blazing burners” we take the judge to have meant the various pilot lights adjacent to the applied mastic. II We have carefully considered the evidence in this case, and conclude that the trial judge erred in entering a judgment non obstante veredicto for Wilson. Perhaps the most crucial fact relevant to our decision is the presence of the word “near” in the primary warning on Wilson’s adhesive can, a term which we think must be taken to modify subordinate warnings on the same level. The most important of these is the recitation: “Do not smoke — Extinguish flame — including pilot lights.” (emphasis added). Reexamining the floor plan introduced as evidence in this case, and taking the evidence at its worst for Murray, it would appear that he spread mastic to within four or five feet of the water heater pilot light and within seven to eight horizontal feet of the stove pilot lights. These figures allow for the eight to ten inch path Murray left for his return to the front of the apartment. We cannot say as a matter of law that the term “near” was sufficient to inform Murray that his spreading of adhesive within four feet of a pilot light located behind a closed door and within eight feet of stove pilot lights three feet off the floor exposed him to the risk of an explosion and attendant fire damage. All of the evidence, when viewed in its aspect most favorable to Murray, fails to “so overwhelmingly [favor] movant [Wilson] that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 514 (1967). Nearness is a matter of degree. To the president of Wilson, “near” included the entire house in which an application of Latex “45” Adhesive was taking place. The reasonable man, we think, would disagree. Thus, whether “near” fairly encompassed the door and distances of this case was a question for the jury. This is not to say that no separation could be too small to foreclose a jury from ruling on the scope of the term “near”. Two cases decided by this court recognize the existence of a threshold gap below which a judgment n. o. v. becomes appropriate. In Moschkau v. Sears Roebuck & Co., 282 F.2d 878 (7th Cir., 1960), we upheld a judgment n. o. v. where the evidence showed that the plaintiff, an experienced carpenter, had brought combustible adhesive to within eighteen inches of stove burners serviced by lit pilot lights. The limits of Moschkau were tested six years later in Borowicz v. Chicago Mastic Co., 367 F.2d 751 (7th Cir., 1966), where we held that judgment n. o. v. was appropriate against an experienced carpenter who had left a can of inflammable mastic within three feet of stove pilot lights. In both eases the adhesive was the same type as that which caused the fire here, and the respective containers were labeled with warnings analogous in content to those set out herein. In neither case was the separation between the mastic and flame blocked by a solid impediment. Of the two cases, Borowicz is undoubtedly the closest to the facts of this case; here mastic was applied within perhaps four feet of a lit pilot light, there the distance was three feet. A controlling distinction, however, is that Murray laid down mastic in a room that was separate and apart from the room where the flame was located, a separation made more complete by the interposition of a sturdy door. With respect to the kitchen pilot lights, seven or eight feet of horizontal distance and approximately three feet of vertical distance separated them from the mastic, a gap which is not, we think, the equivalent of a three foot distance without vertical separation for the purposes of a judgment n. o. v. Lastly, we note two other distinctions which, though not of themselves controlling, further serve to distinguish Borowicz and Moschkau: (1) in neither case was any evidence adduced, as here, to establish a case of prima facie negligence on the part of the defendant by failure to comply with industry-wide standards of warning, and (2) Murray was not an experienced carpenter with extensive practice in using the material causing the accident complained of. III We must go further, however, than distinguishing Borowicz and Moschkau. In the years since those decisions, the Illinois Supreme Court has made a significant revision in the law of Illinois dealing with judgments n. o. v. and directed verdicts. The case was Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 229 N.E.2d 504 (1967), which announced the standard earlier referred to in this opinion: In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. 37 Ill.2d at 510, 229 N.E.2d at 513-514. Wilson urges, first, that this standard represents a marked easing of the prior requirement of Illinois law respecting the grant of judgments n. o. v.; that is, that these are now easier to obtain than when Moschkau and Borowicz were decided. From this they argue that the factual distinctions of the present case from Moschkau and Borowicz are of insufficient importance to overcome that precedent when read in combination with Pedrick. Since Wilson’s premise is faulty, however, we cannot accept this argument. Prior to Pedrick, two different standards had governed two species of cases. In determining when questions of negligence and contributory negligence became questions of law, Illinois courts answered in the affirmative only when “all of the evidence, viewed in its aspect most favorable to the party against whom the court would rule, was such that reasonable minds would reach the same conclusion.” Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 502, 229 N.E.2d 504, 509 (1967). In other types of eases, Illinois courts applied an “any evidence" test, granting directed verdicts or judgments n. o. v. only when all of the evidence in the case, considered in its light most favorable to the party against whom the court would rule, contained no evidence in favor of the nonmovant on an essential issue of the case. Pedrick eliminated both categories, and the standard it announced was designed to apply to all types of cases. Did Pedrick make it easier to obtain a judgment n. o. v. in the former type of case, where a finding of contributory negligence as a matter of law is sought? We think not. Our chief support for this view lies in a comparison of the respective inadequacies of the two then-existent standards pointed out by the Pedrick Court. With respect to the “any evidence” standard, it was said: [Neither] the any evidence rule [n]or any of its variants ... is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so overwhelmingly rebutted that no verdict based thereon could possibly stand. In such instances no action other than a directed verdict [or judgment n. o. v.] is consonant with efficiency in our judicial system and with a fair and expeditious termination of litigation. 37 Ill.2d at 510, 229 N.E. at 513. The objection to the negligence, or “reasonable men,” test was of a somewhat less pragmatic import: Our dissatisfaction stems from the fact that there is at least a surface incongruity in a trial judge saying all reasonable men agree that the proof established the presence or absence of due care when 12 jurors have just reached a contrary conclusion. And it seems even more incongruous for reviewing courts to so state when the trial judge and jury reached the opposite result, when the trial and reviewing courts disagree or the members of a reviewing court disagree among themselves that such is the case. 37 Ill.2d at 510, 229 N.E.2d at 513. It is thus apparent that the Illinois Supreme Court did not intend in Pedrick to make judgments n. o. v. any easier to obtain in negligence cases than had previously been the rule, while they did so intend in cases, unlike this one, which had earlier fallen under the “any evidence” rule. The judgment of the district court is reversed, and the case remanded with instructions to reinstate the verdict of the jury. Cummings, Circuit Judge, dissents. Of particular pertinence to this conclusion is the following excerpt from Pedrick: The fact that our “any evidence” rule has not always operated to the satisfaction of this court is manifest from the concurrent presence of the “reasonable, men" test, and the fact that there are cases in which the evidence, when viewed in its entirety and in its aspect most favorable to the party against whom the court would rule, so overwhelmingly favors one party that an opposite verdict must always be set aside irrespective of the number of times the case may be tried even though some evidence exists which supports the verdict and satisfies the “any evidence” rule. Under such circumstances there is no real reason for trial judges to continue to submit the case to successive juries. 37 Ill.2d at 504, 229 N.E.2d at 510. (emphasis supplied)

f2d_475/html/0135-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

German ORTIZ et al., Plaintiffs, Appellants, v. Honorable Rafael Hernandez COLON, Governor of the Commonwealth of Puerto Rico, et al., Defendants, Appellees. No. 73-1017. United States Court of Appeals, First Circuit. Heard Feb. 5, 1973. Decided March 28, 1973. Harvey B. Nachman, San Juan, P. R., with whom Dubon & Dubon, San Juan, P. R., and Nachman, Feldstein & Gelpi, San Juan, P. R., were on brief, for appellants. Peter Ortiz, Asst. Sol. Gen., with whom Francisco De Jesus Schuck, Secretary of Justice, and J. F. Rodriguez Rivera, Acting Sol. Gen., were on brief, for appellee, Honorable Rafael Hernandez Colon, Governor of The Commonwealth of Puerto Rico. Luis Munoz Rivera, pro se. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Appellants, on January 3, 1973, filed a complaint which sought to enjoin the Governor of Puerto Rico from complying with his statutory duty of appointing five members of the Municipal Assembly of San Juan; on the grounds that L.P.R.A., tit. 21, § 1152(b), which authorizes such action, results in an unconstitutional deprivation of equal protection in that the residents of San Juan, who elect twelve other members of the Municipal Assembly, suffer an illegal dilution of their votes in violation of the principle of “one person-one vote”. A request for a three-judge court was denied since, although a substantial constitutional question was presented, the district court found that the Commonwealth statute at issue “affects only the electorate of San Juan and not the rest of the Commonwealth.” Appellants’ claims were subsequently rejected by the court. We have decided that a three-judge court is required to hear appellants’ contentions, and consequently remand for a trial before such a court without expressing any opinion on the merits of the case. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (U.S. Jan. 17,1973). The statute governing us, 28 U.S.C. § 2281, requires the convening of a three-judge court when what is sought is an “injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . This has been said not to apply to a state statute which relates to a matter not “of statewide concern but [which] affects exclusively a particular district [in the state].” Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 811, 83 L.Ed. 1242 (1939). Later, the Court referred to convening a § 2281 court to hear challenges to “state law the application of which is statewide”, Cleveland v. United States, 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274 (1945), thereby seemingly focusing more on the application or impact of the state statute, rather than on the breadth of the concerns which it manifested. This view was reinforced in Moody v. Flowers, 387 U.S. 97, 101-102, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967), which indicated that a three-judge court was proper “only when a state statute of general and statewide application is sought to be enjoined . . . [and not when] state officers [perform] matters of purely local concern.” Where the “ ‘statute’ is one of limited application, concerning only a particular county”, id. at 104, 87 S.Ct. at 1549, a single judge should hear the cause. Most recently, certain language in Board of Regents v. New Left Education Project, 404 U.S. 541, 543, 92 S.Ct. 652, 654, 30 L.Ed.2d 697, if taken out of context, might be said to confirm the propriety of determining whether a “state statute [has] only a local impact” — as opposed to a statewide impact — as the touchstone for deciding the applicability of § 2281. The district court apparently relied solely upon the “application” or “impact” test and decided that appellants had not demonstrated any statewide application of § 1152(b). But we do not think that “local impact”, measured in terms of geography, is alone the decisive factor. As the reference in Moody v. Flowers, supra, 387 U.S. at 102, 87 S.Ct. 1544, to “purely local concern” suggests, single judge jurisdiction is premised not only upon local impact but upon the absence from the challenged state statute of a significant expression of statewide policy. “The crux of the [three-judge court] business is procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.” Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1940). In Alabama State Teachers Ass’n v. Alabama Public School & College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969), the Court summarily affirmed a three-judge court decision that a state statute directing the issuance of bonds for construction of one state university in one city did not contribute to racial segregation. In New Left, the Court left no doubt that Alabama State Teachers Ass’n had been properly before it, stating that “that action, although having a local impact, [was alleged to be] expressive of an official, statewide policy to maintain a racially identifiable, dual system of education. . . . [Thus] a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court . . . .’’New Left, supra, 404 U.S. at 544 n. 2, 92 S.Ct. at 654. There can be no doubt here that an analogous “official, statewide policy” to give all Puerto Ricans a voice in the affairs of San Juan is implicated in § 1152 (b). Reference to predecessors of the challenged statute reveals that Act No. 99, § 55 (1931), first established an appointed Board of Commissioners for the capital of Puerto Rico with a changeover to a fully elected board to occur in 1937. However, Act No. 10 (1936) amended the 1931 law to provide for a nine-member Board with five popularly elected members and four appointed by the Governor. In 1960 the present law was enacted whereby the Governor appoints five of seventeen members. The rationale underlying the current law was thus expressed by the Majority Leader of the Senate: “Now the decision has been that there be, in the municipality of San Juan, where the country’s general interests are represented, an indirect intervention by the collective will of the people, in some specific form, by determining the style in which its government shall be constituted. “If we think, Mr. Chairman, that the general fund of the country has to invest here copious amounts of money for the port development, that belongs to all of Puerto Rico, for the University facilities which belong to all of Puerto Rico, for the large traffic arteries needed for the economic progress of this country, for banking, for industry, for the moving control of this country throughout the developing process and growth thereof, and its life itself, there are sufficient reasons to have a voice from all the Puerto Rican citizenry, even though tinily represented, to be heard in regard to the manner in which the San Juan municipality is governed.” Diario de Sesiones, Vol. XIII, Tomo 4, p. 1715. The long history of the various types of government under which San Juan has been administered is indicative of the concerns of the Puerto Rican legislature that affairs of the capital be conducted to reflect the will of all Puerto Ricans because of the role played by that city in all aspects of life in the Commonwealth. Such concerns constitute a policy which cannot be said to be of only local import, whatever may be the statute’s application or impact. The judgment of the district court is therefore vacated, and the case remanded for reference to a three-judge court. Most recently, in 1971, House Bill 510, which provided for the popular election of all seventeen assembly members, passed the Puerto Rican House and Senate, but was vetoed by the Governor.

f2d_475/html/0137-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Hymen SCHLESINGER and David A. Hensler, Petitioners, v. Hon. Hubert TEITELBAUM, United States District Judge, et al., Respondent. No. 73-1091. United States Court of Appeals, Third Circuit. Submitted Feb. 1, 1973. Decided March 9, 1973. Hymen Schlesinger, Pittsburgh, Pa., for petitioners. Richard L. Thornburgh, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., for Teitelbaum. Loyal H. Gregg, of Jones, Gregg, Creehan & Gerace, Pittsburgh, Pa., for Point Towing, River Transp. and M. G. Transport. Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This case, where petitioners (a seaman and his attorney) request issuance of a writ of mandamus and prohibition, presents the issue of whether a district court may establish a schedule of contingent fees for use in personal injury actions brought by seamen, providing that such fees or lesser fees considered as guidelines shall be deemed to be fair and reasonable and that any fees in excess of such schedule shall constitute the exaction of unreasonable compensation in violation of the Code of Professional Responsibility of the American Bar Association (see below at page 7) unless a showing is made justifying higher compensation based on unusual circumstances. Compare Special Rule 4 Regulating Conduct of Attorneys of the First and Second Judicial Departments of New York, as reproduced at note 1 in Gair v. Peck, 6 N.Y.2d 97, 188 N.Y.S.2d 491, 160 N.E.2d 43, 45-46 (1959), cert. denied, 361 U.S. 374, 80 S.Ct. 401, 4 L.Ed.2d 380 (1960). This Petition for Writ of Mandamus and Prohibition (hereafter Petition) alleges that petitioner Hensler filed an action as a seaman for personal injuries against the corporate respondents in the district court on April 5, 1971. The amended complaint alleges that such petitioner, while complying with the command of the vessel on which he was employed, “was caused to slip on the barge and his foot and leg were badly mashed and injured when the same was caught between the vessel and the barge,” and that the injuries and disabilities suffered were due to the negligence of the corporate respondents and the unseaworthiness of the vessel. During the course of the trial, a compromise settlement of $17,500 was agreed upon by the parties and approved by the trial judge. Although the court was informed (paragraph 3 of the Petition) that counsel fees of one-third of the settlement had been agreed upon by Hensler and his attorney (petitioner Schlesinger), the trial judge stated that seamen were wards of the court and that “a fair fee in this case for representation of this [plaintiff], who is a seaman and ward of the court,” (11a) was the amount set forth in “a schedule that the court applies in seamen’s cases” (8a), which schedule is “a guideline which I see fit to follow” (12a). The schedule provided for 33%% for the first $10,000. of recovery and 25% above that amount on the next $90,000. of recovery (16a). The court rule (adopted in April 1971) provides that this schedule is to be the guideline “pending further study of the problem” (16a and paragraph 6 of Petition). The court added: “I have exercised my discretion and I have said what the fee is” (12a). In addition to the above schedule, Local Rule 20 of the district court provides for court approval of all settlements in actions to which a seaman is a party. Paragraph (d) of this Rule provides: “The court . . . shall make an order approving . . . any settlement entered into by the proctor or attorney and the seaman for payment of counsel fees . . . out of the fund created by the . . . settlement . . . ; or the Court may make such order as it deems proper, fixing counsel fees. . The court shall then order the balance of the fund to be paid to the seaman. . . . ” The order challenged by this Petition provided as follows : “AND NOW, to wit, this 11th day of December, 1972, in consideration of the plaintiff’s Petition for Compromise Settlement, in light of the general guidelines of this court regarding fees of counsel after the settlement of a seaman’s action, and with reference to the services rendered by plaintiff’s counsel in this particular seaman’s action, IT IS ORDERED that a reasonable and appropriate fee for plaintiff’s counsel in this action be and hereby is awarded in the amount of $5,208.33 (33% of $10,000.00 plus 25% of $7,500.00). IT IS FURTHER ORDERED that the $625.00 which represents the difference between the counsel fee allowed herein and the fee which the plaintiff by prearrangement agreed to pay his counsel (33% of the amount of recovery) shall be and hereby is placed in escrow with the Clerk of Court pending resolution of the plaintiff’s counsel’s contention that he is absolutely entitled to the fee agreed to between him and his client. IT IS FURTHER ORDERED that accordingly the Petition for Compromise Settlement be and hereby is granted.” At the hearing held November 13, 1972, on the application of petitioners to use a larger percentage of the settlement for counsel fees than is permitted by the court’s tentative guidelines, petitioners produced no time records to justify the higher fee provided for in the contingent fee agreement and no facts showing the fee produced by the guidelines to be unfair have been alleged in this Pétition. It is well recognized that the court has the power to set fees in cases involving persons of presumed incapacity to look after their affairs intelligently. See McKinnon, Contingent Fees for Legal Services, pp. 23 & 44; Cappel v. Adams, 434 F.2d 1278, 1279-1280 (5th Cir. 1970); United States v. Preston, 202 F.2d 740 (9th Cir. 1953) — Indian tribes not allowed to enter contingent fee contracts for certain claims. In the Cappel case, supra, Judge Wisdom used this langauge at pages 1279-1280 of 434 F.2d: “ . . . Judge Murrah of the Tenth Circuit has well stated the applicable rule: where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court having jurisdiction of the subject matter of the suit has power to fix the attorney’s compensation and direct its payment out of the fund. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 253. [Citing cases.] The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 254; Monaghan v. Hill, 9 Cir. 1944, 140 F.2d 31, 34. There is no such showing in this case. “Splawn does not dispute the validity of these principles, but contends that they are inapplicable in a case in which the attorney has a valid contract fixing his fee. The action of the district court in these circumstances, Splawn argues, interferes with the right of the attorney and his client to establish the attorney’s fee by mutual agreement, ‘without being restrained by the law.’ We cannot agree. “. . . [T] he right to contract for a contingent fee has never been thought to be unrestrained. . . . Contingent fee contracts have been especially subject to restriction when the client is a minor, largely because of the obvious possibilities of unfair advantage. Moreover, courts have refused to enforce contingent fee arrangements when the amount of the fee seemed excessive. . “ . . . Judge Murrah did not condition his holding in Garrett v. McRee, supra, upon the non-existence of an express contingent fee arrangement ; indeed, it appears to have been argued specially that the attorneys involved had valid one-third contingent fee contracts.” As recently as 1971, the Supreme Court of the United States has said in United States Bulk Carriers v. Arquelles, 400 U.S. 351, 355, 91 S.Ct. 409, 412, 27 L.Ed.2d 456 (1971): “Seamen from the start were wards of admiralty. . . . The federal courts remained as the guardians of seamen, the agencies chosen by Congress to enforce their rights — a guardian concept which, so far as wage claims are concerned, is not much different from what it was in the 18th century.” In Isbrandtsen Co. v. Johnson, 343 U.S. 779, at pp. 782, 783, 784, 72 S.Ct. 1011 at pp. 1014, 1015, 96 L.Ed. 1294 (1952), the court had said: “Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727-735, 63 S.Ct. 930, 932, 936, 87 L.Ed. 1107 and notes. ‘Our historic national policy, both legislative and judicial, points the other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.’ Garrett v. Moore-McCormack Co., 317 U.S. 239, 246, 63 S.Ct. 246, 251, 87 L.Ed. 239. ‘[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a “ward of the admiralty,” often ignored and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.’ [Citing cases.] ‘The ancient characterization of seamen as “wards of admiralty” is even more accurate now than it was formerly.’ TCiting cases.] “Congressional legislation now touches nearly every phase of a seaman’s life. It concerns itself with his personal safety, comfort and health in many ways not necessary to review here. It deals specifically with his shipping articles and the payment to him of his wages.” Also, in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of such members, including the charges of contingent fees. See Gair v. Peck, supra; EC2-20, DR2-106(A) & (B)(8), EC5-7, and DR5-103(A) (2) of Code of Professional Responsibility of ABA; Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 867 (1959), where the court said “Contingent fees . . . are a special concern of the law . . . ”; New Jersey cases cited in McKinnon, supra, at note 61 on page 60, where the author states in the text (page 44): “Some courts have, upon objection by the client to payment of a contingent fee, applied the usual stringent tests for contracts made between a fiduciary and cestui que trust. The attorney has the burden of showing absence of fraud and the reasonableness of the contract. In some cases the standard appears to be similar to that applied to a fiduciary’s contracts of other types. Other decisions seem to reflect a special concern with contingent fee contracts. In these, courts tend to review the fairness of the contract even if the evidence for reliance by the client to the attorney as to terms of the contract is quite thin.” Rule 83 of the Federal Rules of Civil Procedure grants the district courts the power to “make and amend rules governing its practice,” and the Supreme Court of the United States has recognized the inherent power of such courts to take appropriate action to secure the just and prompt disposition of cases. See Link v. Wabash Railroad Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Ex parte Peterson, 253 U.S. 300, 314, 40 S.Ct. 543, 64 L.Ed. 919 (1920). The district court had power to adopt the above-described rule of April 1971 insofar as it applies to a seaman’s personal injury action such as the suit of petitioner Hensler. On the facts presented by this record, we hold that petitioners cannot rely simply on an allegation of the existence of a contingent fee agreement, which may have been dated after the establishment of the court’s tentative guidelines, to nullify such guidelines as “discriminatory, ulta vires and violative of due process” as a denial of petitioners’ contract rights (par. 10 of Petition). As noted above, petitioners were given a hearing in the district court on their contention that plaintiff’s counsel was entitled to payment in accordance with the contingent fee agreement and no time records or other evidence supporting the fairness of that contingent fee agreement was supplied. Furthermore, no allegations or exhibits to the above-mentioned Petition filed in this court show the fairness of the $5,833.33 fee claimed by such counsel, even though the petitioners have the burden of proof in this application for a writ of mandamus and prohibition. See Solomon et al. v. Continental American Life Insurance Company et al. and Coolahan, 472 F.2d 1043, Opinion filed Jan. 23, 1973 (3d Cir.). There is no showing that the district court rule does any more than establish guidelines for reasonable fees in a case such as this, and petitioners had the opportunity to place in the record any special circumstances justifying the fee claimed by the attorney. Our holding in this case is narrowly limited solely to the situation presented by this record. It is suggested that, in its regulation of seamen’s, as well as other, contingent fees by use of guidelines, the district court should give the members of its bar at some point, preferably as soon as possible since the guidelines have been in force for almost two years, an opportunity to present their views and factual data on such guidelines. Compare United Transportation Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971), and cases there cited; M. Schwartz & J. Mitchell, “An Economic Analysis of the Contingent Fee in Personal Injury Litigation,” 22 Stanford L.Rev. 1125 (1970). The petition will be denied. . The record does not make clear whether the contingent fee agreement between the petitioners was executed before or after the establishment by the district court of its guideline schedule (adopted on 4/20/71) of fees in personal injury actions for seamen (16a). . Paragraph 8 of the Petition states that “the amount of $625.00 represent [s] the difference between the fee agreed upon between plaintiff and his attorney, $5833.33, and the fee fixed by the Court, $5208.33, pending resolution of the- controversy (19a).” . This is a Report of the American Bar Foundation, published by Aldine Publishing Company, Chicago (1964). . The court acts in such cases under its equity jurisdiction over fiduciary relations. . In Gair v. Peek, supra, the court said at pages 51 & 53 of 160 N.E.2d: “The rule-making power is not limited to prescribing only for the specific ease after the event. The idea that imposition by lawyers on their clients, oppressive and unconscionable fee agreements or similar conduct is beyond the rule-making power of the court has no shadow of foundation. The idea is frivolous that disciplinary power over attorneys is unrelated to the exaction of excessive fees. Nor are the Appellate Divisions so helpless as to be denied the power of censure or of taking more incisive disciplinary action to curb the practice of excessive exactions against clients merely for the reason that the client himself has not elected to contest payment of the fee. The duty and function of the Appellate Divisions to keep the house of law in order does not hinge upon whether clients, worn down by injuries, delay, financial need and counsel holding the purse strings of settlement, knowing little about law or lawyers, have had the stamina to resist in court by hiring other lawyers to be paid out of the other half of the recovery for defending against the first lawyer. “ . . .It lay within the competence of the [Court] to adopt [the] rule . . . as a procedural aid in rendering effectual its disciplinary power over attorneys in the case of unlawful contingent fees. The so-called fee schedule merely determines where the burden of proof shall lie in the determination of the censurability of contingent fees in the individual case. Neither plaintiffs nor any segment of the Bar have a vested interest in the exaction of unlawful fees, which is all that this rule is fashioned to prevent, nor can they be heard to say that the Appellate Division is precluded from taking preventive measures for the reason that the client has decided not to litigate the fee. The contention that this is a fee-limiting measure is reduced to an argument that lawyers cannot be disciplined for accepting fees which would be uncollectible in court, if the clients defended on the ground that they are so out of proportion to the value of the work as to be unconscionable.” . Also in McKinnon, supra, at page 413, this language is used: “ . . . the general view in all jurisdictions seems to be that this right to make fee contracts is limited by the basic power of courts to prevent unprofessional conduct by its officers and the power of the legislature to regulate fees in the public interest.” . See, also, Pennsylvania cases supporting the disciplinary power of the court over the members of its Bar cited in In Re Schlesinger, 404 Pa. 584, 172 A.2d 835, 856 (1961) — dissenting opinion.

f2d_475/html/0142-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Simeon Toba ABIODUN et al., Plaintiffs-Appellants, v. MARTIN OIL SERVICE, INC., et al., Defendants-Appellees. No. 72-1501. United States Court of Appeals, Seventh Circuit. March 14, 1973. William J. Harte, Chicago, Ill., for plaintiffs-appellants. Reuben L. Hedlund, Roger Taylor, Bradley D. Steinberg, Chicago, Ill., for defendants-appellees. Before PELL, STEVENS and SPRECHER, Circuit Judges. PER CURIAM: Plaintiffs have appealed from the entry of summary judgment in favor of the defendants as to alleged violations of the Thirteenth Amendment’s prohibition against involuntary servitude and from the dismissal of the complaint as to all other claims. The defendants have moved to affirm without oral argument, pursuant to Circuit Rule 22. We have reviewed the record and briefs and are satisfied that the issues presented on appeal are insubstantial. Plaintiffs, four Nigerian citizens, signed contracts with Alpha-Niger Enterprises providing for training in the United States with Martin Oil Company and subsequent employment in Nigeria with Alpha-Niger. The contracts were signed by defendant, Harry Ayoade Akande, on behalf of Alpha-Niger. Plaintiffs allege that Akande represented himself as an agent of Martin Oil Service, Inc., with authority to select four or five persons who would be trained as executives in the United States and would then return to Nigeria to operate Martin Oil’s enterprises there. After the plaintiffs arrived in the United States and discovered that they were to be trained as service station operators and not as executives they filed this suit against Martin Oil Service, an Illinois corporation, two of its officers, the executors of the estate of one of the major shareholders, and Akande, a citizen of Nigeria. Plaintiffs have advanced several theories to sustain federal jurisdiction. First, they claim jurisdiction under 28 U.S.C. § 1343 on the theory that the defendants’ conduct subjected them to peonage and involuntary servitude in violation of the Thirteenth Amendment and discriminated against them on the basis of race and national origin. A second jurisdictional claim, under 28 U. S.C. § 1350, is based on the theory that the defendants’ conduct constituted a tort in violation of the law of nations. A third jurisdictional allegation contained in the complaint, 8 U.S.C. § 1329, is not argued in plaintiffs’ brief on appeal. Finally, plaintiffs argue that the district judge should have exercised pendant jurisdiction over certain ancillary claims, under the doctrine developed in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The plaintiffs argue that summary judgment was improper on the Thirteenth Amendment claim because they were denied adequate discovery and because material issues of fact remained unresolved. Rule 56, F.R.Civ.P. The record before us conclusively refutes these claims. The complaint was filed March 11, 1971, and discovery was initially ordered closed by November 30, 1971. On the plaintiffs’ motion, the time for completion of discovery was extended to December 30, 1971, and again until January 6, 1972. According to the plaintiffs’ motion of November 19, 1971, seeking to extend discovery for an additional six months, the only discovery that they had undertaken to that date was a one-day deposition of Akande which was not completed. Prior to the close of discovery, however, the plaintiffs deposed eleven employees of the defendant Martin Oil and the defendant Akande; plaintiffs also gave over 2,000 pages of deposition testimony, and participated in a full exchange of documents. The motion for summary judgment was filed on January 4, 1972, and was supported by several affidavits and citations to deposition testimony. The plaintiffs admit that they failed to submit any affidavits or other documentary material in opposition. To avoid summary judgment on this ground, pursuant to Rule 56(e), they argue that the denial of their motion for extended discovery prevented them from pursuing discovery in Nigeria, which discovery would reveal information regarding the motivation of the defendants in undertaking the training program and the understanding of Nigerian officials with respect to the course of events. See Rule 56(f). However, in view of the amount of time which had already been afforded the plaintiffs, their delay in beginning discovery, and the vague and speculative nature of their assertion that further discovery in Nigeria would develop genuine issues of material fact, we find no error in the district judge’s refusal to further extend the time for completion of discovery. Cf. First National Bank v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). Furthermore, nothing in the papers before the district judge on the motion for summary judgment presented a genuine issue as to any material fact so as to preclude summary judgment on the claim that plaintiffs were coerced to work against their will. The complaint alleged that the plaintiffs were in the United States “under a condition in the nature of peons performing involuntary servitude” because they could no longer find employment in Nigeria, their former jobs were unavailable, and they were required to reimburse Martin Oil for travel and other expenses. However, it was unrefuted that three of the plaintiffs are no longer employed by Martin Oil, that the fourth chose to remain although stating in his deposition that he was not prevented from leaving, that Martin Oil had written off any indebtedness, and that all had obtained changes in their visa category to that of “foreign student.” None sought work from any Nigerian employer other than their former employer, or requested the assistance of friends or relatives in Nigeria, or registered for work with any agency, or searched want ads in Nigeria. Plaintiffs also did not dispute defendants’ claim that they were paid union scale wages. Clearly the district judge was correct in his conclusion that there were no genuine issues of material fact on the Thirteenth Amendment claim. Plaintiffs also assert jurisdiction under 28 U.S.C. § 1343, on the theory that they were discriminated against because of their status as aliens and members of a particular ethnic group, in violation of 42 U.S.C. § 1981. However, the complaint fails to allege any specific acts of discrimination based on race or national origin and is subject to dismissal on this basis. See, e. g., Kamsler v. Zaslawsky, 355 F.2d 526, 527 (7th Cir. 1966). Plaintiffs’ brief merely asserts that the entire contractual connection involved in this case can be viewed as a sophisticated form of discrimination, designed to exploit individuals handicapped due to their national origin. We find no error in the dismissal of the § 1981 claim. Plaintiffs’ next jurisdictional allegation is based on 28 U.S.C. § 1350, which gives the district courts jurisdiction of civil actions by aliens for a tort only, committed in violation of the law of nations or a treaty of the United States. On its face, plaintiffs’ claim is for breach of contract. To avoid this conclusion, plaintiffs assert that the elements of fraud and deceit in the defendants’ conduct make this a claim sounding in tort. Even if this is a correct characterization of their claim, there is simply no basis for claiming a violation of the law of nations. Plaintiffs advance two arguments in this regard. First, they argue that transporting persons from one country to another and forcing them to work against their will violates the law of nations. This is merely an attempt to restate the Thirteenth Amendment claim which we have found to be without merit. Secondly, they argue that fraud is considered immoral and unlawful by all nations and thus is a violation of the law of nations. Although the concept of “law of nations” is an elusive one, there is nothing in the authorities cited by the plaintiffs that would support such an expansive interpretation of federal court jurisdiction under 28 U.S.C. § 1350. See Abdul-Rahman Omar Adra v. Clift, 195 F.Supp. 857 (D.Md.1961) and Lopes v. Schroder, 225 F.Supp. 292 (E.D.Pa.1963). In Lopes, the court concluded that the phrase “in violátion of the law of nations,” “means, inter alia, at least a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” Supra at page 297. This case is totally unlike those cases in which violations of the “law of nations” have been held actionable. See Moxon v. Fanny, 17 Fed.Cas. p. 942, No. 9,895 (D.Pa.1793); Bolchos v. Darrel, 3 Fed.Cas. p. 810, No. 1,607 (D.S.C.1795); O’Reilly DeCamara v. Brooke, 209 U.S. 45, 28 S.Ct. 439, 52 L.Ed. 676 (1908); Khedivial Line, S.A.E. v. Seafarer’s International Union, 278 F.2d 49, 52 (2nd Cir. 1960). Finally, the plaintiffs argue that the district court erred in refusing to exercise pendant jurisdiction over the contract claims. The Gibbs case, supra, states clearly that “pendant jurisdiction is a doctrine of discretion, not of plaintiff’s right,” and that “certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdiction sense, the state claims should be dismissed as well.” Supra at page 726, 86 S.Ct. at page 1139. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), cited by plaintiffs for the proposition that the Supreme Court has retreated from the rigid language in Gibbs regarding dismissal of federal claims before trial, dealt with a dismissal for mootness and not insubstantiality. We are convinced that there was no abuse of discretion in refusing to exercise pendant jurisdiction, after the disposition of the civil rights and law of nations claims. Accordingly, the motion to affirm without oral argument is granted and the judgment of the district court is affirmed.

f2d_475/html/0146-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

M. M. MATTHEWS, Plaintiff-Appellee-Cross Appellant, v. DREW CHEMICAL CORPORATION, Defendant-Appellant-Cross Appellee. No. 72-1838. United States Court of Appeals, Fifth Circuit. March 9, 1973. As Modified on Denial of Rehearing and Rehearing En Banc April 24, 1973. William A. Gillen, Tampa, Fla., for appellant. W. H. Faulk, Jr., David A. Maney, Tampa, Fla., Jack W. Floyd, Greensboro, N. C., for appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. GOLDBERG, Circuit Judge: This is a diversity action that was brought by appellee, M. M. Matthews, to redress the allegedly wrongful termination on June 25, 1968 of his employment with appellant, Drew Chemical Corporation. Drew Chemical sought to justify its having fired Matthews by showing that on May 10, 1968, he had signed a contractual “memorandum of employment” that in either of two alternative ways prevented him from prevailing. First, the contract was alleged to have given both parties the right to terminate employment by merely giving notice to the other party. Secondly, Drew Chemical insisted that the contract required Matthews to submit work reports “as required," that Matthews explicitly refused to obey a direct order to submit his reports to a named district manager, and that therefore it was Matthews who breached the employment contract, not Drew Chemical. At the trial below Matthews did not dispute the existence of the written “memorandum of employment.” Rather, he based his breach of contract claim on additional oral agreements that were allegedly entered into during February of 1966, well before the writing was signed, and that allegedly remained in effect at all times thereafter. Despite Drew Chemical’s insistence that an express integration clause contained in the written agreement barred the introduction of parol evidence regarding the terms and conditions of Matthews’ employment, such evidence was admitted. Testimony was received that indicated (1) the written termination clause had a previously agreed upon, oral, “for cause” requirement appended to it, and (2) the clause requiring Matthews to report “as required” had a similar prior appendage, an oral agreement that Matthews could always submit his reports to a certain company executive. Although the usual pre-trial procedures were followed in the court below, neither party saw fit to advise the court of the impending and clearly foreseeable problem regarding the admission of parol evidence in the face of a written document. When the evidence was offered, the trial judge was thus forced to interrupt the trial, send the jury from the courtroom, hear argument, and then rule from the bench on the admissibility of the parol evidence. Matthews’ brief on appeal characterizes the trial judge’s ruling and the subsequent trial action as follows: “Having determined that the writing, with respect to the intent of the parties, was equivocal, the trial court permitted oral testimony to determine what was that intent. The trial court then correctly determined that it was not the intent of the parties to embody their entire agreement in that writing. Having determined that it was not the intent of the parties to embody the entire agreement in the writing . . . the trial court submitted to the jury the responsibility of determining what was the agreement of the parties, taking into consideration not only the writing but also the testimony of the parties, as to the nature and extent of the agreement. The jury found for Matthews. Each party raises several issues on this appeal, but we need reach only one. If notwithstanding any prior oral agreements the written termination clause gave Drew Chemical the power to terminate Matthews’ employment as it did, then as a matter of law Matthews cannot prevail on his breach of contract claim. We hold that on the facts of this case the written termination clause must control and that Drew Chemical is therefore entitled to judgment in its favor. We begin our analysis by recognizing that even though a writing declares on its face that it is “integrated,” circumstances may well exist that justify receiving parol evidence to determine what the parties intended the document to be or mean. Regarding partial integrations, for example, the law is clear: “The parol evidence rule does not preclude the introduction of evidence showing a prior or contemporaneous agreement if the writing, or writings, constitute only a partial integration of the agreement between the parties. That is, if the writings are but a partial integration of the agreement, the rest of the agreement, or collateral agreements, may be shown through parol. “It follows, therefore, that where the issue is fairly raised by the evidence, the court must preliminarily and initially determine whether the writings in question were intended to, and do, constitute a complete integration of the agreement between the parties. For the purpose of making that preliminary determination, the parol evidence rule is inapplicable. Walley v. Bay Petroleum Corp., 5 Cir. 1963, 312 F.2d 540, 543-544. See also South Florida Lumber Mills v. Breuchard, 5 Cir. 1931, 51 F.2d 490. As a general proposition, then, there can be no error in a trial judge’s allowing parol testimony into evidence in the first instance. See, e. g., Ivy H. Smith Co. v. Moretrench Corp., 5 Cir. 1958, 253 F.2d 688 (writing itself stated that it “contains all of the agreement”). Thus, we cannot say that it was improper for the judge below to have heard parol evidence regarding the intent of the parties as to whether this document was to be a total integration of Matthews’ employment contract. But the matter cannot be put to rest by making that determination. The real issue in these cases is whether the parol evidence could permissibly be used during the trial in the manner in which it was employed. Here, Matthews was allowed to convince the jury that, in light of their prior oral agreement, when the parties wrote “Employment may be terminated at any time by either party to this Agreement giving notice to the other party,” they were really agreeing that “Employment may be terminated at any time by either party to this agreement giving notice to the other party, but employer shall have the power to exercise this right to terminate only if he can show good cause for terminating employee’s employment.” We find that it was error to allow the parol evidence to be put to this use. The parol evidence rule is a matter of substantive law, and it clearly prohibits the use of prior or contemporaneous agreements to alter the terms of or add inconsistent provisions to a written contract: “Undoubtedly, the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if, under the circumstances of the particular case, it may properly be inferred that the parties did not. intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to .a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties [as to that event], and the extent and manner of their undertaking, was reduced to writing.” Seitz v. Brewers’ Refrigerating Machine Co., 1891, 141 U.S. 510, 517, 12 S.Ct. 46, 47, 35 L.Ed. 837, 840; Squires v. Kilgore, 1926, 92 Fla. 1001, 111 So. 113; Waters v. Southern Asphalt & Constr. Co., 1914, 67 Fla. 440, 65 So. 457; McNair & Wade Land Co. v. Adams, 1907, 54 Fla. 550, 45 So. 492. See also Asphalt Paving, Inc. v. Ulery, Fla.App. 1963, 149 So.2d 370. The Supreme Court’s decision in Seitz v. Brewers’ Refrigerating Machine Co., supra, makes clear that parol evidence cannot be used to vary one of the written terms of a partially integrated document where the particular term is “complete and perfect on its face, without ambiguity . . .” 141 U.S. at 517, 12 S.Ct. at 48, 35 L.Ed. at 840. We hold that on the facts of this case, the written contract, be it characterized as a total or only a partial integration, unambiguously defined the sole borders of Drew Chemical’s contractual power to terminate Matthews’ employment. Even where parol evidence has been admitted to show some general or specific intent, that evidence may not be used to change the meaning of whatever unambiguous terms do appear in the writing. The written contract answers the question “How may either party terminate this relationship?” by unequivorcally saying “By giving notice.” No mention or intimation of additional requirements is made, and it can hardly be said to be consistent with that “answer” to add “and by proving that good cause exists.” As Florida states its rule: “The chief and most satisfactory index to determine the intent of the parties to an agreement as to whether they intended their written contract to be a complete and final statement of the whole transaction is whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element.” Greenwald v. Food Fair Stores Corp., Fla.App.1958, 100 So.2d 200, 202. If a contract provides in writing for a term of “Ten years from date” but is silent as to salary, the salary could be supplied by parol — but the term for which the salary is to be paid could not be shown to be something inconsistent with the ten years. The conditions of termination are here unambiguously written, without allegations of duress, uninduced by fraud, and not with omissions due to mistake. Although under certain conditions parol evidence may be used to supplement a partially written but unintegrated contract, such testimony cannot disintegrate the unimpeachable portions of the written partial integration. An unintegrated written contract having a positive element or term cannot be negatived by parol proof of a contradictory and inconsistent positive that was existent before the writing was signed. The case is reversed and remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. . In addition to the diversity claim, Matthews also alleged a cause of action under the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. A jury verdict adverse to Matthews was returned on that portion of the suit, however, and he has not appealed from that part of the judgment. . In the years immediately preceding Matthews’ dismissal, several such documents were signed. Bach is labelled “MEMO OF EMPLOYMENT AGREEMENT” and sets forth miscellaneous features of the relationship between the parties including, inter alia, specifically captioned terms regarding the following: remuneration, bonus, expenses, duties, territory, equipment, reports, and termination of employment. The terms with which we are here concerned remained essentially the same during the years in question. . The document provided as follows : “Employment may be terminated at any time by either party to this Agreement giving notice to the other party.” . The document provided as follows: “Employee agrees to furnish Company with daily reports covering his work; a weekly recap sheet; and other routine reports as required.” . Matthews admits that he so refused to comply. Indeed, on May 25, 1968, Matthews advised Drew Chemical by letter that he considered the order directing him to send the reports and other paperwork to the new district manager to be improper, see note 9 infra, and added: “ . . .1 will not work for or under [the new district manager] at any time. . I do hope that you will not terminate me, but I cannot work for or under [him]. I feel very strong on this point. I will just have to be terminated if this point is forced, for I have come to' a point of no return on this now . The dispute regarding where Matthews should submit his work reports had precipitated a series of letters to and from the company. In response to the letter partially reproduced in note 5, supra, Drew Chemical advised Matthews that if he did not retract the letter within one week, the company would consider it his resignation and would arrange for an immediate severance. Matthews chose not to comply and Drew Chemical advised him that it was terminating his employment. . The document provided as follows: “This Agreement supersedes any prior existing Agreement or understanding, and it will be reviewed annually.” . Matthews testified that in February of 1966 he was orally promised that he could remain with Drew Chemical until retirement age “so long as he did not give Drew cause for his discharge.” . Matthews testified that in February of 1966 he was orally promised that he would always have a special reporting privilege. The dispute arose when the company ordered Matthews to submit his reports to the man who had replaced him as district manager, a man whom Matthews had hired and trained. Matthews refused to submit his reports to the new manager and chose instead to stand on his assertion that the company had specifically promised him that he could always submit his reports to a different person. . The commentators agree that parol evidence problems should be viewed as having these two separate steps. E. g., IX Wigmore on Evidence §§ 2430, 2431; Simpson on Contracts § 65; 4 Williston on Contracts §§ 609, 618, 629, 633. See also Restatement of Contracts § 238(a). . IX Wigmore on Evidence § 2400. See also Restatement of Contracts § 237, Comment a. . It appears that Matthews’ suit also included a claim, for commissions earned prior to his termination, which, if meritorious, could justify a recovery notwithstanding our holding here.

f2d_475/html/0151-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Stark RITCHIE, Plaintiff-Appellant, v. Ralph LANDAU, Defendant-Appellee. Docket No. 72-1672. United States Court of Appeals, Second Circuit. Argued Nov. 30, 1972. Decided March 14, 1973. Vincent L. Broderick, C. Douglas Webb, Forsyth, Decker, Murray & Broderick, New York City, for plaintiff-appellant. Guy C. Quinlan, Caesar L. Pitassy, Royall, Koegel & Wells, New York City, for defendant-appellee. Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges. WATERMAN, Circuit Judge: Plaintiff-appellant, a lawyer, commenced this diversity action in the United States District Court for the Southern District of New York by filing a complaint on November 18, 1970, in which he named two defendants, first, Ralph Landau, a 43% stockholder in Halcon International, Inc., its president and its chief operating officer, and, second, Halcon International, Inc. (Halcon) a Delaware corporation engaged in the petrochemical business. Plaintiff set forth in the complaint that he had been employed by Halcon, first in its legal department and later as its general counsel, and that he had executed a two year renewal of his employment contract with it because Landau, both individually and as president of Halcon, had promised him a substantial bonus if Halcon obtained recoveries from certain Italian corporations with which Halcon had licensing agreements. Plaintiff set forth that through his labors and pursuant to his advice Halcon had initiated a suit in the Southern District of New York against these Italian corporations seeking damages for their violations of Hal-con’s licensing agreements with them, and the alleged bonus was to be paid if plaintiff was successful in persuading the United States Department of Commerce, Office of Export Control, to issue a “charging letter” against the Italian corporations which Halcon was claiming had reexported Halcon’s petrochemical processes to Czechoslovakia in violation of both the United States export control laws and the licensing agreements between the Italian corporations and Hal-con. The “charging letter” was issued and, fourteen months later, partially as a result of plaintiff’s efforts, Halcon recovered $8,500,000 from .these Italian concerns in an out of court settlement. No satisfactory bonus having been offered or paid to him and his employment having been terminated, Ritchie sued both defendants in both contract and quantum meruit, claiming the total damages of $2,112,000 in each count, asserting that this was a fair sum in view of Halcon’s $8,500,000 recovery against the Italian concerns. After the complaint was filed defendant Halcon commenced a proceeding in the American Arbitration Association pursuant to an arbitration clause in plaintiff’s employment contract with Halcon, seeking a declaration that plaintiff was not entitled to the bonus for which he had brought suit in district court. Court proceedings as to Halcon were ordered stayed until arbitration had been had. Concurrently, Landau filed a motion to dismiss the complaint as to him, and this motion was held in abeyance, on consent of the parties, pending arbitration. Plaintiff then submitted his claim against Halcon to the arbitration panel. He counterclaimed for the total bonus of $2,112,000 which he had demanded in his district court complaint. After three days of detailed proceedings, the arbitrators reduced plaintiff’s claim and awarded him aboUtrs of $200,000 with costs of $5450 “in full settlement of all claims and counterclaims submitted to this Arbitration.” On plaintiff’s motion this award was confirmed and reduced to judgment in the New York State Supreme Court, and Halcon paid the judgment. Thereupon the counts against Halcon in the district court action were dismissed, leaving the counts against Landau in his individual capacity awaiting decision upon Landau’s motion to dismiss them. Before finally ruling on that motion the court permitted Ritchie to file an amended complaint. In the amended complaint, Ritchie, alleging the same facts which were alleged in the original complaint and which were presented to the arbitrators, sought from Landau the same damages of $2,112,000, reduced by the $200,000 paid by Halcon. In addition to these restated counts in contract and quantum meruit, Ritchie added an additional count in which he alleged that Landau had fraudulently and deceitfully induced him to execute the two year extension of his employment contract on the promise that he would be paid a substantial bonus — a promise which Ritchie alleged' Landau never intended to keep — and, in addition to his claim for $1,912,000 compensatory damages, he additionally sought in this new cause of action $500,000 in punitive damages and $99,000 for attorneys’ fees and litigation expense. Defendant Landau moved, pursuant to Rules 12(b)(6) and 56 of the Fed.R. Civ.P., to dismiss the amended complaint. The trial judge found that the realleged contract and quantum meruit claims relative to the bonus issue had already been litigated and reduced to judgment in the arbitration proceeding, and he held that by the application of the doctrine of collateral estoppel plaintiff was therefore estopped from reasserting them a second time. He also dismissed the post-arbitration cause of action sounding in fraud, in which Ritchie had alleged that he had been fraudulently induced to extend his employment contract, for he found that this newly pleaded cause of action was only a semantic ploy to circumvent the collateral estoppel defense. In a diversity action in federal court the state law is controlling on the question of the applicability of the collateral estoppel doctrine to a given set of circumstances. Breeland v. Security Insurance Co. of New Haven, Conn., 421 F.2d 918 (5 Cir. 1969); Priest v. American Smelting and Refining Company, 409 F.2d 1229 (9 Cir. 1969); Graves v. Associated Transport, Inc., 344 F.2d 894 (4 Cir. 1965); Blum v. William Goldman Theatres, 174 F.2d 914 (3 Cir. 1949). After a careful review of the entire record and after applying the New York law of collateral estoppel to the facts as pleaded by plaintiff and as developed on the record, we conclude that the judgment below should be affirmed. In this appeal defendant Landau raises the defense of collateral estoppel against Ritchie on the ground that Ritchie has already had a fair opportunity to litigate his claim for his bonus in the arbitration proceeding. At that time Ritchie testified extensively on his own behalf and he also cross-examined Landau and other hostile witnesses. In fact, Ritchie appears almost to concede that under the present New York rule which has relaxed an older more rigid concept of “mutuality,” Landau is not precluded from raising the collateral estoppel defense despite the fact that technically he was not a named party to the arbitration proceeding which had been initiated by the corporate defendant. In order to avoid the fatal effects of the defense, however, Ritchie now argues that the claim presented to the arbitrators was for only a part of the bonus he had sought, i. e., a part owed by Halcón, and that he has never received a fair hearing on the other part, a bonus portion allegedly owed by Landau personally. This belated contention is belied by the clear state of the record. At no time prior to the arbitration proceeding, or during the arbitration proceeding, did plaintiff contend that the bonus claim was divisible into two parts and that only one of them was being arbitrated. Although the original complaint filed in district court contained four counts, two against Halcon as a corporate defendant and two against Landau individually, the clear implication of the complaint is that Halcon and Landau are being sued for the same bonus that Landau allegedly orally promised Ritchie. Indeed, the amount of relief requested in each of the four counts is $2,112,000, the total amount of the alleged bonus — not a portion thereof. Likewise, the complaint submitted by Ritchie to the panel of arbitrators does not indicate that he is seeking an award of only a part of his claim. If Ritchie had been presenting the arbitrators with only “part” of the total relief he desired, his counterclaim would surely have contained explicit language to this effect, and the award which he demanded would have been for a proportionate part of the total, for only the corporation’s share of the $2,-112,000. Moreover, our detailed examination of the transcript of the arbitration proceedings uncovers nothing which suggests that the arbitrators believed they were adjudicating only part of the bonus claim. No testimony was introduced by either party on the issues of any “partial or proportional liability,” or, if any bonus were owed to Ritchie, what part of it was owed by Halcon and what part by Landau individually. The plain language of the arbitrator’s award seems dispositive of this issue. It states: “This Award is in full settlement (emphasis added) of all claims and counterclaims submitted to this Arbitration.” The counterclaim sought an award of $2,112,000 and the Arbitrators disposed of it by allowing $200,000. We find no merit to plaintiff’s contention that there lurks within the bonus claim' an unidentified proportionable divisibility between Halcon and Landau. By the amended complaint plaintiff seeks to litigate the entire bonus issue a second time. However, he has had a full and fair opportunity to litigate it, and we agree with the court below that he cannot now relitigate it. Even if it were to be concluded that there is a “failure of mutuality” here — a . point about which we have serious doubt but need not decide- — under New York law Landau’s defense of collateral estoppel can prevail despite the fact that he was not a party to the arbitration proceeding in an individual capacity. The New York Court of Appeals has referred to the doctrine of mutuality as a “dead letter.” B. R. De Witt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E. 2d 195 (1967). In determining whether one not a party to a prior proceeding can successfully raise the defense of collateral estoppel as to an issue which had been litigated in that prior proceeding-, New York State has adopted the “full and fair opportunity” test. Under this test the defense is available if the party against whom it is raised has had a. full and fair opportunity to contest the issue in a prior action and the issue which was decided in the prior action is identical to the issue which is to be decided in the action in which the defense is raised. Schwartz v. Public Adm. of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5 Cir. 1971)), cert. denied, 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1972). Here the defense is available to Landau. Ritchie was provided a fair opportunity to litigate his entire bonus claim in the arbitration proceeding, he did so, the award of the arbitrators reduced the amount he sought but gave him a recovery, the award was confirmed by the Supreme Court of New York on November 23, 1971, and the award has been paid in full. More than this the judicial process is not required to provide to disappointed claimants. In a similar situation to the present one we have held that one not a named party to an arbitration proceeding can successfully rely in defense of a court action upon the collateral estoppel doctrine when the party suing him had been given a full opportunity to litigate the issue in the prior arbitration proceeding. Goldstein v. Doft, 236 F.Supp. 730 (SDNY 1964), aff’d 353 F.2d 484 (2 Cir. 1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1226, 16 L.Ed.2d 302 (1966); see Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E. 2d 97 (1956). Although plaintiff attempts to distinguish Goldstein v. Doft, supra, on the ground that plaintiff Goldstein “lost” in the arbitration proceedings, while plaintiff Ritchie “won,” this attempted distinction is clearly without merit. The critical fact in both cases is that the plaintiffs were given one opportunity to litigate their claims for compensation before the arbitrators; and one opportunity is all they are entitled to have. See Cohen v. Dana, Sup., 83 N.Y.S.2d 414 (1948), aff’d, 300 N.Y. 608, 90 N.E.2d 65 (1949). Plaintiff also contends that, irrespective of a disposal adverse to him of his contract and quantum meruit claims against Landau, his newly raised fraud cause of action should not summarily be dismissed because the fraud claim had not been raised in the arbitration proceeding. Aside from the question of whether plaintiff has waived his right to raise this at this late stage, we conclude that the court should not now entertain the issue. Although fraudulent inducement to enter into a contract is actionable in tort in New York State and can be raised in addition to any claims for compensatory damages arising from the breach of the contract, (see, e. g., Sabo v. Delman, 3 N.Y.2d 155, 164 N.Y.S.2d 714, 143 N.E.2d 906 (1957); Werblud v. Mehadrin Dairy Corporation, 11 Misc.2d 167, 169 N.Y.S. 2d 465 (1957)), the plaintiff must be able to show actual damages resulting from the fraud which are distinguishable from the damages which he has already recovered in a prior adjudicatory proceeding. Even assuming plaintiff could prove that Landau made a promise of a bonus which Landau never intended to perform and thereby fraudulently induced plaintiff to execute the second two-year employment contract, the $200,000 recovery would estop any claim for compensatory damages, since the making of the promise was as deliberately denied by Halcón as it was by Landau. In this additional post-arbitration cause of action which Ritchie has pleaded he seeks to recover “$99,000, representing attorneys’ fees, travel and litigation expenses and lost time.” He also alleges that “In addition, exemplary damages should be assessed against defendant in the amount of $500,000.” Our above disposition of this belatedly pleaded cause of action disposes as well of these claims for special damages for they, if recoverable at all, would only be recoverable if there were no valid defense to the cause of action itself. Affirmed. . The bonus Ritchie claimed he -was entitled to was $2,125,000, twenty-five per cent of $8,500,000. However, inasmuch as Landau had allegedly advanced $13,000 the remainder which was claimed was $2,-112,000. . One who, though not a party of record, controls in furtherance of his own self interest the conduct of adjudicatory proceedings by or against another is bound by the result of the proceeding. See Developments in the Law of Res Judicata, 65 Harv.L.Rev. 818, 856. Although Landau, a 43% stockholder and chief operating officer of Halcon, was not a named party to the arbitration proceeding he clearly participated as an active “non party.” He testified at length on behalf of Halcon and, as president of Halcon, he effectively controlled the development of Halcon’s litigation. Moreover, as a substantial stockholder of Halcon, codefendant with it, and potential joint obligor on the alleged promise to Ritchie, he was obviously participating in the arbitration proceedings in order to protect his own self interest. Although ordinarily a stockholder is not bound by determinations made against his corporation, in the circumstances of this case Landau would probably be bound by the award against it. See Souffront v. Campagnie des Suereries, 217 U.S. 475, 486-487, 30 S.Ct. 608, 54 L.Ed. 846 (1910); Minneapolis-Honeywell Regulator Co. v. Thermoco, Inc., 116 F.2d 845 (2 Cir. 1941); Cohen v. Lewis, 31 Misc.2d 689, 221 N.Y.S.2d 884 (1961); Horn v. Bennett, 253 A.D. 630, 3 N.Y.S.2d 525 (1938). Essentialy, the doctrine of collateral estoppel is a rule of justice and fairness, and we can ascertain no ground for holding that Landau would not be bound if the situation were reversed and Ritchie were raising the collateral estoppel defense against him. Commissioners of the State Insurance Fund v. Low, 3 N.Y.2d 590, 595, 170 N.Y.S.2d 795, 798, 148 N.E.2d 136 (1958). . The fact that the arbitration forum is not plaintiff’s forum is irrelevant under the New York test so long as the conduct of the proceeding before the arbitrators was fair. See B. R. DeWitt, Inc. v. Hall, 19 N.Y. 2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967). There has been no allegation that the conduct of the arbitration proceeding in this case was unfair to the plaintiff. . Goldstein was decided prior to the more recent formulations of the New York rule in B. R. DeWitt, Inc. v. Hall, supra, and Schwartz v. Public Adm. of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). Insofar as these decisions relax the need for strict mutuality they clearly strengthen the decisional doctrine of Goldstein v. Doft. . It can be strongly argued that plaintiff had an obligation in these circumstances to consolidate into a single proceeding all of his causes of action and to raise in one complaint all the claims which he could reasonably foresee could arise out of the same transaction. Armstrong v. White Plains Council of Girl Scouts, 30 A.D. 2d 818, 292 N.Y.S.2d 813, aff’d, 24 N.Y.2d 748, 299 N.Y.S.2d 846, 247 N.E.2d 662 (1968). Courts should not permit the splitting of causes of action when the result of doing so could result in vexatious litigation for the defendant and an undue clogging of the dockets of the court. Plaintiff’s excuse here that he could not have raised the late-pleaded fraud claim earlier is not persuasive. He states he was not aware of the possibility of fraud until he heard Landau testify before the arbitrators that he never promised a bonus to Ritchie. Surely, when he commenced his action, begun before any testimony was taken in the arbitration proceedings, Ritchie knew or had reason to know that a defense that no bonus arrangement was ever made or was ever planned to be paid would likely be raised.

f2d_475/html/0157-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. Herbert Martin GIMELSTOB, Appellant in No. 72-1625, et al. Appeal of Victor FRIEDLANDER, in No. 72-1622. Appeal of Leonard SHERMAN, in No. 72-1623. Appeal of Joseph TREMARCO, in No. 72-1624. Nos. 72-1622 to 72-1625. United States Court of Appeals, Third Circuit. Argued Dec. 7, 1972. Decided Feb. 21, 1973. Michael A. Querques, Querques, Isles & Weissbard, Orange, N. J., for Fried-lander. Yale Manoff, Weinberg & Manoff, Springfield, N. J., for Sherman. Myron P. Maurer, Maurer & Maurer, Newark, N. J., for Tremarco. Raymond A. Brown, Brown, Vogelman, Morris & Ashley, Jersey City, N. J., for Gimelstob. Herbert J. Stern, U. S. Atty., John J. Barry, James D. Fornari, Richard S. Zackin, Melvin Greenberg, William A. Carpenter, Asst. U. S. Attys., Newark, N. J., for appellee. Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. The central element in this case was a conspiracy to steal certain tin ingots from a warehouse in Port Newark, New Jersey, in violation of 18 U.S.C. § 659. There were four counts to an indictment which named appellants and other defendants not revelant to this ease. The charges relating to appellants are as follows: all four appellants were charged with violating 18 U.S.C. § 659 by conspiring to take, steal, and carry away goods in foreign commerce with the intent to convert these goods to their own use (Count I). They were also charged with violating § 659 by possessing goods which they knew to be stolen (Count III). Appellants Gimelstob and Tremarco alone were charged with assaulting, opposing, impeding and interfering with an FBI agent in violation of 18 U.S.C. § 111 (Count IV). After the district court granted appellant Gimbelstob’s motion for a judgment of acquittal as to the first violation of § 659, a jury found all appellants guilty as charged. Appellants present a plethora of purported errors, none of which require reversal. Having rejected them en masse, we will proceed to reject them seriatim. Facts will be developed when necessary. I. THE SEIZURE OF THE STOLEN TIN All four appellants contend that the FBI’s seizure of the stolen tin was improper because the affidavit supporting the search warrant was legally insufficient. The warrant in question met the standards set out by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968). Aguilar set up a two-pronged test to determine the sufficiency of a warrant which is based on tips from a confidential informer: (1) the warrant must show that the informer is credible, and (2) some of the underlying circumstances giving rise to the informer’s conclusions must be present. In this case, the warrant alleged that the informer relied upon had previously disclosed information leading to at least five convictions; and FBI surveillance provided sufficient corroboration for the informer’s conclusions. See Spinelli v. United States, supra at 417-418, 84 S.Ct. 1509. United States ex rel. Henderson v. Mazurkiewicz, 443 F.2d 1135 (3d Cir. 1971); United States v. Singleton, 439 F.2d 381 (3d Cir. 1971); United States ex rel. Kislin v. State of New Jersey, 429 F.2d 950 (3d Cir. 1970). Only a probability of criminal activity is necessary for there to be probable cause, see, e.g., Spinelli v. United States, supra, 393 U.S. at 419, 84 S.Ct. 1509, and here the affidavit for the search warrant showed such a probability. II. IMPROPER JOINDER Appellants Sherman and Friedlander argue that it was improper under Rule 8 of the Federal Rules of Criminal Procedure to join the charges against appellants Tremarco and Gimelstob for assaulting an FBI agent with the charges against them on the conspiracy counts. In the alternative, they argue that if joinder was permissible, a severance under Rule 14, Fed.R.Crim.Proc., should have been granted. There is no merit in these arguments. The assault on the FBI agent was clearly related to the conspiracy charges, and Rule 8(b), Fed.R.Crim.Proc., does not require that each defendant be named in each count, so long as the offenses are related. See 8 Moore’s Federal Practice, § 8.06 [2] (Cipes ed. 1972). I Wright, Federal Practice and Procedure, § 144 (1969). Nor was it improper for the district court to deny appellants’ motion for severance under Rule 14. This motion is addressed to the discretion of the trial court, and appellants have not demonstrated the type of prejudice necessary for us to say that the district court abused its discretion. See 8 Moore’s Federal Practice, supra § 14.02 [1]. I Wright, Federal Practice and Procedure, supra § 227. III. TESTIMONY OF THREATS TO A WITNESS A government witness who had been involved in the conspiracy testified that he had been threatened with harm by appellant Friedlander if he were to talk. The witness testified that Friedlander did not state the exact nature of the harm that would' occur, but that the witness understood, from previous conversations with Friedlander, that Friedlander meant that he would be killed. In fact, an attempt was made on the life of the witness, allegedly by appellant Tremarco. However, this attempt was not disclosed to the jury. Appellants Friedlander, Sherman, and Tremarco agree that testimony of the threat itself was properly admitted, but contend that the district court should not have allowed the witness to explain the nature of the harm that would come to him. On the basis of this testimony and an aborted question, they further argue that the jury was able to infer that the attempt on the life of the witness had been made. They present no authority for this argument. There is no merit in the contention. The statements as to the kind of harm were relevant to the precise nature of the threats and also tended to establish Friedlander’s guilt. This testimony plus the unfinished question do not lead to the inference that appellants claim that the jury made. Additionally, at that time the district court instructed the jury to disregard the fragment of the question asked and in his jury charge gave a general instruction for them to disregard everything he had previously excluded. IV. ADMISSIBILITY OF A CARD SEIZED FROM TREMARCO FBI agents seized a card from appellant Tremarco’s wallet upon his arrest. This card contained various phone numbers, including two unlisted numbers of appellant Gimelstob. Tremarco now claims that this card was improperly seized because the government failed to establish that at the time of its seizure there was a probability that it. could be evidence leading to a conviction or an apprehension of others. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Admission of the card was not error. It was logical for the FBI to believe that the phone numbers on the card could disclose further participants in the conspiracy or show a connection between Tremarco and the other defendants. And furthermore, this argument seems “much ado about nothing” since the card is of absolute minimal importance. Its lack of significance combined with the weight of the government’s evidence leads us to the conclusion that any error in its admission would clearly be harmless beyond a reasonable doubt under the Supreme Court’s test in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). V. “MUG SHOT” OF TREMARCO Appellant Tremarco contends that it was improper for the district court to allow a “mug shot” (screened to hide identifying marks) into evidence against him. He claims that this impermissibly placed his prior criminal record before the jury. He relied on Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966), but that case is distinguishable from his. Our task is to decide whether the district court properly determined that the probative value of the mug shot outweighed whatever prejudicial effects that it had. E. g., Hines v. United States, 470 F.2d 225 (3d Cir. 1972). In Barnes, there was an in-court identification. No mention of a photographic identification was made on direct examination. Defense counsel chose not to argue to the court that the identification procedures violated Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1969), but, instead, he cross-examined the witness concerning a pretrial photographic identification. While “photographs” were mentioned freely, there was no description of them as “mug shots.” On redirect examination, the government attorney introduced into evidence two photographs of Barnes which the witness had viewed. While one was a normal snapshot, another was a mug shot. There was tape over the prison numbers on the photograph, and the trial judge emphasized that it covered something detrimental by commenting to the jury that he feared that one of them might inadvertently remove it and see the markings. The court held that the introduction of this “mug shot” improperly placed the defendant’s prior criminal record before the jury even though it was the defense who had first brought out the photographic identification. The court emphasized that the prosecutor could have buttressed the testimony of his witness on redirect examination by introducing solely the snapshot and thus avoiding the prejudice inherent in introducing the mug shot. Furthermore, it does not appear that the defense inquiry in Barnes focused on the appearance of the appellant in pictures which the witness was shown. It instead concentrated on the fact that the identifying witness had been shown only pictures of appellant. There are similarities to Barnes in this case. An FBI agent made an in-court identification of appellant on direct examination, and no mention of photographs was made. He testified that he had seen appellant near the garage to which the stolen tin had been transported. There was no attempt to suppress the agent’s identification, and on cross-examination the defense attorney brought out the fact that the witness had made a previous photographic identification of appellant. The attorney was particularly concerned with how appellant was dressed, both at the time he was seen by the agent and in the photograph that was shown to the agent. He was attempting to prove that the agent had identified appellant only because appellant had a white tee shirt on in his picture and because the man the agent had seen at the garage also had a white tee shirt on. The following line of questioning occurred: “Q. In this photograph was he wearing a white undershirt ? “A No sir, not that I recall. “Q Do you remember what he was wearing in the photograph? “A As I recall it was a facial photograph. It was not a photograph of an entire person. “Q Did it have his shoulders showing? “A Not that I recall, no, sir. “Q Just from the chin up, the neck? “A No, from the chest area. It was a mug-type photograph. [Emphasis added]. “Q Yes, so that from the chest up you would see his shoulders ? “A Yes, sir. “Q And if he wore a white undershirt that would be shown clearly in the photograph, would it not ? “A Yes, sir. “Q Because the shoulders would be bare, is that right? “A Yes, sir. “Q Do you recall whether he had a white undershirt on in that photograph ? “A No, sir, I don’t.” (Appendix, 1237, 1238). On redirect, the government was allowed to introduce the photograph of appellant into evidence. Although the masking of the identification marks was much less obtrusive in this case than it was in Barnes and the district court judge’s handling of the photographs must less prejudicial, there are other more significant differences between the cases. The fact that the photograph viewed was a “mug-type” photograph was already before the jury in response to defense questioning. Since what was shown to the jury was a mug-type photograph, i. e., there were no prison numbers or other marks present, the jury knew no more than they had before as a result of the defense questioning. They already had been alerted by appellant that he had either been in trouble with the police or had had a prison record. Additionally, appellant’s attorney had left with the jury the agent’s statement that he was unsure how appellant had been dressed in the photograph. It was proper for the agent to show the jury that appellant had not been dressed in a tee shirt in the picture. United States v. Guinn, 454 F.2d 29, 37 (5th Cir. 1972). The government attorney did not have the ready alternative available to him that the government attorney had available in Barnes. The probative value of the picture here outweighed whatever prejudicial effects, if any, the introduction of the photograph involved. See Hines v. United States, supra; United States v. Frascone, 299 F.2d 824, 828, 829 (2d Cir. 1962). VI. SUMMATION BY UNITED STATES ATTORNEY Appellants Friedlander and Tremarco contend that certain remarks on summation by the government attorney amounted to an unconstitutional comment on their failure to take the witness stand in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). After having examined the prosecutor’s statement and the defense summation argument which prompted it, we conclude that his comment cannot reasonably be so construed. See, e.g., United States v. Giuliano, 383 F.2d 30 (3d Cir. 1967); United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970). He very briefly addressed himself solely to the failure of appellant’s counsel to cross-examine a government witness on a certain issue. This and the fact that the government attorney’s remark was prompted by an attack on his witness’s credibility by defense counsel in summation both serve to distinguish this present ease from the First Circuit’s decisions in United States v. Flannery, 451 F.2d 880 (1st Cir. 1971) and Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). See United States v. Giuliano, supra, 383 F.2d at 35. VII. JURY CHARGE AS TO POSSESSION AND GUILTY KNOWLEDGE Appellants Tremarco and Gimelstob contend that the district court erred in its charge to the jury on the issue of constructive possession relevant to Count III of the indictment which charged appellants with possession of property stolen from interstate commerce. After having examined the charge of the court in its entirety, we are convinced that there was no error. Tremarco and Gimelstob also argue that there was insufficient evidence to convict them on this count. Since there was sufficient evidence to convict them under 18 U.S.C. § 2 as aiding and abetting an offense we do not have to consider this claim. See Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829, 835 (1966) (Burger, J.); United States v. Minieri, 303 F.2d 550, 557 (2d Cir. 1962). VIII. JURY CHARGE AS TO 18 U.S. C. § 111 Appellants Tremarco and Gimbelstob claim that the district court was incorrect to refuse to charge that under 18 U.S.C. § 111, It is necessary for the actor to know that the person interfered with was a federal officer. We have held that such knowledge is not necessary for a person to be convicted under § 111. United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971). Accord, e.g., United States v. Ulan, 421 F.2d 787 (2d Cir. 1970); United States v. McGough, 410 F.2d 458 (4th Cir. 1969); United States v. Marcello, 423 F.2d 993, 1010 (5th Cir.), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970); United States v. Leach, 429 F.2d 956, 959 (8th Cir. 1970); United States v. Kartman, 417 F.2d 893 (9th Cir. 1969). Appellant Gimelstob also argues that the district court defined assault incorrectly in its charge. However, we do not have to consider that question since there was ample evidence that the agent in this case was forcibly opposed, impeded, and interfered with. Therefore the conviction must be affirmed since “the general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970). IX. EFFECT OF GIMELSTOB’S ACQUITTAL The district court granted appellant Gimelstob’s motion for a judgment of acquittal as to the charge that he had conspired to steal, take, or carry away tin from foreign commerce. Gimelstob now argues that the jury should have been instructed of this fact since otherwise it would use evidence on that ground against appellant when it considered the other charges against him. He also contends that the district court should have marshalled and segregated the evidence as to him in its charge. This circuit had held that it is necessary to object at trial to the district court’s failure to marshall evidence against an appellant. United States v. Kenny, 462 F.2d 1205, 1228, 1229 (3d Cir. 1972). Accord, United States v. Armone, 363 F.2d 385 (2d Cir. 1966). Since appellant did not object at trial, he cannot raise this argument in the absence of plain error. Rule 52(b), Fed. R.Crim.Proe. Under the circumstances of this case, we do not think that such error, if any, existed. Compare United States v. Kelly, 349 F.2d 720, 758, 759 (2d Cir. 1965). The district court instructed the jury that Gimelstob had been severed (instead of acquitted) as to Count I. Appellant’s contention that instead it should have said he was acquitted is unsupported by legal authority, and we dismiss it. X. JURY CHARGE AS TO CREDIBILITY OF WITNESSES All appellants except Gimelstob contend that the district court’s jury charge was unfair because it had the effect of taking away appellants’ presumption of innocence. After examining the district court’s charge as a whole, we can state that it was eminently fair. Its charge was not at all similar to the one in United States v. Garza, 426 F.2d 949, 954 (5th Cir. 1970) upon which appellants rely. XI. SUFFICIENCY OF EVIDENCE Appellants Friedlander, Sherman and Tremareo contend that the government did not prove that they were part of a conspiracy to carry away tin from foreign commerce, as charged in Count I of the indictment. Apparently, they argue that since the government did not demonstrate that they actually participated in the physical removal of the tin, they could not be proven guilty. Viewing the evidence in a light most favorable to the government, we are convinced that it did establish that appellants were part of a continuing conspiracy to carry away and distribute the tin. See United States v. McGann, 431 F.2d 1104 (5th Cir. 1970), cert. denied 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971); Nassif v. United States, 370 F.2d 147 (7th Cir. 1966). While once a conspiracy has been established only slight evidence is necessary to support a jury verdict that an individual defendant was a member, see, e. g., United States v. Kenny, supra, 462 F.2d at 1226, there was a great deal of evidence to support the involvement of appellants in this case. XII. FOREIGN COMMERCE All of the appellants contend that the government did not establish that the tin was in foreign commerce at the time it was stolen. This contention also must fall. On this issue, each case must be evaluated on its own particular facts. In reaching a determination on whether an item is still within foreign commerce at a given time, one must examine the relationship between the consignee, the consignor, the carrier, the indicia of foreign commerce at the time of the theft and the congressional intent. See United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970); United States v. Maddox, 394 F.2d 297 (4th Cir. 1968). The evidence showed that although the tin had reached port and been unloaded to a warehouse, it was still being held by the shipper under the original bills of lading. “An interstate or foreign shipment does not lose its characteristic until it arrives at its final destination and is there delivered.” United States v. Yoppolo, 435 F.2d 625, 626 (6th Cir. 1970). Here, where the tin had not yet been picked up and was still being held by the shipper under its original bills of lading, delivery had not yet occurred. Appellants Friedlander and Sherman also argue that the district court’s charge on this point was incorrect. This contention is also without merit. The judgment of the district court will be affirmed. . Count II named a defendant not involved in this appeal. . The jury heard this sentence fragment: “Did there come a time when Victor Friedlander’s warning to you on August 31st ...” Appendix, 1805-1806. . We have, of course, not yet adopted Barnes v. United States, 124 U.S.App. D.C. 318, 365 F.2d 509 (1966), in this circuit. . The government attorney stated: “I have searched the record. If there is any question, ask the Judge to read it to you. At no time Harry Bogin was on that stand that Mr. Querques or any of the other defense counsel saw fit to cross-examine him on the threats. At no time. Those threats stand before you uncontroverted, unquestioned except in summation.” Appendix, pg. 3469.

f2d_475/html/0165-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Anna MAHRAMAS, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., and House of Albert, Inc., Defendants-Appellees. No. 228, Docket 72-1456. United States Court of Appeals, Second Circuit. Argued Dec. 14, 1972. Decided Feb. 22, 1973. Charles Sovel, New York City (Abraham E. Freedman, and Ned R. Phillips, New York City, on the brief), for plaintiff-appellant. Joseph T. Stearns, New York City (Haight, Gardner, Poor & Havens, New York City, on the brief), for defendantappellee, American Export Isbrandtsen Lines, Inc. William F. McNulty, New York City (Hanner, Onorato & Hogarty and Anthony J. McNulty, New York City, on the brief), for defendant-appellee House of Albert, Inc. Before KAUFMAN, ANDERSON and OAKES, Circuit Judges. ROBERT P. ANDERSON, Circuit Judge: ' On December 6, 1966 the defendant American Export Isbrandtsen Lines, Inc., (Export) and the defendant House of Albert, a partnership, entered into a contract under the terms of which the defendant House of Albert was granted a concession by Export to maintain, staff and operate the barber and beauty shops on Export’s three large passenger liners. During the life of the contract, one of them, the S.S. INDEPENDENCE, made a voyage to the Mediterranean and back between February 28, 1967 and May 4, 1967. The plaintiff, Anna Mahramas, a professional hairdresser, was at that time employed by House of Albert, and she was assigned to work in the beauty shop on the S.S. INDEPENDENCE on the Mediterranean cruise. While so employed on the vessel, the plaintiff was required to have seaman’s papers and sign ship’s articles, but she was hired and paid solely by House of Albert as called for by the contract, and took orders only from House of Albert’s supervisor on the ship. There was an informal understanding that Export, as the shipowner, would furnish the plaintiff and other employees of House of Albert who were on the ship, subsistence and quarters. The plaintiff shared a cabin with another beauty shop employee, and used the upper of the two berths in the cabin, to which access was gained by a ladder. It is the plaintiff’s claim that on March 11, 1967, as she started up the ladder to her upper berth, the bottom step gave way; as a result she struck her face against the side of the ladder and fell to the floor of the cabin, straining her lower back. She brought this action on November 21, 1967 under the Jones Act and under the general maritime law of unseaworthiness, maintenance and cure, and negligence for damages arising out of her shipboard injury. Because of the Jones Act allegations, a jury was impaneled which heard the entire case, but when, at the conclusion of the evidence the trial court dismissed the Jones Act claims, it also discharged the jury and, as there was no diversity of citizenship, decided the remaining admiralty issues itself. The plaintiff testified that, following the accident, she told her roommate, whose name was Rabar, about the broken ladder and that Rabar said she would get the repair man to fix it for her. The plaintiff did not report the accident or the broken ladder to any of the officers or crew, but said she told everyone in the beauty shop. Sixteen days later she sought medical attention at the dispensary and the surgeon noted she had capped teeth and diagnosed her trouble as neuralgia and prescribed penicillin. She said she told the surgeon she had suffered an accident, but no such thing was recorded by the surgeon. On April 5, 1967 and again on April 30, 1967, the pain in her jaw was diagnosed as diseased roots of her teeth and she was given penicillin; the surgeon’s log, however, makes no reference to an accident or back pains. She worked every day throughout the voyage. After her return on May 4, 1967 she was treated by two dentists for an infection in her teeth. On June 9, 1967 she had outpatient treatment in the surgery clinic at the United States Public Health Service Hospital on Staten Island for diarrhea, resulting from antibiotics given her for the infected teeth. June 13, 1967, the surgery clinic found her fit for duty. Thereafter she made a last voyage for House of Albert, during August, on another ship. She complained of back pain for the first time when she returned to the surgery clinic on September 22, 1967 but she denied having had any injury to her back. She returned there twice in the early part of October for difficulty in swallowing and for lower abdominal pain. She again went there on October 17th for abdominal pain and attended the orthopedic clinic which descxúbed her symptoms as a gradual onset of lumbosacral pain and pain in knee and fingers. It was at that time that she first made mention of what the medical record described as a “vague [history] of trauma, March 1967, when she tripped on a step aboard ship and struck her face.” From then on until she commenced the action on November 21, 1967 she made several more visits to the Public Health Hospital for removal of a scar from her knee, lower abdominal pain and swallowing difficulty. On November 24, 1967 she visited the orthopedic clinic where she represented that her back pain had gone away. The plaintiff’s roommate, Rabar, testified that the plaintiff never mentioned having an accident on the ship or that there was a broken step on the ladder; and Rabar said she never asked anyone to fix the ladder. Plaintiff, in rebuttal, offered the testimony of one Caparones, another House of Albert employee on the ship, who said the plaintiff had told him she had hurt her jaw when she fell in her stateroom because a ladder was broken. Previously, however, he had said she had not told him how the accident occurred, and he had never'heard about or seen any broken step in her cabin. Outside of the plaintiff’s own testimony, there was no evidence of a broken ladder step or of any accident befalling the plaintiff. The court dismissed the Jones Act and maintenance and cure claims against Export because it was not the plaintiff’s employer and against House of Albert because it did not own or control the ship. The court then found against the plaintiff on the unseaworthiness and genei’al negligence claims, because she “failed to show by a fair preponderance of the evidence that the accident occurred as she has testified.” We affirm the judgments of the district court, though on somewhat different legal bases from those relied on by the court below. This case raises important questions concerning the proper pax'ties to the various admiralty causes of action in an unusual context, that is, one where a plaintiff-employee is injured aboard a ship but is not employed by the shipowner and is not covered by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (Compensation Act). At the outset, it should be noted that there is no question raised concerning the propriety of the plaintiff’s actions against the shipowner for unseaworthiness and general negligence. The duty to provide a seaworthy ship extends not only to the owner’s employees but to all “who perform the ship’s service . . with his consent or by his arrangement,” Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946). Furthermore, under maritime law, the owner of the ship owes a duty of reasonable care “to all who are on board for purposes not inimical to [the shipowner’s] legitimate interests,” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959), and, of course, the owner’s employees cannot be held to be fellow servants of third-party employees, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413, 74 S.Ct. 202, 98 L.Ed. 143 (1953), and assumption of risk is no defense in any admiralty action, The Arizona v. Anelich, 298 U.S. 110, 122-123, 56 S.Ct. 707, 80 L.Ed. 1075 (1936); Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257 (2 Cir. 1973) n.1. The primary questions raised on this appeal, however, go to the proper parties for the purposes of the Jones Act and maintenance and cure. While the origins of those actions, their mode of trial, and the bases and measures of recovery under them are all quite different, the parties to both of these actions are the same — a plaintiff seaman against his employer. The Supreme Court has pointed out that both causes of action depend upon the same relationship between the parties, Fink v. Shepard Steamship Co., 337 U.S. 810, 815, 69 S.Ct. 1330, 93 L.Ed. 1709 (1949), and that the Jones Act, where there is negligence, supplements the remedy of maintenance and cure, O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 43, 63 S.Ct. 488, 87 L.Ed. 596 (1943). Furthermore, the employer may be liable under the Jones Act for negligent failure to provide his employees maintenance and cure, Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 679 (2 Cir. 1971). Therefore, in determining whether or not a person is a proper party plaintiff or defendant, the Jones Act and maintenance and cure cases may be read interchangeably, Weiss v. Central R.R., 235 F.2d 309, 311 (2 Cir. 1956); Haskins v. Point Towing Co., 421 F.2d 532, 536 (3 Cir.), cert. denied 400 U.S. 834, 91 S.Ct. 68, 27 L.Ed.2d 66 (1970); cf. Braen v. Pfeifer Oil Transportation Co., 361 U.S. 129, 132-133, 80 S.Ct. 247, 4 L.Ed.2d 191 (1959). Although Mrs. Mahramas was not performing any of the historic functions of a ship’s crew, there is no question that she- was a seaman at the time of her alleged injury and is therefore a proper party plaintiff. The remedies afforded by the Jones Act and maintenance and cure are designed to protect those who perform services upon ships and are exposed to the unique hazards of work upon the sea, Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); Warner v. Goltra, 293 U.S. 155, 156, 55 S.Ct. 46, 79 L.Ed. 254 (1934), and therefore the benefits should be available to anyone so engaged, even if not in the employ of the ship itself. In Gerradin v. United Fruit Co., 60 F.2d 927 (2 Cir.), cert. denied, 287 U.S. 642, 53 S.Ct. 92, 77 L.Ed. 556 (1932), this court read the Jones Act in pari materia with 46 U.S. C. § 713 which provides that any person “who shall be employed or engaged to serve in any capacity on board [any vessel belonging to a United States citizen] shall be deemed and taken to be a ‘seaman’ . . .” See also, Uravic v. Jarka Co., 282 U.S. 234, 239, 51 S.Ct. 111, 75 L.Ed. 312 (1931); Gahagan Construction Corp. v. Armao, 165 F.2d 301, 305 (1 Cir.), cert. denied, 333 U.S. 876, 68 S.Ct. 905, 92 L.Ed. 1152 (1948), cited with approval in Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955). The courts have long given seamen status to those performing tasks not necessary to the actual navigation of the ship, Warren v. United States, 340 U.S. 523, 71 S.Ct. 432, 95 L.Ed. 503 (1951) (messman); United States v. Atlantic Transport Co., 188 F. 42 (2 Cir.), cert. denied 223 U.S. 724, 32 S.Ct. 525, 56 L.Ed. 631 (1911) (horsemen); The J. S. Warden, 175 F. 314 (S.D.N.Y.1910) (bartender); The Sea Lark, 14 F.2d 201 (W.D.Wash.1926) (musician), and we, therefore, adhere to the test in Gerradin, supra, and hold that the plaintiff, Mrs. Mahramas, was a seaman entitled to the benefits of the Jones Act and maintenance and cure because she was engaged in employment on board a ship. There has never been any question that the Jones Act applies only between employees and their employers, Moragne v. States Marine Lines, Inc., 398 U.S. 375, 394, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Panama R.R. v. Johnson, 264 U.S. 375, 387-388, 44 S.Ct. 391, 68 L.Ed. 748 (1924); Fitzgerald, supra, 451 F.2d at 674, and the Supreme Court made explicit in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949), that only one person, be it an individual or a corporation, could be sued as the employer. But Mrs. Mahramas’ right under the Jones Act does not extend, as she argues, to the shipowner as well. An action for maintenance and cure can also be maintained only against the employer because the right arises out of and is implied in the contract of employment, Aguilar, supra, 318 U.S. at 730, 63 S.Ct. 930; Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993 (1938); Cortes, supra, 287 U.S. at 371, 53 S.Ct. 173; Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 914 (2 Cir. 1960). The House of Albert, although admitting that it was Mrs. Mahramas’ employer, claims that she has no cause of action against it because it is not a shipowner-employer. The court below took this position, and some of the cases appear to furnish support for it, see, e. g., Case v. St. Paul Fire & Marine Ins. Co., 324 F.Supp. 352, 353 (E.D.La.1971), dismissed on other grounds, 456 F.2d 252 (5 Cir.1972). It also seems to be suggested by some of the commentators, see, e. g., G. Gilmore and C. Black, The Law of Admiralty, § 6-21, at 285 (1957), but this derives from the language of cases in which the shipowner was the employer and there was no necessity for saying anything about situations in which the employer of a seaman was not a shipowner. Thus many of the cases use the term “shipowner” interchangeably with the term “employer”, but this is done only where the shipowner is the employer. Another difficulty, of course, is that very few seamen, relatively speaking, are in Mrs. Mahramas’ position, that is, not employed by the shipowner and not covered by the Compensation Act. An employer, although not a shipowner, can still become liable to his employees under the admiralty laws where he has hired them to do maritime work, Sieracki, supra, 328 U.S. at 99-100, 66 S.Ct. 872. The Jones Act was often applied to actions by longshoremen against their stevedoring company employers, see, e. g., International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926), until such employees were given their sole remedy under the Compensation Act; and maintenance and cure has been awarded to a messman hired by a catering service to work aboard another’s ship, Sims v. Marine Catering Service, Inc., 217 F.Supp. 511 (D.La.1963). The reasoning, as explained in Haverty, supra, 272 U.S. at 52, 47 S.Ct. at 19, is that seamen should not be deprived of their remedies simply “with the accident of their being employed by a stevedore [or other independent contractor] rather than by the ship.” In determining a seaman’s employer, a court must look to “the plain and rational meaning of employment and employer,” Cosmopolitan Shipping, supra, 337 U.S. at 791, 69 S.Ct. at 1321, which means that the right of control is one of the most important factors to consider, United States v. W. M. Webb, Inc., 397 U.S. 179, 192, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970); Savard v. Marine Contracting, Inc., 471 F.2d 536, 540 (2 Cir. 1972). In Schiemann v. Grace Line, Inc., 269 F.2d 596 (2 Cir. 1959), this court dealt with the question of who was the employer for Jones Act purposes in a factual situation virtually paralleling this one. There a barber was hired by an independent contractor to work aboard a Grace Line ship. There, as here, the plaintiff was not only hired but also paid by the independent contractor and was to be considered his employee. In both cases, the seamen signed articles but were not responsible to the shipowner for working orders nor subject to the owner’s call to duty. This court held that the evidence was such that reasonable men could not differ from the conclusion that the barber was not the employee of the shipowner, and that therefore the trial court properly removed this issue from the jury. In the present case as in Schiemann, supra, the House of Albert, an independent contractor, was clearly the employer; there was no evidence and no possibility of a reasonable inference to the contrary, and the question was properly taken from the jury and decided by the court, see also, Fitzgerald, supra, 451 F.2d 678-679; Bergan v. International Freighting Corp., 254 F.2d 231, 233 (2 Cir. 1958). Therefore, Mrs. Mahramas’ claims under the Jones Act and for maintenance and cure were properly dismissed against the defendant Export, the shipowner, because it was not her employer, but the House of Albert was a proper party for the plaintiff to sue on these claims because it was her employer. On the merits of her Jones Act claim, however, she failed to prove any negligence on its part. The House of Albert moved for a directed verdict at the close of the plaintiff’s case and, because we can perceive no theory, nor is one presented by the plaintiff, upon which the House of Albert, its agents or its employees, could have been negligent in connection with the alleged accident, the motion was properly granted by the district court as to the Jones Act claim. On the other hand, a seaman is entitled to maintenance and cure whenever he is disabled “in the service of the ship” no matter what the cause, The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903); Koslusky v. United States, 208 F.2d 957, 959 (2 Cir. 1953). In the present case, however, even if it is assumed, arguendo, what she claims, that her injuries did arise in the service of the ship, the plaintiff offered no proof of loss, and therefore she cannot recover. The duty to provide maintenance and cure is imposed “to safeguard the seaman from the danger of illness without succor,” but it “does not extend beyond the seaman’s need,” Calmar Steamship, supra, 303 U.S. at 531, 58 S.Ct. at 654. There is no evidence whatsoever that Mrs. Mahramas spent anything for her maintenance or living expenses, but instead she testified that she lived variously with her brothers, her sisters, and her husband in locations in New York, Pennsylvania, and West Virginia and even received unemployment compensation for a period of time. As far as her medical expenses or “cure”, she received most of her treatment at a public service hospital and there is no evidence that she had any out-of-pocket medical expenses. The fact that she never sought maintenance and cure until she instituted this suit, some nine months after the alleged accident, is further indication that she was not suffering illness without aid. Therefore, because there was no proof on this essential element, the plaintiff is not entitled to recover maintenance and cure; and a directed verdict was required on that point as well, Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468 (1948); Stankiewicz v. United Fruit Steamship Corp., 229 F.2d 580, 581 (2 Cir. 1956); Robinson v. Isbrandtsen Co., 203 F.2d 514, 516 (2 Cir. 1953); Field v. Waterman S. S. Corp., 104 F.2d 849, 851 (5 Cir. 1939). The appellant also argues under the doctine of Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963), that the unseaworthiness and general negligence claims against Export should have been submitted to the jury instead of being decided by the court. Fitzgerald, supra, at 21, 83 S.Ct. 1646, however, simply held that when a Jones Act claim was given to a jury, unseaworthiness and maintenance and cure claims arising out of the same set of circumstances must also go to the jury so that one trier of fact could determine the entire claim. In this case, there was no real Jones Act claim to go to the jury, and the trial court could, as it did, properly take for itself the determination of the remaining admiralty issues. If the rule were otherwise, any plaintiff could receive a jury trial on his admiralty claims simply by alleging a Jones Act count, whether or not he had any evidence to support it, and, of course, the time has still not come when one is entitled to a jury in every admiralty suit. See, Romero v. International Terminal Operating Co., 358 U.S. 354, 359-380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The judgments are affirmed. OAKES, Circuit Judge (dissenting): The majority has to rely heavily upon Schiemann v. Grace Line, Inc., 269 F.2d 596 (2nd Cir. 1959) (2-1 decision), to reach the result that a shipowner is not responsible to a seaman under the Jones Act if the seaman is also the employee of a ship concessionaire. I think that Sehiemann was erroneously decided, and because it overlooked Supreme Court precedent is not binding upon us. I also think that the result reached by the majority is an unfortunate one that would pave the way for shipowners to contract out ship functions to concessionaires— for example, for providing food to passengers or crew — and thereby to avoid or minimize liability for defective conditions or other negligence on board the ship. I start with the proposition — conceded by the majority — that a beautician on a cruise ship is a seaman, just as are cooks, mess men, muleteers, bartenders, musicians, telephone operators, laundresses, and even barbers (Schiemann, supra) when they are performing services that render the ship’s voyage economically viable. A cruise ship which tried to attract female passengers without providing hairdressing services would soon be converted to duty as a cargo vessel. The question is, then, whether a shipowner is liable to a seaman under the Jones Act because of the latter's status qua seaman or whether the test of “employment” used in railroad cases decided under the FELA is determinative. The majority in Sehiemann adopted the FELA test without mentioning the seaman’s status at all. It did so despite Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218, 96 L.Ed. 205 (1952), which held that “Seamen were given the rights of railway employees by the Jones Act, but the definition of ‘seaman’ was never made dependent on the meaning of ‘employee’ as used in legislation applicable to railroads.” Cf. United States v. W. M. Webb, Inc., 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970) (status of captains and crews under PICA and FUTA must be determined by maritime law standards, not usual common law rules). So too Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 372, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932) (Cardozo, J.), in holding that negligent failure to extend maintenance and cure to a seaman gave rise to a cause of action under the Jones Act, says: “The duty [of maintenance and cure] ... is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties.” The Court went on to say, in language pertinent to this case: “We do not read the act for the relief of seamen as expressing the will of Congress that only the same defaults imposing liability upon carriers by rail shall impose liability upon carriers by water. The conditions at sea differ widely from those on land, and the diversity of conditions breeds diversity of duties.” 287 U.S. at 377, 53 S.Ct. at 176. In extending the duty to provide a seaworthy ship to longshoremen in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the Court referred to historical “notions of status,” 328 U.S. at 91, 66 S.Ct. 872, in rejecting the argument that a shipowner’s duty is limited to those with whom he has a contract for work, and, id. at 97, 66 S.Ct. 872, 878, quoted approvingly the statement of the court below that: “It seems, therefore, that when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights. This is the very basis on which the Jones Act was held applicable to give redress to an injured stevedore in International Stevedoring Co. v. Haverty, [272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926)] . . . .” 149 F.2d 98, 101 (3rd Cir.) Haverty did extend Jones Act coverage to stevedores and permitted suit against the stevedore company. Haverty showed that even very early in the history of the Jones Act the Court construed the scope of the Act broadly. Similarly in Seas Shipping, supra, a seaworthiness ease, the Court stated: All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship’s work or by other devices which would strip the men performing its service of their historic protection. 328 U.S. at 95, 66 S.Ct. at 877 (emphasis supplied). Of Jones Act liability, 46 U.S.C. § 688, the same may be said. Cf. Warner v. Goltra, 293 U.S. 155, 157-158, 55 S.Ct. 46, 79 L.Ed. 254 (1934) (Cardozo, J.); Cortes v. Baltimore Insular Line, Inc., supra. As Mr. Justice Black said for a unanimous Court in Garrett v. Moore-McCormack Co., 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239 (1942): [The Jones Act] is to be liberally construed to carry out its full purpose, which was to enlarge admiralty’s protection to its wards .... Being an integral part of the maritime law, rights fashioned by it are to be implemented by admiralty rules not inconsistent with the Act . . . . (Citations omitted.) Accord, Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431, 59 S.Ct. 262, 83 L.Ed. 265 (1939). It is true that even in Jones Act cases there are various dicta, including Mr. Justice Reed’s in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791, 69 S.Ct. 1317, 1322, 93 L.Ed. 1692 (1949) (general agent for owner of ship not liable under Jones Act) to the effect that “ . . . under the Jones Act only one person, firm or corporation can be sued as employer.” With the exception of Schiemann, however, none is in the context of a seaman employed on a ship who is seeking recovery against the shipowner even while he is employed by someone else. In none of those cases, as in Schiemann and this ease, did the shipowner escape responsibility for the seaman’s injury. The only question in those cases was whether an additional defendant was available. Schiemann mentions none of the Supreme Court cases previously alluded to Desper, Cortes, Seas Shipping, Haverty. Rather, it tracks the railroad cases which involve different underlying common law concepts. Even so, at ordinary common law a person may be the servant of two masters at one time as to one act, if the service to one does not involve abandonment of the service to the other. Restatement (Second) of Agency § 226 (1957). One doubts whether today’s Court facing the problem afresh would decide the lead case on which Schiemann rests, 269 F.2d at 598, Robinson v. Baltimore & Ohio Railroad, 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849 (1915) (Pullman car porter not entitled to FELA recovery against railroad company), as it was decided. Later judicial decisions recognize that the existence of an employee-employer relationship must be determined not technically but in light of the liberal purposes remedial social legislation is designed to serve and in the light of economic reality. E. g., United States v. W. M. Webb, Inc., supra, Rutherford Food Corp. v. McComb, 331 U.S. 722, 723-726, 729-730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). See also Cosmopolitan Shipping Co. v. McAllister, supra, 337 U.S. at 790-791, 69 S.Ct. 1317. The argument made here does not mean that as between the concessionaire and the shipowner they may not contract that the former will save the latter harmless in situations in which the shipowner is held liable to the seaman under the Jones Act. It would mean, however, that by contract with the concessionaire the shipowner could not escape liability to a seaman for the shipowner’s negligence in failing to provide a safe bunk ladder, the claim made here. That liability would accrue in the words of the statute when the seaman suffers “personal injury in the.course of his employment . . . .” A seaman’s “course of employment” in the service of the ship includes using the ladder to his bunk to go to bed. Cf. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959) (liability for deck accident aggravating tuberculosis); Hiltz v. Atlantic Refining Co., 151 F.2d 159, 160 (3rd Cir. 1945) (liability for improper cabin ventilation). To construe the Jones Act as the majority does leaves a gaping hole in its coverage: those who are concededly seamen but hired by a concessionaire are not entitled to recovery under the Jones Act for the shipowner’s negligence; they cannot recover in the usual case against the concessionaire because, except in connection with the equipment or management of the concession, the concessionaire has nothing to be negligent about. They are not wards of the admiralty, they are orphans at sea, with the crumb of concessionaire’s liability for maintenance and cure, but without the bread-and-water sustenance of liability on the part of anyone for negligence under Jones Act principles. In my view such a result could not have been intended by a Congress which had in mind that, as Warner v. Goltra, supra, 293 U.S. at 159, 55 S.Ct. at 48, states, “An ancient evil was to be uprooted, and uprooted altogether. It was not to be left with fibers still clinging to the soil.” A seaman not to be able to recover under the Jones Act against the ship for the ship’s negligence? What hath Congress wrought? . The Jones Act, 46 U.S.C. § 688, in pertinent part, reads as follows: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in eases of personal injury to railway employees shall apply . The appellant challenges the sufficiency of the court’s findings of fact pursuant to F.R.Civ.P. 52(a), but, although the findings are brief, they fully state the basis of the court’s decision and are adequate compliance -with Rule 52(a), Lemelson v. Kellogg Co., 440 F.2d 986, 988 (2 Cir. 1971). . The Compensation Act is the exclusive remedy for an employee, not a member of the crew of a vessel, against his employer when an injury occurs “upon the navigable waters of the United States,” 33 U.S.C. §§ 902(4), 903(a). Because the injury in this case did not arise upon the navigable waters of the United States, the Act clearly does not apply to this plaintiff, see, Panama Agencies Co. v. Franco, 111 F.2d 263, 265 (5 Cir. 1940). . It should be noted, however, that effective November 26, 1972, employees covered by the Compensation Act may no longer bring an action against the shipowner for unseaworthiness, Pub.Law 92-576, § 18 (a). . The dissenting opinion assumes and complains that this decision deprives the plaintiff of any right to sue the shipowner for defective conditions or other negligence on board the ship and leaves her with only a right of action for the “crumb” of maintenance and cure. In saying this, however, it disregards the fact that she had the right to maintain and did maintain actions for unseaworthiness and general negligence against Export, which were decided adversely to her on the merits. . We do not read the dissent as disputing the need for an employer-employee relationship, but construe it as favoring the broadening of the definition of “employer”. . It could be argued that the obligation of maintenance and cure should fall upon the ship because it is only the shipowner, through the master, who can order the vessel into port for emergency medical care in extreme circumstances; however, the ship is required to exercise reasonable care for all those legitimately on board and we see no reason why an employer, not the owner, could not seek indemnification against the owner for any maintenance and cure that he became liable for because of the owner’s negligence. We question the continued validity of The Federal No. 2, 21 F.2d 313 (2 Cir. 1927), to the extent that it would prohibit such an indemnification, see Jones v. Waterman S.S. Corp., 155 F.2d 992, 1000 (3 Cir. 1946). . These authorities make it crystal clear that under the Jones Act the shipowner is not always the employer of every person given seaman status aboard the vessel as the dissent claims. . Signing ship’s articles makes a seaman subject to the rules and discipline of the ship, but this does not make him the ship’s employee, see Hull v. Philadelphia & R. Ry., 252 U.S. 475, 479-480, 40 S.Ct. 358, 64 L.Ed. 670 (1920). . Export provided House of Albert employees with their staterooms and retained full and exclusive control over these quarters ; therefore, House of Albert could not be held negligent for permitting any defects to exist there. . See generally Seas Shipping Co. v. Sieracki, 328 U.S. 85, 91, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). For specific occupations that have been held to be “seamen” in varying contexts see, e. g., The Sea Lark, 14 F.2d 201 (W.D.Wash.1926) (musicians); The Baron Napier, 249 F. 126 (4th Cir. 1918) (muleteers); United States v. Atlantic Transport Co., 188 F. 42 (2nd Cir.), cert. denied, 223 U.S. 724, 32 S.Ct. 525, 56 L.Ed. 631 (1911) (horsemen); Neville v. American Barge Line Co., 105 F.Supp. 408 (W.D.Pa.1952), aff’d, 218 F.2d 190 (3rd Cir. 1954) (laundresses); Agnew v. American President Lines, 73 F.Supp. 944, 951 (N.D.Cal.1947), rev’d in part on other grounds, 177 F.2d 107 (9th Cir.), cert. denied, 339 U.S. 951, 70 S.Ct. 838, 94 L.Ed. 1364 (1949) (barbers). . Compare Wells Fargo & Co. v. Taylor, 254 U.S. 175, 186-187, 41 S.Ct. 93, 65 L.Ed. 205 (1920), and Byrne v. Pennsylvania R. R., 262 F.2d 906 (3rd Cir.), cert. denied, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766 (1959), with Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 376-378, 53 S.Ct. 173, 77 L.Ed. 368 (1932). . Apparently the status theory was not advanced in argument in Schiemann for Chief Judge Clark cast his dissent, 269 F.2d at 599, in terms of control or right to control. He argued that whether the concessionaire or shipowner had the right of control was a jury question, and while the same argument might be made here, I consider Sehiemann binding authority against it. . Desper held, however, that a person engaged in seasonal repairs on vessels “laid up for the winter” was not a seaman. 342 U.S. at 190-191, 72 S.Ct. 216. . Shortly after Haverty Congress passed the Longshoreman’s Act, 33 U.S.C. § 903 et seq., which replaced the Jones Act as the remedy for longshoremen against their employers. The provisions of the Longshoreman’s Act, of course, specifically incorporate the liberal provisions of the Jones Act such as elimination of assumption of risk and the fellow-servant rule. 33 U.S.C. § 905. They also provide very specific compensation for different types of disability. 33 U.S.C. § 908. Thus, while Congress repealed the result in Haverty with a new statute, it did not change the concept of. extending liberal protection to maritime workers which Haverty advanced. . While she retained rights to sue the shipowner for general negligence or for unseaworthiness and while as the majority suggests in footnote 5 these were decided against her, they were decided by the trial judge without the benefit of a trial by jury to which under the Jones Act she would have been entitled and subject, at least as regards her claim of general negligence, to the defenses that she had assumed the risk or had been injured as the result of negligence of a fellow servant. . The majority says in its footnote 8 that United States v. W. M. Webb, Inc., 397 U.S. 179, 192, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970) and Savard v. Marine Contracting, Inc., 471 F.2d 536, 540 (2nd Cir. Dec. 26, 1972), make it “crystal clear that under the Jones Act the shipowner is not always the employer of every person given seaman status abroad the vessel.” In W. M. Webb, the Court said, however, that “. . . except where there is nearly total relinquishment of control through a bareboat, or demise, charter, the owner may nevertheless be considered, under maritime law, to have sufficient control to be charged with the duties of an employer.” 397 U.S. at 192, 90 S.Ct. at 856. Here there was neither a bareboat nor a demise charter. In Savard, while rejecting a request to charge that a seaman may have more than one employer for Jones Act purposes, the court held that the trial court properly charged the jury that the seaman there (a diver on a barge under bareboat charter) could be deemed the subagent of his direct employer which hired him as agent for the bareboat charterer and that “the jury could find that under the Jones Act Perini [the bare-boat charterer] was Savard’s employer if it had sufficient control of the operation.” 471 F.2d 541. Here surely Export had sufficient “control of the operation.”

f2d_475/html/0176-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Faye BOLTON, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant. No. 72-2568 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 9, 1973. Glynn Purtle, Wichita Falls, Tex., for defendant-appellant. Bob Wilson, Wichita Falls, Tex., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and GOLDBERG 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. JOHN R. BROWN, Chief Judge: This is a Texas diversity case. Desirous of deciding it with dispatch but worshipping accuracy more dearly than speed we awaited the decision of the Supreme Court of Texas in Latham v. Security Insurance Company of Hartford, Tex., 1972, 491 S.W.2d 100. The questions which this appeal presents which are deserving of serious consideration were dealt with frontally by the Texas high Court which laid down rules for their resolution. Nonetheless, we must still beat a hasty retreat from ignorance to speculation and determine whether we think the Texas Supreme Court would hold, under its second rule announced in Latham, that a party who voluntarily places himself within the Court’s jurisdiction shall be considered to have been “joined”. Believing that the Texas Court would so hold, we reverse the District Court’s dismissal for want of jurisdiction and remand for trial on the merits. Appellee Bolton was injured within the course and scope of her employment by Walter Kidde & Co. Inc., Webber Aircraft. She filed her claim against Employer and Travelers with the Industrial Accident Board (IAB) of the state of Texas on June 28, 1971. Travelers notified the IAB that the “Charter Oak Fire Insurance Company” was the correct carrier. Travelers and Charter Oak, corporate 'pe.re et fil, shared common claims offices, officers, management and staffs. The IAB found that indeed, Charter Oak was the correct carrier and its award ordered the payment of over $17,000 in a lump sum as compensation for total permanent disability. Appellee Bolton, through her counsel, gave written notice of appeal to the IAB and the parties naming Employer and Charter Oak in the caption which was incorporated by reference in the body of the notice as “the final ruling — and award of * * * [IAB] * * * in the above styled and numbered cause — .” Counsel then filed suit to set aside the Board’s award naming only Travelers as a defendant with no mention of Charter Oak. If suit is not filed within 20 days of the IAB’s award that award is final. The rule is harshly applied in Texas. Latham, supra, Richards v. Consolidated Underwriters, Tex.Civ.App., 1967, 411 S.W.2d 436, writ ref’d.; Mosqueda v. Home Indemnity Co., Tex.Civ.App., 1969, 443 S.W.2d 901, writ ref’d. n. r. e. (approved in Latham, supra). Very simply, 20 days means 20 days. The Employee timely filed suit naming Travelers, hut not Charter Oak, in its appeal from the award. Travelers answer came 25 days after the date of the award — well before the date upon which it must appear and defend. F.R.Civ.P. 12. In its answer Travelers affirmatively stated that Charter Oak was the actual insurer and asked that it be substituted for Travelers as the proper defendant. Thus, Charter Oak did not file suit or become a party to a suit — or so the Appellee would have us hold — until sometime after the expiration of 20 days following the award of the IAB. The Employee then moved for a dismissal, arguing that the District Court did not have jurisdiction of the award to her against Charter Oak because Charter Oak had not filed suit within 20 days and had not been named as a party to a suit filed within the same time period. Agreeing that Charter Oak had not appealed from the award from the Industrial Accident Board by bringing suit or being named as defendant and cross-claiming the District Court held that it had no jurisdiction over a suit between Charter Oak and plaintiff Bolton. Accordingly it dismissed the action for lack of jurisdiction. In its appeal Charter Oak contended originally that (i) the question should be governed under the precepts of F.R.Civ.P. 1 insofar as it deals with liberal construction and treatment of procedural questions, and (ii) that the entire action which was before the IAB including all of its parties, came before the District Court upon the instigation of suit by any party. On the first of these bases— though it could be argued forcefully if we had no guidance from Latham — we could now only summarily affirm the holding of the District Court. A statute of limitations cannot be ignored under the rubric of enlightened procedure. As to the second, we would have been thrown into the thicket of controlling Texas decisions, several from Courts of Civil Appeals with the enigma flowing from the Supreme Court’s not allowing a writ of error. But all the brambles here are gone by virtue of the Texas Supreme Court’s decision in Latham, supra. The struggle there was how to reconcile the irreconcilable. The opinion of Justice Reavley for a unanimous Court is a fine example of constructive judicial statesmanship. Instead of trying to reconcile the irreconcilable they have chosen — as they have a right and duty to do — the principles that ought to control and spelled them out in categorical fashion. It makes quite clear that parties before the Industrial Accident Board who are not parties to suit either as Plaintiff, Defendant, or by joinder within 20 days from the rendition of the award by the Board must— with one critical exception — accept as inevitable the finality of the IAB's award. This is clearly the import of the third rule as stated in Latham, supra. However, Latham also specifies in Rule 2, supra, that “Defendants in a law suit to set aside an award of the Board shall have until their appearance date to join other parties who have been before the Board.” This means, of course, that parties can be brought before the District Court after the 20 day statute of limitations has run if they are brought in by a Defendant in an action to set aside the Board’s award. In our Erie role we could just stop with Rule 2. But we think that behind Rule 2 was the Court’s feeling that this is obviously a sensible construction of the statute since any other would allow an employee to wait 19 days to sue one Defendant-insurer if it were his desire to keep a second insurer out of the litigation to thus lay the trap for increased benefits (see note 5, supra). The sued Defendant-insurer, who might have been happy with a partial compensation award, would of necessity have to give notice of appeal as to other insurers and then sue all other defendants without waiting to be sued itself in order to protect itself from paying a judgment which someone else should have paid. We think it is likewise sensible to hold that a party who voluntarily submits itself to the jurisdiction of the District Court and makes itself liable to all the obligations, disabilities, and control by the District Court, as would be one who is formally joined as a party by cross claim or impleader. F.R.Civ.P. 13 and 14, followed by the usual service of process, is before the Court within the meaning of Rule 2. It is true that Charter Oak was not joined as a party by the defendant Travelers. But it was as certainly a party after making an appearance by counsel and suggesting a substitution of names as if it had been joined. Employee cannot seriously contend that Appellant-Charter Oak was not before the District Court. Since this appearance had all the effects of joinder and occurred before the appearance day (i. e. answer day) of Travelers — the time limit set by Rule 2, we think that the Texas Supreme Court would hold that Appellant Charter Oak had been “joined” by the Appellant Travelers within the required time. With that conclusion we sound recall and send the case back to the District Court. Reversed and remanded. . We do not mean to forescast the necessity of a full-blown trial. That decision is the initial prerogative of the District Court, and must abide the event. . Travelers and Charter Oak maintained a policy of not defending on the grounds that the wrong insurance company had been sued. Whether assureds or claimants are, as is sometimes boasted, “in good hands” it is refreshing to see “clean hands”. . No citation of authority is required to support the proposition that the substantive statute of limitations of the state of Texas controls. However, the time periods allowed for answer and appearance are as clearly procedural. . In their answer Defendant said: In reply to Paragraph IV of said Petition, this Defendant did not issue the policy of workmen’s compensation insurance, but same was issued by Charter Oak Fire Insurance Company who is also represented by the below named attorneys and does enter its appearance herein and agrees that the name of the Defendant can be changed to properly describe Charter Oak Fire Insurance Company as the carrier of said workmen’s compensation. . Counsel for both Travelers and Charter Oak were the same. See, F.R.Civ.P. 11 as to significance of counsel’s signature. . Whether the employee’s counsel purposed to catch the opposition napping, he did so. The result is not only that the total permanent lump sum award is final as to Charter Oak, but Employee and counsel reap the additional benefit of 12% penalties plus attorneys fees for non-payment of a final award. Vern.Tex.Rev.Civ.Stat. Ann. Art. 8307 (§ 5a). . We reject as spurious the contention of Appellee that Travelers was not before the Industrial Accident Board, and therefore has no standing to bring a third party — Charter Oak — into this litigation. Employee in. her original Notice of Injury and Claim filed with IAB specified Travelers as Employer’s insurer. Travelers continued to be named in form reports by the insurer to IAB and in documents in the Board’s file. It was not until February 14, 1972 that Charter Oak was stated to be the insurer. As stated above Charter Oak was plainly indicated as the insurer in the tabular form award of the IAB. . The conflicting cases are set out in our reproduction of the Court’s three rules, infra note 9. . As stated by the Texas Supreme Court, the question it faced in Latham, supra was, “[D]oes the filing of a suit against the injured employee by one insurer vacate the entire award of the Board and, in particular, that part of the award in favor of the employee ágainst a second insurer?” Answering in the negative, the Court set out three rules to govern this and similar situations. 1. All parties to a suit brought by any party to set aside the Board’s award are before the court for all purposes previously presented to the Board. So far as any claim between those parties goes, the Board’s award is vacated. Zurich General Accident & Liability Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936) ; New Amsterdam Casualty Co. v. Merrifield, 74 S.W.2d 185 (Tex.Civ.App.1934, no writ). Since all the parties were before the court, the result reached was correct in Southern Casualty Co. v. Fulkerson, 45 S.W.2d 152 (Tex.Comm.App.1932). 2. It is not given to the party filing the lawsuit to determine who shall and who shall not be parties thereto. A party to the Board’s award may be willing to accept that award, but if he is brought to court by one of the other parties he may require the presence of third parties. For example, under the facts of Travelers Ins. Co. v. Fox, 364 S.W.2d 859 (Tex.Civ.App.1963, writ ref’d, n. r. e.), in order to protect against a double recovery, the insurance carrier must be permitted to make Fox a party in the lawsuit filed by Lewis to set aside the award. Hereafter, if the carrier fails to do so, he will risk a double recovery, since the holding in that case is now disapproved. Defendants in a lawsuit to set aside an award of the Board shall have until their appearance date to join other parties who have been before the Board. 3. Those parties to the Board’s award who do not become parties to the suit to set it aside are entitled to stand on that award. Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App.1967, writ ref’d), is reaffirmed. Mosqueda v. Home Indemnity Co., 443 S.W.2d 901 (Tex.Civ.App.1969, writ ref’d, n. r. e.) is approved. We disapprove the following: Maryland Casualty Co. v. Baker, 277 S.W. 204 (Tex.Civ.App.1925, writ ref’d); Texas Employers Ins. Ass’n v. Nitcholas, 328 S.W.2d 338 (Tex.Civ.App.1959, no writ); Industrial Accident Board v. Texas Employers Ins. Ass’n, 342 S.W. 2d 213 (Tex.Civ.App.1961, writ ref’d, n. r. e.).

f2d_475/html/0180-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Allen NOVAK, Defendant-Appellant. No. 72-1393. United States Court of Appeals, Seventh Circuit. Argued Oct. 16, 1972. Decided Feb. 26, 1973. Certiorari Denied June 4, 1973. See 93 S.Ct. 2759. Robert E. Sutton, Milwaukee, Wis., for defendant-appellant. John O. Olson, U. S. Atty., James M. Bablitch, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee. Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge. KNOCH, Senior Circuit Judge. Defendant-appellant, Stephen Allen Novak, has taken this appeal from his conviction in a jury trial on a charge of failing to report for civilian work after being classified 1-0 (conscientious objector) by his Local Selective Service Board. It is defendant’s view that he should have been classified IV-D (minister) having been ordained a Minister of Jehovah’s Witnesses, pursuant to the ordination ritual of that sect. He told the Board that he had become a Minister at the time of his baptism, apparently at the age of sixteen years. It was undisputed that the Jehovah’s Witnesses is a “recognized” religion under the pertinent regulation in Title 32, Code of Federal Regulations § 1622.43. Defendant contends that he has fulfilled the further requirement of ordination in accordance with the ceremonial ritual or discipline of his Church. Defendant asserts that the Board subjected him to religious discrimination because, while registrants in other religions need only present certificates of ordination from their superiors to satisfy the Board, defendant was obliged to submit to a hearing on the manner in which he practiced his ministry, the number of hours he devoted to it, the financial support he derived from it and the other secular employment in which he engaged, to determine whether the ministry was his regular and customary vocation, as required by § 1622.43. He lays special stress on the testimony of one Board member, Edison Lereh, presented only to the Court and not to the jury, that he personally could not accept a boy of fifteen as a recognized minister and viewed defendant’s ordination, some two and one-half years prior to his Selective Service registration, as something other than equivalent to full ordination in some of the other religions, that he did not view a member of Jehovah’s Witnesses as a minister for purposes of Selective Service until he had attained the rank of a full fledged Pioneer by order of the Watchtower Bible and Tract Society headquarters in New York. The only certificate on file from the Watchtower indicated that defendant had been a Vacation ‘Pioneer during the period August 1 to 14, 1966. Defendant argues that discrimination exists against Jehovah’s Witnesses because consideration was given to the source of his compensation, thus, he says, favoring wealthy churches which pay their ministers, relieving them of the need to seek secular employment. Defendant’s position is that the jury should have been directed to render a verdict in his favor, but that, failing a directed verdict, the issue of religious discrimination should have been allowed to go to the jury. As the District Judge said in his opinion on the issue of the lawfulness of the Board’s Order to report for civilian work at a hospital, it is the definition of “minister” by Congress, and as used in the regulations which must determine entitlement to a IV-D classification. Title 32 C.F.R. § 1622.43 provides for classification IY-D for registrants who are regular or duly ordained ministers of religion as defined in § 16(g) of the Military Selective Service Act. The Act reads: Section 16. When used in this act —* * * (g)(1) the term ‘duly ordained minister of religion’ means a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization. (2) The term “regular minister of religion” means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister. (3) The term “regular or duly ordained minister of religion” does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, or religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach, the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect or organization, [emphasis added] From the outset while claiming exemption as a minister, the defendant himself provided data that raised doubts of the ministry as his regular and customary vocation. He clearly indicated that the time which he devoted to his religious work was small compared to the time he devoted to his commercial employment. We cannot accept defendant’s assertions that an unfavorable comparison was drawn between the ordination ceremonies of Jehovah’s Witnesses and that of other religions. The Board in making its decision did not commit religious discrimination, but merely recognized the difference in use of terms “ordain” and “minister” by Jehovah’s Witnesses as compared to the use of such terms in many other churches. See United States v. Hawver, 7 Cir., 1971, 437 F.2d 850, where this Court took note (at page 851, footnote 1) of the fact that the words “ordain” and “minister” are used by Jehovah’s Witnesses with content such as not to fit easily into the statutory concept of “regular or duly ordained ministers of religion.” See also United States v. Pompey, 3 Cir., 1971, 445 F.2d 1313, 1317-1318. Both cases refer to United States v. Tettenbum, D.Md., 1960, 186 F.Supp. 203, 207-211 and United States F.Supp. 203, 207-211 and United States 822, 837-841, for an explanation of the hierarchy of Jehovah’s Witnesses. For example, Defendant is one of 76 ministers in his congregation of 92 members. This would be a most unusual situation in many churches. Mr. Lerch also testified that the Local Board did accept certification by the hierarchy of Jehovah’s Witnesses that a particular minister was ordained and held a church assignment as his regular and customary vocation, just as such certifications were accepted for other religions. He indicated that all such certifications are subject to periodic check for possible changes in status. There was evidence as to one instance in which a registrant (not a member of Jehovah’s Witnesses) was changed from a classification of IV-D to I-A on notification of change in circumstances. The record reveals no support for any finding of religious discrimination. There was nothing to go to the jury. The judgment of the District Court is affirmed. Affirmed.

f2d_475/html/0183-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Chester SAWICKI, Petitioner-Appellant, v. Perry JOHNSON, Warden, Respondent-Appellee. No. 72-1951. United States Court of Appeals, Sixth Circuit. Submitted Feb. 16, 1973. Decided March 22, 1973. Chester A. Sawicki, in pro. per. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief, for respondent-appellee. Before CELEBREZZE, KENT and LIVELY, Circuit Judges. PER CURIAM. This is an appeal pro se from an order of the District Court for the Eastern District of Michigan, Southern Division, denying Appellant’s petition for a writ of habeas corpus. Appellant was convicted by a jury of attempting to break or destroy a safe and contends that he was unconstitutionally denied his right to be represented by counsel. On February 6, 1969 Appellant was bound over to the Circuit Court. On March 5, after Appellant’s arraignment, the Court appointed counsel for Appellant and his co-defendant. It is Appellant’s contention that during the next 63 days he saw his appointed counsel for a total of approximately five minutes; that the only court appearance made was at a second preliminary examination and that no effort was made to obtain a reduction of the charges, an effort Appellant had been told would be made; that no meeting took place between Appellant and his counsel during the 49 days between the appointment and the preliminary examination; and that after the examination, efforts by Appellant’s family to contact his attorney were unsuccessful. The preliminary examination took place on May 2, 1969. On May 9, 1969, Appellant and his co-defendant sent to the Court a notice of dismissal of their appointed counsel, stating as their reasons his refusal to consult with them and his appearance in court without preparation. The Court, on May 15, advised the two defendants that the dismissal would be permitted with the provision that no other counsel would be appointed on their behalf and that they would either have to obtain their own counsel or represent themselves. Both defendants affirmed their dismissal of counsel on May 17, 1969 and the Court entered an order on May 26, permitting the withdrawal of appointed counsel. In two subsequent letters to the Court, Appellant stated that he was unable to obtain counsel. On July 1, 1969, Appellant appeared for trial without counsel and was convicted. We reverse the order of the District Court. When serious allegations are made by an indigent defendant that his appointed counsel is not providing adequate representation, they should not be taken lightly. United States v. Morrissey, 461 F.2d 666, 669 (2d Cir. 1972). No hearing was held by the District Court to determine the validity.of Appellant’s allegations. Nor was any investigation made at the time Appellant notified the Court of his desire to dismiss his counsel. Appellant was simply advised by letter that other counsel would not be appointed. It does not appear, therefore, that Appellant’s allegations have been given serious consideration. As the Court in United States v. Morrissey, supra, said: “The courts cannot give with one hand an indigent defendant the right to appointed counsel and then, with the other hand, effectively take that right away by refusing to recognize the possibility that defendant’s allegations of inadequate representation might prove correct after detailed inquiry.” 461 F.2d at 670 n. 6. This is exactly what has happened in this case. We do not find that a waiver of counsel can be inferred from Appellant’s dismissal of counsel. At the time of his notice of dismissal he stated, and he has reiterated here, his reasons for wanting counsel dismissed. As we stated in Wilson v. Wiman, 386 F.2d 968 (6th Cir. 1967), cert. denied, 390 U.S. 1042, 88 S.Ct. 1634, 20 L.Ed.2d 303 (1968), “a heavy burden [rests] upon the State to prove that the right to counsel [has] been knowingly and intelligently waived.” 386 F.2d at 969. The record indicates that Appellant expressed his wishes to be represented and that he did not wish to proceed to trial without counsel. In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968) cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968), the Court stated the principles to be applied when counsel is appointed for an indigent defendant: “Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.” 389 F.2d at 226. These matters should be the subject of a thorough investigation when allegations such as Appellant’s are made. Since there is no dispute over the fact that Appellant was tried without being represented by counsel, the burden is upon the state to prove that he waived counsel. This, they have not done. Accordingly, the order of the District Court is reversed, and the case is remanded for the purpose of holding an evidentiary hearing concerning Appellant’s allegations of denial of representation by counsel. . Concerning the allegation of denial of the right to be represented by counsel, the District Court said: “Petitioners were apprehended at the scene, advised of their constitutional safeguards and jailed. After arraignment and preliminary examination without the benefit of counsel petitioners were bound over to the Circuit Court for trial. At the Circuit Court arraignment a plea of not guilty was entered and defense counsel was appointed. I-Ie immediately secured a new preliminary examination in order to insure petitioners the full benefit of his representation. However, in the interim between the Circuit Court arraignment and the date of trial petitioners sought the dismissal of appointed counsel. The court, unable to find a sufficient basis to warrant such removal, informed petitioners that he would grant their request provided they understood that no other counsel would be appointed and that they would thus have to obtain their own. Being thus aware of the circumstances, petitioners still insisted upon counsel’s dismissal. They now contend that the court’s refusal to grant additional assistance of counsel was a deprivation of their constitutional right to counsel pursuant to the dictates of Gideon v. Wainwright, 372 U.S. 335 [, 83 S.Ct. 792, 9 L.Ed.2d 799] (1963). “In light of the record before this Court, however, such a claim is groundless. As noted, petitioners were well aware of their right to counsel and the terms by which they were able to dismiss appointed counsel were made explicit. Under these circumstances it is the opinion of this court that by accepting the trial court’s proposition petitioners effectively abandoned any further right to court appointed counsel. Also there is no indication that petitioners were denied ample opportunity to retain private counsel of their choice. The instant claim, therefore, does not warrant relief.”

f2d_475/html/0185-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Manon FREEMAN, Individually and In Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. T. M. PARHAM, Director of the Georgia Department of Family and Children Services et al., Defendants-Appellees. No. 72-2213. United States Court of Appeals, Fifth Circuit. March 13, 1973. Jay E. Loeb, Michael H. Terry, Edward L. Baety, Atlanta, Ga., for plaintiff-appellant. Arthur K. Bolton, Atty. Gen., Atlanta, Ga., John W. Stokes, U. S. Atty., Mrs. Charney K. Berger, Asst. U. S. Atty., Atlanta, Ga., Harold N. Hill, Jr. Executive Asst. Atty. Gen., James B. Talley, Carl C. Jones, Asst. Attys. Gen., Atlanta, Ga., for defendants-appellees. Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge. BELL, Circuit Judge: The sole question on this appeal is whether certain provisions of Title XIX of the Social Security Act, 42 U.S.C.A. § 1396 et seq., require the State of Georgia to provide Medicaid to a class of persons who are currently ineligible for Medicaid under Georgia law. The district court held that the statute does not require the state to provide Medicaid to these persons. We affirm. In 1970 appellant applied for public assistance under the Georgia program of aid to the disabled. The State Department of Family and Children Services found him to be medically disabled and certified him for assistance. The Department also certified him for Medicaid. This was in accordance with the general terms of the Georgia Medicaid program. Under the Georgia plan, a person who qualifies for public assistance under other federally funded state programs also qualifies for Medicaid. The appellant’s problems began when he was found to be eligible for Social Security Disability Benefits. These amounted to $116.90 per month. This new income exceeded the maintenance level of $97.00 per month, which determined the appellant’s eligibility for assistance under the aid to the disabled program. The Department of Family and Children Services terminated his assistance under that program. Further, the Department terminated his Medicaid benefits. Because he was no longer eligible for aid to the disabled, he was no longer eligible for Medicaid, under the Georgia plan. Appellant took an administrative appeal. He argued that his monthly income under Social Security, reduced by his monthly medical expenses, was below the $97.00 maintenance level. The Department rejected this argument. It found that the cost of monthly medical expenses was not deductible from gross monthly income for the purpose of determining eligibility for Medicaid. Appellant then brought this class action under 42 U.S.C.A. § 1983. He alleged that the Department of 'Family and Children Services had denied him Medicaid benefits to which he was entitled under federal statute. He relied, specifically, on' the “spenddown” provision of Title XIX. 42 U.S.C.A. § 1396a(a)(17). That provision provides in pertinent part: “A State plan for medical assistance must . . . include reasonable standards . and provide for flexibility in the application of such standards with respect to income by taking into account, except to the extent prescribed by the Secretary the costs (whether in the form of insurance premiums or otherwise) incurred for medical care or . remedial care recognized under State law.” The appellant maintained that- under this provision his monthly medical expenses should have been taken into account in determining his eligibility for Medicaid. He maintained that he was eligible for Medicaid because his monthly income, less his monthly medical expenses, was below the $97.00 eligibility level. As noted, the district court denied relief. The appeal is controlled by Fullington v. Shea, 320 F.Supp. 500 (1970), aff’d without opinion, 1971, 404 U.S. 963, 92 S.Ct. 345, 30 L.Ed.2d 282. In that case the plaintiffs were, as here, persons who were ineligible for Medicaid because their gross incomes were too high, but who suffered recurrent medical expenses which reduced their incomes below the eligibility level. They relied upon the spenddown provision as. the basis of their claim. The Fullington court held, first, that under 42 U.S.C.A. § 1396a(a) (10) (B), the states are not required to provide Medicaid to persons who fail to qualify for other federally funded assistance programs due to their gross incomes being too high. The court held, second, on an in pari materia approach, that if the states are not required to provide Medicaid to such persons, the spenddown provision could not be read to require effectively the same result, even in the case of ineligible individuals whose high monthly incomes, less recurrent medical expenses, are below the eligibility level. Appellant attempts to distinguish Fullington, on the ground that the holding is limited to the proposition that the state is not required to establish a program for the “medically needy” under § 1396a(a)(10(B). He argues that he does not wish to establish a program for the medically needy. He merely wishes the state to implement the spenddown provision. This distinction is not persuasive. In Fullington the court refused to give effect to the “spenddown” provision. It did so precisely because it held that under § 1396a(a) (10) (B), the state is not required to extend Medicaid benefits to the class of persons who do not qualify for other assistance programs because their gross incomes are too high. In the court’s view, the plaintiffs before it, who invoked the spenddown provision, were members of that class (the medically needy). Accordingly, they were not entitled to Medicaid as of right. Thus, it is true that the Fullington court held that the state is not required to institute a Medicaid program for the medically needy. But it is also true that this was the basis of its holding that the spenddown provision is without effect where a state has not elected to cover the medically needy. Affirmed. . The $116.90 in Social Security benefits, minus $50.00 in medical expenses, equals $66.90, which is below the eligibility level of $97.00. Appellant suffers from diabetes and hypertension. His disease can be controlled with proper medication, at an average cost of $50.00 per month, . The “medically needy” are persons who do not qualify for other federally funded assistance programs because, and only because, their incomes and financial resources do not satisfy state-imposed requirements.

f2d_475/html/0188-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Albert LIVERETT et al., Defendants-Appellees. No. 72-1899. Summary Calendar. United States Court of Appeals, Fifth Circuit. March 15, 1973. Dorrance Aultman, Hattiesburg, Miss., Natie P. Caraway, Jerome Steen, Jackson, Miss., for plaintiff-appellant. Jon A. Swartzfager, Laurel, Miss., for Stanley K. Posey. Leonard B. Melvin, Jr., Laurel, Miss., for Calvin Vester Brownlee. Paul Holmes, Hattiesburg, Miss., for Albert Liverett and Steven Ledford. Before WISDOM, GODBOLD and RONEY, Circuit Judges. Rule 18, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: Appellant State Farm Mutual Automobile Insurance Company brought this declaratory judgment action to determine whether its liability under a policy of automobile insurance had been terminated. State Farm alleged that the automobile had been sold by the insured, in violation of the policy’s contractual requirement that the named insured be and remain the sole owner of the vehicle. The District Court found that ownership of the automobile had not been transferred, so it denied State Farm’s prayer for declaratory relief. We affirm. The automobile in question was owned by the insured, Steven D. Ledford, a resident of Mississippi. On October 9, 1970, the automobile was involved in an accident while being driven by Albert Liverett, a friend of Ledford. State Farm alleged that it is not responsible on the policy issued to Led-ford because, at the time of the accident, ownership of the automobile had been transferred from Ledford to Liverett under an informal arrangement. Thus, the sole issue before the District Court was whether ownership was in Ledford, the insured, at the time of the accident. If so, then State Farm would be liable for the negligence of Liverett, who was driving the car with Ledford’s permission. State Farm admitted that no formal transfer of title had taken place, as required by Section 8065 of the Mississippi Code. Nor had the automobile been registered with the State of Mississippi as being owned by Liverett. State Farm contended, however, that Ledford had sold the automobile to Liverett on the condition that formal title would be transferred, and a bill of sale written, when Liverett had completely paid for it. This question was one for the District Court. We have carefully reviewed the evidence presented and, although we recognize that it is the duty of an appellate court to correct clear error even in findings of fact, the choice by the trier of fact here was between two views of the weight of the evidence. Its decision is not clearly erroneous within the meaning of Rule 52(a), F.R.Civ.P., United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 94 L.Ed. 150 (1949). There is sufficient evidence to support the District Court’s conclusion that, at the time of the accident, Liverett had no legal or equitable ownership interest in the automobile but was using it with the express permission of its owner Ledford. State Farm also contends that the District Court erred when it chose to disregard Liverett’s testimony in its entirety. At the trial, Liverett’s testimony was admittedly inconsistent with the testimony that he had given in an .earlier deposition. In its memorandum decision, the District Court stated that it was laying aside Liverett’s “versatile” testimony in its entirety, deciding the case on the other “credible and convincing testimony.” The decision to disregard all of Liverett’s testimony was well within the discretion of the District Court. A District Court is not required to choose between two conflicting statements of a single witness if other substantial and credible evidence is available. Cf. In Re Gustav Schaefer Co., 103 F.2d 237, 242 (6th Cir. 1939). Affirmed.

f2d_475/html/0189-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Kung How FONG, a/k/a Kwock Tam Kwoon, Defendant-Appellant. No. 72-2666. United States Court of Appeals, Ninth Circuit. March 5, 1973. Certiorari Denied June 11, 1973. See 93 S.Ct. 2785. J. Frank McCabe, Deputy Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, San Francisco, Cal., for defendant-appellant. Dennis Nerney, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiffappellee. Before WRIGHT and WALLACE, Circuit Judges, and KELLEHER, District Judge. Of the Central District of California. PER CURIAM: On this appeal from a conviction on two counts involving possession of heroin, appellant urges three assignments of error, none of which we find to justify reversal. It is argued that the government here was engaged in impermissible creative activity of the type which we condemned in Greene v. United States, 454 F.2d 783 (9th Cir. 1971) and United States v. Russell, 459 F.2d 671 (9th Cir. 1972). Those cases involved government agents whose activities supplied essential elements to the crimes, chemicals necessary to drug manufacture and components with which to make bootleg whiskey. Here, there was neither entrapment nor creative activity. The government agent and the intermediary were but carrying out the pre-existing plan of the exporter and appellant who was the importer. Appellant was predisposed to commit the crime. See United States v. Granger, 475 F.2d 1022 (9th Cir. 1973). Appellant complains of the conduct of the prosecutor in the course of closing argument. The complaint has merit because the Assistant United States Attorney stepped out of bounds on at least three occasions, expressing his personal opinion of the appellant and of the evidence and concluding that, if the jurors thought the government witnesses were liars, they should write the Attorney General about it. This last remark was excepted to but the trial court was not asked to admonish the jury or take other appropriate action. Appellant relies on United States v. Cummings, 468 F.2d 274 (9th Cir. 1972), in which we reversed a conviction for blatantly improper prosecutorial argument to a jury. We there cited a number of authorities with which prosecutors should be familiar. We cite again the American Bar Association Standards Relating to the Prosecution Function § 5.8, which give guidance on arguments to the jury. We agree with the district judge here that the offensive argument was not prejudicial under the circumstances and it was not plain error under Rule 52(b). See Orebo v. United States, 293 F.2d 747, 749-750 (9th Cir. 1961). Appellant’s third assignment of error has been considered and is without merit. Affirmed.

f2d_475/html/0191-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Kenneth EASTIN et al., Plaintiffs-Appellants, v. CITY OF NEW ORLEANS et al., Defendants-Appellees. No. 73-3350 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 8, 1973. Kenneth J. Berke, New Orleans, La., for plaintiffs-appellants. Byron P. Legendre, Asst. Dist. Atty., Charles Foti, Jr., New Orleans, La., for defendants-appellees. 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: After viewing a film entitled “Deep Throat” an officer of the New Orleans Police Department made a detailed affidavit for a search warrant of the motion picture house for the purpose of seizing and confiscating the film prints as being obscene. A judge of the municipal court issued the warrant without holding a prior adversary hearing. Not only were prints of the film taken but check stubs, personnel records, and an address book were also seized. Two employees, Eastin and Brazier, arrested for contributing to the delinquency of a minor, and the owner of the theater brought suit in the district court for the return of property, for an injunction from interfering with the exhibition of the picture or other films, and for an order suppressing the use by the defendants of any material seized in any proceeding against Eastin and Brazier. At the hearing before the district court the defendants offered to return to the plaintiffs everything seized except one print of the film which they desired to retain for use as evidence in the State court proceeding against Eastin and Brazier, for contributing to the delinquency of a juvenile and not for the purpose of confiscating the print as obscene. The district court made this tender a part of the record and, finding no bad faith harassment in connection with the State court prosecution, denied the plaintiffs injunctive relief against further proceedings in the State court. The court took under advisement the defendant’s motion to dismiss. This appeal ensued. We are convinced that the plaintiffs have failed to make any showing of bad faith, harassment or any other unusual circumstance that would call for equitable relief. Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. Affirmed.

f2d_475/html/0192-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Edward Mickael RYTMAN, Defendant-Appellant. No. 72-3366 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 20, 1973. Brooks Taylor, Crestview, Fla., for defendant-appellant. William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Asst. U. S. Atty., Pensacola, 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: Rytman was convicted of a misdemeanor violation of 18 U.S.C. § 641, having been found guilty of knowingly retaining an air-conditioner compressor stolen from the United States Government. The sole issue on appeal is whether or not the search warrant described the item with the particularity necessary to withstand the strictures of the Fourth Amendment. The item was described in the search warrant as a Bendix-Westinghouse motor compressor CH490TA-9-2085, Serial #AA00-2002, located in an air conditioning unit at appellant’s home. In actuality the stolen part was a Bendix-Westinghouse motor compressor CH490 TA-9-A2085, Serial #A90-2002. An error in a description is not automatically fatal to the validity of a search warrant. United States v. Melancon, 462 F.2d 82, 94 (5th Cir., 1972); United States v. DePugh, 452 F.2d 915 (10th Cir., 1971). In the present case there was only one air conditioning unit located at the described premises, and, further, only one Bendix compressor installed in said unit. The warrant cannot be described as sanctioning a general exploratory search. Nor does the inclusion of a slightly erroneous numerical series give rise to a discretionary determination on the part of the executing officer. We are satisfied that the Fourth Amendment requirement of particularity has been met. The judgment of the district court is affirmed.

f2d_475/html/0193-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Clarence TATE, Jr., Petitioner-Appellant, v. Olin G. BLACKWELL, Warden, et al., Respondents-Appellees. No. 71-1577 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 15, 1973. Certiorari Denied May 29, 1973. See 93 S.Ct. 2743. Clarence Tate, Jr., pro se. John W. Stokes, Jr., U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees. 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: Clarence Tate, Jr., an inmate of the United States Penitentiary in Atlanta, Georgia, initiated the present action under the Civil Rights Act, 42 U.S.C. § 1983 et seq., against his warden and others for damages resulting from personal injuries allegedly incurred while engaged in assigned duties at the prison. Tate contended that Warden Blackwell and other prison officials conspired to make him fall off a ladder in order to deprive him of his constitutional rights. The district court granted defendants’ motion for judgment on the pleadings. We affirm. It is evident from the complaint the plaintiff relies solely upon the negligence of the prison authorities and there is no connection between the defendants’ alleged negligence and the deprivation of any of the plaintiff’s constitutional rights. Our decision is without prejudice to the plaintiff’s right to pursue a possible remedy under 18 U.S.C. § 4126, which provides compensation for federal prisoners injured in the performance of assigned work duties at a federal penitentiary. Affirmed.

f2d_475/html/0194-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

LOCAL 7-210, OIL, CHEMICAL AND ATOMIC WORKERS, INTERNATIONAL UNION, AFL-CIO, Plaintiff-Appellant, v. UNION TANK CAR COMPANY, Defendant-Appellee. No. 71-1798. United States Court of Appeals, Seventh Circuit. Argued Nov. 3, 1972. Decided March 7, 1973. Rehearing En Banc Denied Apr. 27, 1973. Arnold E. Charnin, Chicago, Ill., for plaintiff-appellant. Harvey M. Adelstein, Joel H. Kaplan, Chicago, Ill., for defendant-appellee. Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge. . The company would avoid this analysis by noting that arbitrator Platt “did not hold that the Company violated the OCAW agreement by moving the work from Whiting or that it was required to build a new plant separate and apart from Plant No. 1.” Def. Brief at 33 (emphasis supplied). This may be true if the arbitrator’s opinion is read narrowly, but it is hardly a compelling reason to reverse the arbitrator when his ultimate determination of a contract violation is unimpeachable. It is also significant that the company does not argue that OCAW failed to raise the above contentions before the arbitrator. HASTINGS, Senior Circuit Judge. On April 6, 1971, pursuant to § 301 of the Labor Management Relations Act, as amended, Title 29, U.S.C.A. § 185, plaintiff-appellant, Local 7-210, Oil, Chemical and Atomic Workers International Union, AFL-CIO (OCAW), filed .an action in the federal district court against defendant-appellee, Union Tank Car Company (Company). It sought thereby to enforce compliance with the provisions and award of a decision by Labor Arbitrator Harry Platt. This action was the culmination of the tortuous course of a labor dispute between the parties. The administrative procedures included an initial and final decision by Arbitrator Platt, a succession of unfair labor practice charges, representation petitions and unit clarification petitions before the National Labor Relations Board and a decision by Impartial Umpire David Cole under the AFL-CIO Internal Disputes Plan. For many years the Company had been engaged in the manufacture of railway tank cars for lease and sale and in the repair and maintenance of completed tank cars at plants located throughout the United States, including facilities involved here located at East Chicago and Whiting, Indiana. The facility in East Chicago was located on Tod Avenue. Until the latter part of 1969, it was primarily used in the manufacture (fabrication) of tank car shells. Aside from some tank car finishing functions there, the usual procedure was to ship the tank car shells to its Whiting plant for finishing. In 1961, the Whiting facility had been engaged principally in the repair and maintenance of damaged tank cars. In 1966, the Company acquired a vacant facility, known as Plant No. 1, in East Chicago, across the street from its Tod Avenue plant. It then began remodeling Plant No. 1 with the intention of building, for the first time, an integrated manufacturing facility where new tank cars could be completely manufactured in one place. At that time the Company claimed it had no intention of curtailing the finishing operations at Whiting but did plan to engage in finishing operations at Plant No. 1 when it was ready. In late 1969, because of financial reasons, such as market projections, general economic forecasts and orders, the Company decided, sometime after Plant No. 1 was completed, that it would not be feasible to maintain Whiting as a finishing operation. Accordingly, in early 1970, the major portion of the finishing operation was curtailed there and Whiting went back to being a repair and maintenance facility. By late 1970, finishing work at Whiting ceased. In the meantime, fabrication work commenced at Plant No. 1 in 1968 and was timed with the phase-out of the Tod Avenue plant. It was accomplished by the transfer of employees from Tod Avenue. By August 1970, peak employment at Plant No. 1 was reached. This included 200 employees working in the finishing operation, some of whom had been transferred from Whiting. Beginning in 1945, when the Tod Avenue plant in East Chicago was owned and operated by Graver Tank and Manufacturing Company, and continuing from 1957, when it was acquired by the Company, the production and maintenance employees in East Chicago were and still are represented by Local 374, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Boilermakers). Likewise, at all times relevant here, the employees performing finishing and repair and maintenance work at Whiting were represented by OCAW. Boilermakers and OCAW were parties to separate collective bargaining agreements with the Company at all material times. All employees at Plant No. 1 were covered by the Boilermakers’ contract. After notifying OCAW of its intention to curtail the Whiting operations, the Company and OCAW were unable to resolve their differences, OCAW taking the position that the Company was required to apply the OCAW agreement to the finishing operations at Plant No. 1. The above mentioned labor administrative procedures resulted. The ruling of Arbitrator Platt sought to be enforced in the instant § 301 complaint was: “(a) Contingent upon a determination by the National Labor Relations Board that it would not violate the provisions of the NLRA, the Company is directed to apply the existing OCAW Agreement to the finishing operations performed in Plant No. 1. “(b) The Company is directed to reimburse and make whole all OCAW-represented employees for all lost wages and benefits, including health and welfare and retirement benefits, caused by the violation of Article II, Section 1 as heretofore determined.” Defendant Company filed a motion to dismiss the complaint and for summary judgment. Plaintiff OCAW filed a cross-motion for summary judgment. Subsequently, OCAW advised the district court, as it does now on this appeal, that it no longer seeks to enforce that part of the Platt award requiring the application of the OCAW contract at Plant No. 1 as set out in part (a), supra. OCAW no longer asserts any claim for representative status at Plant No. 1 or any bargaining right or the right to negotiate a new agreement with the Company. It merely seeks to enforce part (b) of the award requiring the reimbursement and “make whole” remedy for former OCAW-represented employees. OCAW’s action in not further asserting any right to apply the existing OCAW agreement to the finishing operations performed in Plant No. 1 is but a compelled recognition of the determination by the National Labor Relations Board on April 28, 1971, that the employees, including those previously employed at Whiting and now employed at Plant No. 1, were properly within the Boilermakers’ unit and that the “appropriate unit of Plant No. 1 is a plantwide production and maintenance unit, including the finishing operations and that the employees in this unit are presently, and have been since June 1969, represented by the Boilermakers as their exclusive bargaining representative.” In short, in making its ruling on April 28, 1971, the NLRB had the entire situation before it and pre-empted the field and chose to determine OCAW’s rights under the National Labor Relations Act. In substance, OCAW contends that the two provisions in the Platt award are separable and that the contingency upon an NLRB determination in part (a) is limited to that section and does not cover the remedial directions in part (b). The Company makes the opposite contention. Viewed as a common law breach of contract question, a persuasive argument could be made for OCAW’s position. However, we are in agreement with the district court that this case must be decided within the context of the Labor Act. If so, the action taken by the NLRB cannot be restricted to the representation matter, but it must be said to embrace all other matters, such as working conditions, wages and the like which are implicit in the rights accorded the certified representative of the employees at the plant covered by the collective bargaining agreement there in force. The Company did not apply the OCAW contract to Plant No. 1 because it could not legally do so, for such would have been an unfair labor practice. Having acted in accord with the NLRB decision, how may the Company be liable for damages for refusing to violate the law? There was no breach of contract because OCAW’s contract was never in force at Plant No. 1. On August 4, 1970, Arbitrator Platt specifically ruled: “The Company violated Article II, Section 1 of the Agreement [with OCAW] by failing to apply the OCAW Agreement to the finishing operation when it was moved from the Whiting Plant to Plant No. 1.” This, of course, is in direct conflict with the later NLRB ruling, and OCAW has now abandoned any claims under part (a) of the Platt award. The remedial direction in part (b) of the Platt award is “to reimburse and make whole all OCAW-represented employees” for losses “caused by the violation of Article II, Section 1 as heretofore determined.” This, too, is in direct conflict with the later NLRB ruling and cannot be separated from the contingency in part (a). Since there were never any OCAW-represented employees at Plant No. 1, because all employees there were represented by Boilermakers, it necessarily follows that the Company could not be made to respond in damages for the breach of a contract never in force at Plant No. 1. In defining the limits and scope of arbitration in the field of national labor policy in Carey v. Westinghouse Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), Mr. Justice Douglas, writing for the majority, said: “Should the Board [NLRB] disagree with the arbiter, by ruling, for example, that the employees involved in a controversy are members of one bargaining unit or another, the Board’s ruling would, of course, take precedence; and if the employer’s action had been in accord with that ruling, it would not be liable for damages under § 301.” Id. at 272, 84 S.Ct. at 409. The Court further noted that “[t]he superior authority of the Board may be invoked at any time,” but continued to recognize “the therapy of arbitration.” Id. See NLRB v. Plasterers Local 79, 404 U.S. 116, 136-137, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971). Cf. U. S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971). A district court put some flesh on the bare bones of the Supreme Court’s dicta in Carey in Dock Loaders Local 854 v. W. L. Richeson & Sons, E.D.La., 280 F.Supp. 402, 404-405 (1968). There, two unions, Teamsters and Dock Loaders, were locked in a dispute as to which should perform certain unloading work. Dock Loaders, following a grievance, won an arbitration award granting it the work and sought to enforce it in the federal district court. Following threat of a strike by Teamsters, the NLRB, responding to an unfair labor practice charge by the employer, awarded the work to Teamsters. Dock Loaders then filed a § 301 suit against the employer to enforce its arbitration award. The employer moved to dismiss and for summary judgment. The court held lid. at 404] that there “would seem to be no question that, as between a grievance committee award of disputed jobs to certain employees and a conflicting NLRB allocation of the same jobs to different employees, the latter takes ‘precedence,’” citing New Orleans Typographical Union No. 17 v. NLRB, 5 Cir., 368 F.2d 755, 767 (1966). In Dock Loaders, the court held that the dicta in Carey command respect, and in view of such language it ruled that the Labor Board’s decision awarding the disputed work to Teamsters barred the recovery of damages in the § 301 case under the arbitrator’s award. Cf. Ironworkers Local 395 v. Lake County Council, Bhd. of Carpenters, N.D.Ind., 347 F.Supp. 1377, 1380 (1972). Finally, in Smith Steel Workers v. A. O. Smith Corp., 7 Cir., 420 F.2d 1 (1969), we were concerned with a case in which two unions claimed representation rights over certain disputed job classifications. The employer sought a unit clarification by the Labor Board to determine the dispute. The Labor Board awarded the representation rights to one union. Nevertheless, the losing union demanded arbitration, which the employer refused. The losing union then sought to have the federal district court compel arbitration. The employer filed unfair labor practice charges against the losing union, alleging the union’s actions in continuing to seek representation of its workers violated the Labor Act. The Labor Board found a violation of § 8(b)(3) of the Act on the ground that it had held the losing union to be inappropriate in its unit clarification decision. It entered an appropriate cease and desist order. The district court dismissed the complaint, holding (1) that it lacked jurisdiction to set aside the Board’s action, and (2) that under § 301(a) of the Act it could not compel the employer to arbitrate the representation question which had already been determined by the Labor Board in its prior unit clarification order. In its memorandum opinion, reported at 285 F.Supp. 1011 (1968), relying on Retail Clerks International Association v. Montgomery Ward & Co., 7 Cir., 316 F.2d 754, 757 (1963), the district court said: “Plaintiff now seeks to enforce a contract which would require defendant Company to take action directly contrary to a Board determination. Neither the policy of the Labor Management Relations Act nor prior court decisions support plaintiff’s position.” 285 F.Supp. at 1016. We affirmed the district court’s order, and Circuit Judge Cummings, writing for our court, said: “The district court was also correct in refusing to compel arbitration of the unit representation issue after its determination by the Board. Arbitration provides an alternative means of resolving disputes over the appropriate representational unit, but it does not control the Board in subsequent proceedings. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 268-272, 84 S.Ct. 401, 11 L.Ed.2d 320. In this case no arbiter’s award existed to which the Board could defer. All the parties involved in the dispute joined in petitioning the Board for clarification of the certificates and the arbitration hearing was accordingly postponed. The Board was not bound to delay its consideration of the issue under these circumstances. The Board’s 1967 determination of the appropriate units fully disposed of the question. It defined the lawful limits of coverage of the contract which the Union sought to have enforced under Section 301(a) of the Labor Management Relations Act (29 U.S.C. § 185(a)). As in Retail Clerks International Ass’n v. Montgomery Ward & Co., 316 F.2d 754, 757 (7th Cir. 1963), the Board’s order deprived the Union of any right to recognition as the representative of the laboratory technicians and experimental workers. See also McGuire v. Humble Oil & Refining Company, 355 F.2d 352, 357-358 (2d Cir. 1966), certiorari denied, 384 U.S. 988, 86 S.Ct. 1889, 16 L.Ed.2d 1004. The court could compel neither arbitration nor enforce any arbiter’s award in conflict with the Board’s order. National Lieorice Co. v. National Labor Relations Board, 309 U.S. 350, 365, 60 S.Ct. 569, 84 L.Ed. 799.” 420 F.2d at 7. Further, after recognizing that the duties imposed on employers and unions by the Labor Act are complementary and must be construed in harmony with one another, we found that the same is true of the bargaining responsibilities created by the Act. The employer was required to bargain only with the proper representative of the appropriate bargaining units, even though the employer had previously bound himself by contract to bargain with an inappropriate representative. Id. at 8, citing appropriate cases. Quoting further from Smith, id. at 9: “Moreover, the unit clarification procedure is designed to present an alternative to an unfair labor practice charge as a means for obtaining an official determination of the correct bargaining units.” And, id. at 10: “In addition, the Board’s unit clarification order precluded any recourse by the Union to arbitration or other grievance procedure. As a result of that order, no contractual issues existed which could be arbitrated or settled by bargaining.” A complete reading of Smith, and its recognition of Carey and related cases, makes clear to us the relevance of the supremacy doctrine, and that once the Board has acted, either before or after the arbitrator’s award, the Board’s order overrides the arbitrator’s decision. Smith further makes it clear that contractual rights cannot exist separately and apart from the union’s right to represent the unit. Id. at 12-13. We have carefully reviewed the various contentions made by OCAW and find them unpersuasive in light of Carey, Dock Loaders and Smith, supra, and National Licorice Co. v. NLRB, 309 U.S. 350, 365, 60 S.Ct. 569, 84 L.Ed. 799 (1940). We are in accord with the well reasoned memorandum opinion of the district court, 337 F.Supp. 83 (1971), and the final conclusion reached by Judge Parsons, when he said: “In view of these decisions, it would appear that the law thus established is that where there is a conflict between an arbiter’s award and a later NLRB ruling, the arbiter’s findings must give way before the superiority of the NLRB decision. If the employer has acted in accord with the NLRB decision, it is not liable for damages.” Id. at 87-88. For the foregoing reasons, we affirm the action of the district court in denying the monetary remedial relief sought by the plaintiff. The judgment denying plaintiff OCAW's motion for summary judgment and granting defendant Company’s motion to dismiss the complaint and for summary judgment is affirmed. Affirmed. SWYGERT, Chief Judge. I respectfully dissent. In support of affirmance, the majority asserts (1) that the facts of the case display no breach of contract by the company and (2) that the damage award of arbitrator Platt is in conflict with a unit clarification ruling by the Labor Board, thereby unenforceable on the authority of Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1 (7th Cir., 1969), and Dock Loaders and Unloaders Local Union No. 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402 (E.D.La., 1968). With deference to the view held by my Brothers, I believe their reliance on Carey and its progeny is misplaced; if the arbitrator erred in finding a violation of contract, his award must fall for that reason and not because the award conflicts with a Board ruling. Moreover, if the arbitrator did not err, I cannot agree that his award is in conflict with a decision of the Labor Board. I Article II, Section I of the 1969 OCAW agreement reads: This agreement shall apply only to the operations of the Company at its Whiting, Indiana plant; provided, however, if such plant or operation is moved to another location in the Calumet area, this agreement shall also apply to such other location. The history of bargaining between the company and OCAW from 1959 reveals that this removal provision and analogous predecessors were insisted upon by OCAW to assuage its concern that the company would relocate operations performed by OCAW members at the Whiting plant despite representations by the company that it had every intention of continuing the Whiting operations. As it turned out, the fears of the Union proved justified; only a few months subsequent to consummation of the 1969 agreement, the company informed OCAW that it was terminating the finishing operation at Whiting and reestablishing it at East Chicago, where the company had already extended recognition to the Boilermakers. Negotiations ensued. OCAW took the position that the company was bound by the removal provision to apply the 1969 agreement to finishing operations at East Chicago. The company’s response was to dispute the Union’s interpretation of the contract and to argue that it could not lawfully recognize OCAW or apply the OCAW contract at East Chicago inasmuch as it had already extended representation recognition to the Boilermakers. The company persisted in the latter position throughout the course of litigation on the matter, and, on March 10, 1971, invoked the Board’s representation processes by filing a unit clarification petition requesting that the Boilermakers’ bargaining unit at East Chicago be clarified to specifically include the employees working in the finishing operation at that location. Thus it is fair to say that the company, both at the time of and subsequent to its decision to relocate the Whiting finishing operation, had no intention of applying the OCAW contract at East Chicago, and, indeed, was convinced that to do so would violate its legal obligation to the Boilermakers as the exclusive bargaining representative for East Chicago employees. II The majority’s holding that no contract violation occurred is summed up by the following paragraph of Judge Hastings’ opinion: The Company did not apply the OCAW contract to Plant No. 1 because it could not legally do so, for such would have been an unfair labor practice. Having acted in accord with the NLRB decision, how may the Company be liable for damages for refusing to violate the law? There was no breach of contract because OCAW’s contract was never in force at Plant No. 1. From this I discern two separate positions. The first is that the company was excused from compliance with the removal clause of the OCAW contract because of impossibility of performance ; the second is that the company could not have breached the contract because it “was never in force at Plant No. 1 [East Chicago].” While the quoted excerpt is a correct statement of fact, it fails as a premise to support its conclusion. That the contract sued upon was in force at Whiting is beyond dispute; the issue before us is whether the contract was violated at that location, not at East Chicago. In resolving this issue a cardinal principle of contract law must be kept in mind. Professor Williston states it as follows: It is a principle of fundamental justice that if a promiser is himself the cause of the failure of performance either of the obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure. 5 Williston, Contracts § 677 (3d ed. 1961). Professor Corbin is of like mind: Whatever be the meaning given to the term impossibility, whether it be objective or subjective, and even though it be used to include varying degrees of difficulty and expense, the supervening situation that is so described does not excuse a promisor from his contractual duty if he himself wilfully brought it about, or if he could have foreseen and avoided it by the exercise of reasonable diligence and efficiency. In such a case, the promised performance was not impossible in any sense, either at the time the contract was made or for some time thereafter. 6 Corbin, Contracts § 1329 (1962). To put it another way, and with specific reference to the agreement at issue, the requirement of the removal clause that the OCAW agreement be applied at any new site of operation embodies a prohibitory mandate that the company undertake no move which would foreclose application of the contract. And the facts leave no room for dispute that the company found it impossible to obey the removal clause because it chose to move the Whiting operation to a plant where exclusive representation had already been granted to another union. The real issue, then, is whether the company exercised “a reasonable degree of effort and diligence” in attempting to comply with the removal clause. ,6 Corbin, Contracts § 1329 (1962). The arbitrator found that the move from Whiting was motivated solely by economic considerations. The company admits this: “In late 1969 . . .serious financial considerations such as market projections, general economic forecasts and orders, caused the Company to reconsider [its] plans to maintain dual facilities.” Def. Brief at 5. Generally speaking, however, changed economic circumstances do not validate a defense of impossibility. This is not a case like United Auto Workers v. Hamilton Beach Mfg. Co., 40 Wis.2d 270, 162 N.W.2d 16 (1968), In re Curtiss-Wright Corp. and Office Employees’ International Union, Local 279, 43 Lab.Arb. 5 (1964), or In re Safeway Stores, Inc. and Retail Clerks International Union, Local No. 648, 42 Lab.Arb. 353 (1964), where the union contract contained no express provision dealing with plant removal, and legitimate business motives were found to justify a move of operations. See also Shoe Workers v. Brooks Shoe Mfg. Co., 183 F.Supp. 568 (E.D.Pa., 1960). This, instead, is a case where plant removal was barred except upon the condition that the contract be applied at any new site of operation. This provision was not complied with. Absent extreme economic hardship, cf. In re Curtiss-Wright Corp. and Office Employees’ International Union, Local 279, 43 Lab.Arb. 5 (1964) — which the company certainly has failed to establish — no excuse lies for its breach of the removal clause. See In re Jack Meilman and Amalgamated Clothing Workers of America, 34 Lab.Arb. 771 (1960), In re Centra Leather Goods Corp, and Pocketbook Workers Union of New York, 25 Lab.Arb. 805 (1956). III Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1 (7th Cir., 1969), holds that a unit clarification decision by the Labor Board provides an absolute defense to employer liability for violation of contract provisions respecting work assignments when work is assigned by the employer in conformity with the Board’s ruling. Dock Loaders and Unloaders Local Union No. 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402 (E.D.La., 1968), adds the corollary that employer violations of work assignment contract provisions are wiped out if his actions prove to be in conformity with national labor policy as interpreted by the Labor Board in a subsequent unit clarification ruling. I do not agree with the majority that these cases are dispositive of the instant appeal. The company did not violate its contract with OCAW by refusing broadly to apply the work assignment provisions of the contract. It entirely avoided the OCAW contract by moving its finishing operation to a location where the NLRA — and, later, an NLRB decision — foreclosed adherence thereto, in direct violation of the contract’s removal clause. The distinction is important. Arbitral decisions on the issue of work assignment and Labor Board unit clarification decisions go to the heart of an identical question: Who shall perform disputed work? An arbitrator’s decision that a company has violated its contract by moving the site of a given operation is an entirely different matter. In short, the decision by arbitrator Platt is wholly compatible with the unit clarification by the Board. Had the relocation of operations at issue been required by the Act or by a Board decision, I would agree that Smith and Dock Loaders fully dispose of OCAW’s sought damage award. This case, however, is one step removed; free from statutory or administrative compulsion and motivated solely by thoughts of financial gain, the company placed itself in a position where it could not apply the OCAW contract. While the end result of the company’s decision to remove has a surface similarity to the situations in Smith and Dock Loaders, the fact remains that the dilemma in which the company assertedly found itself prior to the NLRB decision was entirely of its own making and the product of its willful violation of the collective bargaining contract. In Smith and Dock Loaders the employer had no way of avoiding the eventual disputes with competing unions. If he favored one union, the other protested breach of contract and violation of the NLRA. This case does not present that situation. Had the company chosen to comply with the removal clause by staying at Whiting or moving to another location where compliance was practicable, it is difficult to imagine that the Boilermakers or the Board would have been heard to complain. Although I agree that not all remedies may be open to an arbitrator when a violation of contract is found, the fact that one remedy may be unavailable hardly justifies a denial of liability. This, in essence, is what the company is arguing here; since, it asserts, an injunctive remedy requiring application of the OCAW contract at East Chicago is precluded by the Board unit clarification, damages on the same contract would be inconsistent. This is not correct. The company violated the OCAW contract in a manner which — unlike a work assignment violation — is not protected by the Board clarification decision. That the Board decision precludes injunctive relief for that violation is no reason to withhold all relief. I would therefore reverse the decision of the trial court and remand the cause for a determination of damages to OCAW. . The record shows that the impartial umpire, David Cole, under the AFL-CIO Internal Disputes Plan, had held a hearing and ruled that OCAW liad violated its agreement with AFL-CIO by its attempts to interfere with the Boilermakers’ established collective bargaining status “as to employees doing finishing or ear completion work at Plant No. 1.” . See also Iron Workers, Local 395 v. Carpenters, 347 F.Supp. 1377 (N.D.Ind., 1972), a case very close on its facts to Doch Loaders. . A clarifying interpretation is needed for the statement that the company “acted in accord with the NLRB decision.” There was no such decision in existence when the company chose to move the finishing operation from Whiting. The company relied solely on the NLRA in refusing to apply the OCAW contract at East Chicago. Furthermore, neither the NLRA nor the eventual unit clarification ruling by the Board ordered the company to move its finishing operation; each dictated only that operations at East Chicago were solely within the jurisdiction of the Boilermakers. . Assume that arbitrator Platt required the company to reestablish finishing operations at Whiting, rather than awarding the contingent injunctive relief that he did. See In re Centra Leather Goods Corp. and Pocketbook Workers Union of New York, 25 Lab.Arb. 805 (1956). In that event I doubt that the company would argue that Smith and Dock Loaders require vacation of the damage award, since company compliance with the arbitral mandate would eliminate any possibility that company action would conflict with the Board clarification of the East Chicago unit. This case differs only in that the injunctive relief sought by OCAW did raise such a conflict. But it bears repeating that the injunctive remedy is not now at issue; as the arbitrator himself recognized, that remedy was necessarily “contingent upon a determination by the National Labor Relations Board that it would not violate the provisions of the NLRA.”

f2d_475/html/0203-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, For and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. The BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, Respondent-Appellee. No. 72-1759. United States Court of Appeals, Third Circuit. Argued Dec. 5, 1972. Decided Feb. 27, 1973. Marvin Roth, N. L. R. B., Washington, D. C., for appellant. Peter G. Nash, General Counsel, Julius G. Serot, Sp. Counsel to General Counsel, Marvin Roth, Supervisory Atty., Alan Banov, Atty., N. L. R. B., Bernard N. Katz, Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa., for respondentappellee. Shawe & Rosenthal, Baltimore, Md., Warren M. Davison, Washington, D. C., for Samuel E. Long, Inc., amicus curiae. Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. This is an appeal from an opinion and order of the district court in which that court declined to issue a preliminary injunction under § 10 (l) of the Labor Management Relations Act of 1947, as amended 61 Stat. 149; 73 Stat. 544; 29 U.S.C. § 160(l). This court has jurisdiction under 28 U.S.C. § 1292. Samuel Long is a non-union contractor, i. e., none of his workers belong to unions. But sub-contracting on his construction jobs is often given to sub-contractors with union labor contracts. Appellee Building and Construction Trades Council is a trade association with area construction unions as members. Appellee decided to picket Long’s latest job site, the district court found, solely to force him to employ only sub-contractors who use union labor, when and if he chooses to sub-contract. He would apparently have a free choice concerning whether to sub-contract. The appearance of the pickets caused a disappearance of all union labor at Long’s latest job site, bringing work to a standstill. Long filed a charge with the National Labor Relations Board, claiming that appellee was engaging in an unfair labor practice prohibited by § 8(b)(7)(C) of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 158(b)(7)(C). Pursuant to § 10(i), the Board moved for a preliminary-injunction against the picketing pending a final decision by the Board as to whether the picketing was in fact an unfair labor practice. For there to be an unfair labor practice under § 8(b)(7), two conditions must be met. First, the introductory clause must be satisfied, i. e., a labor organization must be picketing an employer with an objective of forcing that employer to recognize the organization as a representative of his employees. Secondly, one of the conditions in sub-paragraphs (A), (B) or (C) also must be met. Although the Council’s purpose was not to represent Long’s employees but to force him to accept union sub-contractors, the Board still claims that the introductory clause was violated. The Board reasoned that contracting out of work which might be performed by Long’s employees was a term or condition of employment of Long’s employees. If, therefore, Long was forced to deal with the Council on the issue of sub-contracting, he would in effect be recognizing the Council as the agent of his employees on that particular issue. This issue is important enough to have a susbtantial impact on Long’s employees. Therefore, it should be sufficient to satisfy the introductory clause. In support of this argument, the board relied heavily upon Dallas Building & Construction Trades Council v. N. L. R. B., 130 U.S.App.D.C. 28, 396 F.2d 677 (1968), enf’g. 164 N.L.R.B. 938 (1967) and also Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council v. N. L. R. B., 415 F.2d 656 (9th Cir. 1969), enf’g. 165 N.L.R.B. 538 (1967). The NLRB felt that sub-contracting was an important issue to Long’s employees even though the agreement the Council wanted Long to sign stated only that when he sub-contracted, he had to sub-contract with union employers. The Board then claimed that sub-paragraph (C) of § 8(b)(7) was also violated since no petition for an election under § 9(C) had been filed and since none of the exceptions to § 8(b)(7)(C) had been met. The district court, after a comprehensive consideration of the legislative history and related case law, determined that the union’s picketing did not violate the introductory clause of § 8(b)(7). The Court reasoned that read in the context of sub-paragraph (C), the introductory clause means that for picketing to be “recognitional,” it must have as a goal the recognition of the bargaining agent (here the Council) as the “full collective bargaining agent of those employees.” According to the district court, since the effect of the proposed agreement at most would be that the Council would be the representative of Long’s employees as to only one issue (sub-contracting), the introductory clause would not be violated. After holding that it was not required to issue a preliminary injunction where it disagreed with the legal theory upon which the Board relied, the court denied the Board’s motion for that relief. The Board has appealed from this denial. Its primary contention is that the district court applied an incorrect standard of law in determining when a § 10 (i) injunction should issue. The Board claims that the district court misinterpreted our decision in Schauffler v. Local 1291, International Longshoremen’s Association, 292 F.2d 182 (3d Cir. 1961). In Schauffler, this circuit was reviewing the decision of a district court to grant a § 10(1) injunction. We said that whether such an injunction should be issued turned on whether there was reasonable cause to believe that an unfair labor practice listed in that section had been committed: “The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous.” Schauffler v. Local 1291, supra at 187. This test was designed to effectuate the Congressional purpose in enacting § 10(i). “The Section 10(i) procedure reflects the congressional determination that certain unfair labor practices are so disruptive that where there is reasonable cause to believe that they are being engaged in their continuance during the pendency of charges before the Board should not be permitted. S.Rep.No.105, 80th Cong., 1st Sess., pp. 8, 27. “If, in a Section 10 (i) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10 (Z). That Section’s usefulness as a tool with which the status quo may be preserved pending final adjudication would be diminished insofar as the Board would be required to finally litigate questions of substance at a preliminary stage. Moreover, the court would not have the benefit of the Board’s opinion on questions of fact and novel questions of labor law when making its decision. Thus, the court would, to some extent, usurp the Board’s function as the primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme.” Schauffler v. Local 1291, supra, 292 F.2d at 187, 188. The district court noted that Schauffler set the applicable standard for determining when a § 10 (Z) injunction should be granted. But it went on to say: “We do not read § 10 (i), as thus construed, to require a District Court, charged with granting injunctive relief under § 10 (l) where it is ‘just and proper’, to grant relief based upon legal theories advanced by the Board, which, while thoughtfully presented and not frivolous, are, in the view of the Court, erroneous.” (Emphasis added). This is a misinterpretation of Schauffler. As dictated by that decision, the district courts have a limited role in § 10(J) proceedings. Schauffler requires only that the Board’s theory be substantial and not frivolous; and if it is, it does not matter whether the district court ultimately agrees with it or not. The Board met its burden here for we feel that the district court’s statement that the Board’s theory was “thoughtfully presented and not frivolous” can fairly be interpreted to mean that the Board’s theory was substantial and not frivolous. This does not mean that a district court must always grant an injunction even though it disagrees with the Board’s legal theory. If the district court can characterize the theory as insubstantial and frivolous, it may refuse the injunction. If the Board’s theory cannot be so characterized, however, the district court must grant the injunction since this will best effectuate the Congressional policy against disruption of commerce expressed in § 10 (l). Appellee argues that a motion for a preliminary injunction under § 10(0 is addressed to the discretion of the district court and that its decision should not be reversed unless there has been a clear abuse of its discretion. E. g., Samoff v. Williamsport Building and Construction Trades Council, 451 F.2d 272, 274 (3d Cir. 1971). It points out that Schauffler was an appeal from the grant of a preliminary injunction whereas this case is an appeal from a denial of such an injunction. Appellee’s argument could possibly be successful if we were reviewing the decision of the district court after it had applied the proper legal standard in reaching its decision. As previously mentioned, however, the district court misinterpreted Schauffler and thus applied an incorrect standard. To accept appellee’s argument and the district court’s decision would circumvent the statutory process of review in these cases. We have no authority to decide these cases finally until the NLRB has acted on them. See § 10(e) and § 10(f) of the Labor Management Relations Act, supra. But if a district court were to determine that the Board’s legal theory was incorrect, we would be able to review that determination since it is a question of law. If we made such a review we would be deciding many of these cases on the motion for a preliminary injunction and before the NLRB had a chance to act on them. Adhering to Schauffler will guard against premature review. We emphasize that this decision should in no way be taken as approving or disapproving the ultimate merits of the Board’s legal position as advanced in the district court. Presumably, that adjudication will occur pursuant to either § 10 (e) or § 10(f) of the Act. The decision of the district court will be reversed. . This decision is reported at 346 F.Supp. 1071 (E.D.Pa.1972). . Section 10(l) provides as follows: “Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(A), (B), or (C) of section 8(b) or section S(o) or section 8(b) (7), the preliminary investigation of such charge shall bo made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may he referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any district court of the United States (including the District Court of the United States for the District of Columbia) within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law : * * * Provided further, That such officer or regional attorney shall not apply for any restraining order under section 8(b)(7) if a charge against the employer under section 8(a)(2) has been filed and after the xireliminary investigation, he has reasonable cause to believe that such charge is true and that a complaint should issue. Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony: Provided further, That for the purposes of this subsection district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. ,¡t t|t it >> . Section 8(b) (7) of the Act, provides that it shall be an unfair labor practice for a labor organization or its agents: “to picket or cause to be picketed, or threaten to picket or cause to be picketed, any emxiloyer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring tlie employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: “(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under Section 9(c) of this Act. “(B) where within the preceding twelve months a valid election under Section 9(c) of this Act has been conducted, or, “(C) where such picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of Section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this Section 8(b).” . The merits of this case were decided by the National Labor Relations Board, see The Building and Construction Trades Council of Philadelphia and Vicinity and Samuel E. Long, Inc., 201 N.L.R.B. No. 42 (1973), after this opinion had been written and approved by the panel who sat on the case, but before it was filed. The Board has urged that we declare the matter moot and vacate the judgment of the district court. Appellee argues that the case is not moot, and we agree with it. As mentioned above, the opinion had already been written and approved before the N.L.R.B. acted. The case had been argued in a complete adversary context, and the opinion was written while the dispute was very much alive. And even if the doctrine of mootness did apply, in appropriate circumstances we can still review § 10(1) proceedings because of the problems inherent in perfecting an appeal before the Board’s final adjudication. See Solien v. Miscellaneous Drivers & Helpers Union, Local No. 610, 440 F.2d 124 (8th Cir. 1971), cert. denied Sears, Roebuck & Co. v. Solien, 403 U.S. 905, 91 S.Ct. 2206, 29 L.Ed.2d 680 (1971), reh. denied 404 U.S. 960, 92 S.Ct. 305, 30 L.Ed.2d 277 (1971). Of course, this opinion has no effect either on the right of the Board to petition for an order of enforcement of its decision pursuant to § 10(e) of the Act or the right of the Trades Council to appeal that decision pursuant to § 10(f). . Other circuits have set up similar standards envisioning a limited role for the district courts in these proceedings. McLeod v. National Maritime Union, 457 F.2d 1127, 1133 (2d Cir. 1972); Sachs v. Local Union No. 48, Plumbers, 454 F.2d 879, 882, 883 (4th Cir. 1972); San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 544 (9th Cir. 1969); Local Joint Board v. Sperry, 323 F.2d 75, 77-79 (8th Cir. 1963); Madden v. International Organization of Masters, Mates & Pilots, 259 F.2d 312, 313-314 (7th Cir. 1958), cert. denied 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 229 (1958); American Federation of Radio & Television Artists v. Getreu, 258 F.2d 698, 699, 701 (6th Cir. 1958). . The Senate Report on the bill that was enacted stated: “Because of the nature of certain of these practices, especially jurisdictional disputes, and secondary boycotts and strikes for specifically defined objectives, the committee is convinced that additional procedures must be made available under the National Labor Relations Act in order adequately to protect the public welfare which is inextricably involved in labor disputes. “Time is usually of the essence in these matters, and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives — the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices.” S.Rep.No.105, 80th Cong., 1st Sess., pg. 8; I Legislative History of the Labor Management Relations Act, 1947, 414. . See fn. 6. In this case, for example, construction of a school was substantially delayed by the dispute between the parties. . See note 4, supra.

f2d_475/html/0208-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Charles DURHAM, Defendant-Appellant. No. 72-1067. United States Court of Appeals, Seventh Circuit. Argued Sept. 18, 1972. Decided Feb. 28, 1973. David F. McNamar, Indianapolis, Ind., for defendant-appellant. Stanley B. Miller, U. S. Atty., Charles Goodloe, Jr., Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge. SWYGERT, Chief Judge. Anthony Charles Durham appeals from his conviction by a jury for the armed robbery of the treasurer of the Drover Street Federal Credit Union in Indianapolis in violation of 18 U.S.C. § 2113(a). Durham asserts four reasons for the reversal of his conviction: (1) the erroneous admission of testimony concerning his purported confession in violation of the fifth and sixth amendments to the Constitution, (2) the erroneous admission of a government agent’s memorandum and notes as to the purported confession for the purpose of reinforcing the agent’s credibility, (3) the erroneous admission of irrelevant prejudicial evidence concerning a black Impala Chevrolet that Durham had allegedly stolen, and (4) the absence of any evidence to establish that Durham had knowledge or intent to rob a federal credit union in violation of the federal statute. The defendant was indicted on March 20, 1961 and found guilty by a jury on May 19, 1961. He received a twenty-year sentence which was vacated on August 8, 1961. He was resentenced to ten years after the district judge had received a study of Durham in accordance with 18 U.S.C. § 4208(c). The August 8, 1961 sentence was vacated on November 25, 1964 since Durham and his attorney were not present at the first re-sentencing, in accordance with the requirements of United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), affirming 312 F.2d 223 (7th Cir. 1962). Durham then received the same ten-year sentence. That sentence was later vacated on September 30, 1971 after Durham had filed a petition for writ of error coram nobis under 28 U.S. C. § 2255, based on the failure of the court or his attorney to inform him of his appellate rights. He was then given a ten-year sentence to be served concurrently with another sentence with credit allowed for time already served. After the final resentencing, Durham’s counsel moved for judgment of acquittal or for a new trial raising all of the issues presented in this appeal. The district court denied the motion. Special Agent Fred Doerner of the Federal Bureau of Investigation, the agent in charge of the investigation, testified at Durham’s trial that the defendant confessed having committed the crime when Doerner interviewed him at the Marion County jail. Doerner testified that prior to the taking of the orally admitted committing the crime and that on January 23, 1961 he, Doerner, took a statement of confession from the defendant which the defendant refused to sign. Doerner further testified that prior to the taking of the statement, he informed “Durham that he was not required to make any statement; that any statement he did make could be used against him in court, and that he was entitled to the services of an attorney.” The defendant denied making the statement of confession. Counsel on behalf of Durham argues that it was error to admit the testimony without a hearing on the voluntariness of the confession since Doerner knew that the defendant was represented by counsel and yet counsel was not present when the statement was obtained. The Government in reply maintains that although the defendant denied making the statement, he did not deny that he had been advised by Doerner of his rights to counsel and to be silent. The Government also argues that Durham did not raise the voluntariness issue at trial and is therefore precluded from raising it for the first time on appeal, especially since there were no “alerting circumstances.” United States ex rel. Lewis v. Pate, 445 F.2d 506, 508 (7th Cir. 1971). Finally, the Government contends that Durham never asserted that he requested counsel and therefore it may properly be concluded that he waived this right. The robbery occurred on December 9, 1960. Joseph Mazelin, counsel for the defendant, spoke with agent Doerner on the telephone on December 20, 1960 and thereafter had Durham talk with the agent. Doerner was also in municipal court on December 30, 1960 and saw Mazelin representing Durham on a state criminal charge. Mazelin also represented Durham at the preliminary hearing before the United States Commissioner on January 5, 1961, at which Doerner was present. Doerner interviewed the defendant on January 2, 9, 16, 20 and 23, 1961 while Durham was in the Marion County jail. Attorney Mazelin was not present at any of these interviews. It is undisputed that agent Doerner knew that Durham was represented by counsel when he obtained the incriminating statements. Although the agent’s first interview with Durham on December 20, 1961 was arranged by his counsel, there is nothing in the record that indicates that Doerner ever informed Durham’s counsel of the five subsequent interviews in the Marion County jail. The defendant contends that the statements obtained from him in the absence of his attorney deprived him of his sixth amendment right to have assistance of counsel for his defense in the criminal prosecution. This issue was first raised in his motion for a new trial. The Supreme Court in Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), held that Massiah had been denied his sixth amendment right to assistance of counsel “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Here, agent Doerner, knowing Durham was represented by counsel, obtained incriminating statements from him in the absence of counsel and after his arrest and the preliminary hearing. Although the Government has not raised the issue, we think it is necessary for us to consider two questions in applying the principles of Massiah to this case. The first is whether Massiah is to be applied retroactively. Durham points to the comparative time sequence of his case with that of Massiah and Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Regardless of the comparative time sequences of those eases, we believe the question is controlled by McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), mem. rev’g 1 Ohio St.2d 60, 203 N.E.2d 349 (1964). There, McLeod willingly made inculpating statements to the chief deputy sheriff and the assistant prosecuting attorney after his indictment and in the absence of counsel. At the time the statements were made, McLeod had not been arraigned and had not requested appointment of counsel. The statements were subsequently introduced at his trial for murder. The Supreme Court reversed the conviction and applied Massiah retroactively. See also United States ex rel. Graham v. Mancusi, 457 F.2d 463, 470 (2d Cir. 1972); United States ex rel. O’Connor v. State of New Jersey, 405 F.2d 632, 637 (3d Cir. 1969); Hancock v. White, 378 F.2d 479, 482-483 (1st Cir. 1967). The second question is whether Massiah is limited to post-indictment statements or whether it includes statements obtained after arrest and preliminary hearing. I read Massiah to bar the admissibility of the statements obtained here since the Government had initiated “adversary judicial criminal proceedings” against Durham prior to the time the statements were obtained. Cf. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Although the Government was entitled to continue its investigation subsequent to the defendant’s arrest and preliminary hearing, it could not, in my opinion, permissibly interview the defendant without advising his counsel. The facts here are similar to McLeod, except that, unlike McLeod, the government agents obtained the incriminating statements from Durham in the absence of retained counsel known to be representing the defendant on this criminal charge. Such conduct would appear to raise ethical questions. Doerner attempted to obtain incriminating statements from Durham on four separate occasions while the defendant was in jail even though he denied complicity during the first three interviews. In my opinion, the Government had the burden to show that the agents had informed Durham’s counsel of the intended interviews after his arrest. It failed to adduce such proof. Since Doerner’s testimony concerning Durham’s incriminating statements should not have been admitted, it follows that the written statement prepared by Doerner of Durham’s confession was also inadmissible. There was no need to reinforce Doerner’s credibility since his original testimony should have been suppressed. The defendant further contends that the trial judge erred in admitting evidence relating to a stolen black Impala Chevrolet. The Government presented a number of witnesses who testified that a black Impala Chevrolet had been stolen prior to the robbery. Another Government witness testified that he had been arrested for possession of a stolen black Impala Chevrolet and that he had borrowed the car from the defendant several times during December 1960. Lastly, another witness testified that on the day of the robbery he noticed two men in a black Impala Chevrolet which was parked near the Drover Street Federal Credit Union. The witness could not identify the defendant as either of the two men. The foregoing evidence, standing alone, was completely irrelevant to the charge on which the defendant was tried. The only possible basis for its admission was certain statements made by the defendant to agent Doerner. Since these statements were inadmissible for the reasons I have heretofore stated, it follows that the evidence relating to the stolen Chevrolet automobile was also inadmissible. The defendant’s final contention is that the Government failed to prove that he had a specific intent to rob an officer of a federal credit union in violation of 18 U.S.C. § 2113(a) and that such intent was a necessary element of the offense. There was no specific evidence of intent by Durham to rob a federal credit union officer other than his admission on January 9, 1961 to Doerner that he knew it was a federal offense to rob the credit union because he had seen the sticker on the front door which related that fact. Thus if Durham’s jail statements are inadmissible, there is no evidence of intent to rob a federal credit union officer. I see no reason under the circumstances of the disposition of this appeal to decide whether or not proof of intent is an element of the offense. The judgment of conviction is reversed and remanded for further proceedings not inconsistent with this opinion. In my judgment, the further proceedings would be in the form of a new trial; however, the views of Judge Castle and Judge Pell, which control in this respect, requires only as a first step a hearing on the voluntariness issue, with a new trial to follow only if the voluntariness issue is resolved against the Government. PELL, Circuit Judge (concurring in part and dissenting in part). To the extent that the opinion of Chief Judge Swygert rests upon a per se rule that would exclude confessions when counsel is not notified of or present at the interrogation, I dissent from the opinion. In my opinion, the authorities cited in Judge Castle’s dissenting opinion correctly state the law that notwithstanding the existence of counsel, either appointed or retained, a defendant may waive the presence and assistance of that counsel, provided it very clearly appears that the accused deliberately and understandingly chose to forego that assistance. I cannot agree, however, with Judge Castle’s opinion that the record demonstrates that Durham did so here. The factual context in which the continuing interviews were conducted is far different than that involved in United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), and in that case we observed “[o]n the basis of the particular factual situation before us, and we go no farther than that, we are of the opinion that the confession of May 18 was properly received into evidence.” Id. at 1352. In Springer an extensive evidentiary hearing was held. In the present case the matter was not explored. While it is true that there are overtones of waiver of the issue vis-á-vis trial tactics emphasis on denial of any confession at all, I conceive the right to effective assistance of counsel to be such a fundamental constitutional guarantee that when the interrogation takes place after knowledge of the existence of counsel the situation calls for a ventilated determination that there was a deliberate and knowledgeable waiver. The burden in this factual situation on the prosecutor is a heavy one but I do not agree with the implicit premise of Judge Swygert’s opinion that it is an impossible accomplishment. Inasmuch as I do not find that the confession was necessarily involuntarily given, its admission as evidence in the trial may not have been improper. I therefore would remand for a hearing on the matter of voluntariness. If it is determined that the confession was voluntary, i. e., that the defendant understandingly waived the presence of counsel and otherwise was not coerced, the conviction should stand. If the confession was not voluntary, then a new. trial is necessary, Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). I find no other error requiring reversal if the confession is determined to be voluntary. However, if the opposite result is reached, the testimony regarding the black Chevrolet would have had no proper basis for admission. CASTLE, Senior Circuit Judge (dissenting) . Two compelling reasons lead me to find that Durham’s confession of the robbery was properly admitted at trial: 1) Durham voluntarily and knowingly waived any right to have his counsel notified of the interview at which he made his confession, and 2) under applicable constitutional doctrines governing the admissibility of confessions existing at the time of trial, the trial court had to first find some indication that Durham’s confession was involuntary before it was required to hold a sua sponte hearing on its admissibility and on the validity of any waiver of notice to Durham’s attorney. On the strength of these reasons, I respectfully dissent from the views of Judges Swygert and Pell. I. Judge Swygert holds in his opinion that the FBI was obligated to inform Durham’s counsel of the interview, and that in the absence of such notification, any statement taken at the interview would be inadmissible. This analysis, however, fails to consider whether Durham waived any right to have his retained counsel notified of the FBI interview on January 23, 1961, and whether this waiver would relieve the FBI from the duty of telling Durham’s counsel of its planned meeting with his client. The facts of this case show an undisputed case of voluntary and knowing waiver. Durham knew and was told that he could contact his counsel and have him present, but he decided that he did not need or want him. FBI agents testified without contradiction that they advised Durham of their identity, advised him that anything he said might be used against him, and advised him that he had the right to the services of an attorney. In spite of these warnings— and their obvious implications that Durham could either remain silent or have his counsel present while he gave a statement — Durham chose to go ahead and to admit his participation in the robbery. These facts demonstrate Durham’s clear and knowing waiver of any right to have his counsel notified of the interview. The circumstances surrounding this waiver lend added credence to the conclusion that it was knowing and voluntary, for defendant had freely indicated his willingness to talk to FBI agents without his counsel being present on several occasions prior to the date of his confession. On December 20, 1960, the date on which Durham was first questioned by the FBI, his counsel arranged the time and place for the meeting. Yet, when Durham showed up for the session, his counsel was not accompanying him, even though the session was to last four hours. Durham freely admitted at trial that on subsequent occasions he “always talked at will” with FBI Agent Doerner about “anything he would ask me.” Furthermore, after defendant balked at signing the confession he gave to the FBI, he told agents that he wanted to clear the matter up and that he would give them another statement after he had talked with his counsel. In short, the record indicates many occasions where the defendant felt that he had no need for his counsel’s presence, and it supports the uncontradicted fact that he waived any right to have his counsel notified or present on January 23, 1961 when he confessed to the robbery. Applicable case law holds that because of this waiver, there was no need for FBI agents to notify Durham’s counsel of the impending questioning session. The authority cited in Judge Swygert’s opinion does not contradict this fact. Both Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), are irrelevant to situations involving a waiver of the right to have counsel present, for, as Judge Cummings correctly pointed out in United States v. Crisp, 435 F.2d 354, 358 (1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971), both these cases involved the deliberate acquisition of information under circumstances preventing an effective exercise or waiver of rights to counsel. On the contrary, the circumstances surrounding Durham’s confession did not prevent an effective waiver of the right to have counsel notified. In fact, the attempt to fashion a per se rule that will exclude all confessions obtained when retained or appointed counsel has not been notified of the questioning session is contrary to established authority in this circuit that no such automatic rules should apply in such circumstances. United States v. Springer, 460 F.2d 1344, 1350 (7th Cir. 1972), United States v. Crisp, 435 F.2d at 358, United States v. Smith, 379 F.2d 628, 633 (7th Cir.), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486 (1967). Given the evidence that Durham knowingly waived his right to have his counsel notified of the interview, and in the absence of persuasive authority that FBI agents should have given the notification in spite of the waiver, I believe that this case is governed by a plethora of decisions which have admitted confessions made under similar circumstances. These decisions have concentrated on the issue of whether the defendant’s waiver was voluntary and knowing, and all have admitted confessions made without notice to counsel because the defendant was notified of his rights and deliberately waived them. These cases plainly indicate that it makes no difference whether the police or the defendant initiate the interviews, or how often or long the defendant is questioned, for the main concern is the validity of his waiver. On the strength of these decisions, I find that defendant Durham’s contention that he was entitled to have his counsel notified of the interviews — despite his waiver of representation and notification — is without merit. II. Judge Pell accepts the fact that Durham could waive his right to have his counsel notified of the interviews, but holds that it was necessary for the trial court to conduct a hearing on the deliberateness and understanding of Durham’s waiver. Such a hearing was unnecessary, for Durham’s confession was given in 1961, when the law governing the elicitation and admissibility of confessions was quite different from what it is today. Therefore, United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), is not determinative of the conditions for admissibility, for Springer was based upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which was decided five years after Durham’s confession was given, and which has not been applied retroactively. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Instead, .the crucial determination governing the admissibility of a pr e-Miranda confession is whether the will of the defendant had been overborne so that his confession was not a free or voluntary act. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Under this standard, the fact that the defendant was not represented by counsel when he gave his confession is not in itself sufficient proof of coercion to make a confession inadmissible, for the lack of representation by counsel goes only to the weight to be given other evidence of actual coercion. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), United States ex rel. Lathan v. Deegan, 450 F.2d 181, 184 (2d Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972). Therefore, even if Durham could prove that his waiver was not knowing and voluntary, his failure to point to any other proof of coercion would make his confession admissible under pr e-Miranda law. Since Durham has suggested, and the record indicates, no indication of FBI coercion in obtaining the confession, the trial court was not required to conduct a sua sponte hearing on its admissibility. United States ex rel. Lewis v. Pate, 445 F.2d 506, 508 (7th Cir. 1971). If there were such evidence of coercion tp require a hearing on the voluntariness of the confession, the trial court might then consider the validity of Durham’s waiver of notice to his counsel in order to assess how much weight the lack of counsel gives to the other evidence of coercion. But in the absence of such other evidence, such a consideration of the validity of the waiver is irrelevant. Since the majority vote of this panel requires that this ease be remanded for further proceedings of some kind, I am forced to agree with Judge Pell that a hearing on the voluntariness of Durham’s confession can be held independent of a new trial. Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). However, my understanding of the law governing the admissibility of Durham’s 1961 confession leads me to doubt that this hearing will find that the confession was involuntary and that a new trial is necessary. III. I find that, given the admissibility of the confession, the other assignments of error raised by Durham do not constitute an abuse of discretion by the trial judge in admitting evidence or rise to the level of prejudicial error. . McLeod, as here, was a direct appeal in which the trial was held prior to the Supreme Court’s decision in Massiah. . The American Bar Association, Code of Professional Responsibility, DR 7-104 (A) (1) provides: During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or by law is authorized to do so. . United States v. Smith, 379 F.2d 628, 631 (7th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486, is distinguished from this case in that there false exculpatory statements made by Smith were uttered immediately after Miranda warnings had been given and before representation by counsel. A similar fact situation existed in United States v. Cassell, 440 E.2d 569, 571 (7th Cir. 1971). But here, there were repeated attempts by Doerner to obtain an incriminating statement from the incarcerated Durham in the absence of counsel known by Doerner to be representing Durham. United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116, is also distinguished from the instant case in that there the incriminating statement was the result of a request by the incarcerated Crisp to speak with the federal agents. In this case, Durham did not initiate the interviews and it was not until the fourth day of the interviews in jail that he admitted having committed the crime. . My view would be entirely different if the Government at a retrial establishes that defense counsel throughout the post-arrest interviews was aware of the interviews and approved of them. . Prior to and during the trial, Durham’s only argument concerning his purported confession was that he had never confessed anything to the FBI agents. He did not raise the issues of voluntariness and his right to have counsel present until after the trial. In conducting our review of this case, we must view all evidence in the light most favorable to the government and assume that Durham in fact made the confession. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). . In Massiah, law enforcement officers indirectly questioned the defendant without warning that they wore doing so — here Durham had no doubt that FBI agents were questioning him. In McLeod, police failed to toll defendant of his right to get an attorney — here FBI agents notified Durham of this right. . United States v. Springer, 460 F.2d at 1351-1352 (FBI persuaded defendant to sign confession shortly after arraignment at which counsel had been appointed), United States v. Brown, 459 F.2d 339, 323 (5th Cir. 1971) (agents talked defendant into giving statement immediately after her attorney advised her to remain silent), United States v. Crisp, 435 F.2d at 358-359 (defendant asked to speak to agents and gave statement; agents failed to notify court-appointed counsel before going to jail for interview), United States v. Dowells, 415 F.2d 801 (9th Cir. 1969) (defendant gave statement after questioning about robbery without notice to counsel appointed at arraignment 11 days previously for another robbery), Arrington v. Maxwell, 409 F.2d 849, 853 (6th Cir.), cert. denied, 396 U.S. 944, 90 S.Ct. 381, 24 L.Ed.2d 245 (1969) (defendant gave statement after being told that his counsel could be called), United States v. Fellabaum, 408 F.2d 220, 225 (7th Cir.), cert. denied, Pyne v. United States, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 (1969) (counsel not notified of three questioning sessions at which defendant gave statements), Reinke v. United States, 405 F.2d 228, 229-230 (9th Cir. 3968) (defendant volunteered statement after preliminary hearing at which counsel had been appointed for him), Wilson v. United States, 398 F.2d 331, 333 (5th Cir. 3968), cert. denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969) (FBI interrogated defendant that it knew was represented by counsel and took statement), United States v. Hale, 397 F.2d 427, 430-431 (7th Cir. 1968), cert. denied, 393 U.S. 1067, 89 S.Ct. 723, 21 L.Ed.2d 710 (1969) (appointed counsel not told of time at which FBI was to interrogate his client), Coughlan v. United States, 391 F.2d 371, 372 (9th Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968) (police did not tell court-appointed counsel that they were to interrogate defendant), United States v. Smith, 379 F.2d at 633 (defendant gave statement to FBI agents in automobile; interrogation stopped after FBI telephoned defendant’s court-appointed counsel), Davidson v. United States, 371 F.2d 994 (10th Cir. 1966) (defendant gave statement to FBI while held on state charge and represented by local counsel).

f2d_475/html/0216-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Paul SPURLOCK, Plaintiff-Appellant, v. UNITED AIRLINES, INC., Defendant-Appellee. No. 71-1645. United States Court of Appeals, Tenth Circuit. Oct. 10, 1972. Rehearing Denied May 8, 1973. Philip M. Jones, of Lewis & Jones, Denver, Colo., for appellant. D. Monte Pascoe, of Ireland, Staple-ton, Pryor & Holmes, Denver, Colo. (William G. Imig, Denver, Colo., with him on brief), for appellee. John F. Goemaat, Washington, D. C. (John de J. Pemberton, Jr., Acting Gen. Counsel, and Julia P. Cooper, Chief, Appellate Section, E. E. O. C., Washington, D. C., were with him on brief), for E. E. O. C. as amicus curiae. Before LEWIS, Chief Judge, DOYLE, Circuit Judge, and BRATTON, District Judge. LEWIS, Chief Judge. The appellant Spurlock, a black, brought this action alleging that United Airlines unlawfully discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. After a full trial, the trial court found that there was no proof of an intent on the part of United to discriminate in its employment of flight officers; that the job qualifications and testing procedures established by United are fair and reasonable; that they are uniformly applied without reference to race; that they do not accomplish discrimination in fact; and that they are job-related.' Having made findings in United’s favor, the trial court dismissed appellant’s complaint. The trial court’s opinion in this case is reported at D.C., 330 F.Supp. 228. We are in accord with the trial court’s reasoning and result and summarize and extend it only because of the appellate posture and emphasis with which the ease has been presented to us. The evidence established that on May 19, 1969, the appellant applied for the position of flight officer. At that time, appellant did not meet United’s qualifications to be considered for flight officer. He was 29 years of age, had two years of college, principally in music education, had logged 204 hours of flight time, and had obtained a commercial pilot’s license. United’s minimum requirements for flight officer were 500 hours flight time, 21 to 29 years of age, a commercial pilot’s license and instrument rating, and a college degree. When appellant’s application was received by mail in United’s employment office, it was reviewed by a clerical employee. He circled in red the respects in which the appellant’s qualifications were deficient. Appellant was then advised by letter that United had other applicants whose qualifications more nearly met United’s requirements. No one at United saw or interviewed the appellant, and no one knew his race. From the evidence, the trial court found an absence of an intent to discriminate on the part of United in hiring its flight officers. While it is important to examine the intent of a company charged with a Title VII violation, absence of discriminatory intent does not necessarily establish that the company’s employment practices have no discriminatory effect. Title VII is aimed at the consequences of employment practices, not simply the motivation. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. Thus, when a plaintiff is claiming that the criteria used by a company in screening job applicants discriminate against a minority group, he need only establish that the use of such criteria has a discriminatory result. Griggs v. Duke Power Co., supra. It is not necessary to prove a discriminatory intent but only that the discriminatory criteria were used deliberately, not accidentally. Jones v. Lee Way Motor Freight, Inc., 10 Cir., 431 F.2d 245, cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237. In order to establish that United’s flight officer qualifications resulted in discrimination against blacks, the appellant showed that out of the approximately 5900 flight officers in United’s employ at the time of the trial only 9 were blacks. Appellant contends that these statistics establish a prima facie case of racial discrimination. United claims that these bare statistics establish nothing unless accompanied by similar information as to the number of qualified black applicants for the flight officer position. The circuitousness of this bootstrap argument becomes obvious when one recalls that it is United’s qualifications for flight officer that appellant claims are discriminatory against blacks. We hold, therefore, that by showing the miniscule number of black flight officers in United’s employ, the appellant established a prima facie case of racial discrimination in hiring practices. See Jones v. Lee Way Motor Freight, Inc., supra. This is true even though it is clear from the record that United applied its employment criteria without regard to race or color. Employment practices which are inherently discriminatory may nevertheless be valid if a business necessity can be shown. And pre-employment qualifications which result in discrimination may be valid if they are shown to be job-related. Thus, once the appellant had established a prima facie case of racial discrimination, the burden fell upon United to show that its qualifications for flight officer were job-related. The trial court found that the burden had been met and that United’s job qualifications were job-related. We agree. The two job qualifications that appellant challenges are the requirements of a college degree and a minimum of 500 flight hours. The evidence at trial showed that United does not train applicants to be pilots but instead requires that their applicants be pilots at the time of their application. It cannot seriously be contended that such a requirement is not job-related. United also showed through the use of statistics that applicants who have higher flight hours are more likely to succeed in the rigorous training program which United flight officers go through after they are hired. The statistics clearly showed that 500 hours was a reasonable minimum to require of applicants to insure their ability to pass United’s training program. The evidence also showed that because of the high cost of the training program, it is important to United that those who begin its training program eventually become flight officers. This is an example of business necessity. We conclude that the evidence amply supports a finding that the requirement of 500 hours flight time is job-related. With regard to the college degree requirement, United officials testified that it was a requirement which could be waived if the applicant’s other qualifications were superior, especially if he had a lot of high quality flight time, that is, flight time in high speed jet aircraft. The evidence showed that United flight officers go through a rigorous training course upon being hired and then are required to attend intensive refresher courses at six-month intervals to insure that all flight officers remain at peak performance ability. United officials testified that the possession of a college degree indicated that the applicant had the ability to understand and retain concepts and information given in the atmosphere of a classroom or training program. Thus, a person with a college degree, particularly one in the “hard” sciences, is more able to cope with the initial training program and the unending series of refresher courses than a person without a college degree. We think United met the burden of showing that its requirement of a college degree was sufficiently job-related to make it a lawful pre-employment standard. In reviewing the trial court’s findings in this matter, we are limited to the clearly erroneous standard. Fed. R.Civ.P. 52(a). We conclude that the evidence supports the trial court’s finding that United’s requirements are job-related. The finding is thus not clearly erroneous. When a job requires a small amount of Skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court’s satisfaction that his employment criteria are job-related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related. Cf. 29 C.F.R. § 1607.5(c) (2) (iii). The job of airline flight officer is clearly such a job.’ United’s flight officers pilot aircraft worth as much as $20 million and transport as many as 300 passengers per flight. The risks involved in hiring an unqualified applicant are staggering. The public interest clearly lies in having the most highly qualified persons available to pilot airliners. The courts, therefore, should proceed with great caution before requiring an employer to lower his preemployment standards for such a job. We conclude that United Airlines met its burden of proving that its • employment requirements are job-related and the trial court’s finding in that regard is not clearly erroneous. Affirmed. . The statistics presented were for the period February 1965 through April 1967 and were based on United’s experience With approximately 1300 trainees, 82 of whom did not complete the training program. The statistics produced the following results:

f2d_475/html/0220-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STANDARD INDUSTRIES, INC., a corporation, and Metropolitan Paving Co., Inc., a corporation, Plaintiffs-Appellants, v. MOBIL OIL CORPORATION, a corporation, et al., Defendants-Appellees and Cross-Appellants. Nos. 71-1115-71-1119. United States Court of Appeals, Tenth Circuit. Argued and Submitted July 10, 1972. Decided March 14, 1973. Rehearing Denied April 27, 1973. Bert Barefoot, Jr., and John Anthony Claro, Oklahoma City, Okl. (Edward H. Moler, Barefoot, Moler & Claro, and Joseph A. Claro, Oklahoma City, Okl., of counsel, on the brief), for plaintiffs-appellants. A. Duncan Whitaker, Washington, D. C. (Edward F. Howrey, Michael M. Levy, and Charles F. Rice, New York City, S. M. Groom, Jr., Oklahoma City, Okl., Howrey, Simon, Baker & Murchison, Washington, D. C., of counsel) on the brief), for defendant Mobil Oil Corp., appellee and cross-appellant. John J. Runzer, Philadelphia, Pa. (John A. Ladner, Tulsa, Okl., Edith G. Laver, Pepper, Hamilton & Seheetz, Philadelphia, Pa., on the brief), for defendant Sunray-DX Co., appellee and cross-appellant. Coleman Hayes, Oklahoma City, Okl. (Willard P. Scott, Carl G. Engling, Mon-net, Hayes, Bullís, Grubb & Thompson, Oklahoma City, Okl., on the brief), for defendant Kerr-McGee Corp., appellee and cross-appellant. Richard B. McDermott, Tulsa, Okl. (Boesche, McDermott & Eskridge, Tulsa, Okl., and S. E. Floren, Bartlesville, Okl., on the brief), for defendant Phillips Petroleum Co., appellee and cross-appellant. Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and THEIS, District Judge. McWILLIAMS, Circuit Judge. This is a civil antitrust action brought by two corporations to recover damages incurred when they purchased liquid asphalt, to be utilized in the construction of roads, highways, runways and the like, at a “rigged” price in excess of fair market value, such price rigging allegedly having been the result of an unlawful combination and conspiracy in restraint of trade in violation of the provisions of the Sherman Act and the Clayton Act. 15 U.S.C. § 1 et seq. The defendants named in the complaint were numerous petroleum refiners and marketing entities which produced and sold liquid asphalt as a by-product of the crude oil cracking process. The two corporations which instituted the proceedings are Standard Industries, Inc., a Delaware corporation, and Metropolitan Paving Company, Inc., an Oklahoma corporation, both general construction contractors with the former headquartered in Tulsa, Oklahoma, and the latter in Oklahoma City, Oklahoma. As indicated, the defendants were various petroleum refiners and marketing entities located in Oklahoma and Kansas and initially were some twelve in number. Settlement was made with certain defendants prior to trial. Upon trial, the jury returned a verdict in favor of one defendant, Skelly Oil Company of El Dorado, Kansas, and against the four remaining defendants. Those four are: (1) Mobil Oil Corporation, which operated a refinery in Augusta, Kansas; (2) Sunray DX Oil Company, which operated a refinery in Tulsa, Oklahoma; (8) Kerr-McGee Corporation, which operated refineries at Wynnewood and Cushing, Oklahoma; and (4) Phillips Petroleum Company, which operated refineries at Okmulgee, Oklahoma, and at Kansas City, Kansas. An eight-week trial culminated in the submission to the jury of a series of special interrogatories. The jury found, inter alia, that the four defendants had conspired to fix the price of liquid asphalt purchased by plaintiffs in Oklahoma from January 1962 to December 1966; that plaintiffs had suffered damages by way of an “overcharge” during the existence of the conspiracy; and that none of the “overcharge” had been “passed-on” by either of the plaintiffs. Based, then, on the jury’s various answers to the special interrogatories, the trial court entered a judgment in the sum of $133,684.06, together with the sum of $42,000 for attorney’s fees, plus costs in the amount of $3,550.22, in favor of Standard and against the four petroleum companies which the jury found guilty of antitrust violations. As concerns Metropolitan, judgment was entered in its favor and against the same four companies in the sum of $286,128.-01, together with the sum of $84,000 for attorney’s fees, plus costs in an amount of $7,100.44. In sum, judgment was entered in favor of the two plaintiffs against the four petroleum companies, jointly and severally, in a total amount of $556,462.73; such sum taking into account previous settlements made with other defendants prior to trial. All parties now appeal. Standard and Metropolitan complain here about the amount of their judgment, and seek a new trial limited to the issue of damages. The four appealing defendants, i. e., Mobil, DX, Kerr-McGee, and Phillips, on a variety of grounds seek a new trial limited to the issue of liability. These wide-ranging grounds of alleged error will be grouped into two categories: Alleged Pre-Verdict Error and alleged Post-Verdict Error. ALLEGED PRE-VERDICT ERROR 1. Treble Damage Instruction. Section 15 of 15 U.S.C. provides that any person injured by reason of anything forbidden in the antitrust laws may sue therefor “and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” In regard to the matter of damages, the trial court instructed the jury as follows: “ * * * If you should find, from a preponderance of the evidence in this case, that plaintiff is entitled to recover, your verdict will be for only such amounts as you shall find from the evidence in the case is reasonably necessary to compensate the plaintiff for damages proximately caused by one or more of the violations of the Federal antitrust laws, which the plaintiff has alleged. You will not treble that amount, nor will you include any sums for costs of suit, or for a reasonable attorney’s fee, since that is no part of the jury’s function. That is a question for the court, in the event the jury return a verdict in favor of the plaintiff for actual or compensatory damages’’ (Emphasis added.) The plaintiffs contend that the giving of the aforesaid instruction constituted reversible error because such was “inherently unfair” in that it placed on the plaintiffs the burden of explaining why they should ultimately recover three times their actual damage and, in practical effect, necessarily caused the jury to adjust downward its damage award. In thus arguing, plaintiffs rely on our recent case of Semke v. Enid Automobile Dealers Association, 456 F.2d 1361 (10th Cir. 1972), decided by us after the trial of the instant case. In Semke, after recognizing that there was a split of authority on the matter, we held that it was error to give an instruction which informed the jury that its damage award would be trebled by the court, but that in the context of that case it was only harmless error. We adhere to the rule, of Semke, but here, as in Semke, under the circumstances any error is deemed harmless. In pre-trial newspaper publicity of considerable proportions, the jury panel was without doubt made aware of the fact that this was a treble damage action. Such publicity included articles published in the local Oklahoma newspapers between 1966 and 1969 concerning not only the nature of the claim asserted in the instant case, but also articles relating to the antitrust action brought by the State of Oklahoma in regard to the State’s purchases of the same types of liquid asphalt. Many of these articles stated that the suits involved amounts which were triple the amount of damages allegedly suffered. Furthermore, in closing argument there was some comment by counsel concerning the treble damage aspect of the case, although such was said to be in anticipation by counsel that the trial court would instruct on the matter. And in the instructions other than the particular part here complained about, reference was made that under the Clayton Act the injured party should recover “threefold the damages by him sustained, and the cost of the suit, including a reasonable attorney’s fee.” In addition, as will later be more fully developed, the witness Kavanaugh, president of Metropolitan, in violation of an order of court, in a voice inaudible to the court and counsel, but audible to the court reporter and at least some jurors, volunteered that he had already incurred expenses in the sum of $150,000. It was in this general setting, i.e., considerable pre-trial publicity, some discussion about treble damages in closing argument, and misconduct by the witness Kavanaugh, that the court felt constrained to affirmatively instruct the jury that in the event it found for the plaintiffs it should award the plaintiffs their actual damages, and that the matters of trebling, costs and attorney’s fees were “no part of the jury’s function” and were “questions” for the court. Under such circumstances,, we conclude that the giving of the instruction in question did not constitute reversible error. Repeating, the jury was correctly instructed as to the damages that could be awarded and then simply informed that the other matters, i.e., trebling, costs, and attorney’s fees were “questions” for the court. We perceive no prejudice to the plaintiffs from the instructions thus given. Nor are we convinced by the further argument on this point that the jury did in fact reduce its damage award by fixing plaintiffs’ damages at exactly one-third what the evidence indicated it was entitled to. This assumes that the plaintiffs’ evidence compelled the jury to assess their damage at the rate of 3$ per gallon of liquid asphalt purchased. We do not view the evidence as compelling any such result. The extent of plaintiffs’ damages was, as were most of the issues in the case, disputed issues and the jury’s monetary award finds support in the record. 2. “Passing on” Instruction. As above indicated, the two plaintiffs were general construction contractors and as an incident to their business both used so-called “asphaltic concrete,” which is made by mixing aggregates, such as sand, crushed rock, and the like, with liquid asphalt. The liquid asphalt was purchased by the plaintiffs from certain of the defendants and such, of course, forms the root of this entire controversy. In this regard, one of the defenses raised by the defendants was that the plaintiffs had merely “passed on” to those with whom the' plaintiffs dealt any overcharge suffered by plaintiffs at the hands of any of the defendants. The instruction given the jury on this particular matter is set forth below. By its answer to special interrogatories, the jury determined that neither of the plaintiffs had “passed on” any overcharge. The plaintiffs now argue that the giving of the instruction on “passing on” was error under Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), and that notwithstanding the finding by the jury that there was no “passing on,” the very giving of the instruction tended to prejudice the plaintiffs’ entire case in the eyes of the jury. We disagree. In the first place, it requires a degree of clairvoyance that we do not possess to conclude that the jury’s finding that the plaintiffs did not pass on the overcharges somehow prejudiced the plaintiffs’ entire case in the eyes of the jury. Such reasoning we do not follow. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 at 629, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Bass v. Dehner, 103 F.2d 28, at 34 (10th Cir. 1939), cert. denied, 308 U.S. 580, 60 S.Ct. 100, 84 L.Ed. 486 (1939). Furthermore, as we read Hanover, 392 U.S. at 494, 88 S.Ct. at 2232 the Supreme Court did not completely rule out passing-on as a defense in an action of this nature. Indeed, the court recognized “that there might be situations— for instance, when an overcharged buyer has a pre-existing ‘cost-plus’ contract, thus making it easy to prove that he has not been damaged — where the considerations requiring that the passing-on defense not be permitted in this ease would not be present.” In our view, the instruction given does not offend Hanover and was narrowly drawn so as to be in accord with the foregoing language from Hanover. For these reasons, we find no- error in the giving of this instruction. 3. Peremptory Challenges. The trial court granted each of the two plaintiffs three peremptory challenges, making a total of six for the two, and granted each of the five defendants who went to trial two peremptory challenges, to be exercised separately, making a total of ten challenges for the defendants. The plaintiffs now complain that granting to them a total of six peremptory challenges, as contrasted to the ten granted the defendants, constitutes reversible error, even though the jury ultimately selected found in their favor and awarded substantial damages. It is difficult for us in this situation to find any prejudice to the plaintiffs. Also, in our view prejudice is not shown by pointing out, by way of hindsight, jurors whom the plaintiffs would have peremptorily challenged if they had been allotted ten challenges, instead of six. Be that as it may, we find no error on the part of the trial court in its order regarding peremptory challenges. Section 1870 of 28 U.S.C. initially provides that each party in a civil case shall be entitled to three peremptory challenges. Such was afforded the two plaintiffs, though each of the five defendants did not get three peremptory challenges, only two. That same statute also provides that multiple plaintiffs or defendants “may” be treated as a single party or the trial court “may” allow additional peremptory challenges and “may” permit them to be exercised either jointly or separately. By use of the word “may,” we have held that this latter provision confers a judicial discretion on the trial court. John Long Trucking, Inc. v. Greear, 421 F.2d 125 (10th Cir. 1970). In the instant case, we find no abuse of that discretion. See Albina Engine and Machine Works, Inc. v. Abel, 305 F.2d 77 (10th Cir. 1962). See also Nehring v. Empresa Lineas Maritimas Argentinas, 401 F.2d 767 (5th Cir. 1968), cert. denied, 396 U.S. 819 (1969), 90 S.Ct. 55, 24 L.Ed.2d 69, where it was held that the plaintiff did not have a right to the same number of peremptory challenges as granted multiple defendants. 4. Evidence of Alleged Conspiracies Involving Sales of Liquid Asphalt in Kansas and Missouri. By answer to a special interrogatory, the jury determined that the four appealing defendants, i.e., Mobil, DX, Kerr-McGee, and Phillips, had conspired to fix, maintain and stabilize the price of liquid asphalt purchased by the plaintiffs in Oklahoma. As a part of their case, the plaintiffs, over objection, introduced evidence that the conspiracy in question did not respect state boundaries and that its effect was felt in Kansas and Western Missouri to the end that there was price fixing by certain of these defendants, and others, in those areas, as well as in Oklahoma. Expert testimony adduced by the plaintiffs was to the effect that the relevant economic market included not only Oklahoma, Kansas and Western Missouri, but included also such states as Nebraska, South Dakota, Iowa, Minnesota, and Wisconsin. It was an integral part of plaintiffs’ theory of the case that the Oklahoma refiners agreed not to market in Kansas, and that the Kansas refiners in turn agreed not to market in Oklahoma, to the end that the barrier between these two states was described by some as being a veritable “Berlin Wall,” through which liquid asphalt did not pass from one state to the other, although other petroleum products flowed freely between the two states. And as the culmination of the conspiracy, the price for liquid asphalt in Oklahoma, according to the plaintiffs, was then set artificially high to the end that bids by refiners to both the state and private contractors were invariably identical and constant in the price bid. Similarly, in Kansas the Kansas refiners, free from Oklahoma competition, set their price for their liquid asphalt sold in Kansas. As concerns Western Missouri, it was plaintiffs’ theory of the ease that the Kansas and Oklahoma refiners “cooperated” in this area and divided up the market at prices mutually agreed upon. Regarding Nebraska, South Dakota, Iowa, Minnesota, and Wisconsin, plaintiffs contended that the defendants and the other coconspirators did engage in real price competition in those areas. And in our view of the record, there is evidence, both direct and circumstantial, to support this general theory of the case. Upon trial, defendants objected strenuously to the introduction of any evidence pertaining to the existence of any conspiracy involving any defendant extending into Kansas or Western Missouri. Such evidence was said to be irrelevant and highly prejudicial. These objections were overruled and the defendants now assign such ruling as error necessitating a new trial on the issue of liability only. We perceive no error in this particular regard. The evidence of the activities of these defendants, and others, in Kansas and Missouri was a part of an overall scheme and had relevance and probative value as tending to circumstantially prove the particular facet of the conspiracy which ended in price fixing in Oklahoma operating to the detriment of the plaintiffs. Noerr Motor Freight v. Eastern Railroad Presidents Conference, 155 F.Supp. 768 (E.D.Pa.1957), aff’d per curiam, 273 F.2d 218 (3d Cir. 1959); rev’d on other grounds, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), contains pertinent comment on this particular matter. In that case, the trial court declared as follows: “Because of the magnitude and importance of the case the Court permitted great latitude in the introduction of evidence. The trial court in any antitrust case has wide discretion in the admission or exclusion of cumulative and collateral evidence * * *. The evidentiary problems arising at trial may be placed in six distinct categories. The first relates to the admission into evidence, over the strenuous objection of the defendants, of proof of activities in the railroadByoir campaign which occurred outside of Pennsylvania. Since the conspiracy was not originated in Pennsylvania, the proof of outside activities was important, not only to show its formation but to show its method of operation, all of which had a great bearing on the fundamental question of intent and injunctive relief, if an illegal conspiracy actually existed. The complaint charged an overall conspiracy in the whole of the northeastern part of the United States. Because the plaintiffs limited themselves to proof of damages only within the State of Pennsylvania, the defendants contend that plaintiffs should be likewise limited in proof of the conspiracy. Such result, of course, does not follow. * * *” (Emphasis added.) Counsel contend that our holding in United States v. Wilshire Oil Company of Texas, 427 F.2d 969 (10th Cir. 1970), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970), was that the Missouri and Kansas conspiracies were each distinct from the other and that accordingly each was necessarily distinct from any Oklahoma conspiracy to the end that evidence of either a Kansas or Missouri conspiracy would not be competent evidence of an Oklahoma conspiracy. Such, in our view, does not necessarily follow. The fact that in Wilshire we held that the Kansas and Missouri conspiracies were separate and distinct, to the end that Wilshire in the Kansas criminal antitrust proceeding could not avail itself of the plea of double jeopardy based on its prior conviction in the Missouri criminal proceeding, does not resolve the present matter. Even assuming that the Kansas, Missouri and Oklahoma conspiracies were distinct, such does not mean that evidence of the first two is inadmissible in a case grounded on purchases made by the plaintiffs in Oklahoma. Certainly on the record before us such were so interrelated that evidence of one was some evidence of the other. See American Medical Ass’n v. United States, 76 U.S.App.D.C. 70, 130 F.2d 233 at 251-252 (1942), aff’d, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434 (1942), and Greater New York Live Poultry Chamber of Commerce v. United States, 47 F.2d 156 at 159 (2d Cir. 1931), cert. denied, 283 U.S. 837, 51 S.Ct. 486, 75 L.Ed. 1448 (1931). In short, then, the jury in our view was entitled to know the full story and the trial court did not err in refusing to limit the plaintiffs to proof of events occurring within the territorial limits of the State of Oklahoma. See also, for example, Kansas City Star Company v. United States, 240 F.2d 643 (8th Cir. 1957), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957), where it was declared, at 650, that when intent is an issue, as it was here, it has always been deemed proper, in civil or criminal antitrust proceedings, to introduce “evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment.” 5. Admitting Evidence to the Effect that the State of Oklahoma was Interested in Plaintiffs’ Claim. The State of Oklahoma had previously brought a civil antitrust action against DX, Kerr-McGee, and Phillips seeking treble damages for liquid asphalt purchased by it. Trial in that proceeding ended in a substantial judgment for the State. There was no direct appeal, as such, from that judgment, the matter being settled, although one facet of the case was later before us in State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687 (10th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 942, 30 L.Ed.2d 787 (1972). The trial court’s ruling in the instant case was that there would be “no mention” of the anti-trust claim successfully asserted by the State. However, in the present proceeding, the plaintiffs did call as its witnesses numerous state officials who had testified in the earlier trial. Additionally, certain exhibits used in the earlier trial were also marked and used in the instant one. The defendants now claim this to be error, arguing that the jury was necessarily apprised of the successful antitrust claim of the State, and that such inevitably worked to their detriment. This argument is untenable.- Certainly the plaintiffs were not precluded from calling as their witnesses various state officials and using exhibits prepared by them for the earlier case, assuming the witnesses were otherwise competent and the exhibits otherwise relevant and material, to the issues in the present case. 6. Admission of Inadmissible Evidence. Defendants assert the case should be reversed because the trial court admitted, over objection, evidence which was allegedly inadmissible and highly prejudicial. In thus arguing, counsel includes such items as: (1) Permitting the plaintiffs’ two economists to testify as to the ultimate issue in the case, i. e., the existence of a conspiracy on the part of the defendants; (2) admitting a letter which tended to impeach the testimony of the president of an asphalt-producing refinery which marketed through Mobil, the witness having previously been called by Mobil as its witness, when no proper foundation had been laid; (3) permitting the introduction of hearsay evidence, and the like. We do not propose to get into any extended discussion of evidentiary matters such as those enumerated above. We would note, in passing, that all of the economists who testified upon trial, two being called by the plaintiffs and three by the defendants, expressed their opinions as to the “competitive” or, as the case may be, the “noncompetitive” nature of the liquid asphalt market and some no doubt did come close to giving an opinion as to whether there was or was not a conspiracy. However, such is not necessarily error. As early as New York Life Insurance Co. v. Doerksen, 64 F.2d 240 (10th Cir. 1933), and Francis v. Southern Pac. Co., 162 F.2d 813 (10th Cir. 1947), aff’d, 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948), we held that in a wide range of cases where the issue is one with which a lay juror is unfamiliar, expert testimony is not only admissible, but that, as was said in Francis, it was “not a well-grounded objection that the opinion elicited from the expert relates to the issue to be resolved by the jury.” Be that as it may, any possible error on the part of the trial court in the reception of evidence at trial would under the circumstances of this case be only harmless error. Fed.R.Civ.P. 61 specifically refers to error in the admission of evidence and declares that such error is not ground for ordering a new trial unless such be deemed “inconsistent with substantial justice.” None of the alleged error with respect to the admission of evidence in the instant case meets that test. Moreover, in this regard it is difficult for us to believe that the outcome of an eight-week jury trial could turn on the allegedly inadmissible evidence here complained about by the defendants. Finally, it has been held that in an antitrust ease the trial court has a wide discretion in the admission or exclusion of cumulative or collateral evidence. Noerr Motor Freight v. Eastern Railroad Presidents Conference, supra, citing, at 836, United States v. General Motors, 121 F.2d 376 (7th Cir. 1941), cert. denied, 314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497 (1941), and Kansas City Star Company v. United States, 240 F.2d 643 (8th Cir. 1957), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957). For all these reasons, then, we conclude that there was no reversible error committed by the trial court in any of its rulings on the admissibility of evidence. 7. Misconduct of Witness Kavanaugh. A. J. Kavanaugh, president of Metropolitan, was called as a witness by the plaintiffs and was examined and cross-examined at great length. The trial court ruled that he could not testify as to the expense allegedly incurred by him in preparing and pressing his claim against the defendants. In violation of that order, Kavanaugh, apparently in an aside to the jury, did assert that he had borrowed $150,000 to pay his share of the expense incurred in pushing his claim against the defendants. This remark, which occurred simultaneously with an objection to a question posed to the witness, was not heard by court or counsel, but was recorded by the court reporter. The entire matter apparently came to light sometime later, at which time the trial court refused the defendants’ request that a mistrial be declared. The defendants now assert that they are entitled to a new trial, presumably on the issue of liability only, because of this incident, which is said to have prejudiced their case to the extent that an instruction to disregard was insufficient to insure a fair and impartial trial. We disagree. The matter of declaring a mistrial, or not, because of improper, voluntary statements of a witness varies according to the atmosphere of each trial. Beck v. Wings Field, Inc., 122 F.2d 114 (3d Cir. 1941). Of necessity it is a matter peculiarly within the sound discretion of the trial judge. He is on the scene and is in a better position than we, as a reviewing court, in assessing the potentially prejudicial impact of conduct such as that ascribed to Kavanaugh. In the instant case, the trial judge was very concerned, and rightly so, with Kavanaugh’s misconduct and its possible effects, but felt, after holding a hearing in camera on the matter, it was not of such proportions as to necessitate declaring a mistrial. And our review of the record has disclosed nothing which would lead us to conclude that the trial judge abused his discretion in this regard. See, for example, Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679 (8th Cir. 1966). 8. Insufficiency of Evidence as to Mobil and DX. Mobil and DX contend that there is insufficient evidence that either of them was involved in the conspiracy about which the plaintiffs complain to the end that a directed verdict should have been entered in their favor. These involve separate consideration. DX was headquartered in Tulsa, Oklahoma, and the witness Metcalf, president of Standard, testified that from 1955 to 1966 Standard, which was also Tulsa based, had purchased over 15 million gallons of liquid asphalt from DX. There was evidence, both direct and circumstantial, that the price paid by Standard was fixed by DX at a figure which was identical and constant with the price charged by other Oklahoma refiners and that DX was a part of the conspiracy to maintain the price of liquid asphalt at an artificially high figure. In short, in our view there is sufficient evidence to sustain the jury’s determination that DX was a party to the conspiracy that resulted in damage to these plaintiffs. Mobil is in a slightly different situation. Though it was a defendant in the criminal indictments returned in Missouri and Kansas, it was not a defendant nor a named conspirator in the civil antitrust action brought by the State of Oklahoma, which has been referred to above. As indicated, however, it is plaintiffs’ contention that as one facet of the overall conspiracy, Mobil, and other Kansas refiners, agreed to stay out of Oklahoma, in return for which the Oklahoma refiners agreed not to market their liquid asphalt in Kansas. There was evidence that during the years in question Mobil did not market, at least to any appreciable degree in Oklahoma, even though the price for liquid asphalt in Oklahoma was several cents per gallon higher than it was in Kansas. To counter such evidence, Mobil offered evidence of attempts to market its liquid asphalt in Oklahoma in 1966. By way of rebuttal, the plaintiffs then attempted to show that such belated efforts of Mobil were to forestall antitrust prosecution at a time when it was under investigation. In sum, our study of the record convinces us that there is sufficient evidence, both direct and circumstantial in nature, to support the jury’s answer to a specific interrogatory that Mobil was indeed a party to the conspiracy in question. ALLEGED POST-VERDICT ERROR Plaintiffs contend that the trial court erred in three particulars leading up to the entry of formal judgment, all occurring after the jury had returned its verdict. Before discussing those matters, let us first examine the verdict returned by the jury. As indicated, the jury did not return a general verdict, but answered a considerable number of special verdict interrogatories. For example, by its answers the jury found that Mobil, DX, Kerr-McGee and Phillips, but not Skelly, had conspired to fix, maintain and stabilize the price of liquid asphalt purchased by the plaintiffs in Oklahoma and that such conspiracy unreasonably restrained interstate trade or commerce. By answer to another interrogatory, the jury found that the aforesaid conspiracy began in January 1962 and terminated in December 1966. Pursuant to direction, the jury then assessed the damages by dollar amount of Standard and Metropolitan, separately, for each year the conspiracy was in existence, i. e., 1962, 1963, 1964, 1965 and 1966. By answer to an interrogatory, the jury also found that the defendants had not “wrongfully, fraudulently or effectively concealed” the conspiracy from either of the plaintiffs. We shall now examine the errors which allegedly occurred after the return of the jury’s verdict leading up to the entry of judgment. 1. Refusal of Trial Court to Rule that the 4 Year Statute of Limitations Contained in 15 U.S.C. § 15b had been Tolled by 15 U.S. C. § 16(b). Section 15b of 15 U.S.C. provides that an action brought under 15 U.S.C. § 15 is barred unless commenced within four years after the cause of action occurred. Anticipating that this statute of limitations might be pleaded by the defendants as one of their defenses, which it was, the plaintiffs in their complaint pleaded fraudulent concealment in an effort to toll the running of the statute. In this general connection, we would parenthetically note that the plaintiffs in their complaint alleged the existence of a conspiracy in restraint of interstate trade existing from 1954 through 1966, and sought damages for each of the thirteen years of conspiracy’s existence. Also, by way of general background, plaintiffs instituted the present proceedings on December 1966 against all defendants except Kerr-McGee and Phillips, who were added as additional defendants in December 1967. In line, then, with the pleadings the pre-trial order set forth as one of the issues in the case the question of whether there was fraudulent concealment by the defendants of their conspiratorial activities. As mentioned above, the jury found no such fraudulent concealment. Then some eight weeks after the jury’s verdict, the plaintiffs attempted to inject into the proceeding the issue as to whether the four-year statute of limitations, if not tolled by fraudulent concealment, was nonetheless tolled by 15 U.S.C. § 16(b). Section 16(b) of 15 U.S.C. provides, inter alia, that the institution by the United States of any civil or criminal antitrust proceeding shall suspend the running of the four-year statute of limitations in respect of every private right of action “based in whole or in part on any matter complained of in said proceeding * * In this regard, we are advised that the United States instituted a criminal antitrust proceeding in Missouri on July 22, 1965, wherein Mobil, Kerr-McGee and Phillips, along with many others, were named defendants and that the United States instituted another criminal antitrust proceeding in Kansas on April 5, 1966, again against Mobil, Kerr-McGee, Phillips, and others. If these criminal proceedings did suspend the running of the four-year statute of limitations, then the plaintiffs could recover, damages for all five years the jury determined the conspiracy was in existence, i. e., 1962, 1963, 1964, 1965 and 1966. Jumping ahead, the trial court only allowed the plaintiffs damages for the years 1964, 1965 and 1966. The propriety of that particular determination will be examined in the next section, and for the moment we are only concerned with the correctness of the trial court’s refusal to allow the plaintiffs to raise the provisions of 15 U.S.C. § 16(b). The basic reason assigned by the trial court for refusing to allow the plaintiffs to raise the issue as to whether the criminal antitrust proceedings suspended the running of the four-year statute of limitations was that the request came too late. We agree. All parties were fully apprised by the pleadings of the case which were reflected in the pretrial order that the defendants were invoking the four-year statute of limitations. The plaintiffs sought to avoid the statute by alleging that there was fraudulent concealment by the defendants of their conspiratorial acts. The jury by its verdict found no such fraudulent concealment. Then, weeks after the return of the jury’s verdict, the plaintiffs sought to inject a new issue into the case. Under such circumstances we agree with the trial court that the request came too late in the day. In support of our disposition of this phase of the controversy, see such cases as National & Transcontinental Trading Corp. v. International General Electric Co., Inc., 15 F.R.D. 379 (S.D.N.Y.1954). In that case, the Honorable Irving R. Kaufman, then a United States District Judge, declared as follows: “Plaintiff contends that the pendency of the aforementioned action by the United States in the District Court for New Jersey suspended the statute of limitations for the period January 27, 1941, when the New Jersey action was commenced, until October 8, 1953, the date when final judgment was entered in favor of the United States. Nowhere however does the complaint allege that any of the allegations of the complaint are ‘based in whole or in part on any matter complained of’ in the New Jersey action. Such allegations are essential if the bar of the statute is to be avoided.” See also in this general connection Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), where it was indicated that a trial judge would not err in rejecting an affirmative defense which was untimely presented. 2. Error by the Trial Court in Entering a So-called “Unitary Judgment.” The trial court determined that the judgment to be entered against the defendants would be joint and several and that it would include damages incurred during the “four years immediately preceding the joinder of Kerr-McGee and Phillips.” As indicated above, the present action was commenced in December 1966 against Mobil and DX, along with ten other companies. However, Kerr-McGee and Phillips were not added as defendants till December 1967. By its determination that the four-year period of time would be the four years immediately preceding the joinder of Kerr-McGee and Phillips, the trial court limited the damage period to the calendar years of 1967, 1966, 1965 and 1964. By its answer to a special interrogatory, the jury had determined that the conspiracy terminated December 31, 1966. So, the judgment thus entered against the four defendants, jointly and severally, limited the plaintiffs’ damages to those occurring during the three years of 1966,1965 and 1964. Plaintiffs now contend that such limitation was erroneous. They argue that under Fed.R.Civ.P. 20(a), judgment should have been entered for the plaintiffs according to their “respective rights to relief,” and “against one or more defendants according to their respective liabilities.” Hence, they say, there was no need to enter a so-called “unitary judgment.” In this general regard, the complaint is not so much that any judgment against Kerr-McGee and Phillips should be limited to damages occurring in 1966, 1965 and 1964. Rather, the problem arises in connection with Mobil and DX. The action against those two companies was instituted in December 1966, and the four years immediately preceding that date would include the calendar years of 1966, 1965, 1964 and 1963. As noted, supra, the jury did fix the damages sustained by the plaintiffs as a result of the conspiracy for that year, as well as 1962. As we understand plaintiffs’ present position on this particular matter, it is suggested that a joint and several judgment against all four defendants for damages incurred in the years of 1966, 1965 and 1964, which was the judgment entered by the trial court, was proper, but that such would not, and should not, preclude a separate joint and several judgment against Mobil and DX only for plaintiffs’ damages occurring in 1963. We agree. As indicated, the action against Mobil and DX was commenced in December 1966, and the four-year statute of limitations would permit the plaintiffs to recover damages from those two companies for the years 1966, 1965, 1964 and 1963. We fail to see how the fact that the action against Kerr-McGee and Phillips was not commenced till a year later should inure to the benefit of Mobil and DX. This is not an instance of apportioning damages among joint tort-feasors. Rather, we are simply awarding plaintiffs the damages decreed by the jury in its verdict in a manner consistent with Fed.R.Civ.P. 20(a). In support of the foregoing, see Philco Corporation v. Radio Corporation of America, 186 F.Supp. 155 at 166 (E.D.Pa.1960), and Charles Rubenstein, Inc. v. Columbia Pictures Corporation, 176 F.Supp. 527 (D.C.Minn.1959), at 536, aff’d, 289 F.2d 418 (8th Cir. 1961). In Philco, it was held that in a civil antitrust action the trial court was not required to enter a single judgment against all defendants which would run for the shortest period of limitation applicable to any one defendant. And in Rubenstein, again a civil antitrust proceeding, it was contended that the trial court could not apportion damages among tort-feasors, but must hold all defendants jointly and severally liable. In rejecting that contention, the statute of limitations there in question was held to be “personal” to each individual defendant and that there was “no good reason why damages may not be assessed against the various defendants in the amounts and according to the liabilities established.” We subscribe to such reasoning. 3. Refusal of the Trial Court to Grant Plaintiffs’ Motion to Dismiss Kerr-McGee and Phillips. After it became apparent that the four-year statute of limitations was not to be tolled in any fashion, and after the trial court had further indicated that it proposed to enter a joint and several judgment against all four defendants for damages incurred in the years of 1966, 1965 and 1964, but not 1963, the plaintiffs in a tactical move designed to obtain a judgment for damages incurred in the year 1963, as well, moved to dismiss Kerr-McGee and Phillips from the case, hoping thereby to obtain a judgment against Mobil and DX for the four years of 1966, 1965, 1964 and 1963. Not surprisingly, Kerr-McGee and Phillips consented to the granting of the motion to dismiss them from the case and Mobil and DX objected. The trial court denied the motion, and the plaintiffs and Kerr-McGee and Phillips now assign that as error. The motion to dismiss Kerr-McGee and Phillips coming after trial and moments before the entry of judgment was a matter lying within the sound discretion of the trial court and we find no abuse of that discretion. Fed.R.Civ.P. 15(a), 21 and 41(a)(2). See such cases as Shaffer v. Evans, per curium, 263 F.2d 134 (10th Cir. 1958), cert. denied, 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978 (1959), where it was held that a motion by the plaintiff to dismiss after issue had been joined, but before trial, was addressed to the sound discretion of the trial court. Accordingly, the judgments as entered are affirmed, but the case is remanded with direction that the trial court enter in favor of the plaintiffs a joint and several judgment against Mobil and DX only for damages incurred by the plaintiffs in the year 1963. . “INSTRUCTION NO. 27 “PASS-ON DEFENSE: As one of the defenses herein the defendants contend that even though the jury should find that a conspiracy existed which resulted in artificially high prices for liquid asphalt the plaintiffs nonetheless may not recover in this case because of their failure to show that they were thereby injured in their business or property. In this connection it is alleged by defendants that whatever price the plaintiffs paid for asphalt was shifted or ‘passed-on’ to those with whom plaintiffs contracted and by reason thereof the contractors, as middlemen, suffered no loss whatever. “In your consideration of this issue you are told that in cases of this nature the ‘pass-on’ defense, while sometimes proper, lias rather limited application and is generally available only to a ‘cost-pilus’ contractor or to a middleman who buys a product then resells same in unchanged form to a consumer under such condition that the original cost and handling charges can be traced with a fair degree of certainty. If, while in the hands of the middleman, the product is processed so as substantially to lose its identity and form and the processing costs are incapable of exact calculation, the defense of ‘pass-on’ becomes unavailable. The burden rests with defendants to prove the defense of ‘pass-on’ as is heretofore stated in these instructions.”

f2d_475/html/0232-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

George HOLLEY, Petitioner-Appellant, v. Walter CAPPS, Warden, Atmore State Prison, Respondent-Appellee. No. 72-2572 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 14, 1973. George Holley, pro se. William Baxley, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee. Before GEWIN, AINSWORTH 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: The district court has responded to our memorandum-opinion dated November 14, 1972, 468 F.2d 1366, in this cause by entry of the order copied in the margin. Upon the basis thereof we conclude that the appeal was not timely taken. Accordingly, the appeal herein is dismissed. . The district court’s order was dated February 21, 1973. Omitting formal parts it read as follows: “The above-styled cause is before the Court on Mandate from the United States Court of Appeals for the Fifth Circuit directing this Court to make findings and conclusions as to whether the attempted appeal (by the filing of a motion for a certificate of probable cause on .June 1, 1972) was or was not timely. Upon receipt of the above Mandate, the Court furnished the parties a copy of same and directed them to file by February 15, 1973 a legal brief on the issue of timeliness of the appeal as directed by the Fifth Circuit. On January 30, 1973 the defendant, Walter Capps, complied with the Court Order; no reply has been received by the Court from the petitioner as of today’s date. The Court after considering the pleadings, legal brief of defendant and the law finds in the instant case the petition was filed on November 29, 1971 and dismissed by the Court on March 10, 1972. A copy of this Order was mailed to petitioner on March 14, 1973; yet the petitioner took no action for some sixty-four (64) days after that date, until May 17, 1972 when he filed his “motion for judgment”. The certificate of probable cause was not filed until June 1, 1972; this was some eighty-three (83) days after the entry of judgment. Federal Rules of Appellate Procedure 4(a) provide that notice of appeal be filed within 30 days of the date of entry of judgment; termination date of April 10, 1972 in this case. No notice of appeal nor a certificate of probable cause was filed by April 10, 1972. Rule 4(a) further provides that upon a showing of excusable neglect, the District Court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. No facts have been provided the Court on excusable neglect, even if petitioner had provided these facts, the Court would have been only able to extend the time until May 10, 1972, not until June 1, 1972 when he filed the certificate of probable cause. Rule 4(a) further provides that the running of the time for filing a notice of appeal is terminated as to all parties upon (1) granting or denying a motion for judgment under Rule 52(b) ; Petitioner’s motion for judgment filed May 17, 1972 was outside the time limitation of the initial 30 days and exceeded by four days the possible maximum 60 days at the time said motion was filed ; therefore It is the conclusion of this Court: 1. No appeal nor certificate of probable cause was filed within 30 days from date of entry of judgment in this cause. 2. No excusable neglect has been furnished this Court nor has there been an extension of the time for appeal. 3. The motion for judgment was filed past the initial time for appeal and too late even if there was a 30 day extension granted because of excusable neglect. 4. The attempted appeal by filing the cerificate of probable cause on June 1, 1973 was not timely.”

f2d_475/html/0234-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America ex rel. Edward A. BURT, Appellee, v. STATE OF NEW JERSEY and Howard Yeager, the Principal Keeper of the State Prison at Trenton, New Jersey, Appellant. No. 72-1550. United States Court of Appeals, Third Circuit. Argued Jan. 8, 1973. Decided March 13, 1973. George F. Kugler, Jr., Atty. Gen., Trenton, Fred H. Kumpf, Deputy Atty. Gen., Dept, of Law & Public Safety, Division of Criminal Justice, East Orange, N. J., of counsel, for appellant. Stanley C. Van Ness, Trenton, Arthur Penn, Newark, N. J., of counsel, for appellee. Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges. OPINION OF THE COURT PER CURIAM: This appeal disputes the granting by the district court, 342 F.Supp. 188, of defendant-appellee Burt’s application for a writ of habeas corpus. The writ was allowed because of the use, by the prosecution, of certain non-conduct of Burt to refute the credibility of his testimony. This was held to be such prejudicial error as to void his conviction. Defendant claimed that he had accidentally shot one Shorty Owens in a scuffle at the decedent’s house. The prosecution urges that if it had been actually an accidental shooting, the normal thing for Burt to have done would have been to seek aid for the wounded person, or at least to tell of the accident to someone in authority who could have provided aid to the injured Owens. Since Burt had failed to do this, the prosecution contended that Burt’s attitude was inconsistent with his trial testimony, as the State pointed out on cross-examination. It is uncontradicted that Burt told no one he had shot Owens and that he had not sought aid for the man he had killed. He was the only witness in his own defense at the trial. He took the stand voluntarily and stated that the shooting was accidental, coming in the course of and resulting from a fight he had with Shorty Owens, and which, he claimed, the latter had started. Burt was convicted of murder in the second degree by a jury on July 16, 1967 and was sentenced to from 25 to 30 years in prison. The decision was affirmed by the New Jersey Superior Court, Appellate Division and the New Jersey Supreme Court. Certiorari was denied by the United States Supreme Court. The habeas corpus writ was later granted by a judge of the United States district court for New Jersey. The basis for that action by the district judge was because he considered that the usage of defendant’s prior silence had been improper and had impeached Burt’s credibility as a witness. The trial disclosed two completely contradictory accounts of what had happened to Owens. One was that of a Mrs. Adams who was in the upstairs portion of the Owens’ house at the time of the shooting. She testified that she heard some disturbance, a groan, and a shot from a gun downstairs. After hearing a second shot, she heard someone fall to the floor after which defendant immediately came up the stairs, with a gun in his hand. He said Shorty was dead, that he was going to kill her and “blow your brains out just like a [sic] blowed his out.” She also stated as a witness that Burt then raped her and forced her to accompany him to his car. Defendant’s story on the witness stand was vastly different. He said that Shorty had implied that he, Burt, was flirting with Mrs. Adams, and that soon after some verbal disagreement, Shorty pointed the revolver at him. He jumped up and tried to wrestle the gun from Shorty and in the scuffle the gun went off twice. As a result, Shorty was shot; once in the arm and then in the top of the head. Burt said that he then heard Mrs. Adams scream and ask what had happened, and that he told her that Shorty had tried to kill him and that he was leaving. He asserted that she asked him not to leave her alone, and so he told her to come downstairs which she did and then he drove her to the bus station. It is not contested that Burt neither sought aid for the dying man or communicated with anyone about the occurrence. Burt admits that he did not know whether Shorty was alive or dead when he left the latter’s house. The evidence given by Mrs. Adams and that mentioned by Burt was the only testimony presented regarding the circumstances of Shorty Owens’ death. Later that same evening, a Clemonton, New Jersey, police officer noticed a broken window in the Trio Tire store. Clemonton is in Camden County, New Jersey, near the city of Camden, and Burt had previously been employed at that store. Defendant was found asleep on a pile of tires inside the store, with the revolver in his pocket. As a result of this alone, Clemonton police arrested Burt and charged him with breaking and entering. The connection of defendant with the killing of Shorty was not made until late that evening, long after the arrest of Burt, and after Mrs. Adams had reached her home in Philadelphia. Shorty’s son had found his father’s body and had notified the Camden police department. Mrs. Adams contacted Philadelphia police and after considerable confusion, the police departments involved pieced the story of Shorty’s death together. On cross-examination of defendant at trial, he was asked why he never told anyone what had happened, and he had no explanation. That thought was referred to in the prosecutor’s summation. The purpose of such questioning by the prosecutor was to attack the credibility of defendant’s testimony as above mentioned on the theory that in the course of an accidental death, the person responsible for it would try and obtain help for the injured man. Burt did clearly testify that he did not know Shorty’s condition when he left him. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the general rule is set out that the prosecution may not use at trial the fact that someone stood mute or claimed his privilege in the face of accusation. However, in Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971), the United States Supreme Court held: “Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be-laid before the jury by way of cross-examination and impeachment.” Harris prevents the use of perjury by way of a defense in order to free a witness from the Hsk of legitimate confrontation with admissible inconsistent utterances. In the highly regarded United States v. Ramirez, 441 F.2d 950 (5 Cir. 1971), cert. den. 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113, the Fifth Circuit decided that once a defendant elected to testify and assert the defense of coercion, he became subject to the traditional truth testing device of the adversary process, including the right of the prosecution to show his prior inconsistent act of remaining silent at the time of his arrest. The threshold query becomes then, whether petitioner’s failure to check on or in some way aid the person whom he had just shot, is consistent with his trial assertion that the shooting was accidental. It seems, as it did to the trial court before which he was physically present and could be heard and observed, that a man who had just accidentally shot his friend and was unaware of the person’s resultant condition, would seek aid, or at least tell someone so that help could be obtained. Burt was arrested later that evening by police for breaking and entering the tire store. That arrest was in no way connected with the shooting of Shorty Owens. Burt made no mention to the police of what had happened to Owens. Under the circumstances appellant was not claiming a privilege in the face of the accusation of killing Owens as in Miranda. What Burt was accused of by the police was breaking and entering the tire store. All of the cases cited by defendant-appellee discuss the right to remain silent and the privilege against self-incrimination as protected by the Fifth Amendment through Miranda. The purpose of the rule is to see to it that the person accused of a crime cannot be forced to admit having committed it while under duress of .any kind. In this instance, insofar as the shooting was concerned that problem did not exist. Had Burt commented on the shooting, it would not have been to refute an accusation. The police had arrested and detained Burt solely on the charge of breaking and entering. There was no reason for him not to comment on the allegedly accidental shooting. Therefore the basis for the necessity of Fifth Amendment protection did not exist in the then situation. It would have been totally unjustifiable to preclude the use of Burt’s prior inconsistent conduct when showing the unreliability of defendant’s testimony during cross-examination. In any event, the acceptance of that non-action in no way affected the substantial rights of defendant in the murder trial. As is seen there were no legitimate grounds for disturbing the judgment of the state court in this matter. 7 Moore’s Fed.Pract. 61 [2]. Burt’s version of Owens’ death left many questions unanswered, in the light of the facts before us. First, there was the evidence of Mrs. Adams, who stated that she had been raped by appellant, right after he had told her that he had shot Shorty. It was conceded that both men had consumed considerable alcohol while drinking together for some time that afternoon. Burt did nothing to check on Shorty’s condition after the shooting. Since Mrs. Adams seems to have been a very good friend and frequent companion of Shorty’s, it is reasonable that she would have desired to assist him had she been allowed. Burt confessedly did kill Owens in a fight and it was his second shot that caused the death, after Owens had already been weakened by an arm wound. The jury had adequate basis to make its findings and weigh the credibility of the testimony of the witnesses, without the aid or influence of the contested evidence. The judgment of the district court will be reversed and the case will be remanded so that the district court may enter an order denying the petition for a writ of habeas corpus. ROSENN, Circuit Judge (concurring). I concur. The crucial question in this appeal is whether a defendant’s silence in the face of police suspicion can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is contradictory to his earlier silence. I believe the Supreme Court's holding in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), requires that the question be answered in the affirmative. In his direct examination, Burt testified that the shooting of Owens was accidental. On cross-examination Burt was asked if he had told the police of the accidental shooting: Q. And you didn’t tell — up to the time you got to the Camden jail — you didn’t tell anybody about Shorty, did you? A. No, Sir. Q. Did you tell anybody about Shorty after you got to the Camden jail? A. No, Sir. Q. When was the next time you saw Everline [Adams] ? A. Early that next morning. Q. And after you saw Everline early the next morning, did you tell anybody what happened to Shorty? A. No, Sir. By the time he saw Everline Adams, Burt was in custody and was suspected of the murder. He therefore had a constitutional right under the fifth amendment to remain silent. Miranda v, Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968); United States v. Mullings, 364 F.2d 173 (2d Cir. 1966). In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that a defendant’s statements to police could be used to impeach his at-trial testimony even if they had been obtained in violation of Miranda. The Court said: Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. 401 U.S. at 225-226, 91 S.Ct. at 645-646. If the shooting was accidental as claimed by Burt, his silence both before he was a suspect and after was inconsistent with his at-trial testimony that the shooting was accidental. Such inconsistency, Harris holds, must be subject to the truth-seeking process of cross-examination'. I perceive no difference between impeachment by prior inconsistent statements made in the absence of a Miranda warning and impeachment by prior silence inconsistent with trial testimony which justifies not applying the Harris rationale in the present case. Accord, United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971). The lesson of Miranda was that defendants should be protected from compulsion to incriminate themselves. Harris, although recognizing the need for such protection, limited the prophylactic rules devised by the Court to accomplish that result. In weighing the value to society of ascertaining the truth in the judicial process against the value to the individual of protection against self-incrimination, the Court determined that the former value must under some circumstances be given priority when the two values conflict directly. Burt’s silence after he became a suspect may also be interpreted as an exercise of his right not to incriminate himself. The silence, however, was inconsistent with his testimony at' trial that the shooting was accidental. Such inconsistency should be available to the prosecutor in his use of the traditional cross-examination process of the adversarial system. If inconsistencies cannot be demonstrated to a jury, the truth-seeking process is straitjacketed. The defendant, of course, is free to explain away seeming inconsistencies. The adversarial system requires that the jury, as triers of fact, make the final determination of which testimony and conduct to believe. Appellee argues, and the district court suggested, that prosecutorial questioning about silence should be prohibited because of the principles enunciated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Griffin held that, because adverse prosecutorial comment or judicial instructions on the failure of a defendant to take the stand at trial makes costly this exercise of the right against self-incrimination, such statements made to a jury are unconstitutional. Appellee thus argues that allowing the prosecutor in the present case to ask defendant about his failure to tell the police of the alleged accidental shooting equally makes costly his exercise of the right against self-incrimination. I disagree. I believe appellee’s argument misconceives the thrust of Griffin. Griffin does talk of the impermissibility of putting a price on exercise of a constitutional right. It says of comment on the refusal to testify: It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. 380 U.S. at 614, 85 S.Ct. at 1232-1233. I do not see that Griffin applies to a situation where a defendant takes the stand and his credibility is tested by prior inconsistent conduct. The cross-examination was not directed at appellee’s failure to speak in the face of self-incrimination. It was aimed at his failure to act in the face of alleged innocent conduct. Under the fifth amendment he was under no obligation to take the stand under any circumstances and, under Griffin, there could be no prosecutorial comment. Once, however, he took the stand, he subjected himself to the traditional truth-testing tools of our accusatory system, including an obligation to explain his unnatural behavior after a friend was mortally wounded by an allegedly accidental shooting. Griffin’s disapproval of the imposition of a price on a defendant’s exercise of his right against self-incrimination must be understood in the context of the values protected by the fifth amendment. The Court, although not explicating those values in Griffin itself, did do so in denying retroactive application to its holding, in Tehan v. Shott, 382 U.S. 406, 414, 86 S.Ct. 459, 464, 15 L.Ed.2d 453 (1966): It follows that the “purpose” of the Griffin rule is to be found in the whole complex of values that the privilege against self-incrimination itself represents, values described in the Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, case as reflecting “recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own .mouth.” [Emphasis added.] Delineation of the values underlying the right against self-incrimination emphasizes the crucial significance of use of the word “compelled” in the fifth amendment: “nor shall be compelled in any criminal case to be a witness against himself.” Proscribed by the fifth amendment is not self-incrimination per se, but, rather, compelled self-incrimination. Maintenance of an accusatorial system requires not that individuals never incriminate themselves, but merely that they not be compelled to do so. Protection of the human personality and prevention of government intrusion similarly require only that self-incrimination not be compelled. In Griffin, the Court expressed concern that prosecutorial or judicial comment on the failure of a defendant to testify would compel him to waive his right against self-incrimination. The Court suggested that what it said in Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 37 L.Ed. 650 (1893), about the federal statute, 18 U.S.C. § 3481, prohibiting the creation of any presumption from defendant’s failure to testify, reflects the spirit of the self-incrimination clause: “ . . . [the clause] was framed with due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him.” 380 U.S. at 613, 85 S.Ct. at 1232. The Court was concerned not merely that adverse comments on the failure to testify placed a cost on exercise of the right against self-incrimination, but, moreover, that this cost was great enough to compel some defendants to take the stand and testify. At the point where Burt chose to remain silent, thus exercising a right against self-incrimination, it is doubtful that any compulsion existed. Burt was never interrogated about the Owens murder by the police. No official ever suggested to him that he should speak. Compulsion would have existed only if defendant realized that he might be asked at trial to explain his silence should his trial testimony prove inconsistent with silence while in incarceration. The coercive effect of such a realization, although perhaps real, is minimal. I do not find it substantial enough to raise the defendant’s right against self-incrimination over society’s interest in using the methods of the adversarial process to discover truth. Griffin protected Burt from adverse comment if he refused to take the stand. Once he freely elected to testify, however, his testimony was uncoerced and society had a paramount stake in ascertaining the truth. In such a situation, the limitations of Griffin are inapplicable. I therefore concur in the reversal of the judgment of the district court. The ease should be remanded with instruction to the court to deny the petition for writ of habeas corpus. Judge VAN DUSEN concurs in this opinion. . See language quoted from Harris v. New York at page 237 supra. The two sentences (401 U.S. at 225, 91 S.Ct. at 645) immediately preceding that language read as follows: The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.

f2d_475/html/0240-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Theron CLARK, Appellant. No. 527, Docket 72-2147. United States Court of Appeals, Second Circuit. Argued Jan. 12, 1973. Decided March 8, 1973. Michael Young, New York City (Rob-, ert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant. Joan S. O’Brien, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee. Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges. MANSFIELD, Circuit Judge: Theron Clark appeals from a judgment of conviction in the Eastern District of New York, following a jury trial before Judge Mark A. Costantino on two counts of an indictment charging that Clark knowingly and intentionally possessed, with intent to distribute (1) 211 grams of heroin, and (2) 18 grams of cocaine, both in violation of 21 U.S.C. § 841(a)(1) (1972). He was sentenced to two concurrent seven-year terms and an additional special parole term of three years, and is presently incarcerated at the Federal Penitentiary in Petersburg, Virginia. Because Clark and the public were excluded from the entire pretrial suppression hearing held to determine whether the drugs were lawfully seized from him as he was attempting to board an aircraft at LaGuardia Airport, we remand for another suppression hearing. And since the trial judge failed to give adequate and comprehensible instructions to the jury, we reverse the conviction and remand for a new trial. This case arises in the context of a system of precautions taken by airline authorities and the Federal Aviation Administration to prevent the hijacking of commercial aircraft by identification of potential skyjackers through use of a “profile” screening method. See United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Lopez, 328 F.Supp. 1077, 1082-1084 (E.D.N.Y.1971). Under the system a passenger who, at the time of his ticket purchase, fits the established profile criteria receives a specially marked ticket or envelope which identifies him as a “selectee.” When a “selectee” is designated, the ticket agent alerts other appropriate airline personnel and;/or one or more United States Marshals of the impending arrival of the “selectee” at the appropriate boarding gate. At the boarding gate, all passengers are required to pass through a magnetometer which detects the presence of metal objects. If a “selectee” activates the magnetometer, he is informed of this and asked for his ticket and identification. If he produces satisfactory identification, he will normally be allowed to board the aircraft, but if he cannot do so he will be “interviewed” by an airline representative or a marshal or both in an attempt to determine the source of the magnetometer’s reaction. Failing a satisfactory explanation, the “selectee” will be asked to submit to a patdown of his person and, if necessary, to a search of any articles he may be carrying, in order to determine whether whatever object activated the magnetometer presents a danger to the other passengers and crew members boarding the flight. It does not appear whether he is advised that he has a right to refuse to submit to the search if he decides not to board the plane. Nor is it clear that if he refuses to allow himself or his baggage to be searched, he will simply be turned away without a search and not be allowed to board the plane. If a marshal observes a bulge in his outer clothing which the marshal reasonably suspects may be a weapon, the marshal apparently conducts a protective frisk of the “selectee” anyway. In the present case, a Deputy United States Marshal, Vincent LaRosa, searched a small handbag carried by appellant as he was proceeding to board a plane bound for Raleigh, North Carolina, and seized from within it the illicit drugs which formed the basis for appellant’s prosecution and subsequent conviction. Clark moved to suppress the drugs as the product of an unconstitutional search, and a pretrial hearing was held on the motion. The Suppression Hearing At the commencement of the suppression hearing appellant was not present. The government made a formal motion, at the instance of the court, that Clark be excluded from the proceedings and that the hearing be conducted in camera “to insure that the [hijacker] profile will remain secret in order to deal with potential skyjackers.” The motion, to which defense counsel voiced no objection, was granted. Clark and the public were excluded from the entire suppression hearing, though appellant was represented throughout the course of the hearing by counsel. Only two witnesses, Marshal LaRosa and an Eastern Airlines Supervisor, Brian O’Neil, testified at the hearing. Except for a very brief description of the “profile” criteria by Mr. O’Neil, the testimony given in the defendant’s absence was wholly concerned with the circumstances leading up to and following the seizure of the drugs. In essence, the witnesses testified that they had been alerted that a passenger on the flight to Raleigh had been designated a “selectee.” When Clark appeared at the boarding gate for that flight bearing the distinctively marked boarding pass which identified him as a selectee, O’Neil asked him for it, ascertained that the ticket inside also indicated appellant was a selectee, and verified himself that Clark met the profile criteria. After Clark passed through the magnetometer and activated it, indicating the presence of metal, O’Neil introduced himself and Marshal LaRosa and requested identification. The testimony at the suppression hearing (at which Clark did not testify) indicated without dispute that Clark did not present any identification, and LaRosa consequently asked Clark if he would submit to a pat-down, to which appellant reportedly replied, “Go ahead.” Finding nothing which would have activated the magnetometer as a result of the frisk, LaRosa told Clark to open the locked bag he was carrying. Clark complied and LaRosa searched the bag looking for weapons. Noticing a bulky object wrapped in a towel, he unwrapped it and uncovered a box which he opened with the thought that it might contain explosives. Instead, the box was found to contain substances which later testing showed to be heroin and cocaine. The handbag also contained a medallion, a tie clip, and a can of shoe polish which would have triggered the magnetometer. It is readily apparent and not surprising that the suppression hearing covered a wide range of testimony besides the profile criteria in order to determine the validity of the search. At the conclusion of the in camera hearing, the district court found that “the method in which defendant was stopped and frisked was reasonable under the circumstances and in accordance with the profile that has been established a reasonable search was conducted and the finding of the contents should not be suppressed.” What was surprising and wholly improper was the exclusion of the appellant and the public from the course of an entire pretrial proceeding designed to determine, from evidence of events in which the appellant participated, whether his constitutional right to be free from an unreasonable search and seizure was violated. In United States v. Bell, 464 F.2d 667 (2d Cir. 1972), we recently upheld the exclusion of a defendant and the public from that limited portion of a suppression hearing restricted to the testimony of Ralph Whitfield, an airlines ticket agent, which concerned a description of the criteria of the “hijacker profile,” against the contention that the partial in camera procedure employed in that case denied the defendant his right to confront the witnesses against him, to have the effective assistance of counsel, and to have a public trial. We laid stress, however, on the persuasiveness of the “government’s justification for the barring of the public and the defendant, while permitting his counsel to participate,” namely, “the compelling urgency of protecting the confidentiality of the profile which has been devised as a method to reduce the threat of hijacking.” Id. at 669. We found “protection of the air travelling public” to be sufficient “justification for the limited exclusion” of the public. Id. at 670. Although the claim that exclusion of the defendant denied him his constitutional right to confrontation was found to be of “substance,” it was rejected after a searching analysis of the testimony of the sole witness heard in camera, which was restricted to a description of the essential elements of the secret “profile.” In particular, we noted that his testimony “bore no relationship at all to the question of Bell’s guilt or innocence of the crime charged. He could not identify the defendant and had no independent recollection of the transaction. Whitfield simply testified to the fact that he knew the criteria of the profile (which he delineated), that the ticket to the flight in question was sold by him, that his identifying number was on the ticket which was introduced into evidence, as well as the envelope distinctively marked to indicate to ramp personnel that the passenger was a selectee, that a passenger who purchased a ticket fit the profile, and that no personal exercise of judgment on his part in determining selectees was involved.” Id. at 671. We specifically observed that “Bell was present and represented by counsel who cross-examined the marshal and the ramp ticket agent who were present at the time of the stop and frisk, which revealed the contraband which led to his arrest,” and ultimately concluded that “the circumstances attending the exclusion [of the defendant], limited as it was, in our opinion did not jeopardize his ability to confront the witnesses testifying as to his guilt and the incidents surrounding his frisk, or hinder the effectiveness of his counsel’s assistance.” Id. at 672. The case now before us presents a wholly different set of circumstances. The government frankly concedes that “there was testimony adduced from its two witnesses at this in camera suppression hearing which did not require the protection from disclosure that their testimony concerning the profile required and, in addition, that had appellant been present in court during the testimony of these witnesses he might conceivably have been able to assist defense counsel in her cross-examination of these witnesses.” And indeed there was an abundance of testimony concerning such non-secret matters. The 45-page transcript of the testimony of Marshal La-Rosa and of Eastern Airlines Supervisor O’Neil reveals that O’Neil’s testimony regarding the characteristics of the FAA profile was limited to a few sentences and that LaRosa was not questioned at all on the subject. For the most part the testimony of these two witnesses was concerned with the circumstances surrounding Clark’s activation of the magnetometer, the interrogation and frisking of him, the search of his bag which led to the discovery of the drugs, and his arrest. This proof bore directly on such questions as whether Clark produced identification before the search of his bag (if he had done so he apparently would have been permitted to board without being searched), and whether he voluntarily and intelligently consented to the search of his bag, in which the narcotics were found. Without having the benefit of Clark’s presence at her elbow to point out potential inaccuracies in the testimony of the two witnesses and to furnish factual information for' use in cross-examining them, Clark’s counsel was handicapped. Moreover, while we do not know what the record would have revealed if a proper suppression hearing had been held, testimony given later at trial indicated that she may have been unaware of facts that could conceivably have led a court to conclude that the search of Clark’s bag was unlawful. At trial, for instance, it was brought out that La-Rosa, who testified that Clark did not identify himself prior to the search of his bag, had testified before the grand jury that prior to the search Clark had produced a driver’s license at the loading ramp in response to O’Neil’s request for identification. Clark also testified at trial that he had earlier given the ticket agent his driver’s license. See notes 2 and 3 supra. Furthermore, Clark testified that at the time of his arrest he was 21 years old, he had been an addict since he was 15 or 16 years of age, and he was under the influence of drugs, from which he was beginning to suffer withdrawal. The government makes a valiant but vain effort to save the hearing by suggesting that references to the operation of the antihijacking program were made throughout the hearing and that the risk of an inadvertent disclosure of the profile criteria in appellant’s presence was sufficient to justify the broad exclusion ordered by the trial judge in this case. Moreover, it suggests that even if the wholesale exclusion was error it was harmless because the same testimony was given at trial when appellant was present, and that any error was waived because appellant’s counsel indicated prior to her cross-examination of O’Neil at the suppression hearing that it was not “going to be necessary for me to speak to my client.” We cannot treat the matter of appellant’s constitutional right of confrontation so cavalierly. The exclusion of the defendant permitted in Bell, supra, was a carefully limited one. It represented an exception to the general right of a defendant “to be present at a suppression hearing where testimony is to be taken, see 8A J. Moore, Federal Practice ¶ 43.03 [1] (2d ed. 1969); 3 C. Wright, Federal Practice & Procedure § 721 (2d ed. 1968),” United States v. Dalli, 424 F.2d 45, 48 (2d Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1960). It was justified solely by the need to protect the secrecy of the hijacker profile which is used to protect the air travelling public. Here any such persuasive justification is lacking, except for the description of the profile criteria, which represented but a minute portion of the hearing testimony. Except for this secret profile criteria, the operation of the hijacking program is a matter of public knowledge. Nor does the remote possibility of an unsolicited, spontaneous disclosure of the elements of the profile justify such a broad policy of exclusion. Since the witnesses were well aware of the government’s desire to maintain the secrecy of the profile, the risk of inadvertent disclosure was negligible. Indeed, the same witnesses testified at lengh at trial in the presence of Clark and the public regarding the same circumstances without disclosing the profile. A precautionary instruction by the court to the witnesses would have sufficed. The remote risk of disclosure did not justify exclusion of the defendant and of the public. The Sixth Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him” has been held so fundamental as to be applicable to the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The defendant’s presence, unless waived by him, United States v. Tortora, 464 F.2d 1202, 1208-1210 (2d Cir. 1972), is required when a jury is empanelled, see Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed.2d 262 (1884); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); United States v. Crutcher, 405 F.2d 239, 242-244 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969), and when the trial judge gives additional instructions to the jury, Evans v. United States, 284 F.2d 393, 394 (6th Cir. 1960). The Supreme Court has indicated also that in a collateral proceeding under 28 U.S.C. § 2255 “[w]here . . . there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing.” United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 274, 96 L.Ed. 232 (1952). No less should be required at a pretrial suppression hearing held to determine the constitutionality of a seizure of evidence from an accused, where witnesses are to be questioned, cf. Snyder v. Massachusetts, 291 U.S. 97, 106-107, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Barring the public from the entire hearing was likewise an error of constitutional magnitude. Without the justification of “protection of the air travelling public,” or other compelling reasons, see United States v. Bell, supra 464 at 670, there was no reason to deprive the accused of his right to a public trial, see Estes v. Texas, 381 U.S. 532, 538-539, 583, 85 S.Ct. 1628, 14 L.Ed.2d 543 (Warren, C. J., concurring), 588 (Harlan, J., concurring) (1965). Cf. United States ex rel. Bennett v. Rundle, 419 F.2d 599, 605-608 (3d Cir. 1969) (exclusion of public from Jackson v. Den-no hearing held after a jury was selected and was sent from the courtroom denied right to public trial without need to show prejudice). Moreover, because of the importance of providing an opportunity for the public to observe judicial proceedings at which the conduct of enforcement officials is questioned, the right to public trial should extend to suppression hearings rather than permit such crucial steps in the criminal process to become associated with secrecy. See United States ex rel. Bennett v. Rundle, supra at 606; United States v. Lopez, supra, 328 F.Supp. at 1087. In many criminal prosecutions the disposition of the motion to suppress is as important as the trial itself, since granting of the motion may require entry of a judgment of acquittal for lack of other proof sufficient to convict. Certainly that was the case here. We are wholly unpersuaded by the government’s suggestion that appellant’s inability to confront the witnesses at the suppression hearing and to assist his counsel in his defense was harmless error. In Bell the search of the defendant’s person leading to discovery of “hard objects” in his raincoat pockets which could have been gunpowder or explosives used by a hijacker on the plane but turned out to be narcotics was justified because (1) he met the criteria of the hijacker profile, (2) he activated the magnetometer, (3) he had no personal identification, and (4) he volunteered that he “had just been released from the Tombs and that he was out on bail for attempted murder and narcotics charges,” 464 F.2d at 669. Absent proof of similar compelling circumstances or that Clark voluntarily and intelligently consented to the search, the opening and examination of Clark’s bag would in our view be justifiable only upon a showing that he was aware that he had a right to refuse to be searched if he should choose not to board the aircraft. See United States v. Bell, supra, 464 at 675, 676 (concurring opinions of Chief Judge Friendly and Judge Mansfield); United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972); cf. United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972). Clark was surely entitled to assist his counsel in cross-examining these witnesses and in developing these matters further at the suppression hearing. Nor is the government helped by the fact that Clark had an opportunity later at trial to confront and cross-examine the witnesses who had testified at the suppression hearing. Manifestly the trial focuses on the issue of guilt or innocence, while the suppression hearing centers upon the validity of the search for and seizure of evidence which the government plans to use later in seeking to prove guilt. The defendant's participation in his defense may take different forms at each stage. Cf. Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed. 1247 (1968). Even assuming that the harmless error principle applies to such basic rights, but see United States v. Crutcher, supra, 405 F.2d at 244, the possible prejudice to Clark was too great to permit invocation of the principle here. By the time of trial Judge Costantino had already denied Clark’s motion to suppress. While the court might conceivably have reversed itself upon development of additional proof, it is most unlikely that Clark would have been permitted to reopen the issue and for that purpose to examine witnesses out of the presence of the jury. Indeed we have only recently directed that such suppression hearings should be concluded prior to trial. United States v. Birrell, 470 F.2d 113 (2d Cir. 1972). Equally unconvincing is the suggestion that appellant waived his Sixth Amendment rights when his counsel told the district judge that it would not be necessary for her to speak to her client prior to her cross-examination of O’Neil. Even if counsel intended to waive appellant’s presence at the hearing, which we doubt, by making that statement and failing to object to his exclusion, appellant’s silence in absentia could certainly not be said to have amounted to “an intentional relinquishment or abandonment of a known right,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), by him. See United States v. Crutcher, supra, 405 F.2d at 243; Evans v. United States, supra, 284 F.2d at 395. Under the circumstances the exclusion of the defendant and of the public from that portion of the suppression hearing which did not deal directly with the characteristics of the secret antihijacking “profile” constituted plain error. Rule 52(b), F.R.Cr.P. The Trial Judge’s Instructions to the Jury We turn to the trial judge’s instructions regarding the legal principles which the jury was required to apply in determining whether Clark should be convicted or acquitted of the two charges against him. If justice is to be done in accordance with the rule of law, it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime that must be proved by the government beyond a reasonable doubt, see Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Lodwick, 410 F.2d 1202, 1204 (8th Cir. 1969). Unfortunately in this ease the judge, in what appears to have been an extemporaneous charge, not only failed clearly to identify and accurately define the elements of the offense, but he also gave the jurors improper and misleading instructions concerning the use of circumstantial evidence, the drawing of inferences, and the method by which the jurors might judge the credibility of witnesses. The indictment contains two counts, each of which charged appellant with a violation of 21 U.S.C. § 841(a)(1) (1972) based on his alleged knowing and intentional possession of narcotic drug controlled substances (Count I, heroin; Count II, cocaine) with the intent to distribute them. At the beginning of his charge, and long before he read or described the contents of the indictment and relevant statutes, the trial judge launched into an abortive and confusing description of the two elements of each alleged offense. “Knowledge” and “intent” were differentiated at first and then confusingly lumped together without explanation and without any attempt to define in a meaningful manner what must be proved to establish the two distinct and crucial elements of each alleged offense. Although the court referred to the necessity of proving “specific intent,” that term, which presumably referred to the intent to distribute the narcotics, was never defined, though it was later stated to be an essential element of the alleged crime. Absent clarification this would have required a new trial, since the effect was almost surely to confuse or to leave an erroneous impression in the minds of the jury. See United States v. Gillilan, 288 F.2d 796, 797 (2d Cir. 1961) (L. Hand, J.) (“certainly the-statute requires some definition of the meaning of the words which may not be left to the jury”); cf. United States v. Byrd, 352 F.2d 570, 572-574 (2d Cir. 1965). There followed a discussion by the court of a series of matters unrelated to the essential elements of the crimes charged, some of which, according to the record before us, is incomprehensible. After alluding to the “two elements” of the offenses the court read the counts of the indictment and pertinent statutes to the jury, following which it again referred to the elements. However, the key terms remained undefined. Viewed from the standpoint of fairness to the accused there is a strong probability that the court's references to the alleged offenses “taken as a whole [were] such as to confuse or leave an erroneous impression in the minds of the jurors,” Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961). Under the circumstances we cannot ascertain and should not speculate as to the basis upon which the jury reached its conclusion of guilt. See Smith v. United States, 230 F.2d 935, 939 (6th Cir. 1956); Patterson v. United States, 183 F.2d 687, 690 (5th Cir. 1950). The government’s effort to minimize the effect of the error by suggesting that the defendant’s entire defense was “lack of knowledge of the contents of the suitcase,” is insufficient to shoulder its appointed burden. Whatever defense appellant chose to stress for his part, the government retained the burden of proof beyond a reasonable doubt of each element of the offense, including intent to distribute narcotics. Moreover, that burden had to be met on the basis of proper instructions. Further errors appear in other portions of the court’s charge. Circumstantial evidence was vaguely defined as evidence that “would indicate” proof of such essential elements- as guilty knowledge and intent. Despite references elsewhere in the charge to the government’s burden of establishing guilt according to the reasonable doubt standard, the jury was not entitled to infer proof of guilty knowledge and intent merely on the basis that circumstantial evidence “would indicate” such crucial elements. See United States v. Fields, 466 F.2d 119, 120 (2d Cir., 1972). Since there was no direct evidence that appellant knew that the contents of the handbag included the narcotics, and he in fact testified that he did not, it was especially important that the jury be properly instructed on how to evaluate circumstantial evidence. The court’s instruction on the subject cannot, therefore, be treated as harmless error. The trial judge’s instruction on inferences not only failed to define what an inference is, see, e. g., Mathes, Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 51 (1960) (“An inference is a deduction or conclusion which reason and common sense lead the jury to draw from facts which have been proved”), but it improperly barred the jury from drawing more than a single inference from a material fact. Finally, the judge, possibly through inadvertence, authorized the jurors to disregard or reject testimony of a witness on the basis of their personal dislike of him. A juror, although disliking a witness, may still believe his testimony. The danger of improper bias entering a juror’s evaluation of credibility as a result of the instruction was substantial here, since the appellant took the stand in his own defense. We must regretfully conclude that, despite the surprising absence of objection by appellant’s counsel, the trial judge’s charge, viewed as a whole, is so deficient and defective in material respects as to amount to “plain error affecting substantial rights” within the meaning of Rule 52(b), F.R.Cr.P., United States v. Fields, supra. The error is one that we feel bound to consider on appeal not only to assure appellant of a fair trial but to protect the integrity of our administration of the criminal justice system, see United States v. Vaughan, 443 F.2d 92, 94-95 (2d Cir. 1971); Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). We recognize that the task of delivering an accurate and truely instructive charge to a jury is a demanding one. Of foremost importance is the necessity for organizing and outlining governing legal principles in a logical sequence that will fairly inform the jurors of the essential rules to be applied by them in reaching their verdict. Certain principles, of course, are of such a standard and recurring nature that they should present no serious problem for the court in the average case. Others require more preparation and thought on the judge’s part. Complex legalisms must be translated into simple prose that will be understandable by the average layman. The essential elements of the alleged crime or crimes and of any defenses raised by the defendant should be clearly described. Terms of legal significance should be defined in a way that will be understood. If illustrations are to be given, and they are often instructive, they should be furnished in addition to, not in substitution for, plain explanations of those criteria that are to govern the jury’s deliberations. In a factually complicated or protracted case, where the jury may have difficulty recalling the evidence, the judge may find it advisable to marshal the parties' contentions and proof. A nice balance must be struck between brevity and verbosity. A clear delivery in a tone that will command and retain the jury’s attention can be of considerable aid to the jury in understanding the legal principles by which it is to be governed. A few gifted jurists, aided by extensive experience on the bench, are capable of extemporaneously delivering instructions to the jury which meet these demanding standards, at least in cases where the issues are relatively simple or recurring and the governing principles well established. But most trial judges, particularly those of limited experience, find it advisable to prepare in advance at least a rough written outline, if not a fully developed text, of the instructions to be given to the jury. Although additional time and effort is required in this process, it insures a logical and orderly organization and the avoidance of error. We are persuaded that if that procedure had been followed in the present case most if not all of the errors could have been avoided. The Supreme Court observed in Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946), a case considerably more complex than the case here, that “[discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.” Cf. United States v. Persico, 349 F.2d 6 (2d Cir. 1965). We are compelled to Conclude in the present case that the guidance given the jury did not approach that standard required to enable it to fulfill its function properly, and that consequently a new trial must be had. In view of the trial judge’s past ruling and decision with respect to the suppression issues, a hearing before another member of the court is advisable. Reversed and remanded. . The system has recently been changed. Under new FAA airport security regulations, airport operators are required to provide facilities and procedures “to prevent or deter persons and vehicles from unauthorized access to air operations areas,” and must prepare and submit a written master security plan which must be approved by the Administrator, 14 O.F.R. § 107.3 (1973), and then implemented, § 107.7. The plan must now provide for the continuous presence of a law enforcement officer “at the point of, and prior to and throughout, the final passenger screening process prior to boarding, for each flight. . . . ” § 107.4. It appears that the passenger screening process presently in use includes a search of the “carry-on” baggage, of all passengers who may, in addition to passing through the magnetometer, be asked to disclose objects on their person which have activated it. . . At trial, however, Clark took the stand and testified that he produced his driver’s license when first asked for identification. At the suppression hearing and at trial, Marshal LaRosa testified that the license was not presented until appellant was interviewed in the Marshal’s office after the narcotics had been seized. Upon cross-examination at the trial, however, it appeared that LaRosa had told the grand jury that appellant “came up with an expired operator’s license” when first asked for identification. He explained the discrepancy by stating the grand jury testimony was incorrect. . LaRosa, however, observed at the suppression hearing that when O’Neil asked appellant for identification, appellant “seemed to be in a fog.” At trial, he observed that appellant “appeared to be stupefied. He didn’t know if he was going or coming.” Appellant testified at trial that he had “shot up some dope” prior to his unsuccessful attempt to board the flight to Raleigh. He did not testify at the suppression hearing, however, and his physical condition at the time of the search was not explored. . Appellee’s Brief 9. . While we took some comfort in Bell from the fact that the exclusion there was from the suppression hearing and not from the trial, that was only in the context of a necessary, limited exclusion from testimony of uncontested facts and not, as here, in the context of a total exclusion from all the testimony, some of which might have been controverted, see notes 2 and 3 supra, concerning the search and seizure. . Under the circumstances an objection may have appeared to her to be futile, as would effective consultation with her client in the midst of the hearing, cf. United States ex rel. Negron v. New York, 310 F.Supp. 1304, 1307 (E.D.N.Y.), aff’d., 434 F.2d 386 (2d Cir. 1970). . That section provides: “§ 841. Prohibited acts A — Unlawful acts “(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;....” . “And each count, of course, in order to convict this defendant, and I’ll give you the rule of reasonable doubt a little later on in my charge. “Each count must be proven to your satisfaction to the principle beyond a reasonable doubt and involves two elements : One is a question of knowledge and the second a question of intent, and I’ll tell you first what knowingly to do an act means or have a knowledge of it, or what intent means. “An act is done knowingly, done voluntarily and intentionally, not because of mistake or extent or other reasons. As I’ve said to you, the specific intent in this case must be proven beyond a reasonable doubt, otherwise it cannot be a conviction.” . “To constitute the crime charged in the indictment, there must be the joint operation of two essential elements; an act forbidden by law and an act in an attempt to do that act. “Before a defendant may be found guilty of a crime, the prosecution must establish beyond a reasonable doubt that under the statute described in which I’ll read to you a little later on in these instructions, defendant was forbidden to do the act number one, and the charge in the indictment, and number two, that he’s intentionally admitted the act as stated before.” . “[A]nd if you notice, I gave you the definition of knowingly and intentionally and you must now find, if you are going to convict this defendant under that section, you must find those two elements that I have described to you, knowingly and intentionally, was going to violate this law that I have read to you, including the next section, 841 (a) 1 which reads as follows: .... “As I’ve said to you, both of these sections require two elements to be proven by the Government in this case; one is that the act of knowingly, intentionally possessing a controlled substance and the second, the intent to distribute it, and I’ve told you what they were, and these two items and these two essential elements must be proven by the Government by the principle of a reasonable doubt as to each essential element.” . Appellee’s Brief 12. . “Now, circumstantial evidence is that evidence is not directly proven to you. For instance, direct evidence would be like the suitcase, and the items of the suitcase, that’s direct evidence, that’s something they have knowledge of and you can see circumstantial evidence is that evidence that surrounds, and because of the inability to have evidence that would tend to be relative to it, it comes in circumstantially. “You may consider both types of evidence ; circumstantial evidence would be, for instance, whether or not all of the evidence taken together would indicate whether or not this defendant had knowledge or intent or both to commit this crime to which he’s been charged.” . “At this point, the Court would like to tell you you can also draw inferences from a material fact in the case. “Now, a material fact in the case would be the bag, and the contents of that bag. You may draw an inference from that material fact, but only one inference that you may draw. “To give you an example, if I had a glass of water on my bench and I tip it over, you can drawn an inference the water will fall to the floor. If I tip over the same glass of water, you cannot draw an inference that it will be caught in another glass on the floor, so you can only draw one inference in a material fact in a case. Any material fact in a case and any fact that you think you can deduce and draw an inference.” . “Sometimes one statement from the person, you look at the person and they said something to you, and you may have been with your friends. ¡Somehow or other you don’t either like that person or you don’t believe what they told you. That’s your good common sense working.” (Emphasis supplied) . Because the conviction is reversed, we need not consider appellant’s contention that errors were committed in the sentencing proceeding. We do note, however, that a district judge is obligated to exercise his discretion as to treatment or imprisonment under the Narcotics Addict Rehabilitation Act, 18 U.S.C. § 4251 et seq., for eligible defendants. United States v. Williams, 407 F.2d 940 (4th Cir. 1969); United States v. Phillips, 403 F.2d 963 (6th Cir. 1968). See also United States v. Hollis, 450 F.2d 1207, 1209 (5th Cir. 1971).

f2d_475/html/0251-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Anthony MAENZA, Defendant-Appellant. No. 72-1019. United States Court of Appeals, Seventh Circuit. Argued Dec. 6, 1972. Decided March 28, 1973. Julius Lucius Echeles, Carolyn Jaffe, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., William T. Huyck, Robert A. Filpi, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee. Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges. PELL, Circuit Judge. Anthony Maenza appeals from his conviction by a jury of violating 18 U.S.C. § 1010. The district court denied his motions for judgment of acquittal notwithstanding the verdict and for a new trial. Maenza was sentenced to one year in prison and was fined $500. On July 5, 1966, defendant and his wife made arrangements with a salesman for a construction company to obtain a garage for their home. The salesman entered information supplied by Maenza onto a credit application form of the American National Bank and Trust Company of Chicago. Maenza, his wife, and the salesman then signed the form. In addition to eliciting information for the credit application, the salesman explained to the couple that “a FHA application would also need to be signed because the bank might require that the loan be made on a FHA basis . . . .” The Maenzas then signed a form, which was blank except for the date, entitled “Credit Application for Property Improvement Loan.” The salesman further stated “that in the event of the approval of a FHA loan . a notice would be sent out to the buyers informing them that the loan had been approved . . . .” Immediately under the title of the second, or blank, form were the words “This application is submitted to obtain credit under the provisions of Title I of the National Housing Act.” The form contained several references to the Federal Housing Administration (FHA) and had space for data such as that requested in the bank’s credit application that defendant had first signed. Above the signature line was a warning: “Any person who knowingly makes a false statement or a misrepresentation in this application or causes such a false statement or misrepresentation to be made shall be subject to a fine of not more than $5,000 or by imprisonment for not more than 2 years, or both, under provisions of the United States Criminal Code.” The construction company then forwarded the two forms to the bank, which made the loan and insured it with the FHA. Maenza was later indicted for having willfully and knowingly made false statements to the American National Bank in the FHA credit application. The one-count indictment charged that defendant had made false statements concerning his employment and monthly salary “for the purposes of obtaining a loan” from the bank “with the intent that such loan would be offered to and accepted by the [FHA] for insurance On this appeal, the defendant concedes that the statements concerning his employment and salary were false and that he had known they were false. Maenza’s primary contention is that the statutory language “with the intent that such loan . . . shall be offered to or accepted by the [FHA] for insurance” required the Government to show not only that Maenza knew that the loan would be offered to the FHA but also that he knew it would be offered to the FHA for insurance. He further claims that the evidence was insufficient to establish this knowledge. Maenza also emphasizes that the FHA form he signed was in blank. We are unsure what argument, if any, he intends to develop from this fact. A fair inference from the evidence is that he knew that the approval of the FHA might be sought and that the false information he had given the salesman would be transferred to the appropriate blanks in the FHA application. The crime charged centers on the making of false statements for the purpose of obtaining a loan. As the Government points out, the statutory construction Maenza proposes would lead to a peculiar result: a person who knowingly made false statements for the purpose of obtaining a loan and who signed an FHA application which warned the signer that he was committing a federal offense would be judged not guilty because he did not know that the FHA insures loans rather than acts on loan applications in some other manner. The defendant cites no opinion which adopts his interpretation of 18 U.S.C. § 1010, that is, which expressly requires a specific finding on the “for insurance” phrase. Our reading of the full statute and the cases involving it persuades us that the words “for insurance” do not refer to the intent needed for conviction of the crime charged here. The evidence proved that Maenza knowingly made false statements with the intent that the loan he sought would be submitted to the FHA for some purpose. This was sufficient; the Government did not need to establish the defendant’s knowledge of the FHA’s functions, and we decline to attach the claimed talismanic significance to “for insurance.” See United States v. Lee, 422 F.2d 1049, 1051 (5th Cir. 1970), where the Fifth Circuit stated: “An FHA credit application, as was used here, prominently states on its face that it is submitted to obtain credit under Title I of the National Housing Act and contains a warning that the making of a false statement or misrepresentation constitutes a federal crime. Where such an FHA form is used the jury may infer the existence of an intent that the loans should be sought from the Federal Housing Administration .... Thus, the fact that the loan applications were made on FHA forms provided sufficient evidence to support the jury’s finding as to Lee’s intent.” See also Brilliant v. United States, 297 F.2d 385 (8th Cir. 1962), cert. denied, 369 U.S. 871, 82 S.Ct. 1140, 8 L.Ed.2d 275; United States v. Pesano, 293 F.2d 229, 231 (2d Cir. 1961). Cf. the statutory interpretations adopted in United States v. Schaar, 437 F.2d 886 (7th Cir. 1971), and United States v. Bolin, 423 F.2d 834 (9th Cir. 1970), cert. denied, 398 U.S. 954, 90 S.Ct. 1882, 26 L.Ed.2d 297. The defendant also complains that the prosecutor, in his closing argument, made two erroneous and prejudicial statements: (1) “The fact that [the defendant] knew [that this loan was insured] has been testified to”; and (2) “[The salesman’s explanation for having someone sign an FHA application in blank] included . .' . telling that [the loan] was federally insured.” Defense counsel had unsuccessfully sought a mistrial on the basis of these remarks. The Government interprets the first statement as a permissible inference from the evidence. The form of the statement causes us to have some doubts about this explanation. However, we find no reversible error. Defense counsel strenuously and repeatedly denied the accuracy of the comment, and the trial judge supported those objections by saying that he did not recall such testimony and that he relied on the jury to remember what had actually been said. Also, in his charge to the jury, the judge stated that the attorneys’ closing arguments were not evidence. Finally, in light of our disposition of Maenza’s main argument, the statement did not affect a central issue in the case and cannot be deemed prejudicial. For these same reasons, the prosecutor’s second remark, which did misstate the evidence, was not reversible error. Maenza also contends that the court erred in refusing his tendered instruction that if two inferences can be drawn from the evidence, one of innocence and one of guilt, the jury should draw the conclusion of innocence. Defendant cites the La Buy Manual on Jury Instructions § 6.01-4, 33 F.R.D. 523, 567 (1963). The court’s refusal to give the two-inference instruction was not error. The court adequately discussed the Government’s obligation to prove Maenza guilty beyond a reasonable doubt. United States v. Lewin, 467 F.2d 1132, 1141 (7th Cir. 1972); United States v. Alexander, 415 F.2d 1352, 1358 (7th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970). Accordingly, we affirm the judgment of conviction of Anthony Maenza. Affirmed. . At the time of the crime, 18 U.S.C. § 1010, “Federal Housing Administration transactions,” provided: “Whoever, for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit shall be offered to or accepted by the Federal Housing Administration for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Administration, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Administration, makes, passes, utters, or publishes any statement, knowing the same to be false shall be fined not more than $5,000 or imprisoned not more than two years, or both.” . The statements of the district court regarding the jury’s ability to recall the testimony illustrate the difficulties of reviewing words on paper without the emphases, tones, and inflections of the human voice and without the facial expressions of the speaker. We venture to suggest that there are very few experienced trial lawyers who at some time have not in this situation heard these or similar words — and everyone in the courtroom knew that the judge was saying in effect, “Of course, this wasn’t in the evidence, give the jury credit for knowing it wasn’t, and let’s get on with the argument.”

f2d_475/html/0255-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Ramon M. RIVAS, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 72-2804 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 21, 1973. Frank R. Southers, San Antonio, Tex., for plaintiff-appellant. William S. Sessions, U. S. Atty., C. J. Calnan, Asst. U. S. Atty., San Antonio, Tex., for defendant-appellee. Before THORNBERRY, COLEMAN and INGRAHAM, 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. THORNBERRY, Circuit Judge: Appellant first applied for Social Security disability benefits under 42 U.S. C.A. §§ 416(i), 423, on August 4, 1970, alleging the onset of disability on April 10, 1970. The application was denied initially and on reconsideration. A Hearing Examiner considered the case de novo and, agreeing with the earlier determinations, found on August 20, 1971, that appellant was not under a disability on or before that date. The Hearing Examiner’s decision became the final decision of the Secretary when the Appeal Council approved it on April 13, 1972, and appellant filed this action below under 42 U.S.C.A. § 405(g) for review of the Secretary’s determination. Concluding that the Secretary’s finding of no disability was supported by substantial evidence, the district court affirmed the administrative decision. We affirm as to part of the period covered by the Secretary’s determination, and reverse as to the remainder. Appellant is a fifty-year-old Army veteran with a sixth grade education. He worked as a barber from 1951 until February 1970, when, he has alleged, arthritis prevented him from working further. At the administrative hearing on his claim appellant and his wife testified that since that time he had been unable to move about “seventy-five percent of the time” due to arthritic pain, swelling, and stiffness in his ankles, feet, hands, neck, and right shoulder; that he had difficulty walking over two or three blocks; and that he frequently had difficulty dressing himself and signing his name. When he stopped barbering in February 1970, his wife took over management of his shop and arranged for an outside barber to work there and give a share of his income to appellant as the shop owner. The medical evidence available to the Hearing Examiner consisted of four reports and summaries submitted to the Secretary by physicians who had treated appellant. Dr. R. E. Garza, who treated him during February, March, and April of 1970, for arthritis in his hands and ankles, stated in a medical report to the Secretary, “The patient is a barber and has been unable to work since February because of his arthritic condition.” In the following eight months appellant underwent three periods of hospitalization in the Veterans Administration Hospital at Kerrville, Texas, because of arthritic joint pain and other ailments not relevant to the disability inquiry. Dr. L. W. Scheckles, the treating physician for the initial hospitalization period from May 12 to August 18, diagnosed appellant’s medical problems at that time as “anxiety and depressive reaction” and “early rheumatoid arthritis”; as Dr. Garza had done, he prescribed pain medication. Dr. Y. C. Smith was the principal treating physician for the second and third periods of hospitalization from July 24 to August 18 and from September 8 to December 4, 1970. Dr. Smith’s hospital summary reflects that appellant was admitted to the hospital the second time for treatment of pain in his right shoulder, his arms, and in the joints of the fingers in both hands; that “rheumatoid arthritis, mild” and “anxiety-neurosis” were again diagnosed as his major medical problems; and that pain medication was again prescribed. In an apparent effort to bring about an improvement in appellant’s neurotic condition, Dr. Smith advised him during the second hospitalization “to return to his work, barbering, and to continue at this at the best of his ability, that if he got tired, to discontinue his work till he rested, and then continue working again, and advised [him] that we do not feel it was good for him to discontinue working altogether.” Dr. Smith’s hospital summary covering the third hospitalization read in part: This veteran was admitted because of severe pain in the right shoulder, wrist and hand. . . . [H]e developed severe pain in the right shoulder and he was unable to abduct the arm. The pain was so severe that it kept him awake at night. His symptoms in re his arthritis are much worse, however, his neuroses have improved. ... He walked with a shuffling gait and a limp due to pain and swelling of his right ankle. There was point tenderness along the course of the long head of the biceps. The right ankle was swollen and tender. The right wrist was. swollen and tender and painful on pronation and suppination. . The right shoulder showed early improvement and full motion was restored. He was given a short course of steroid for his multiple joint symptoms and was temporarily helped in regards his pains; however, pain recurred when steroids were discontinued. . . . With the diagnosis of rheumatoid arthritis the outlook is not good as these cases usually get progressively worse, which has been the case with him. He was advised to work up to the point of tolerance, however, it is doubtful that he will be able to work more than a few hours a day due to the arthritis in his hands, fingers and feet. Dr. D. R. Marth, a vocational expert, answered two hypothetical questions at the hearing. First, he concluded that if appellant’s testimony were taken as true, appellant would be “precluded from competitive employment.” Secondly, Dr. Marth opined that if only the information contained in the medical summary covering the second hospitalization were taken as true and all other evidence disregarded, this information alone would indicate that appellant could not return to barbering but did not indicate inability to engage in various forms of light work found in the economy. On cross-examination he made a further statement, “By observance and reviewing the objective evidence coupled with the subjective evidence presented here, from my own opinion and observations, I would have to agree with the first hypothetical and say that I would not think he would be employable.” On the basis of this evidence — the testimony of appellant, his wife, and the vocational expert and the four medical reports — the Hearing Examiner found that appellant was not under a disability before August 20, 1971, the date of the decision, and that he could “return to employment as a barber,” or “function as (1) a retail salesman for a barber or beauty supply company, (2) a general cashier, (3) a cashier for a self-service station, or (4) a parking lot attendant.” Our function in reviewing fact findings of the Secretary is limited to determining whether there is substantial evidence in the record, considered as a whole, to support them. 42 U.S.C.A. § 405(g); see Ward v. Celebrezze, 5th Cir. 1963, 311 F.2d 115, 116. Substantial evidence is “more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Breaux v. Finch, 5th Cir. 1970, 421 F.2d 687; see 4 K. Davis, Administrative Law Treatise § 29.02 (1953). “Disability” is defined in the Social Security Act as “(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months or (B) blindness.” 42 U.S.C.A. §§ 416(i)(1), 423(d)(1). Ability to work only a few hours a day or to work on an intermittent basis is not ability to engage in a “substantial gainful activity”; the latter term means “performance of substantial services with reasonable regularity in some competitive employment or self-employment.” Prevette v. Richardson, D.S.C.1970, 316 F.Supp. 144, 147, quoting Foster v. Ribicoff, W.D.S.C.1962, 206 F.Supp. 99; see also McDowell v. Richardson, 6th Cir. 1971, 439 F.2d 995. Viewing the record as a whole we believe that appellant conclusively established the onset of disability at the beginning of his third period of hospitalization on September 8, 1970. It appears, as the district court observed, that the Secretary in making his determination gave “little or no credibility to the testimony of plaintiff and his wife, or to the testimony of the vocational expert” and that he relied primarily on the medical evidence. As trier of fact the Hearing Examiner was fully entitled to single out and accord greater weight to those portions of the evidence which he considered particularly persuasive, but we do not believe that the medical reports supply the requisite substantial evidence to support the Secretary's decision for the whole period under consideration in this ease. The four medical reports and summaries in the record present a history of steadily worsening multiple-joint rheumatoid arthritis. Dr. Garza’s report recited that appellant had been unable to work as a barber since February 1970; the summaries covering the first and second periods of hospitalization contain diagnoses of “early rheumatoid arthritis” and “rheumatoid arthritis, mild,” respectively. These diagnoses and Dr. Marth’s expert opinion that the information in the second hospitalization summary did not indicate inability on the part of the patient to work in certain light jobs afford substantial evidence for the finding of no disability before September 8, 1970. Dr. Smith’s advice to his patient to return to barbering to the extent of his ability to do so does not indicate a medical opinion that the arthritis condition would permit substantial work as a barber, for such work was clearly intended as therapy for appellant’s psychological condition and not for his arthritis; the report contains no estimation of the extent of appellant’s ability to barber. Once evidence has been presented which supports a finding that a given condition exists it is presumed in the absence of proof to the contrary that the condition has remained unchanged. Hall v. Celebrezze, 6th Cir. 1963, 314 F.2d 686, 688; Prevette v. Richardson, supra. In this case, however, Dr. Smith's summary covering the third hospitalization expressly withdraws any medical basis for finding appellant not disabled within the meaning of the Social Security Act. It reflected that appellant’s “symptoms in re his arthritis are much worse” and concluded “it is doubtful that he will be able to work more than a few hours each day due to the arthritis in his hands, fingers and feet.” Although appellant was advised to “work up to the point of tolerance,” we do not believe these statements can be fairly construed as evidence that appellant could engage in substantial gainful activity; rather, they indicate inability to do so. As noted above, the testimony of all three witnesses would also indicate that appellant was disabled at the time of the third hospitalization. Since we have found in the record no contrary evidence relating to the period after September 8, 1970, we conclude the Secretary’s determination as to disability on and after September 8, 1970, is not supported by substantial evidence and must be reversed and rendered. Affirmed in part; reversed and rendered in part. Costs are assessed against the Secretary.

f2d_475/html/0259-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Tom BOLACK, Appellant, v. SOHIO PETROLEUM COMPANY, a corporation, Appellee. No. 72-1222. United States Court of Appeals, Tenth Circuit. Argued and Submitted Sept. 14, 1972. Decided March 28, 1973. Thomas F. McKenna, Albuquerque, N. M. (Thomas F. McKenna and James E. Sperling, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., on the brief), for appellant. William Briggs, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb, P.A., William C. Briggs, Albuquerque, N. M., on the brief), for appellee. Before JONES, SETH and DOYLE, Circuit Judges. Of the Fifth Circuit, sitting by designation. JONES, Circuit Judge: Tom Bolack, joined by his wife, Alice Bolack, on September 2, 1959, sold and assigned to Sohio Petroleum Company a producing Federal oil and gas lease, reserving a limited term carried working interest. The working interest was to become effective after seven-eighths of the production subsequent to the sale and transfer amounted to 1,500,000 barrels. A,t the time of this happening Bolack was to be deemed the owner of one-third of seven-eighths of the oil saved and produced from the leased lands until the happening of the first to occur of two conditions set forth in the instrument. The second of these conditions and the one with which the Court is concerned in this controversy is set forth in the instrument in this language: “Until the reasonably estimated quantity of oil that is recoverable from said lands has declined to four hundred thousand (400,000) barrels, as such estimated quantity and the time of such occurrence shall be established in accordance with the subsequent provisions hereof. This condition may be referred to herein as ‘Condition Two’.” The instrument provided that in the making of a determination of the time when the 400,000 barrel level had been or would be reached Sohio should submit to Bolaek the date ascertained by it as to the time when such level had been or would be reached with all supporting data. Within sixty days after receiving Sohio’s date determination Bolack was required to advise Sohio as to whether or not he agreed with such determination. In the event of disagreement the question was to be determined by a petroleum engineer of their joint selection, and, as provided in Paragraph 4.4(c) of the instrument, “if the parties are then unable to agree on the selection of a disinterested petroleum engineer or engineering firm for the purpose of resolving their difference, either party-may request the then president of the American Institute of Mining and Metallurgical Engineers to appoint a petroleum engineer or engineering firm for that purpose. The engineer or firm so selected or appointed shall determine the reasonably estimated quantity of oil then recoverable from said lease; if such engineer or firm determines that said quantity has declined to 400,000 barrels he or it shall also determine the date on which such decline occurred. . The determination of such engineer or engineering firm shall be made in writing, a signed copy of which shall be furnished to each party hereto, and shall be final and binding on both parties hereto.” Sohio determined that the 400,000 level would be reached on October 21, 1969, and so advised Bolack by letter dated September 3, 1969. Bolack did not agree to Sohio’s determination of the date nor did he and Sohio agree upon an engineer or firm to whom the question should be submitted and by whom it should be determined. He advised Sohio, by a letter from his attorneys dated September 11, 1969, that if the matter was not concluded to his satisfaction, “further proceedings specified in” Section 4.4(c) of the instrument would “presumably be the next order of business to be followed herein.” Sohio proposed an engineering firm pursuant to the terms of the agreement. Bolack expressly refrained from agreeing or disagreeing with Sohio’s proposed designation of an engineering firm. He proposed that any determination of the crucial date be deferred for a year. He advised Sohio that he did not acquiesce in any request by it that the president of the American Institute of Mining and Metallurgical Engineers appoint an engineer or firm to make the determination. He notified Sohio that he would not pay any of the charges of any engineer so appointed. An engineering firm was appointed as provided in the agreement. Again communicating through his counsel, Bolack transmitted to the engineers information and stated his views as to the proper method of determining the recoverable reserves. In a letter to the engineers Bolack stated that he disagreed “with Sohio as to any responsibility on his part for the costs but that is probably something between him and Sohio.” The engineering firm fixed the time when the reserve declined to 400,000 barrels as the end of June 21, 1969, four months earlier than the Sohio date of October 21, 1969. If the royalty payments to Bolack had been cut off as of June 21 rather than October 21 he would have received $27,028.13 less than that which was paid to him. He refused to refund this to Sohio. He also refused to pay his pro rata share of the charges and expenses of the engineering firm in the amount of $1,247.60. Sohio sued. The jurisdiction is diversity of citizenship. The law of New Mexico governs. Sohio recovered judgment in the district court and Bolack has appealed. Bolack contends that the question of when the recoverable reserves declined to the 400,000 barrel level was not properly submitted to the engineers for their determination. This is primarily a factual question. There is no ambiguity in the agreement and the provision for submission to an engineer or engineering firm in the event of a disagreement is clear. These provisions of the agreement were not nullified by the refusal of Bolack to conform to its terms. He recognized that a resort to these contract provisions would “presumably be the next order of business.” Although protesting that he would assume no liability for the cost of the determination by the engineering firm, he recognized the submission by giving to the engineers his views as to how their determination should be made. The agreement provided for the procedures which were followed. Bolack will not be heard to assert a contrary contention. The agreement fixed the liability of the parties for the payment of the engineers as well as for the determination to be made by them. It is urged by Bolack that he has no liability for the cost and charges made by the engineers for the services which they rendered in making the determination contemplated by the agreement. No reasons sufficient to relieve Bolack of his contractual obligations have been advanced. The liability is clear and the amount of the charge is properly included in the judgment. In its complaint Sohio sought judgment in the amount of the overpayment “as restitution of the monies paid under mistake of fact” and for the amount paid to the engineers. Bolack contends that this is not a proper “mistake of fact” case. At the beginning of the development of the common law there were certain writs which might be issued and if the facts of the plaintiff’s case did not fall within the express terms of one of these writs, he was without a remedy. Much more than time has brought us from the Year Books to the Federal Rules of Civil Procedure. The time has long ago passed since it was necessary to fit the facts of a claim within a particular procedural pigeonhole in order to recover. 5 C. A. Wright and A. R. Miller, Federal Practice and Procedure 114 et seq., § 1216 (1969). Whether Sohio’s claim for its overpayment was quasi contractual and based on mistake of fact, for money had and received^ or founded on the express provisions of the agreement between the parties, need not be here resolved. It should be enough to say that the parties stipulated as to the manner of determining the factual question as to when the 400,000 barrel level was reached. That method was followed. The determination of the fact question made pursuant to the terms of the contract should be made the basis of enforcement by a judgment giving effect to it. The appellant Bolack contends that the payment by Sohio precludes it from recovering on the theory that the amount paid exceeded the amount which was owing. With respect to this assertion, it is enough to say that Bolack declined to treat the payment made as sufficient to discharge Sohio’s obligation to him. Since he declined to be bound by Sohio’s determination of the pertinent date, it follows that the question was open so far as Sohio was concerned as well as being open to Bolack. The agreement provided that if there was disagreement the factual question should be answered by engineers. The answer determined in accordance with the contract is binding on both parties. 17A C.J.S. 724, 727 Contracts §§ 496(1), 497(1). In making their determination the engineers construed the phrase “oil that is recoverable” as meaning oil that is economically recoverable. Bolack asserted in the district court and contends on this appeal that this standard is improper. None of the canons of construction would permit a standard different from that which the engineers used. See Greer v. Salmon, 82 N.M. 245, 479 P.2d 294. It is impossible to see how the parties could have intended a different standard of measurement than that which the engineers used. No error is demonstrated in the proceedings before the district court. Its judgment is Affirmed. . The working interest consists of oil and gas in place on the leased property subject to the royalty, interest and burdened with the cost of development and operation of the leased property. The carried interest is an arrangement between two or more co-owners of a working interest whereby one agrees to advance all or some part of the development costs on behalf of the other or others, and to recover such advances from future production. The interest of the one who makes the advances is known as the carrying interest. The interest of the one for whom advances are made is known as the carried interest. O. W. Breeding and A. G. Burton, Income Taxation of Oil and Gas Production, §§ 204, 208 (1961).

f2d_475/html/0262-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

WARNER BROS. RECORDS, INC., et al., Plaintiffs-Appellants, v. R. A. RIDGES DISTRIBUTING CO., INC., a corporation, et al., Defendants-Appellees. No. 72-1883. United States Court of Appeals, Tenth Circuit. March 6, 1973. L. R. Gardiner, Jr., of Christensen, Gardiner, Jensen & Evans, Salt Lake City, Utah, for plaintiffs-appellants. Kenneth W. Yeates, of Prince, Yeates, Ward, Miller & Geldzahler, Salt Lake City, Utah, for defendants-appellees. Before BREITENSTEIN, MC-WILLIAMS and DOYLE, Circuit Judges. PER CURIAM. Plaintiffs-appellants, phonograph record manufacturers, filed suit in the District Court for the County of Salt Lake, Utah seeking equitable relief against defendants who were alleged to have been copying and selling without authority the tapes and records which had been made by the plaintiffs. The state district judge granted a temporary restraining order and subsequently conducted a hearing following which he made extensive findings of fact and conclusions of law and entered a preliminary injunction. Subsequently, the cause was removed by the defendants to the United States District Court for the District of Utah. The judge of that court summarily dissolved the state court injunction, at the same time issuing an order denying the motion to remand the case to state court. This is a repeat of a case which was presented to us approximately one year ago. We heard that case on an emergency basis also and, as in the present case, we granted relief. See Tape Head Company v. R C A Corporation, 452 F.2d 816 (10th Cir. 1971). Plaintiffs have appealed the judgment dissolving the injunction and have applied for a stay of proceedings pending the appeal. We accelerated the hearing of the case and following oral arguments we have concluded that there was and is a complete lack of federal jurisdiction and that the action should have been remanded to state court. Plaintiffs’ complaint does not invoke any federal laws. It makes no mention of a federal law nor does it allege that the cause arises under any such law. Instead, it alleges that plaintiffs have made contracts with recording artists; that they have property rights in the resultant recorded compositions; and that the defendants have interfered with their property rights by pirating the compositions and selling the same. The complaint also alleges that apart from the pirating, the plaintiffs’ good will was injured because of the poor quality of the recordings or the tapes. The preliminary injunction issued by the state district court follows the pattern of the complaint and grants relief on the basis of invasion of plaintiffs’ common law rights. Defendants also allege in the petition for removal that the action may be removed pursuant to 28 U.S.C. § 1441(b). It is obvious that neither of these provisions applies to the case at bar since the action does not directly or indirectly arise under the patent or copyright laws of the United States. Secondly, it does not arise under the Constitution, treaties or laws of the United States in accordance with the requirements of § 1441(b), supra. Accordingly, on the face of the papers, there was no right to remove. But the terms and conditions of the complaint furnish a clearer basis for holding that the trial court lacked jurisdiction to entertain the case. It is for the plaintiffs to design their case as one arising under federal law or not, and it is not within the power of the defendants to change the character of plaintiffs’ case by inserting allegations in the petition for removal. It is fundamental that the action is not one arising under federal law where the federal question is supplied by way of defense. See Louisville & N. R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); State of Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Metcalf v. City of Watertown, 128 U.S. 586, 9 S.Ct. 173, 32 L.Ed. 543 (1888). See also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). In this latter case the Supreme Court through the late Justice Frankfurter summarized the law as follows; If Phillips sought damages from petitioners or specific performance of their contracts, it could not bring suit in a United States District Court on the theory that it was asserting a federal right. And for the simple reason that such a suit would “arise” under the State law governing the contracts. Whatever federal claim Phillips may be able to urge would in any event be injected into the case only in anticipation of a defense to be asserted by petitioners. “Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.” Gully v. First National Bank in Meridian, 299 U.S. 109, 115, 57 S.Ct. 96, 99, 81 L.Ed. 70; compare 28 U.S.C. § 1257, 28 U.S.C.A. § 1257, with 28 U.S.C. § 1331, 28 U.S.C.A. § 1331. Ever since Metcalf v. City of Watertown, 128 U.S. 586, 589, 9 S.Ct. 173, 174, 32 L.Ed. 543, it has been settled doctrine that where a suit is brought in the federal courts “upon the sole ground that the determination of the suit depends upon some question of a federal nature, it must appear, at the outset, from the declaration or the bill óf the party suing, that the suit is of that character.” But “a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws.” State of Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511. The plaintiff’s claim itself must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126. 339 U.S. at 672, 70 S.Ct. at 879. The Court goes on to point out that the cited decisions reflect the current of jurisdictional legislation going back to the Act of 1875, and that these cases plainly show that federal jurisdietion not only must appear on the face of the complaint, but further that some indirect relationship to a federal law will not serve to furnish a basis for federal jurisdiction nor is it sufficient that a federal law may emerge in the suit. See Gully v. First National Bank of Meridian, 299 U.S. 109, 115, 57 S.Ct. 96, 81 L.Ed. 70, supra. It is undisputed that the recordings which were here copied predated the passage of the federal statute creating a limited copyright in sound recording. 85 Stat. 391; 17 U.S.C. § 1 et seq. Because of this, defendants seek to create federal jurisdiction here by spinning a theory that federal jurisdiction is exclusive. This theory is based on the decisions of the Supreme Court in Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964) and Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964). The defendants are not saying that the plaintiffs’ case is in truth federal. This is plain from the fact that defendants maintain that according to federal law the plaintiffs’ recordings are in the public domain— that they are not protected. It follows that defendants are in truth asserting a federal question as a defense. They are attempting to use it as a shield. As has been shown, jurisdiction cannot come about by way of the removal route where the federal question is supplied by the defendant in an effort to protect himself. The removal character of the present case seriously restricts the scope of the district court’s authority. Thus, the court cannot exercise anything resembling appellate authority since its jurisdiction is original. See Wright, Law of Federal Courts (2d ed.), pages 132-33. Tested in still another manner, removal jurisdiction is derivative; if the state court lacked jurisdiction the federal court acquired none. Therefore, even if we were to accept defendants-appellees’ argument that the state court lacked jurisdiction and that the federal court’s power in this case is exclusive, it would be self-defeating. See General Investment Company v. Lake Shore & M. S. Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244 (1922); Martinez v. Seaton, 285 F.2d 587 (10th Cir. 1961), cert. denied, 366 U.S. 946, 81 S.Ct. 1677, 6 L.Ed.2d 856. In Crow v. Wyoming Timber Products Co., 424 F.2d 93 (10th Cir. 1970), the derivative nature and the legal consequences of this were clearly pointed out. One final matter: Since the cause is devoid of a federal question, the United States District Court lacked power to deal with it in any manner, and hence the motion to remand to the District Court of Salt Lake County should have been granted. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916). The judgment of the district court is reversed and the cause is remanded with directions to vacate and set aside its order dissolving the preliminary injunction and to remand the case to the District Court of Salt Lake County, State of Utah. . This provision gives the district courts original jurisdiction of civil rights arising under an Act of Congress relating to patents, copyrights and trademarks, and it says that such jurisdiction shall he exclusive in patent plant variety protection and copyright cases. Subsection (b) gives the district courts original jurisdiction when an unfair competition claim is joined with the suit under the copyright or patent laws. . This provision is as follows: (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. . This Supreme Court decision (a Justice Holmes opinion) is closely analogous. The decision revolved around a patent problem which the Court held arose under state law. The U. S. District Court dismissed following removal. The Supreme Court reversed.

f2d_475/html/0266-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. John Francis Arthur SANDOVAL, Defendant-Appellant. No. 72-1395. United States Court of Appeals, Tenth Circuit. Argued Nov. 14, 1972. Decided March 20, 1973. Don J. Svet, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for plaintiff-appellee. Paul A. Phillips, Albuquerque, N. M., for defendant-appellant. Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge. McWILLIAMS, Circuit Judge. Sandoval was convicted by a jury of refusing to submit to induction into the Armed Forces in violation of the provisions of 50 U.S.C. Appendix § 462. Sandoval now appeals his conviction, contending that the trial court committed error in the conduct of his trial. This is the second time this particular case has been before this court. See United States v. Sandoval, 449 F.2d 1338 (10th Cir. 1971), for a more detailed statement of background information. Brief reference at this point to our prior decision is necessary, however, if the present appeal is to be placed in focus. At the heart of the controversy is the letter which Sandoval sent his local draft board on January 29, 1970. In response to the indictment, Sandoval first filed a motion to dismiss on the ground that he had been denied procedural due process in that his claim of conscientious objection had been ignored by his local draft board. It was Sandoval’s position that his letter of January 29 constituted a claim to be classified as a conscientious objector under the provisions of 50 U.S.C. Appendix § 456(j). In this connection, Sandoval argues that in response to his letter the draft board should have sent him a Form 150 or should have otherwise recognized his claim to objector status and that since his draft board did not in anywise answer his letter, he had been denied due process. The trial court granted the motion to dismiss and the Government appealed that ruling. As indicated, on appeal, we reversed. United States v. Sandoval, supra. In reversing and remanding with direction that the indictment be reinstated, we held in so many words that the letter of January 29 “was not a statement of conscientious objection, it was instead an expression of opposition to the legality of the Selective Service System.” At trial of the matter after remand, the Government through the clerk of Local Board 34 introduced into evidence Sandoval’s selective service file and then called as a witness Master Sergeant Rasmussen, who testified as to the failure of Sandoval to submit to induction at the induction station by taking the symbolic “step forward,” even though warned that there was a penalty for failure to submit. In this latter connection, as was noted in our earlier opinion, Sandoval, in response to a question asked him at the induction station, answered as follows: “My personal and moral beliefs make it impossible for me to accept the legality of the S.S.S. and the U.S. Military.” The Selective Service file reflects, as indicated in our earlier opinion, that the only response of the local draft board to Sandoval’s letter of January 29, 1970, was to once again reclassify him I-A on February 26, 1970, and to send Sandoval notice of such reclassification, which notice Sandoval returned without comment to the board on March 5, 1970. There was no further communication between Sandoval and the draft board other than the board’s order under date of June 29, 1970, that Sandoval report for induction on July 27, 1970. On the latter date, Sandoval reported, was found qualified for induction, but refused to be inducted. In this court, Sandoval’s various grounds of alleged error will be grouped as follows: (1) Error in excluding certain proffered evidence; (2) error in refusing to submit to the jury the question as to whether Sandoval had made out a claim of conscientious objection; and (3) error by the trial court in refusing to direct a verdict for Sandoval. We will consider each of these matters. At trial, counsel sought to show what Sandoval “really meant” in his letter of January 29, 1970. This the trial judge refused to let him do, the judge being of the view that our earlier opinion had specifically held that the letter in question, as written, was not a claim for objector’s status, but was an expression of outright opposition to the “legality” of the entire Selective Service System, and that by our opinion we had foreclosed such line of proposed inquiry. In so doing, the trial court properly construed and applied our prior decision. By that decision it became the law of the case that the letter of January 29 did not, as such, constitute a claim to be classified as a conscientious objector. Accordingly, the trial court did not err in refusing to let Sandoval go behind the letter in question by testifying as to what meaning he intended to convey in his January 29 letter. The letter speaks for itself. In like vein, upon trial, counsel tried to elicit from Sandoval his ethical and moral beliefs in an effort, presumably, to show that as of the time of trial, if not before, he was in fact entitled to a conscientious objector’s status even though he had- made no such claim to the draft board. Again, the trial court did not err in refusing to permit such testimony to be brought before the jury. There having been no communication between Sandoval and the draft board subsequent to his letter of January 29, the only real issue is the effect of the January 29 letter, and by our prior opinion we have held that it was only a protest against the system. Under these circumstances, Sandoval’s ethical and moral beliefs uncommunicated to his draft board are not material. Sandoval’s failure, then, to exhaust his administrative remedies, i. e., make claim for a conscientious objector’s classification and appeal any adverse ruling by the local board in connection therewith, bars any defense at trial that Sandoval was erroneously classified I-A. See McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). In this court Sandoval suggests that in composing his letter of January 29, he did not have the benefit of Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), which was announced on June 15, 1970, and that, as we understand it, had he known of Welsh he would have couched the language in his letter differently. Or, alternatively, the draft board itself would have handled his letter differently had it the benefit of Welsh. This argument is not sound. We are only concerned with the language which was in fact used in the January 29 letter and whether such required the draft board to treat it as a claim for objector’s status. This has been resolved by our prior opinion. Further comment regarding Welsh is perhaps advisable in order to fully understand Sandoval’s argument on this phase of the case. Sandoval at one time was deeply religious in the traditional sense and was an active member of an organized, recognized church. However, he then dropped out of the church. It was because of his disassociation from his church that Sandoval, according to his counsel, was disinclined to seek an objector’s status since his opposition to war was, as he viewed it, not “prompted by orthodox or parochial religious beliefs.” In Welsh, the Supreme Court held that a registrant’s conscientious objection to war is “religious” within the meaning of the statute if the opposition stems from registrant’s moral, ethical or religious grounds about what is right or wrong and these beliefs are held with the strength of traditional religious convictions. We need not here get involved in any extended discussion as to whether Welsh represents “new law” on this particular matter. See United States v. Fargnoli, 458 F.2d 1237 (1st Cir. 1972). At least four members of the Supreme Court deemed Welsh to be controlled by the rule previously announced in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). And whether Welsh be regarded as an extension of Seeger or only a clarification thereof, the fact of the matter is that in Seeger, which was a case in which the three appellants did not belong to any orthodox religious sect, the Supreme Court held in 1965 that the test to be applied in determining whether a conscientious objection is religious oriented is whether the claimed belief occupies the same place in the life of the objector, even though not belonging to an orthodox religious sect, as an orthodox belief in God holds in the life of one clearly qualified for exemption. Suffice it to say then, we do not regard Welsh as injecting any new element into the present case. When Sandoval sent his January 29 letter to his draft board, he did have the benefit of Seeger, which was in itself adequate to put him on notice that a claim of conscientious objection based on nonreligious grounds was not necessarily foreclosed by the then existing law. But he made no such claim; rather, he rejected the system and declared that he was ready to accept the consequences. See Gee v. United States, 452 F.2d 849 (5th Cir. 1971), cert. denied, 407 U.S. 909, 92 S.Ct. 2432, 32 L.Ed.2d 683 (1972). Counsel was also precluded from attempting to show that sometime after the date of Sandoval’s induction proceeding the local draft board changed its operating procedures. In this connection the clerk of the local draft board testified by way of an offer of proof that as of the date of the trial, i. e., February 9, 1972, though she would not automatically send a Form 150 in response to a letter of the tenor of Sandoval’s letter of January 29, she would perhaps contact the registrant and “ask him what he meant.” We do not see how this subsequent change in procedure, if such it be, inures to Sandoval’s benefit. In our earlier opinion in the instant case, we noted that Sandoval’s letter of January 29 was quite similar in content to the letter under consideration in United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969). In the latter ease it was suggested that some “thoughtful probing” of the registrant’s views might have resolved the matter to the end that subsequent events, i. e., indictment and prosecution, could have been avoided. Notwithstanding this pointed suggestion as to better practice, the First Circuit in Stoppelman went on to hold that it was “all too clear” that the letter there in question was not a request for a reclassification but was a complete rejection of the system, and that neither the local board nor the clerk thereof was under any duty to make inquiry of the registrant as to any hidden meaning in his letter. Assuming that the local board in the instant case at a time subsequent to the events which form the basis for the present prosecution did determine as a matter of policy to make inquiry of a registrant who sends a letter of the tenor as that of Sandoval’s letter of January 29, we do not see just how such would work to Sandoval’s advantage. As in Stoppelman, Sandoval’s letter was a complete rejection of the system and under such circumstances the local board was under no duty to make inquiry of Sandoval and the fact that the local board may have later changed its procedure in this regard is of no moment. For the reasons above stated, we also held that the trial court did not err in refusing to submit to the jury the question as to whether Sandoval was entitled to conscientious objector’s status. Under the circumstances, Sandoval was foreclosed from raising as a defense a claim of erroneous classification. McGee v. United States, supra. In this general connection we perceive no error in instructions given, or refused, by the trial court. Finally, the evidence amply supports the verdict. The only real issue ever in this case was the effect of the January 29 letter. Having determined that it was not a request for conscientious objector’s status, there remains little more that was in anywise in dispute. Sandoval admittedly received a notice to report for induction and, pursuant thereto, he did report but then refused to submit to induction. Such is in violation of 50 U.S.C. Appendix § 462. Judgment affirmed. . “Jan. 29,1970 Washington D. C. “Dear Sirs: “Enclosed find my ‘draft card’ — the latest one given me by your office. I feel very strongly that the moral commitments & beliefs I possess make it impossible for me to ‘go along’ or accept your legality. “I return this card with a full knowledge of what the consequences of my act are or will be. I will not shirk those consequences by running away to Canada or trying to fail any pre-induction physicals. “I feel that I must confront what I believe is the basic immorality of your system if I would be truthful with myself and those people I love. “X am presently Regional Coordinator for the Western TJ. S. of Environmental Action here in Washington. We are organizing a national day of awareness about the problems we all face because of pollution, etc. “My mailing address until April 22, 1970 is: “Arturo Sandoval Rm. 200 2000 P St., N. W. Washington, D. C. 20036 “Sincerely yours, /s/ Arturo Sandoval”

f2d_475/html/0270-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Herbert K. JACOBS et al., Defendants-Appellants. Nos. 543-545, Dockets 72-1897, 72-2006 and 72-2318. United States Court of Appeals, Second Circuit. Argued Jan. 19, 1973. Decided March 5, 1973. John W. Nields, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Edward J. Kuriansky, and Michael B. Mukasey, Asst. U. S. Attys., of counsel), for appellee. Henry J. Boitel, New York City (Abraham H. Brodsky, New York City, of counsel), for appellant Jacobs. Joseph L. Belvedere, Brooklyn, N. Y., for appellant Lavelle. J. Stanley Shaw, New York City (Jesse I. Levine, and Irving L. Weinberger, New York City, of counsel), for appellant Thaler. Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges. FRIENDLY, Chief Judge: Appellants were tried in the District Court for the Southern District of New York before Judge Gurfein and a jury, on a six-count superseding indictment. Count I charged appellants Jacobs, Lavelle and Thaler with conspiring with David Altsehul in violation of 18 U.S.C. § 371 either to violate 18 U.S.C. §§ 2314 and 2315, relating, among other things, to dealings in stolen securities — in this instance United States Treasury Bills— which have moved or are to move in interstate commerce or to defraud the United States by causing treasury bills to be presented for payment, knowing that they had been stolen. Jacobs and Lavelle were convicted but Thaler was acquitted on this count. Counts Two and Three charged Jacobs, Lavelle and Thaler with substantive violations of 18 U.S.C. §§ 2314 and 2315; all were convicted on both counts. Counts Four through Seven charged Thaler with making various false material declarations before the grand jury in violation of 18 U.S.C. § 1623. He was convicted on Count Four, relating to a statement that he had not entered into a commission agreement with Altschul. He was acquitted on Counts Five and Six, which charged him with having falsely told the grand jury that Altschul had indicated to him that Jacobs was the owner of the bills and that no one had ever indicated that Jacobs was acting for anyone else, and with having falsely denied ever meeting Lavelle. Count Seven had been dismissed during the trial.- Lavelle later moved for a judgment of acquittal on the conspiracy counts and a new trial on the two substantive counts on which he had been convicted; Thaler moved for a judgment of acquittal on all counts or, in the alternative, for a new trial based, inter alia, on newly discovered evidence. The judge denied both motions. Defendants received relatively light sentences — Jacobs one year and one day on each of the three counts on which he had been convicted, to be served concurrently; Lavelle, two years on each count, to be served concurrently, and a committed $10,000 fine on Count One; and Thaler, one year and one day on each of the three counts on which he had been convicted, to be served eoncurrently, and a committed $10,000 fine on Count Two. I. The Evidence Because appellants have questioned the sufficiency of the evidence, it becomes necessary to state the facts in some detail. In early August, 1970, more than $1.5 million in United States Treasury Bills of various maturity dates were found to be missing and unaccounted for from the vaults of Brown Brothers Harriman & Co., a large New York City banking and brokerage firm. The details of this apparent theft did not appear at trial, and none of the defendants was charged with participating in it. Ten of the bills ultimately identified to be part of the Brown Brothers Harriman theft, with face (matured) values totalling $800,000, first appeared in the possession of Lavelle in mid-September, 1970. Around September 15, Lavelle approached Jacobs, a long-time friend and business associate, showed him one of the bills, and suggested that Jacobs find a way to sell it. According to Jacobs, he first tried to sell the bill at his brokerage house, which declined since he had not bought it there and advised taking it to a bank. He then went to a savings bank where he maintained an account, which declined to handle the bill since it was not yet due, and advised taking it to a Federal Reserve Bank. Instead he went to the office of his attorney, David Altschul, whom he asked to find a purchaser for the bill and further bills held by Lavelle. In this or a subsequent conversation, Altschul testified, Jacobs first indicated that he expected a “commission” or finders’ fee for his participation in any eventual sale. After Jacobs left, Altschul broached the subject of Jacobs’ visit and the sale of the bills to Thaler, a lawyer and New York State Senator with whom Altschul shared office space. Thaler questioned whether the bills were legitimate, to which Altschul replied that Jacobs had gotten them from Lavelle and that Jacobs said they were legitimate. The next day, Jacobs, Altschul and Thaler met in Altschul’s office. Jacobs reported that Lavelle had $800,000 worth of bills which he was willing to sell for 40-50% of maturity value, including a 10% fee for the middlemen. The meeting ended with an understanding that Thaler would seek a buyer for the bills, and that the three would share the 10% fee. With the essential agreement thus set, the next phase centered on the possibility of selling the bills to a client of Thaler named Fred Hill, a prosperous New York real estate dealer. Thaler approached Hill, a longtime friend and client, with a proposal to sell as much as $1,000,000 worth of treasury bills at a great discount. Hill initially dismissed the idea as ridiculous, reasoning that treasury bills — especially those past due —-were essentially equivalents of their face value in dollar bills, and that the deal must have hidden defects. At Thaler’s request, however, Hill agreed to meet with a banker to discuss the proposed transaction. On September 30, 1970, Hill and Thaler met with a Mr. Fitzgerald, vice-president of a Chemical Bank branch near Thaler’s office. Thaler outlined the deal, telling Fitzgerald that he had a client who had “some problems, mental or tax-wise, I don’t know, and wants to handle this this way”; neither Thaler nor Hill, however, mentioned the size of the proposed discount. Fitzgerald, who was not called as a witness, allegedly said that sales at a discount might well be legitimate for tax or other reasons, but that Hill would in any event be adequately protected if he put the bills in for collection and delayed payment until he had himself received payment from the Treasury, thereby, as Fitzgerald thought, dispelling any possibility of the illegitimacy of the bills. They therefore agreed that Hill would leave the bills with the bank for collection ; that, upon payment from the Treasury, Hill’s buying price would be deposited in a joint account to be set up by Thaler and Altschul; and that the remainder — Hill’s profit — would be deposited in his personal account. Before continuing with the plan, Hill discussed the matter with another attorney and, on the basis of the latter’s skepticism, had recurring doubts about the legitimacy of the deal, which he communicated to Thaler. In response and at various later times, Thaler assured Hill that he, Thaler, was personally convinced of the validity of the deal; that he had checked out the deal with a friend or friends in — indeed one of them the head of — the racket squad of a state district attorney’s office; and that the original seller was a wealthy client of Altschul who earned over $70,000 a year and whose family Altschul had represented for many years. Meanwhile, Jacobs and Lavelle met with Thaler and Altschul in the latter’s office. Lavelle at this point delivered the entire $800,000 worth of bills to Thaler and Altschul, and agreed upon a formula for the sale: — 65% for the buyer, 25% for Lavelle, and 10% to be split among Thaler, Altschul and Jacobs. Both Altschul and Jacobs testified that at no point during this meeting did either Altschul or Thaler question Lavelle about the source of the bills or his reason for selling at such a large discount. On October 5, 1970, Thaler, carrying $350,000 of the bills, returned with Hill to the Chemical Bank branch. Hill testified that on the way, Thaler, after repeating his assurances of the legitimacy of the deal, mentioned that there was an agreement in which “he, Altschul and a middle-man” were going to split their commission. At the bank the two were joined by Altschul. Hill showed the bills to Fitzgerald, who indicated that nothing appeared wrong with them on their face. Hill then gave Fitzgerald a letter instructing the bank to present the treasury bills for collection, to place $280,000 of the $350,000 in expected proceeds in a joint account in the names of Thaler and Altschul, and to deposit the rest in Hill’s account. The next day, October 6, 1970, Thaler and Hill placed some of the remainder of the $800,000 in bills in a safe deposit box at a branch of the Manufacturers Hanover Trust Company. Later that day, the two met with Hill’s accountant who opined, as had Hill’s other advisers, that the size of the discount could only indicate shady dealing. At Thaler’s request and in order to calm Hill’s fears, Altschul wrote a Hill a letter indicating that he knew Jacobs and his family well. On October 7, 1970 Fitzgerald advised Hill that the Treasury Department would not accept the past due bills without receiving a certificate of ownership. Two days later, Thaler and Hill delivered a completed certificate, prepared by Thaler and signed by Hill, showing that Hill had purchased the bills from Altschul. This document, the only communication ever submitted by defendants to the Treasury Department, indicated that Hill had purchased $250,000 of bills for $225,000 — a discount of only 10% as against the 20% reflected in Hill’s letter of instructions to Fitzgerald and the intended 65%. At the same time they left a further $150,000 in November 5, 1970, bills for collection, raising to $500,000 the maturity value of bills left with the bank. About the same time, Thaler prepared on Altschul’s letterhead two letter agreements between Altschul and Hill covering the ten bills. The first letter, dated October 5, 1970, covered $250,000 in past due bills at a purported purchase price of $225,000, and thus conformed with the information on the certificate of ownership; the second, dated October 13, 1970, referred to a sale of bills, some past due and some unmatured, totaling $550,000 at a purchase price of $55,000. The two letters together thus reflected a total sale of $800,000 in bills at a price of $280,000, or 35% of face value. Both letters were eventually signed by Altschul and Hill. According to Jacobs’ and Altschul’s testimony, Jacobs, Altschul and Thaler also met on October 8, 1970, and signed a written agreement to share equally a 10% commission on the sale of the bills. Each party received a signed original of the agreement. On October 14, Fitzgerald informed Hill that Altschul, the listed source of Hill’s treasury bills, would also have to file a certificate of ownership for the $250,000 in past due bills first put in for collection. Hill called Thaler, who in turn relayed the information to Altschul. Altschul agreed to sign the needed certificate; however, when he and Thaler approached Jacobs with a similar request, apparently reasoning that a certificate from him would ultimately be called for, Jacobs refused. Thaler reported this development to Hill by telling him that Altschul refused to sign a certificate, and suggested that the prearranged deal might continue with respect to the $250,000 in unmatured, November 5, 1970, bills (for which, apparently, no certificate of ownership would be required). Hill at first accepted the revised plan, and the $250,000 in past due bills deposited with the bank (together with $300,000 in bills still held by Thaler) were returned to Jacobs and Lavelle. However, before the unmatured bills remaining with the bank were actually presented for collection, Hill’s sense finally asserted itself and, deciding that “the failure to supply the affidavit was a sure sign of something being wrong somewhere,” he rescinded the whole deal. On October 22, 1970, Hill withdrew the $250,000 in November 5 bills from the bank and delivered them to Thaler and Altschul in return for a letter from Altschul acknowledging that “all of our transactions relating to United States Treasury Bills are at an end.” Thus frustrated in their first attempt, and newly aware of the relative difficulty in collecting past due bills without extensive documentation, the conspirators sought an alternative means of cashing the $250,000 in November 5 bills before the due date. Sometime prior to November 4, 1970, Thaler approached a friend and client named Jules Brassner, an art dealer and lighting fixtures manufacturer. Thaler told Brassner an essentially similar but less complete version of the story earlier told Hill: Thaler and his associate, Altschul, knew a “Park Avenue millionaire” who wanted to sell $250,000 worth of treasury bills at a 50% discount; if Brassner would only deposit the bills (which, he was told, were “the same thing as American currency, as your dollar bill”), he and Thaler could share equally in the 50% profit thus generated. Upon Brassner’s agreement to the plan, Thaler informed Altschul, who in turn procured from Jacobs the three unmatured bills totalling $250,000 in face value. On November 4, 1970, Altschul, at Thaler’s request, signed a bill of sale from himself to Brassner for the bills at a purchase price of $117,000. The next day, Thaler and Brassner entered into a written agreement, prepared by Thaler, in which they agreed to share equally in the profits from the sale and that Thaler’s share would be distributed according to his instructions. Thaler then delivered the treasury bills to Brassner. Apparently to the surprise of Thaler and, so far as the testimony reveals, utterly without any knowledge on the part of the other conspirators, Brassner subsequently took the bills to his bank in Connecticut and put them in for collection. Within a week they were paid. The remaining task was the pleasant one of distributing the profits. This, as other aspects of the transaction, took a rather complex form. On November 17, 1970, Brassner, at Thaler’s request, wrote a check to Altschul for $117,000, the agreed purchase price. In addition, Brassner wrote Thaler three checks totaling $66,500, representing Thaler’s half of the $133,000 profit generated by the sale. On the same day, Thaler delivered the $117,000 check to Altschul, who deposited it in his special attorney’s account, and subsequently drew a series of eight checks to Thaler, Jacobs (part of which was intended to go to Lavelle) and himself. Jacobs deposited a check for $62,500 representing Lavelle’s share in his own personal checking account and thereafter wrote out a check to Lavelle for the same amount. Apparently this check was deposited by Lavelle in his own account. Two days later, however, Lavelle, pursuant to a procedure earlier arranged by Jacobs, made out a cheek of his own for $62,500 to one Ben Schneider, an accountant acquaintance of Jacobs. Schneider, together with Jacobs’ brother Donald and Lavelle, went to Schneider’s bank where Schneider deposited Lavelle’s check, drew a cheek on himself for $62,500 in cash, counted out 10% ($6,250) to himself as a commission for cashing the cheek, and turned the remainder over to Lavelle. During the summer of 1971 the three treasury bills collected by Brassner in November, 1970, were at long last determined by the Treasury Department to be stolen, and investigation traced the chain of possession to the defendants. In late July, Thaler and other defendants were interviewed by representatives of Brown Brothers Harriman’s insurance company and of the FBI, two of whom testified for the government. In September and November, 1971, Thaler was called before a grand jury to testify concerning his role in the disposition of the bills. In addition to asserting, as he did throughout the investigations and subsequently would do during the trial, that he had no idea that the bills were stolen and always thought Jacobs to be the owner, on September 24 Thaler categorically denied ever having met or heard of Lavelle in the fall of 1970 and further stated flatly that he had not signed a written agreement (or had an agreement of any sort) with Jacobs and Altschul or either of them. II. Sufficiency of Evidence of Theft. To take first things first, appellants attack the convictions on the conspiracy and substantive counts on the ground of insufficiency of the evidence to show that the treasury bills were in fact stolen from Brown Brothers Harriman, as distinguished from having accidentally disappeared. But we have held under this very statute that “unexplained disappearance of carefully-handled, closely-guarded documents suffices to support an inference of theft.” United States v. Izzi, 427 F.2d 293, 297 (2 Cir.), cert. denied, 399 U.S. 928, 90 S.Ct. 2244, 26 L.Ed.2d 794 (1970). See also United States v. Owens, 420 F.2d 305 (2 Cir. 1970). And in United States v. Fistel, 460 F.2d 157, 162-163 (2 Cir. 1972), we applied that same principle to a statute, 18 U.S.C. § 2113(c), which imposed the arguably stricter test of proof that property had been “taken” from a bank. Appellants’ first contention thus fails. III. Sufficiency of Evidence of Guilty Knowledge. Appellants’ claim of insufficiency of evidence to prove guilty knowledge could be rejected simply on the basis of the long established rule that Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence. Wilson v. United States, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090 (1896)—a principle we have often applied. See, e. g., United States v. Desisto, 329 F.2d 929, 935 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964); United States v. Izzi, supra, 427 F.2d at 297. Moreover, the government in this case introduced substantial evidence to rebut the defendants’ attempts to demonstrate innocent possession. So far as concerns Thaler, the record not only was sufficient for a finding of guilty knowledge but fairly shrieked of it. We start with an attorney, who at the time was a member of the New York State Senate’s Committee on Banking, allegedly believing that the lawful holder of treasury bills, matured or about to mature, would sell them at a discount, not of 10%, although even that would be hard to understand, but of 65%! His explanation that he believed this might be done for tax reasons increases rather than removes the inference of guilty knowledge; even a lawyer not expert in the intricacies of tax law must know that no net savings can be accomplished by selling at $35 securities that must have cost $100 or close to it and could be collected or sold for that amount. Thaler knew that Hill’s lawyer and accountant thought the transaction most suspicious, yet he closed his eyes to all the storm signals so apparent to them. The alleged consultations with the assistant district attorneys again make the case worse rather than better; the jury was entitled to believe these off-the-cuff conversations with lawyers whose only qualification was their present or past official position were designed only to beguile Hill, to provide the facade of a defense if the shady dealings were discovered, or both. Perhaps most damning of all was the concoction of a certificate to be presented to the Treasury which showed a discount of only 10%, and the preparation of the letter agreements of October 5 and 13, one showing a 10% discount on the $250,000 of past due bills and the other of 90% on $550,000 of other bills. Beyond all these facts and others is the simple but devastating question: With all the suspicious circumstances here present and the doubts expressed by Hill’s lawyer and accountant, why did not Thaler take one of the simple means that would have led to revelation of the truth ? Thus far, it should be noted, we have cited only facts which Thaler admitted or were established by uncontroverted proof. But the jury was also entitled to draw inferences from such matters as Thaler's denial of an agreement with Jacobs and Altsehul (and, in his grand jury testimony, even of an agreement with Altsehul) when, apart from all else, the division of the proceeds demonstrated the contrary, and indeed from the many contradictions between Thaler's testimony and that of other witnesses. As against all this, Thaler’s counterarguments that if he had guilty knowledge, he would not have gone to the Chemical Bank, dealt with so many people, or left so much in the way of written evidence fall exceedingly flat. It was at Hill’s insistence that he and Thaler went to the Chemical Bank, and the use of checks rather than cash is easily explicable on the basis that a demand for thejatter would have created more doubt in the already doubting Hill as well as in the incredibly complacent Fitzgerald and even the rather eager Brassner. We could go on with Thaler’s admissions and untrue statements to the insurance and FBI investigators and other matters, but it is kinder not to do so. While the evidence supporting the inference of guilty knowledge recognized in the Wilson case, supra, 162 U.S. at 619, 16 S.Ct. 895, was not so overwhelming in the cases of Lavelle and Jacobs, it was strong indeed. Lavelle, a small businessman, suddenly turns up in possession, not of a few cartons of radios, but of $800,000 of treasury bills some two months after they had been stolen. Such possession, soon after theft of the bills, itself was circumstantial evidence of knowledge that they were stolen. United States v. Izzi, supra, 427 F.2d at 297. Instead of attempting to cash them directly, the normal course if believed he was the lawful owner, he goes to his friend Jacobs. When Jacobs asks the source, Lavelle says it is not Jacobs’ concern. Jacobs proceeds nonetheless. When he finds himself unable to dispose of the first bill through his broker or savings bank, he disregards' the advice to go to the Federal Reserve Bank but consults Altschul. He then enters in negotiations which lead to an agreement for the sale of matured or maturing treasury bills at a price which would yield Lavelle only 25% of their face value! Yet Lavelle and Jacobs, while perhaps not so sophisticated as Altschul and Thaler, were businessmen, not school children; the nature of a treasury bill is not so arcane as to lie beyond common understanding. Beyond all this is the series of complex maneuvers in connection with the final distribtion, along with Jacobs’ extraordinary testimony that he did not associate Lavelle’s $62,500 check to Schneider with his earlier check of precisely the same amount to Lavelle, and what Schneider testified to have been his answer to the inquiry why he did not cash Lavelle’s check himself: “Better you shouldn’t know.” Better the jury could have found, indeed. Appellants’ arguments that perhaps Lavelle’s maneuvers, and Jacobs’ assistance in them, might have been due to a desire by Lavelle to cheat his wife or the Internal Revenue Service rather than to conceal the proceeds of a sale of stolen securities were for the jury. IV. The Conspiracy Count. The most serious legal questions raised on appeal concern the sufficiency of the evidence to sustain the conspiracy count and the judge’s instructions thereon. The parties are in agreement on one point. Although Brassner’s transportation of the treasury bills to Connecticut sufficed for appellants’ convictions on the substantive counts, even though this was unexpected by appellants, United States v. Crimmins, 123 F.2d 271 (2 Cir. 1941); United States v. Vilhotti, 452 F.2d 1186 (2 Cir. 1971), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972), it would not, under the rule in this circuit, sustain a conviction for conspiracy to cause the bonds to be transported in interstate commerce. Judge L. Hand made the point in Crimmins, supra, 123 F.2d at 273, with customary incisiveness: While one may, for instance,- be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past. Judge Gurfein made this completely clear to the jury. The court submitted the conspiracy charge on two theories. One was that the jury might find that a purpose of the conspiracy was to cause the treasury bills to be transported to Washington, D. C., for payment by the Treasurer of the United States. The other was that the jury might conclude that an objective of the conspiracy was “to defraud the United States, or any agency thereof in any manner or for any purpose,” 18 U.S.C. § 371, to wit, by causing payment of the treasury bills to be made to someone not the rightful owner. We are unable to sustain the former theory. The bills say on their face that they are payable on presentation “to the Treasurer of the United States or to any Federal Reserve Bank.” (Emphasis supplied.) All the testimony was to the effect that the defendants meant to use the latter method of collection; indeed we should suppose that direct presentation to the Treasurer was quite unusual. The manager of the government bond department of the Federal Reserve Bank of New York testified that if a treasury bill is paid, whether at a window or by credit to a member bank, the Federal Reserve Bank charges the Treasurer, perforates and voids the bill, and sends it to Washington in that condition. In United States v. Teresa, 420 F.2d 13, 17 (4 Cir. 1969), cert. denied, 397 U.S. 1063, 90 S.Ct. 1498, 25 L.Ed.2d 684 (1970), the court held that causing bills to be transported to Washington in such condition would not be a substantive violation of 18 U.S.C. § 2314 since they would no longer be “securities,” as that term is defined in 18 U.S. C. § 2311. Not disputing the correctness of that holding, the government urges that “in a conspiracy count such as is involved here, the only question is what the parties contemplated not what actually occurred,” and that, as is rather obviously true, the defendants knew nothing of the Federal Reserve Bank's procedure for perforation and voiding. While it is quite possible, although not entirely clear, that conspirators may be found guilty of conspiracy when the object of their agreement is legally or factually impossible, compare Beddow v. United States, 70 F.2d 674 (8 Cir. 1934), with Ventimiglia v. United States, 242 F.2d 620, 625-626 (4 Cir. 1957), the government's case was nonetheless wanting. Even on the government’s theory, there would have to be evidence tending to prove that defendants thought that the bills would travel to Washington as “securities,” and of this there was none. On the other hand, the jury could properly have found defendants guilty of conspiracy to defraud the United States. Both the Supreme Court and this court have given a broad construction to this phrase in what is now 18 U S.C. § 371. See Haas v. Henkel, 216 U S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910); Hammerschmidt v. United States, 265 U.S. 182, 187-189, 44 S.Ct. 511, 68 L.Ed. 968 (1924); United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); United States v. Peltz, 433 F.2d 48, 51-52 (2 Cir. 1370), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971). Defendants argue that no fraud was committed since the United States could not have suffered pecuniary loss from paying the stolen bearer bills. Although under the law in effect in 1970 the government was obliged to pay the owner of a bearer bond that had disappeared if the facts “in the judgment of the Secretary [of the Treasury] would indicate that it has been destroyed or irretrievably lost . . . and will never become the basis of a valid claim against the United States”, 31 U.S.C. § 738a(a)(l) (1970), and although Brown Brothers Harriman may have been repaid pursuant thereto, the statute required the posting of an indemnity bond, 31 U.S.C. § 738a (b). But this takes too narrow a view of the conspiracy statute’s reach. Apart from the time and trouble imposed by having to investigate the owner’s claim, to effectuate payment and to obtain indemnity (with the possibility of defenses such as undue delay in discovery of the fraud), “[i]t is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated .” Hammerschmidt v. United States, supra, 265 U.S. at 188, 44 S.Ct. at 512. Raising funds and controlling the supply of money through the issuance and redemption of short-term bearer bills clearly reflect “legitimate official action and purpose” of the United States, and just as clearly these are defeated when the government pays someone who has obtained one of its obligations from a thief. At first blush our finding of error in the transportation-to-Washington theory would seem to require a reversal at least of Jacobs’ and Lavelle’s conviction on the conspiracy count; whether still other reversals would be required would depend on the considerations mentioned in note 25, supra, and on the continued vitality of the concurrent sentence doctrine in the wake of Benton v. Maryland, 395 U.S. 784, 787-791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), but see United States v. Febre, 425 F.2d 107, 113 (2 Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970); see generally, Note, The Federal Concurrent Sentence Doctrine, 70 Colum.L.Rev. 1098, 1108-1117 (1970). For the general principle is that, as stated in Nicola v. United States, 72 F.2d 780, 787 (3 Cir. 1934): “When two instructions are given to the jury, one erroneous and prejudicial and the other correct, it is impossible to tell which one the jury followed and it constitutes reversible error.” See also Mills v. United States, 164 U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897) (“Which of the two statements was received and acted upon by the jury it is wholly impossible for this court to determine; and, as one of them was erroeous . . . the judgment must be reversed . . . .”); Frank v. United States, 220 F.2d 559 (10 Cir. 1955); Smith v. United States, 230 F.2d 935 (6 Cir. 1956). Cf. Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). However, this case falls outside the general rule. If the jury found a conspiracy on what we deem the erroeous view that the evidence supported a conclusion that Lavelle and Jacobs had entered into an agreement to have stolen treasury bills transported to Washington for payment by the United States, it would have found every element necessary to support a conclusion that the defendants had entered into an agreement to defraud the United States by causing it to redeem the bills from a recipient from a thief rather than from the rightful owner. Whether the jury found Lavelle and Jacobs guilty on the first theory submitted to it, or on the second, or on both, there is thus no uncertainty that the jury found every fact necessary for a valid conviction under 18 U.S.C. § 371. Compare United States v. Bottone, 365 F.2d 389, 394-395 (2 Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966). V. Government’s Exhibit 57-A. An important point in the government’s case on the conspiracy and substantive counts was that Thaler, Altsehul and Jacobs had entered into an agreement for a three-way division of the 10% commission to be paid by Lavelle. This negated Thaler’s claim that he had supposed Jacobs, a long-time client of Altschul, to be the owner. Moreover, the existence of such an agreement was the basis for Count Four, a false statement to the grand jury, on which Thaler was convicted. As indicated above, Altschul and Jacobs testified that an oral agreement to this effect was reached in Altschul’s office the day after Jacobs had first approached Altschul, and that on October 8 the agreement had been put in writing and signed, with each of the three receiving an original, Jacobs’ and Altschul’s being on onionskin paper. They also testified that, after the collapse of the dealings with Hill and the realization of the difficulty in disposing of the entire $800,000 of treasury bills, Thaler asked Altschul, and Altschul asked Jacobs to return their signed originals for destruction and that they complied— thereby permitting Thaler to do away with what he thought to be the only written evidence of his knowledge that Jacobs was 'only a middleman. At the request of the court and in order to lay the basis for testimony by Jacobs as to the contents of the agreement, the prosecutor in cross-examining Jacobs brought out the facts with respect to the destruction of his original. He then inquired whether that was Jacobs’ only copy. To everyone’s surprise, Jacobs answered in the negative. Jacobs went on to say that he had made a photocopy around the time he had received the original, had kept it in his file, and now had it in his pocket. It then turned out that Jacobs had made another photocopy in the courthouse that morning. The first photocopy became Government Exhibit 57-A for identification, which was ultimately received in evidence ; the second photocopy became Government Exhibit 57 for identification, was left in Jacobs’ possession and was destroyed by him after the trial. Although, in the astonishment created by Jacobs’ production of the copies, Thaler’s counsel understandably did not object to the admission of Exhibit 57-A, he later moved to strike it, citing 4 Wig-more, Evidence § 1198 (3d ed. 1940), for the proposition that a proponent’s intentional destruction of a document bars him from offering a copy. The judge denied the motion. Wigmore’s full text gives reason enough: If it should appear that the party desiring to prove a document had himself destroyed it, with the object of preventing its production in court, the evidence of its contents, which he might then offer, could properly be regarded as in all likelihood false or misleading (ante, § 291). It is with this extreme case in mind that a few Courts have inconsiderately laid down an unconditional rule that the proponent’s intentional destruction of the document bars him from evidencing its contents in any other way But it is obvious that there may be many cases of intentional destruction which do not present the above extreme features. The intentional destruction may clearly appear to have been natural and proper, or it may be merely open to the bare suspicion of fraudulent suppression; and in such eases the evidence of its contents should be received, subject to comment on the circumstances. . The view now generally accepted is that (1) a destruction in the ordinary course of business, and, of course, a destruction by mistake, is sufficient to allow the contents to be shown as in other cases of loss, and that (2) a destruction otherwise made will equally suffice, provided the proponent first removes, to the satisfaction of the judge, any reasonable suspicion of fraud. The precedents, however, are not harmonious. (Emphasis in the original.) It is clear that Wigmore did not favor but strongly opposed the absolute view for which Thaler contends, and did not consider it to be the law. Even if this had been an action between Jacobs and Thaler, the court could properly have found that Jacobs had removed “any reasonable suspicion of fraud” with respect to the destruction of the originals; both he and Altschul testified it was Thaler, not Jacobs, who had demanded this. Compare United States v. Knohl, 379 F.2d 427, 439-441 (2 Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). However, even if Jacobs had taken the initiative in-proposing destruction of the originals, we see no reason why this should preclude the government from offering a copy as secondary evidence if it succeeded in discovering one — any more than it would be precluded from proving the contents of the agreement by oral evidence. Receipt of Exhibit 57-A in evidence did not, of course, prevent Thaler from challenging its authenticity. He did this in several ways. He claimed that the October 5 date was inconsistent with other testimony, and there was no letter of October 5 “relating to $800,000 of treasury bills,” and pointed to the reference to an account in the Chase Manhattan rather than the Chemical Bank. Altschul’s and Thaler’s secretaries testified that they had not typed the agreement. The defense called a witness to testify that in October, 1970, Jacobs worked for Crown Fabrics on the third and fourth floors of a building on West 40th Street, and that the photocopying machines on those floors were Royfax machines. A witness from Roy-fax who, although not an expert, was allowed, so far as concerned Thaler, to give his opinion, testified that the paper in Exhibit 57-A was not of the sort that Royfax had supplied at the time. Also the defense brought out that, in early appearances before the grand jury and in talks with the insurance company and FBI investigators, Jacobs had not mentioned a written agreement, although in later grand jury testimony and at trial he had insisted that there was one. The judge put all of this fairly to the jury. Although this was done in the portion of the charge on the count accusing Thaler of having falsely denied the existence of a three-way agreement when testifying before the grand jury, no objection was made on that score and the jury must surely have understood the instruction to relate to the authenticity of Exhibit 57-A for all purposes. Thaler’s motion for a new trial was based primarily on further expert evidence about Exhibit 57-A, which it had allegedly been impossible to assemble in the closing days of the trial. He presented an affidavit of a document expert showing, quite persuasively, that the original of the photocopy was typed on Altschul’s typewriter and a detailed affidavit of a research chemist who was manager of Royfax’ research and development department in 1970 categorically stating that the paper in Exhibit 57-A was not of any of the types which Roy-fax was furnishing its customers at the time. The first point was scarcely material. No one had suggested that the typing was done elsewhere than in the Altschul-Thaler suite, and it was for the jury to weigh the reliability of the testimony of the two secretaries and, even if this was deemed reliable, to consider whether the agreement could have been typed by someone else. The evidence with respect to the paper is more troubling. However, Jacobs’ trial testimony as to where the photocopy had been made was equivocal. Moreover, Thaler had been allowed to introduce some evidence that the paper was not of the sort Royfax was then supplying, and his counsel did not then indicate that he was dissatisfied or desired a continuance. In view of all this and the overwhelming evidence of Thaler’s guilt, denial of the new trial motion without an evidentiary hearing was not an abuse of discretion. VI. The Charge with Respect to Guilty Knowledge. Appellants attack the charge with respect to guilty knowledge, which we reproduce in the margin. Their criticisms are particularly directed to the last sentence of the third paragraph. The sentence is drawn from the definition of knowledge in the American Law Institute’s Model Penal Code § 2.02(7) (Proposed Official Draft, 1962). This received at least nodding approval in Leary v. United States, 395 U.S. 6, 46 n. 93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) and perhaps more than that in Turner v. United States, 396 U.S. 398, 416 & n. 29, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), although in neither case did the trial judge use the definition in a charge. This court has also voiced approval of the definition in United States v. Matalon, 425 F.2d 70 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 76 (1970); United States v. Squires, 440 F.2d 859, 863 (2 Cir. 1971); and United States v. Sarantos, 455 F.2d 877, 880-882 (2 Cir. 1972), although again in none of these was the “high probability” language actually charged. But a good definition, like the language of a sound judicial opinion, see Lisansky v. United States, 31 F.2d 846, 852 (4 Cir.) (Parker, J.), cert. denied, 279 U.S. 873, 49 S.Ct. 514, 73 L.Ed. 1008 (1929) is not necessarily appropriate as a charge, and we can think of cases where sole reliance on the ALI language might be improper. The comments to the section (Tent.Draft No. 4, 1955) state that the provision was drafted to reach situations where the actor consciously shuts his eyes to avoid knowing whether or not he is committing unlawful acts, cf. United States v. Benjamin, 328 F.2d 854, 862-863 (2 Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964), and language of this sort would often be more useful to a jury than the “high probability unless he actually believed” formulation. But here the judge did not simply charge the Model Penal Code definition. He carefully explicated that although “it is not necessary that the Government prove to a certainty that a defendant knew the bills were stolen,” on the other hand “[g]uilty knowledge cannot be established by merely demonstrating negligence or even foolishness on the part of a defendant.” And he emphasized the elements of deliberate closing of the eyes to what would otherwise have been obvious and “reckless disregard of whether the bills were stolen and with a conscious purpose to avoid learning the truth . . . The charge thus differed greatly from that found erroneous in United States v. Fields, 466 F.2d 119 (2 Cir. 1972), involving a comparable knowledge requirement under 18 U.S.C. § 659. There the trial judge charged that the “government need not prove that the defendant knew it was stolen property,” but need only adduce “evidence, circumstantial or otherwise, [which] tends to prove knowledge . . . .” While the “tends to prove” language might effectively lower the government’s burden of persuasion, such was not the case with the charge used here. The jurors in this ease were made well aware that they had to find either that the defendants actually knew the bills had been stolen or had manifested by their conduct that they were deliberately shutting their eyes to what they had every reason to believe to be the fact. The few other points advanced by defendants do not merit discussion. The judgments of conviction and the order denying the motions of Thaler and Lavelle for a new trial are affirmed. . The trial of Altsehul, who was named only in the conspiracy count, was severed; he testified as a Government witness. . This statement follows, in large part, the government’s ease as developed primarily from its three principal witnesses, Altschul, Hill and Brassner. In many respects the testimony of Jacobs and Thaler did not differ. With a few but significant exceptions noted below, the defendants’ case did not rest so much on controverting testimony of the government witnesses as in asking the jury to draw different inferences therefrom. . No explanation was attempted or made at trial how Lavelle, the owner of a silk screen printing business in New Jersey, came into possession of the bills. Lavelle offered no evidence in his defense. . Tlialer denied that Altchul had mentioned Lavelle then or later. His version was that at all times he thought Altschul was acting solely on behalf of Jacobs, the true owner. . Statements of this sort were made on at least two occasions, once to Hill on October 5 and once to Hill’s accountant on October 6. At trial the government called as witnesses two lawyers, each of whom testified that he had spoken informally with Thaler at a chance encounter about the hypothetical problem of disposing of treasury bills at an undisclosed discount. Neither lawyer had had more than two years’ experience in the district attorney’s office — indeed, one had left that office more than two years before the meeting with Thaler, neither had been the head of the squad, and neither had any experience with stolen securities. . The details of this meeting appeared in Altschul’s direct testimony as government witness, and were corroborated, at least to the extent of the identity of the persons present, by Jacobs on cross-examination. As indicated in footnote 4, supra, this is one of the significant respects in which Thaler’s version of the facts was totally at variance with the government’s case. He continually emphasized that throughout the transaction he thought that Jacobs was the true owner of the bills and asserted that he neither met nor heard of Lavelle until the fraud was discovered in the summer of 1971. . According to Jacobs’ testimony, Lavelle’s original selling price for the bills was 45-50% of face value, including 10% for middlemen. This price was subsequently rejected as “too high” by Altschul in a telephone conversation with Jacobs. The final 35% figure, to include a 10% commission, was reached in a meeting among Jacobs, Altschul and Thaler. According to Jacobs, Altschul and Thaler informed him that 35% was “the best price that we could get . . . . ” . Many of the events involving Hill were recorded in contemporaneous memoranda dictated by Hill and admitted as evidence at trial. One such memorandum contained the following sentence: “Sy [Thaler] also told me that there is a commission involved which a middleman, Altschul, and he split . . . . ” During Hill’s original testimony at trial, as a government witness, Hill referred to Thaler’s part in the commission as a “one-third commission.” Subsequently, Hill was recalled as a witness for Thaler. After stating that he had spoken with Thaler in the interim, Hill claimed that the commas in his memorandum indicated that the name “Altschul” was in apposition to the preceding “a middleman,” and that Thaler had actually referred only to an agreement between Altschul and Thaler. Hill further stated that his former testimony as to a three-way split was an “error.” . Fitzgerald did not check with the Federal Reserve System or the FBI to determine whether the bills whose numbers corresponded with the numbers on the Thaler-Altschul bills had been stolen. An employee of the New York Federal Reserve Bank, called by Thaler, testified that if a bank official were to make such a request the Reserve Bank would check the number against lists of stolen securities maintained by them. He further stated that, in general, anyone presenting a recently due treasury bill at the Reserve Bank would be paid immediately without á cheek against the lists, provided that the bill appeared valid on its face. . The reason for the discrepancy between those percentages and the earlier instructions that only Hill’s buying price should be placed in the joint Altschul-Thaler account is explained below. As will also appear later, in neither stage of the sale of the bills was Thaler content with one-third of the 10% commission. Apparently without the knowledge of Altschul or the other participants, Thaler on October 5 also signed an agreement with Hill that he would share equally in Hill’s 65% profit. Hill testified that Thaler was to place his one-third of the 10% commission in the pot that was to be so divided. . Although there was no explicit testimony as to the purpose of this maneuver, it is apparent from the record that Hill believed Jacobs to be the true owner of the bills and that Thaler and Altschul intended him to think this. At one point, according to Hill’s testimony, Hill was in Thaler’s office on unrelated business when Jacobs happened to be visiting Altschul. Hill testified that Altschul introduced Jacobs as the man Altschul “got the Treasury Bills from.” If the testimony of Altschul and Jacobs was credited, Thaler knew this to be grossly misleading. . Three of the treasury bills involved in the transaction, totaling $250,000 in face value, were due on November 5, 1970. The other seven bills, totaling $550,000 in face value (including $250,000 worth of the bills originally deposited with the Chemical Bank), had become due on September 3, 1970. . Altschul testified that both letters were presented to him on the same day, and that he did not assist in their preparation. . As will appear in more detail in Point V below, a photocopy of Jacobs’ signed original unexpectedly appeared at trial as the government’s much-discussed Exhibit 57-A. Thaler insisted that no agreement was ever made or signed and that the photocopy was a forgery. . The $117,000 figure — which allowed a slightly greater discount than the 50% originally mentioned to Brassner, but was substantially short of the 65% to which the conspirators had earlier agreed — apparently was selected by Thaler alone. As will appear below, see note 21 infra, the disparity allowed Thaler and Altschul to increase their yields. . See note 10, supra. . Only two of the three bills handled by Brassner were deposited for collection on November 5. In spite of the fears resulting from the earlier request for a certificate of ownership for past due bills, Brassner deposited the third bill on November 12 and collected it without difficulty. . No reason for this fateful trip across the state line appears in the testimony. Brassner testified that he liad substantial business interests and at least one bank account in New York City. . Only two of these checks were made out directly to the order of Thaler. A third was made out to Parke-Bernet Galleries for Thaler’s use in purchasing a Corot painting. . Neither Brassner nor Altschul knew that Thaler had been sharing profits with the other. This fact appeared to each only after the investigation into these events began in the summer of 1971. . Calculation of the total profits received by each party to the transaction is complicated by the fact that" some parties were paid according to the original 65-25-10 ratio, whereas others received increased payments reflecting the fact that Brassner made only a 53.2% profit. Lavelle was paid $62,500 representing 25% of the $250,000 collected. Jacobs was paid $8,334 as his third of the 10% commission. Altschul, who must have known upon receiving Brassner’s check that the bills had been sold for only $117,000, eventually received $19,333, and Thaler’s share of the “commission” totaled $26,833. The size of the last two shares (the distribution of which extended into February, 1971) was known only to Altschul and Thaler themselves. Thus, including Thaler’s share in Brassner’s profits, the final distribution (but see note 23 infra) was as follows: Thaler ............. $93,333 Brassner .............. 66,500 Lavelle .............. 62,500 Altsehul .............. 19,333 Jacobs .............. 8,334 . Schneider testified that Donald Jacobs introduced a man named Lavelle. He could not, however, swear that the “Lavelle” he then met was the same as the defendant Lavelle who appeared in court. But it is undisputed that the defendant Michael Lavelle wrote the check to Schneider which the latter deposited. . Schneider testified that when he asked Jacobs why he did not cash the check himself, Jacobs replied, “Better you shouldn’t know.” Jacobs subsequently denied having made this statement, and testified further that he did not realize that the $62,500 which he arranged to cash for Lavelle represented the same $62,500 he had given Lavelle two days earlier. He admitted, however, receiving $3,000 for arranging the transaction. . This is true notwithstanding the soothing remarks by Fitzgerald. The latter was not told that the discount was to be 65%, and an attorney does not need guidanee from a bank manager on the significance of an offer to dispose of treasury • bills for 35% of what the Treasury would pay. . Although only Lavelle and Jacobs were convicted of conspiracy, Thaler urges that if the Government failed to establish a conspiracy within 18 U.S.C. § 871, much of the evidence against him was erroneously admitted. In view of our conclusions we need not dissect the evidence to determine how much, if any, consisted of declarations, the admissibility of which would hinge on proof of conspiracy, as distinguished from acts, see Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953), or consider whether proof of an agreement to effect a criminal act would not suffice to invoke the hearsay exception for declarations of a conspirator in furtherance of the conspiracy even though the agreement was not within the federal conspiracy statute. Cf. United States v. Annunziato, 293 F.2d 373, 380 n. 4 (2 Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961). . This is criticized in Developments in the Law — Criminal Conspiracy, 72 Harv.L. Rev. 920, 937-39 (1959). . Developments in the Law, supra, 72 Harv.L.Rev. at 945, concludes that neither the defense of impossibility of fact nor of impossibility of law is consistent with the rationale of the law of conspiracy. According to LaFave & Scott, Criminal Law 474-76 (1972), “the conspiracy cases have usually gone the simple route of holding that impossibility of any kind is not a defense.” . It is plain that the acquittal of Thaler m the conspiracy count does not invalidate the use against him of declarations of conspirators in furtherance of the conspiracy. Admissibility of such declarations hinged on whether in the view of the trial judge “the prosecution has proved participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances.” United States v. Geaney, 417 F.2d 1116, 1120 (2 Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). Judge Gurfein was amply justified in- concluding that the evidence with respect to Thaler’s participation met this test. . Hill’s testimony and written memoranda strongly corroborated the existence of the agreement. See note 8, supra. . The text of the exhibit reads as follows: October 5, 1970 Referring to letter dated October 5, 1970, relating to $800,000.00 of treasury bills, the undersigned agree that the sum of $80,000.00 shall be divided equally by and between the undersigned and that David Altschul and Seymour R. Thaler shall issue checks from an escrow account to be opened in the Chase Manhattan Bank, 43rd Street and Fifth Avenue Branch, to each of the undersigned for one-third of the same sum of $80,000.00 within ten days after each of the said treasury bills become due and payable. Underneath are lines containing purported signatures of Altschul, Thaler and Jacobs, with their names typed below. . Determination of the preliminary issue whether the government should be permitted to offer a copy of the agreement was for the judge. Morgan, Functions of Judge and Jury in the Determination of Preliminary Questions of Fact, 43 Harv. L.Rev. 165 (1929) ; McCormick, Evidence § 53, at 120 (Clearly ed. 1972). After having denied the motion to strike, the judge charged the jury that if they found Jacobs had destroyed the original for a fraudulent purpose, they should disregard Exhibit 57-A. Apart from the lack of objection to the judge’s submitting this issue to the jury, unnecessarily giving Thaler a second bite at the apple was surely not prejudicial to him. . Thaler’s basic contention was that Exhibit 57-A was a “mock-up” produced by typing a fabricated agreement above purported signatures (obtained in some way not indicated) and then making a photocopy. . The only other basis was an affidavit of Lavelle that he had met Thaler only once, “in or about September, 1970” when Lavelle was in Altschul’s office with Altschul and Jacobs. According to the affidavit, all that happened was that Thaler was passing the door and Altschul called him in to shake hands with Lavelle. The judge thought this evidence would not be material in view of the jury’s having acquitted Thaler on Count Six of the indictment, which charged that Thaler had lied to the grand jury in saying he had never met Lavelle. We are not so sure about the propriety of drawing inferences from this verdict. But we fully agree with the judge’s alternative ground, that a court must exercise great caution in considering evidence to be “newly discovered” when it existed all along and was unavailble only because a co-defendant, since convicted, had availed himself of his privilege not to testify. This is so even if, as alleged, counsel for the co-defendant making a post-trial affidavit exculpating the movant had not allowed the affiant to be interviewed prior to trial. . The initial affidavit also asserted that comparison of the type with one document dated October 6, 1970 and another dated February 4, 1972, indicated that Exhibit 57-A was typed after the October 6 document and at a time nearer that of the February 4, 1972 letter. However, a later affidavit confessed that further investigation with respect to the date, based on examination of additional specimen, “has proved inconclusive.” . Thaler’s argument that the expert evidence contradicted Altschul’s testimony that Thaler prepared the agreement is unimpressive in view of the testimony that the two typewriters were available to all in the office. . Thaler again raises questions, as he did on a motion for remand addressed to an earlier panel, about the government’s allowing Jacobs to retain Exhibit 57 for identification, which Jacobs subsequently destroyed. Although it would have been much better for the government to have retained custody of this exhibit, there is nothing to suggest that the prosecution had reason to suppose Jacobs would destroy it. Neither has there been any clear indication what purpose would be served if it were still available for examination. . The third element of the offense is that the defendant knew that the Treasury Bills had been stolen. Knowledge is not something that you can see with the eye or touch with the finger. It is seldom possible to prove it by direct evidence. The government relies largely on circumstantial evidence in this case to establish knowledge. In deciding whether a particular defendant under consideration by you knew the bills were stolen you should consider all the circumstances, such as how the defendant handled the transaction, how he conducted himself. Do his actions betray guilty knowledge that he was dealing with stolen securities or are his actions those of a duped, innocent man? Guilty knowledge cannot be established by demonstrating merely negligence or even foolishness on the part of a defendant. However, it is not necessary that the government prove to a certainty that a defendant knew the bills were stolen. Such knowledge is established if the defendant was aware of a high probability that the bills were stolen, unless the defendant actually believed that the bills were not stolen. Knowledge that the goods have been stolen may be inferred from circumstances that would convince a man of ordinary intelligence that this is the fact. The element of knowledge may be satisfied by proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him. Thus if you find that a defendant acted with reckless disregard of whether the bills were stolen and with a conscious purpose to avoid learning the truth the requirement of knowledge would be satisfied, unless the defendant actually believed they were not stolen. Furthermore, I instruct you that proof of a sale and purchase at a substantially discounted price permits an inference that the parties to the transaction knew of the illicit character of the items sold. You should scrutinize the entire conduct of the defendant at or near the time the offenses are alleged to have been committed.

f2d_475/html/0288-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Patrick Edwin GOLDEN, Jr., Plaintiff-Appellant, v. KENTILE FLOORS, INC., et al., Defendants-Appellees. No. 73-1268 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 21, 1973. A. O. Bracey, III, Daniel H. Neely, Atlanta, Ga., for plaintiff-appellant. Taylor W. Jones, Kirk McAlpin, Atlanta, Ga., Samuel F. Howard, Jr., Irving R. Krosner, New York City, for Kentile. Michael C. Russ, Atlanta, Ga., for Manufacturers Hanover Trust Co. Before WISDOM, GODBOLD and RO-NEY, 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. GODBOLD, Circuit Judge: By this suit plaintiff Golden seeks injunctive and compensatory relief for the alleged wrongful withholding of his interest in the Kentile Floors Profit Sharing Plan, naming as defendants his former employer (Kentile Floors), members of the Kentile Floors Profit Sharing Committee, and the trustee (Manufacturers Hanover) of funds contributed under the Profit Sharing Plan. This appeal is from a partial summary judgment for Manufacturers Hanover' which plaintiff alleged had both violated § 1 of the Sherman Act, 15 U.S.C. § 1, and breached its fiduciary responsibilities as a trustee. We affirm. The fundamental facts may be briefly stated. In 1953 Kentile Floors established a noncontributory “Profit Sharing Plan for Salaried Employees” which called for annual employer contributions based essentially on a percentage of the employer’s pretax income. General administration of the Plan was vested in a Profit Sharing Committee, whose powers included determining all questions of eligibility and deciding the rights of members in the assets of the Plan. The Plan also required the employer to designate Manufacturers Hanover as trustee of contributions made to the Plan, and Kentile Floors and Manufacturers Hanover accordingly executed a separate Trust Agreement. This Agreement clearly limited the trustee’s principal duties to investing and managing the Plan’s assets. It specifically provided that in the absence of an express delegation of authority, determination of rights and benefits of persons under the Plan was vested exclusively in the Profit Sharing Committee, and that the trustee could disburse funds only upon express written direction of the Committee. No delegation of authority pertinent to the appeal has been made to the trustee and none of the trustee’s employees are members of the Kentile Floors Profit Sharing Committee. Plaintiff Golden worked for Kentile Floors from 1949 to December 5, 1969, when he resigned to help form Commander Carpet Mills, Inc. At the time of his resignation Golden allegedly had a pro rata share in the Plan of about $28,000 to which he ordinarily would have been entitled upon severance from the firm. The Plan contained, however, an “anti-compete” clause providing for forfeiture of the member’s interest if upon severance he became engaged in competition with the firm. About four months after Golden’s severance from Kentile, the Profit Sharing Committee determined that Golden was engaged in competition and informed him that unless he immediately left his new employ his interest in the fund would be forfeited. Despite plaintiff’s earnest protestations to the Committee that the fledging company he had helped to form was not in competition with Kentile, and despite his subsequent willingness to serve as an independent agent for Kentile, the Committee steadfastly refused to authorize disbursement to plaintiff of his asserted interest in the fund. 1. Antitrust allegation Section 1 of the Sherman Act makes unlawful “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce. . . . ” 15 U.S.C. § 1. Golden alleges that Manufacturers Hanover participated in an illegal conspiracy, contract, or combination in acting as trustee for funds contributed under a Profit Sharing Plan containing an “anti-compete” provision. He framed his complaint as follows: Defendants Kentile, [members of the Profit Sharing Committee], and Manufacturers Hanover by adopting Article VII, Section 12(b) [the anti-compete provision] as an integral part of the Profit Sharing Plan and by agreeing to and cooperating to enforce the prohibitions contained in Article VII, Section 12(b) against all former employees of Kentile have participated and continued to participate in a contract, combination and conspiracy in violation of 15 U.S.C. § 1. Manufacturers Hanover answered that its role as trustee was not to deprive the market of plaintiff’s services but only to invest the contributions to the fund. Through uncontroverted affidavit of its general counsel Manufacturers Hanover stated that it “has no reason to have had any knowledge concerning the membership of Patrick E. Golden in the Plan or the facts and circumstances upon which any claim made by Patrick E. Golden, relating to the Plan, is based.” Therefore the narrow issue shaped by the pleadings, affidavits, and depositions is whether Manufacturers Hanover, as a bare trustee of funds contributed under a Profit Sharing Plan with an anti-compete provision, is a participant in a combination or conspiracy in restraint of trade. Two cases directly in point support the trustee’s position. In Austin v. House of Vision, Inc., 404 F.2d 401 (7th Cir. 1968), an employee of an optical company sued under the antitrust laws for relief from mandatory forfeiture of employer contributions to an employees’ benefit plan upon acceptance of employment with a competitor. The Seventh Circuit upheld dismissal for failure to state a claim upon which relief could be granted. As to the claim against the trustee of funds contributed to the plan, the court stated : It is not clear how there could have been an actionable conspiracy by the trustees of the Fund: their duties were limited to the administration of the fund pursuant to its written provisions. The trustees, as such, were not engaged in the optical business and much less were not competitors of defendant. Id. at 403. In accord is Graham v. Hudgins, Thompson, Ball & Assocs., 319 F.Supp. 1335 (N.D.Okl.1970). We are in agreement with the holdings of those cases. To hold the trustee liable for an antitrust violation under circumstances here present would presage liability for a host of servicing agents only fortuitously connected with Sherman Act defendants. Supreme Court precedents make clear that participation in a combination is illegal only when, at the minimum, it manifestly results from the family of procompetitive or anticompetitive objectives related to the relevant market. Compare United States v. Topco Assocs., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); United States v. Columbia Steel Co., 334 U.S. 495, 522, 68 S.Ct. 1107, 92 L.Ed. 1533, 1551 (1948); FTC v. Cement Institute, 333 U.S. 683, 718-719, 68 S.Ct. 793, 92 L.Ed. 1010, 1043-1044 (1948); American Tobacco Co. v. United States, 328 U.S. 781, 809-810, 66 S.Ct. 1125, 90 L.Ed. 1575, 1594 (1946); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Interstate Circuit v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939). The record in this case unequivocally establishes that Manufacturers Hanover’s role was limited to investment functions and was not directed toward excluding potential competitors of Kentile Floors from the floor covering market. Manufacturers Hanover at most innocently assisted a market manipulator, and therefore is outside the umbrella of antitrust liability. See United States v. Socony Vacuum Oil Co., supra at 245, 60 S.Ct. at 854, 84 L.Ed. at 1180. Because our view is that under the facts of this case Manufacturers Hanover could not be a participant in a Sherman Act combination to deprive the market of plaintiff’s services, we pretermit discussion of the District Court’s ruling that the anti-compete provision did not unreasonably restrain trade. Our decision merely carves Manufacturers Hanover out of the lawsuit. Whether the remaining parties to the action have formed an actionable, illegal combination in restraint of trade remains a viable question. 2. Breach of fiduciary responsibilities Section 1, Article VIII of the Trust Agreement between Manufacturers Hanover and Kentile Floors provided as follows: The [Kentile Floors Profit Sharing] Committee shall have complete control and authority to determine the existence, non-existence, nature and amount of the rights and interests of all former Employees . in or to the Trust Fund or under the Plan, and the Trustee shall have no power, authority or duty in respect of such matters to question or examine into any determination made by the Committee or direction given by the Committee to the Trustee. In light of this provision, the District Court correctly ruled that Manufacturers Hanover did not breach a fiduciary duty in refusing to disburse funds without specific authorization from the Committee. The trustee represents to this court in its brief that if Golden prevails in his sharply contested suit against Kentile Floors and its Profit Sharing Committee and secures a judgment entitling him to an interest in the Plan’s assets, the trustee will comply with directions to disburse funds to Golden. We agree with the District Court that the trustee will best protect the interests of all concerned by awaiting resolution of the dispute between the company and its employee. 3. Summary judgment Summary judgment under Rule 56(c) is proper when the moving party satisfies his burden of showing the absence of a genuine issue as to any material fact. E. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 153-161, 90 S.Ct. 1598, 26 L.Ed.2d 142, 151-156 (1970); Commercial Metals Co. v. Walker, 439 F.2d 1103, 1104-1105 (5th Cir. 1971). We agree with the District Court that Manufacturers Hanover has satisfied its burden. The issues joined below and on appeal have concerned exclusively the applicability of legal principles to undisputed facts. Appellee has shown that on the basis of those undisputed facts, its liability was not a question for the trier of facts and that it is entitled to judgment as a matter of law. See 6 Moore, Federal Practice ¶ 56.02 [10] (2d ed. 1972). The judgment is affirmed. . The District Court’s opinion is reported at 344 F.Supp. 807. . This appeal was originally taken without the Fed.R.Civ.P. 54 certification required to confer our jurisdiction over appeals from partial summary judgments. While the appeal was pending, the District Court entered nunc pro tunc an order certifying that there was no just cause for delay. This court then dismissed the appeal for lack of jurisdiction but with directions to treat the certification as a fresh order and to allow the appellant to redocket his appeal. Appellant is now proceeding on the redocketed appeal. . For related discussions see Annot., 2 A.L.R.Fed. 839 (1969) ; Annot., 18 A.L.R. 3d 1426 (1968) ; Annot., 3 L.Ed.2d 1798 (1959).

f2d_475/html/0292-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

SOMMER CORPORATION, Plaintiff-Appellee Cross-Appellant, v. PANAMA CANAL COMPANY, Defendant-Appellant, Cross-Appellee. No. 71-3379. United States Court of Appeals, Fifth Circuit. March 5, 1973. Dwight A. McKabney, John A. Cooper, John L. Haines, Jr., Earl R. MeMillin, Office of the Gen. Counsel, Balboa Heights, Canal Zone, for appellant. Henry L. Newell, Balboa, Canal Zone, for appellee. Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges. JOHN R. BROWN, Chief Judge: What this case presents is whether the failure of a nominal shipper to pay an additional $6.88 for Trans-Isthmian handling charges on equipment directly destined to a Panama Canal Company construction contract limits Canal Company’s liability for cargo damage to less than the full stipulated loss of $9,610.85. For reasons peculiar to the relationship involved we answer in the negative and affirm with modification. Sommer Corporation brought an admiralty action in personam against the Panama Canal Company for cargo damage arising during the shipment of three packages of transformer radiator cooling fins to a Canal Zone construction project. Canal Company appeals from the District Court’s $9,610.85 judgment in favor of Sommer, .329 F.Supp. 1187, invoking the $500 per package liability limitation prescribed for cargo handling under Canal Company’s published tariff. Sommer cross appeals from the denial of prejudgment interest. We modify and affirm. On June 30, 1967, Sommer contracted with Canal Company for the installation of a power transformer at the Miraflores Locks substation in the Canal Zone. In accordance with the contract specifications Sommer provided a detailed breakdown of all materials and equipment to be furnished for the project, including descriptive brochures and literature, and there is no dispute that the Construction Division of Canal Company was aware of the approximate actual value ($11,500) of the transformer radiators as a result of the cost estimates prepared under its standard bid procedures. The contract itself incorporated by reference the provisions of a booklet entitled “General Conditions for Panama Canal Company and Canal Zone Government Construction Contracts (July 1966),” which included an explanation of an optional procedure by which a contractor could secure free ocean freight and rail service for the shipment of construction materials. Since commercial freight service would have increased contractors’ costs by approximately 15%, which would have to be passed on to Canal Company by an increased bid, Sommer elected to utilize this procedure and arranged through its New Orleans freight forwarder for delivery of the transformer radiators from the General Electric plant at Rome, Georgia, to Canal Company’s New Orleans pier. There the shipment was through billed to Balboa (see GC-13(f)(2) note 3, supra) under Canal Company’s standard Short Form Bill of Lading naming Sommer as consignee. This meant that the goods would have to be discharged at Cristobal, loaded onto Canal Company cars for rail transshipment to Balboa, C.Z. The goods arrived safely at Cristobal, but at some undetermined point in time between discharge on the dock and loading aboard Canal Company’s freight cars three of the nine packages in the consignment were crushed, resulting in the damage here in dispute. Canal Company does not contest the District Court’s holding that the statutory $500 per package limitation of liability imposed by COGSA is inapplicable because the damage occurred after the goods were discharged from the vessel. Likewise, it cannot contend that the contractual limitation contained in Clause 18 of the Long Form Bill of Lading (note 4, supra) is controlling since Canal Company knew of the value far in excess of the $500 limit and the tariff did not prescribe any additional charges for declared excess value. Canal Company's Water Transportation Division, from two certificates stamped on the face of the shortblading, knew that these nine packages (1100 cubic feet, 13,800 lbs.) were for a specified Canal Company contract. No purpose, therefore, would have been served by a declaration in this unique situation. But the fact that this was a through shipment from New Orleans to Balboa on a through bill of lading which prescribed that Canal Company’s liability would be measured by Clause 18 and COGSA “throughout the entire time the goods are in the custody of the carrier” means that the handling tariff and its restrictive $500 limitation (notes 1 and 2, supra) were in effect substantially modified, if not altogether supplanted or superseded. In any event the handling Tariff limitation (note 2, supra) is of no help. This is so even though the construction contract provides that the “free” transportation of supplies for Canal Company projects does not include “the Isthmian handling charge which will be for the account of the contractor, at the rates stated in the official PCC tariff schedule.” And in this analysis we may assume that the contractor did not know of, but was charged with knowledge of, the local tariff. Several things lead to this conclusion. First, whether it amounts to supersession or something less, the blading’s parenthetical phrase of the Clause Paramount for this through shipment limits departures from COGSA to “(except as may be otherwise specifically provided herein)” (Clause 1, note 4, supra). It does not say “except as provided for herein or in other tariffs of carrier.” Even more important, considering that exculpatory terms of tariffs or contracts of carriage are to be narrowly construed, the provision in the construction contract imposing the costs for port handling on the contractor “at the rates stated in the * * * tariff schedule,” (GC-13(f) (1), note 3, supra), does not undertake to impose on this sort of contractor-shipper any burden to do anything except pay the handling charges. There is, for example, no provision in that contract, or in Part One of the Tariff, for declaring value. And this record is completely silent either as to the work-a-day system set up for such action or, even more significant, why a shipper under a through bill of lading should take any action except — and the except is narrowly circumscribed — pay when billed. And that this ambiguous-amphibious activity’s pudding’s proof is in the eating, is made clear by the manner in which these handling charges for Canal Company project shipments were handled. On receipt of the bills of lading in the Canal Zone they are sent routinely by the Terminals Division to the Budget and Accounting Division, who in turn sends them to the Construction Division to determine whether that shipment is entitled to free freight. Only then will the shipment be ordered to be released and the consignee notified. Handling charges are ordinarily deducted from progress payments and the consignee in such cases in this way pays the amount billed it by Canal Company subsequent to the cargo having been unloaded because the tariff charges are continually being changed. There is, thus, (i) no occasion for the consignee to give any instructions to Canal Company for it to effect the agreed shipment to Balboa, (ii) no means prescribed for making a declaration, (iii) no real means of knowing what the handling charges are until billed, and hence (iv) no means of knowing what the “premium” charge might be under tariff § 162.39 for excess of $500 valuation. For a through bill of lading shipment of goods being carried “free” by Canal Company to destination, if the shipper-consignee is required to declare excess value at all — and the if is a big one because of the peculiar Clause Paramount —it is entitled to do so within a reasonable time after it is billed for the handling charges. That this may ostensibly give shipper-consignee a right after the fact to assure unlimited liability for carrier caused loss is just the result of this structure and its operation in which there is no real relationship between limited and unlimited liability. The scheme ostensibly affording a choice between limited and unlimited liability was enshrouded in such doubt as to its legal application and an effective means by which to exercise it in the course of a continuous movement of the freight by Canal Company from New Orleans to the point of ultimate destination, that it cannot be invoked for failure to declare — once the goods were at slings end at Cristobal — an excess value or pay what months later is computed to be $6.88. This approach minimizes many problems. Naturally, Canal Company stresses the legislatively binding character of a validly promulgated tariff. As an abstract proposition, of course, a valid tariff controls the rights and liabilities of both shipper and carrier with the force of law. But “a tariff is not an abstraction.” United States v. Western Pacific Railroad Co., 1956, 352 U.S. 59, 66, 77 S.Ct. 161, 166, 1 L.Ed.2d 126, 133. We have many times applied this. And the notice of the need for a choice and an effective means for exercising it are essential. “Only by granting its customers a fair opportunity to choose between higher or lower liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery to an amount less than the actual loss sustained.” New York, New Haven and Hartford Railroad Co. v. Nothnagle, 1953, 346 U.S. 128, 135, 73 S.Ct. 986, 990, 97 L.Ed. 1500, 1507. Likewise, this approach does not bring into the slightest question the validity of “agreed valuation” clauses with a choice of rates. Nor does it remotely suggest that Canal Company either waived the various provisions or was estopped to assert them merely because shipper-consignee was unaware of them. By the structure, as interpreted by us, and the absence of an effective means of exercising a choice Canal Company cannot cast the burden on shipper-consignee for the failure to declare what it knew, or to pay the now computed $6.88. “Tariffs must not be made cunningly devised nets in which to entangle unsuspicious or inexperienced shippers,” particularly when the seine is cast by a political instrumentality of the United States. Sommer’s cross appeal from the District Court’s denial of prejudgment interest is likewise well taken. By joint pretrial stipulation it was agreed that Sommer’s damages amounted to $9,610.-85. Although by the judgment of July 30, 1971, interest was initially awarded from the date of discovery of the loss, the Court amended the judgment on Canal Company’s motion of August 8, 1971, on the theory that the stipulated figure excluded interest citing Morse Boulger Destructor Co. v. Camden Fibre Mills, Inc., 3 Cir., 1956, 239 F.2d 382; Arkla Exploration Co. v. Boren, 8 Cir., 1969, 411 F.2d 879. We agree that within the time for appeal the trial Court had the power to correct its own judgment, whether or not based on F.R.Civ.P. 60(b). Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750, 752, n. 4; Aldridge v. Union Bankers Insurance Co., 5 Cir., 1972, 457 F.2d 501. See also, McDowell v. Celebreeze, 5 Cir., 1962, 310 F.2d 43, 44. But we disagree with this hypercritical reading of the stipulation. This was, we believe, the parties’ efforts to reduce to a fixed amount the aggregate of the items expended or lost as would ordinarily be testified to by witnesses. Theoretically, of course, the Admiralty considers interest as a part of the loss, not just for forbearance in payment. But there is no indication that in fixing this odd figure the parties were agreeing as to interest, either the rate payable or the time of commencement. Of course interest in the Admiralty is left generally to the discretion of the Judge. But it was not denied on that ground. Indeed, in relying wholly on his construction of the stipulation the Judge acknowledged that he had initially awarded interest because of equitable considerations. Freed now from his too rigid reading of the stipulation we reinstate these equities and the interest. Modified and affirmed. . Part One of the tariff’s Marine and Longshore Services, § 160 “cargo services” defined “handling” as follows : “(4) Handling: (a) The moving of cargo from the cleared slings of delivering vessels to cars, freight house, or storage or (b) the delivery of cargo from cars, freight house, or storage to within reach of the tackle of receiving vessels.” § 160.01(4). . § 160.02 of Part One (bracketed [i], [ii], etc. inserted for ease of reference) prescribed: “(3) The Panama Canal Company shall in no case be [i] liable for loss or damage to commodities received on the piers in excess of $500 per package * * * [i] unless a higher valuation is declared and [iii] the higher rates for the handling or transferring of valuable goods are paid to the Panama Canal Company by the terms of this Tariff [iv] provided that this paragraph shall not apply to commodities received for local rail transportation only.” . The relevant provisions of the “General Conditions” are as follows : “GC-13 SERVICES AND SUPPLIES PURCHASABLE FROM THE COMPANY AND CANAL ZONE GOVERNMENT: (á) The contractor and subcontractors may secure services or supplies, when available, from the Company and Canal Zone Government subject to applicable regulations. Current tariff or supplements thereto containing schedules of rates for services will apply to the contractor and his subcontractors. Charges will be those in effect at time the purchase is made or service is rendered. A copy of the tariff may be examined in the office of the Chief, Administrative Services Division, Balboa Heights, Canal Zone or in the office of the Chief, Procurement Division, Panama Canal Company, c/o Naval Support Activity, 4400 Dauphine Street, New Orleans, Louisiana 70140. Inquiries as to tariff rates for particular services, including hire of equipment, may be addressed to either of the above named offices. All rates are subject to change without notice. (e) Wharf and Railway Services: The Panama Railroad, owned and operated by the Company, runs between the Atlantic Ocean terminal wharves at Cristobal and the Pacific Ocean terminal wharves at Balboa. Charges to the contractor for cargo handling at terminals and for railroad freight services will be in accordance with the current tariffs, copies of which may be obtained as stated in paragraph (a) above. (f) Use of Company Transportation Facilities : (1) The ocean freight from New Orleans to Cristobal, C. Z., for all articles, materials and supplies which are to be incorporated in the work under this contract * * * will be for the account of the Company (at no expense to the contractor) when such articles, materials and supplies are shipped via Company vessel out of the port of New Orleans, Louisiana (c/o Naval Support Activity, 4400 Dauphine Street, New Orleans, Louisiana 70140). Ocean freight includes loading on ship from pier at New Orleans and unloading from ship to pier at Cristobal, C. Z. Ocean freight does not include the Isthmian handling charge which will be for the account of the contractor, at the rates stated in the official PCC tariff schedule. (2) Shipments thru-billed New Orleans to Balboa or line points will be carried by the Panama Railroad from Cristobal at the expense of the Company. Arrangements for thru carriage of the shipments may be made at the time of loading in New Orleans or prior to unloading at Cristobal.” . The reverse side of the short-blading incorporated by reference both the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.A. § 1300 et seg., and Canal Company’s regular Long Form Bill of Lading, which provides: “18. In case of any loss or damage to or in connection with goods exceeding in actual value $500. lawful money of the United States, per package, or, in case of goods not shipped in packages, per customary freight unit, the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the carrier’s liability, if any, shall be determined on the basis of a value of $500. per package or per customary freight unit, or pro rata in case of partial loss or damage, unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the carrier and inserted in this bill of lading and extra freight paid if required and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless bo deemed to be the declared value and the carrier’s liability, if any, shall not exceed the declared value and any partial • loss or damage shall be adjusted pro rata on the basis of such declared value.” Neither Bill of Lading contained a space for insertion of a value in excess of $500 per package and neither made any reference — oblique or otherwise — to the tariff covering port and transhipment operations. But the long form, exercising the privilege under § 1312 of COGSA to prescribe expressly that the shipment was subject to COGSA relinquished the privilege of prescribing different responsibilities and liability with respect to goods “prior to loading on and subsequent to the discharge from the ship” (§ 1307, COGSA) : “1. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, which shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall (except as may be otherwise specifically provided herein) govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the Carrier. The Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or misdelivery, or loss of damages to the goods occurring while the goods are not in the actual custody of the Carrier.” . 46 U.S.C.A. § 1304(5). . William E. Hall, Rate Analyst, Office of the Comptroller, Budget and Rates Division (called by Canal Company as a witness) described Part One of the tariff, see notes 1 and 2, supra, on direct examination : “Q Does Part VII of the Tariff pertain to ocean transportation? A That is correct. Q Is there any provision, or was there in May, 1969 any provision for a higher tariff rate or ocean transportation if the shipper declares a higher value for the goods? A Not in Part VII; no.” . Canal Company signed the short blading for the Master. Clause 2 of the long form expands the contractual Clause Paramount (note 4, supra) to cover Canal Company in every capacity: “2. In this bill of lading the word ‘ship’ shall include any substituted vessel, and any craft, lighter or other means of conveyance owned, chartered, or operated or employed by the carrier; the word ‘carrier’ shall include the ship, her owner, operator, demise charterer, time charterer, master and any substituted carrier, whether the owner, operator, charterer, or master shall be acting as carrier or bailee; the word ‘shipper’ shall include the person named as such in this bill of lading and the person for whose account the goods are shipped; the word ‘consignee’ shall include the holder of the bill of lading, properly endorsed, and the receiver and the owner of the goods; the word ‘charges’ shall include freight and all expenses and money obligations incurred and payable by the goods, shipper, consignee, or any of them.” . The critical thing is that this was a through shipment by a single carrier, not the case of a sealeg by one carrier for transshipment by another unrelated carrier, by rail or water or both. Hence Clause 13 is no haven: “13. The carriage by any transshipping or forwarding carrier and all transshipment or forwarding shall be subject to all the terms whatsoever in the regular form of bill of lading, freight note, contract or other shipping document used at the time by such carrier, whether issued for the goods or not, and even though such terms may be less favorable to the shipper or consignee than the terms of this bill of lading and may contain more stringent requirements as to notice or claim or commencement of suit and may exempt the on-carrier from liability for negligence. The shipper expressly authorizes the carrier to arrange with such transshipping or forwarding carrier that the lowest valuation of the goods of limitation of liability contained in the bill of lading or shipping document of such carrier shall apply even though lower than the valuaton of the limitation herein. Pending or during transshipment the goods may be stored to shore or afloat at their risk and expense and the carrier shall not be liable for detention.” Indeed Canal Company’s tariff structure affirms this. Through shipments by rail to Balboa are for the account of Canal Company (see GC-13 (f)(2), note 3, supra). On the other hand, for transshipment on non-through movements, Canal Company acts only as agent of the delivering line: “In handling cargo and making local deliveries in Colon and Panama, the Panama Canal Company acts as the agent of the delivering steamship line, and the liability of the Panama Canal Company shall be limited by the provisions of the bill of lading.” § 160.02(4). . gee GC-13 (f)(1), note 3, supra (emphasis added). . See, Robert C. Herd & Co. v. Krawill Machinery Corp., 1959, 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820, and cf., Hartford Accident & Indem. Co. v. Gulf Refining Co., 5 Cir., 1956, 230 F.2d 346, 355, cert. denied Gulf Refining Co. v. Black Warrior Towing Co., 352 U.S. 832, 77 S.Ct. 49, 1 L.Ed.2d 52. . See pp. 9, 10 and 7 of Sommer’s brief, citing original transcript at 148, 51, 70. . The tariff dollar limit appears to have been a complete afterthought. The Claims Division rejected the claim because of “insufficient packaging.” The extent to which assessing and collecting handling charges is a casual event is shown by the act that in the routine deductions against the contractor’s progress payments (note 11, supra) the amount billed and deducted was $24.50 against a correct sum of $96.73 to which would be added $6.88 for excess valuation. Canal Company has foregone any claim for the deficiency. . Clearly there was neither warning in the through bill of lading nor means of making an excess declaration at time of initial shipment aboard the vessel at New Orleans. . State of Israel v. Metropolitan Dade County, 5 Cir., 1970, 431 F.2d 925, 928; Carter v. American Telephone & Telegraph Co., 5 Cir., 1966, 365 F.2d 486, 496, cert. denied, 1967, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546; Compania Anonima Venezolana De Navegacion v. A. J. Perez Export Co., 5 Cir., 1962, 303 F.2d 692, 696 and note 12, cert. denied, 371 U.S. 942, 83 S.Ct. 321, 9 L.Ed.2d 276; United States v. Associated Air Transport Co., 5 Cir., 1960, 275 F.2d 827, 833; Lowden v. Simonds-Shields-Lonsdale Grain Co., 1939, 306 U.S. 516, 520, 59 S.Ct. 612, 614, 83 L.Ed. 953, 957; Crancer v. Lowden, 1942, 315 U.S. 631, 635, 62 S.Ct. 763, 765, 86 L.Ed. 1077, 1080. . See also Sorensen-Christian Industries, Inc. v. Railway Express Agency, Inc., 4 Cir., 1970, 434 F.2d 867, 870; Chandler v. Aero Mayflower Transit Co., 4 Cir., 1967, 374 F.2d 129, 137; Hamilton v. Stillwell Van & Storage Co., 3 Cir., 1965, 343 F.2d 453, 454; Rhoades v. United Air Lines, 3 Cir., 1965, 340 F.2d 481, 486. . E. g., Boston and Maine Railroad Co. v. Piper, 1918, 246 U.S. 439, 38 S.Ct. 354, 62 L.Ed. 820; American ExpresS Co. v. United States Horse Shoe Co., 1917, 244 U.S. 58, 37 S.Ct. 595, 61 L.Ed. 990; George N. Pierce Co. v. Wells Fargo & Co., 1915, 236 U.S. 278, 35 S.Ct. 351, 59 L.Ed. 576; Great Northern Railway Co. v. O’Connor, 1914, 232 U.S. 508, 34 S.Ct. 380, 58 L.Ed. 703; Boston & Maine Railroad v. Hooker, 1914, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868; Atchison, Topeka & Santa Fe Railway Co. v. Robinson, 1914, 233 U.S. 173, 34 S.Ct. 556, 58 L.Ed. 901; Atchison, Topeka & Santa Fe Railway Co. v. Moore, 1914, 233 U.S. 182, 34 S.Ct. 558, 58 L.Ed. 906; Adams Express Co. v. Croninger, 1913, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314; Kansas City Southern Railroad Co. v. Carl, 1912, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683; Hart v. Pennsylvania Railroad Co., 1884, 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717. Where required, a voluntary choice between rates is essential because a tariff limitation on liability concededly binds the shipper regardless of whether the contract of carriage refers to it. Tishman & Lipp v. Delta Airlines, 2 Cir., 1969, 413 F.2d 1401, 1403-1404. We have no occasion to intimate any holding as to necessity for a choice of rates for application of § 1304(5) of COGSA for damage during the “carriage of goods” from ship’s tackle to ship’s tackle, § 1301(d) COGSA. . See, Davis v. Cornwell, 1924, 264 U.S. 560, 44 S.Ct. 410, 68 L.Ed. 848; Davis v. Henderson, 1924, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182; Illinois Steel Co. v. Baltimore & Ohio Railroad Co., 1944, 320 U.S. 508, 511, 64 S.Ct. 322, 324, 88 L.Ed. 259, 264; Arkansas Oak Flooring Co. v. Louisiana & Arkansas Railway Co., 5 Cir., 1948, 166 F.2d 98, cert. denied, 334 U.S. 828, 68 S.Ct. 1338, 92 L.Ed. 1756. . Norfolk Southern Railroad Co. v. Chatman, 1917, 244 U.S. 276, 282, 37 S.Ct. 499, 501, 61 L.Ed. 1131, 1135. . We have previously rejected Panama’s strenuous effort to avert liability by invoking the tottering doctrine of sovereign immunity. The philosophy underlying our approach to the facts of that case applies here: “A reasonable interpretation produces a reasonable result. An unreasonable interpretation produces a harsh absurdity.” Gulf Oil Corp. v. Panama Canal Co., 5 Cir., 1969, 407 F.2d 24, 32. . In the memoranda opinion deleting predecree interest Judge Crowe said: “Interest awards in admiralty are the general rule and disallowance thereof is supportable only in the face of exceptional circumstances. ‘It is generally recognized that the allowance of interest on awards in admiralty is a matter lying within the trial court’s discretion.’ O’Donnell Transp. Co., Inc. vs. City of New York, [2 Cir.] 215 F.2d 92; American Union Transport Co., Inc. v. Aguadilla Terminal Company, [5 Cir.] 302 F.2d 394 (1962); 1962 AMC 2471. As interest had been prayed for in the complaint and the plaintiff had been deprived of the use of his funds during the period from about the date of the injury, even though no argument was had on the question it was felt that an allowance of interest would be equitable and was therefore adjudged.”

f2d_475/html/0299-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The COCA-COLA COMPANY et al., Plaintiffs-Appellants, v. FEDERAL TRADE COMMISSION, Defendant-Appellee. No. 72-2270. United States Court of Appeals, Fifth Circuit. Feb. 15. 1973. Charles Gowen, Atlanta, Ga., Edward Wolfe, Mario Diaz-Cruz, Thomas Kiernan, New York City, for Coca-Cola Co. Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Emmet J. Bondurant, Atlanta, Ga., Gordon Spivak, New York City, for Coea-Cola-Thomas, 3rd. Randolph W. Thrower, William M. Hames, Atlanta, Ga., Elberton Coca-Cola Bottling Co. John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Ronald M. Dietrich, James T. Timony, Harold D. Rhynedance, Jr., General Counsel, Federal Trade Comm., Washington, D. C., for defendant-appellee. Before JOHN R. BROWN, Chief Judge, INGRAHAM, Circuit Judge, and McRAE, District Judge. WILLIAM A. McRAE, Jr., District Judge: The litigation from which this appeal arises is peripheral to proceedings that the Federal Trade Commission, defendant-appellee, (FTC) initiated on July 15, 1971, against The. Coca-Cola Company, Coca-Cola Bottling Co., Inc., Coca-Cola Bottling Works, Inc., and Coca-Cola Bottling Works 3rd, Inc., plaintiffs-appellants (The Companies). The FTC brought these administrative proceedings (Docket No. 8855) pursuant to its authority and responsibility “to prevent . . . corporations . . . from using unfair methods of competition in commerce . . . ” 15 U.S.C. § 45(a) (6). The FTC has alleged principally that territorial restraints incident to sales and trademark licensing by The Companies constitute an antitrust violation. The merits of this contention, which the FTC has made the basis of complaints against seven similar enterprises, are not at issue here. In Docket No. 8855, The Companies set up as an affirmative defense the failure to join as indispensable parties each of the seven hundred ninety-two individual bottling companies with whom The Companies have contractual relationships or, alternatively, the failure to join representative bottling companies sufficient to protect mutually antagonistic interests of relevant subclasses of bottling companies. Thereafter, the FTC permitted seven bottling companies in their individual capacities to intervene in Docket No. 8855, and these Bottlers-Intervenors adopted the position of The Companies on the indispensable party issue. On January 7, 1972, the hearing examiner denied the motions to dismiss. Seeking intra-agency reconsideration of the hearing examiner’s adverse decision on the indispensable parties question, The Companies and the Bottlers-Intervenors asked for and obtained de novo review by the Commission. After a hearing, the Commission, also, denied the motions to dismiss in Docket No. 8855 on March 23, 1972. On April 18, 1972, The Companies and the Bottlers-Intervenors filed their complaint in the Northern District of Georgia seeking a declaratory judgment on the indispensable parties question and asking that the FTC be enjoined from proceeding further unless there was joinder of the parties adjudged indispensable. The District Court, 342 F.Supp. 670, granted FTC’s motion to dismiss and denied relief. We affirm that disposition of the case. The Court below did not reach the merits of the controversy about the indispensability of the contract bottlers or appropriate class representatives, nor do we. We agree that judicial resolution of that question at this juncture would be premature. In Frito-Lay, Inc. v. Federal Trade Commission, 380 F.2d 8 (5th Cir. 1967), this Court declined to disturb the decision of the District Court not to interfere in the ongoing Commission proceeding even though the plaintiff there alleged that “the administrative proceeding was outside of the jurisdiction of the Commission.” Id. at 9. Plaintiffs in the present case allege nothing that comes so close as the allegations in Frito-Lay, Inc., to fitting within the tightly circumscribed exceptions to “the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The Federal Trade Commission Act, 15 U.S.C. § 41 et seq., contemplates judicial review only of “an order of the Commission to cease and desist,” 15 U.S.C. § 45(c), and then only “in the court of appeals of the United States.” Id. This scheme is fully consonant with the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The Supreme Court has said, moreover, that where Congress “has enacted a specific statutory scheme for obtaining review, . . . the doctrine of exhaustion of administrative remedies . . . requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness.” Whitney Nat’l Bank v. Bank of New Orleans, 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965). If a procedure for review prescribed by statute ought to be deemed exclusive absent an explicit requirement, there can be little doubt in the present case that the mandatory provision of the Federal Trade Commission Act that “the jurisdiction of the court of appeals . shall be exclusive,” 15 U.S.C. § 45(d) means what it says. This is not to suggest, however, that a different disposition of this case would have been warranted if the plaintiffs had come directly to this Court. Texaco, Inc. v. Federal Trade Commission, 301 F.2d 662 (1962). The present case is not one raising “questions particularly high in the scale of our national interest because of their international complexion,” McCulloch v. Marineros de Honduras, 372 U.S. 10, 17, 83 S.Ct. 671, 675, 9 L.Ed.2d 547 (1963) and, therefore, affording “a uniquely compelling justification for prompt judicial resolution,” id., of a controversy normally left to an agency for initial disposition. Nor is the present case one in which the imposition of criminal sanctions turns on the procedural niceties of administrative law. See, e. g., Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1969); United States v. Davila, 429 F.2d 481 (5th Cir. 1970). The most widely recognized exception to the general rule against judicial consideration of interlocutory agency rulings is the class of cases where an agency has exercised authority in excess of its jurisdiction or otherwise acted in a manner that is clearly at odds with the specific language of a statute. The leading case of this kind is Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). In Kyne, the National Labor Relations Board had grouped professionals with non-professionals in the same bargaining unit without a vote of the professionals, in defiance of an express statutory prohibition. Since this “was an attempted exercise of power that had been specifically withheld,” at 189, 79 S.Ct. at 184, it was properly enjoined by the District Court. The rule that only “a plain contravention of a statutory mandate” justifies district court intervention before termination'of election procedures in labor cases has been followed in this Circuit, Boire v. Miami Herald Publishing Co., 343 F.2d 17, 24 (1965), and an analogous rule has been applied to Federal Trade Commission proceedings. Federal Trade Commission v. J. Weingarten, Inc., 336 F.2d 687 (5th Cir. 1964). The rule that agency action “contrary to a specific mandate of . [an] Act [of Congress]” Templeton, supra, at 1069, is remediable judicially before administrative proceedings are at an end has been applied in the context of other agencies, notably in selective service cases, see, e. g., Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). What is as clear as this exception to the general requirement of exhaustion of administrative remedies, however, is that plaintiffs in the present case do not fit within it. The remaining “exception” to the requirement that courts await final agency action before reviewing disputes engendered by the conduct of administrative proceedings “has,” as the learned trial judge observed, “only limited application in the Fifth Circuit,” citing Boire v. Miami Herald Publishing Co., 343 F.2d 17, 21 n. 7 (5th Cir. 1965). Although by now it is probably a correct statement of the law even in our own circuit that an “assertion of constitutional right . . . not transparently frivolous . [gives] the District Court jurisdiction” to hear an attack on an interlocutory agency order, Fay v. Douds, 172 F.2d 720 (2nd Cir. 1949) (L. Hand); Contra, Volney Felt Mills, Inc. v. Le Bus, 196 F.2d 497 (5th Cir. 1952), the “fact that the attack is voiced in conelusory language of a denial of due process and like constitutional rights does not warrant stopping . . . [an administrative agency] in its tracks.” Bokat v. Tidewater Equipment Co., 363 F.2d 667, 672 (5th Cir. 1966). When, as in the present case, parties bring suit in District Court alleging the deprivation of specific constitutional rights or, indeed, specific statutory rights, Leedom v. Kyne, supra, the District Court has jurisdiction to inquire into the preliminary question of whether judicial vindication of the alleged rights is appropriate in a given procedural setting, and if so, whether such rights have been infringed and how they ought to be redressed. In the present case, the plaintiffs specifically complain that, if the proceedings before the Commission continue and FTC prevails, The Companies will be subject to two inconsistent decrees, viz., the apprehended Commission order and a consent decree entered by a District Court in The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796 (D.Del.1920). A contention of res judicata is not cognizable by courts until administrative proceedings are at an end, SEC v. Otis & Co., 338 U.S. 843, 70 S.Ct. 89, 94 L.Ed. 516 (1949), and we intimate no view as to the merits of this contention. The plaintiffs go further, projecting the outline of disarray and disaster sketched by the technical res judicata argument by conjuring up the vision of The Companies defending some 800 lawsuits simultaneously. This formidable problem, plaintiffs argue, might be avoided by the expedient of making all potential litigants parties to the Commission proceeding. The “right” to be free from defending a multiplicity of lawsuits is not a statutory right, not a constitutional right and, in the context of the present ease, not a right at all but an equitable principle properly looked to by an equity court only after it has satisfied itself that it has the power and responsibility to do equity. The extraordinary remedy of judicial-intervention in agency proceedings still in progress is unavailable unless necessary to vindicate an unambiguous statutory or constitutional right, and only when this condition is satisfied will a court look to the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief. To adopt the plaintiffs’ position, on the other hand, would be to make the rule that judicial intervention to “correct” an interlocutory agency ruling is available wherever an agency ruling differed from some equitable maxim. In paint, plaintiffs’ argument is grounded not on a right unequivocally vested in them by statute but on asserted constitutional rights of third parties, namely the non-joined bottlers’ respective rights to due process. It is always refreshing when giant corporations evince solicitous regard for others’ rights —and we have learned to expect refreshment from The Coca-Cola Company — but it is no occasion for judicial review of interlocutory agency decisions. As to the plaintiffs’ own right in this regard, we have little to add to Judge Friendly’s scholarly discussion in Pepsi Co., Inc. v. Federal Trade Commission et al., Nos. 72-1911, 72-1912, 2nd Cir.1972, 472 F.2d 179. See, e. g. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). The plaintiffs are asking that a procedural, “case-handling” decision be overturned in media res to require joinder “with the concomitant complication and clutter of the hearing.” L. Jaffe, Judicial Control of Administrative Action 444 (1965). If trial courts are insulated from this kind of interference, see 28 U.S.C. § 1292(a), certainly administrative tribunals ought to be and, indeed, they generally have been immune from interlocutory review of procedural rulings. E. g., Texaco, Inc. v. Federal Power Commission, 117 U.S.App.D.C. 268, 329 F.2d 223 (1963), cert. denied, 375 U.S. 941, 84 S.Ct. 346, 11 L.Ed.2d 272 (1964); Chicago Automobile Trade Association v. Madden, 328 F.2d 766, 769 (7th Cir.) cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). If plaintiffs eventually prevail on review of the final order and it is necessary to begin anew with Commission proceedings, it will not be the first time events have taken that course. See Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345 (1951). For the time being, plaintiffs “must, as all others similarly situated must, wait with such fortitude and patience as . [they] can muster.” Volney Felt Mills, Inc. v. Le Bus, 196 F.2d 497, 498 (5th Cir. 1952). Affirmed. Judge McRae prepared the above opinion before his death January 27, 1973. . The six other manufacturers of soft drink syrups are Dr Pepper, Cott, Crush, Royal Crown Cola, Pepsi Cola and The Seven-Up Company. The same contentions plaintiffs make here were unsuccessfully pressed by The Seven-Up Company in The Seven-Up Company v. Goodhope et al., 349 F.Supp. 551 (E.D.Mo., Sept. 12, 1972) and by Pepsi Co., Inc., in Pepsi Co., Inc. v. Federal Trade Commission et al., 343 F.Supp. 390 (S.D.N.Y.1972), aff’d Nos. 72-1911, 72-1912, 472 F.2d 179 (2 Cir. 1972) (Medina J., dissenting). . At oral argument, counsel for appellants suggested that at least three classes of bottlers should be represented: “true metropolitan,” “quasi-metropolitan” and “non-metropolitan.” . Appellants Elberton Coca-Cola Bottling Co., Roddy Manufacturing Company, Westminster Coca-Cola Bottling Company, Inc., Coca-Cola Bottling Company of Keene, Inc., Ann Arbor Coca-Cola Bottling Company, The Scioto Coca-Cola Bottling Company, and Texas Coca-Cola Bottling Company (hereinafter BottlersIntervenors). . Agency action made reviewable by statute and final agency action for winch there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there lias been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. . The decision in Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir. 1971) stands for the proposition that the question of the propriety of district court action does not turn on whether clear statutory language requires action to be taken or to be forborne, . Like the majority in Pepsi Co. Inc. v. Federal Trade Commission et al. Nos. 72-1911, 72-1912, 472 F.2d 179 (2nd Cir. 1972), we are “astonished” at the “proposition that a court would hold one person liable to another for doing something within the United States which a federal administrative agency, acting within its jurisdiction, has found to be necessary for the enforcement of a federal regulatory statute.”

f2d_475/html/0305-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. E. W. SAVAGE & SON, INC., Appellant. UNITED STATES of America, Appellee, v. ADAMS DOUGHERTY LIVESTOCK COMMISSION COMPANY, Appellant. UNITED STATES of America, Appellee, v. OLSEN-FRANKMAN COMMISSION COMPANY, Appellant. Nos. 72-1429-72-1431. United States Court of Appeals, Eighth Circuit. Submitted Jan. 12, 1973. Decided March 13, 1973. Rehearing and Rehearing En Banc Denied April 12, 1973. David V. Vrooman, Sioux Falls, S. D., for appellant. David Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., for appellee. Before LAY, HEANEY and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. This is a combined appeal by three livestock commission firms from an entry of directed verdicts and judgments for conversion of livestock owned by a third-party defendant, Robert W. Shields, not a party to this appeal. The livestock in issue were subject to a Farmers Home administration mortgage executed by Shields. In directing the verdicts, the trial court held that under South Dakota law defendants were agents of Shields, the original debtor, and personally liable for assisting him in the alleged conversion. The trial court’s memorandum decision is reported at 343 F.Supp. 123 (D.S.D.1972). On May 6, 1968, Shields borrowed $26,000 from F.H.A. As evidence thereof, a promissory note and accompanying security agreement were executed. The note called for repayment of the loan on June 1, 1969. Pursuant to the execution of this note, a financial statement was properly filed with the register of deeds. In accordance with F.H.A. procedure, a farm and home plan was prepared. The security agreement listed 127 head of mixed cattle, including the proceeds to be derived therefrom, which were subsequently purchased by Shields between July 17 and July 31, 1968. Thereafter, a second agreement covering the same loan was executed dated August 6, 1968. A financing statement covering the August 6, 1968 agreement was also filed. On or about June 14, 1968, Shields was instructed by one Robert Kennedy, the local F.H.A. District Supervisor, that he was to dispose of the cattle on or about June 1, 1969; that checks in payment for the secured property were to be made jointly payable, adding F.H.A. as a payee; that if any sale were made varying from the terms of the agreement, prior F.H.A. approval would be required; and that Shields was to account to the F.H.A. county office for any proceeds before they were expended. On August 8, 1968, two days after giving the cattle as security, Shields made an unauthorized sale of 12 head of the mortgaged cattle to Canton Livestock Sales Company. On August 12, 1968, F.H.A. approved this sale by accepting the proceeds which were in the form of a check that included F.H.A. as payee. Between August 27, 1968 and March 4, 1969, Shields made the following unauthorized sales to defendants: (1) to defendant Savage, 34 head at a total cost of $3,835.89; (2) to defendant 01-sen-Frankman, 48 head totalling $9,498.00; (3) and 37 head to defendant Adams-Dougherty Livestock Commission, totalling $7,886.98. None of the proceeds of the sales paid to Shields were ever received by F.H.A. At the close of all the evidence, the trial court orally expressed the view that there was no issue of fact to be determined by the jury and therefore directed a verdict in favor of the Government. In so doing the Court observed that the most that could be argued was that F. H.A. in directing the debtor to include F.H.A. as joint payee when livestock was sold was that this constituted a conditional waiver which was not complied with by Shields, and therefore as a matter of law F.H.A. was entitled to a directed verdict in its favor. Appellants now contend that the evidence shows as a matter of law that F.H.A. gave express and/or conditional consent to the debtor to sell the cattle covered by the security and therefore cannot recover, or in the alternative, that the issue of consent involves a fact question which should have been submitted to the jury. Appellee urges that the trial court correctly determined as a matter of law that the evidence shows that no express, implied or conditional consent regarding the sale of the livestock involved had been given Shields and therefore the United States was entitled to the judgment rendered. Appellee further contends that the livestock in question was “basic” farm security and under applicable law the security was not released by F.H.A. county officials and further, had they done so, they were without authority to bind the Government. We find the latter contentions correct and dispositive of this appeal. Under the terms of the security agreement, the incumbered property was “basic security” as distinguished from “normal farm income security.” These terms are defined in the Code of Federal Regulations as follows: “(a) Basic security consists of all equipment serving as security for Farmers Home Administration loans. It also consists of all foundation herds and flocks, including replacements, which serve as a basis for the farming operation outlined in the Farm and Home Plan .... “(b) Normal farm income security consists of all security property not considered as basic security. This will include crops, livestock, livestock products, and poultry covered by Farmers Home Administration liens which are sold in the usual course of operating the farm business. 7 C.F.R. § 1871.5 (1967) states that the authority to release security for F. H.A. loans secured by basic security is different than that for normal farm income security, and that “County Supervisors are authorized hereby to release basic farm security when the property has been sold or exchanged for its fair market value, and the proceeds are used for . . .,” certain enumerated purposes. In connection with this provision, only two basic conditions were imposed by F.H.A. as a prerequisite to receiving the consent of the county supervisor — that the checks would be made jointly payable to Shields and F.H.A., and that Shields would come to the county office and account for the proceeds before they were expended. Thus, when these two conditions were followed in carrying out the sale to Canton Livestock on August 8, 1968, despite the sale initially being unauthorized, F.H.A. approved the transaction in order for Shields to purchase substitute or replacement cattle pursuant to 7 C.F.R. § 1871.5(a)(2), supra." Such approval by F.H.A. does not operate as consent for Shields to sell free of the mortgage. Instead, it operates as a “mere offer of the mortgagee to release the mortgage upon certain conditions being met.” Rapid City Pro. Cr. Ass’n v. Transamerica Ins. Co., 184 N.W.2d 49, 51 (S.D.1971); see also, Cassidy Commission Company v. United States, 387 F.2d 875, 879-880 (10th Cir. 1967). In the matter at hand, the required conditions were not complied with and there was no release of the Government’s liens. Defendants suggest that in construing these regulations, we held in United States v. Hansen, 311 F.2d 477 (8th Cir. 1963), that the County Supervisor may give consent to such a sale, and where consent is given the lien is extinguished. The Hansen decision dealt with “normal farm income security.” No “basic security” was involved. Therein, the F.H.A. County Supervisor authorized the mortgagor to sell the normal farm income security. The question was whether the County Supervisor had been vested with authority to waive the mortgage lien in that instance. The trial court made a finding of fact that F.H.A. had consented to the sale in question, and further that the County Supervisor had the authority to do so. In affirming this Court noted that “Regulation provisions for disposing of normal farm income security are considerably more liberal than those relating to basic securities.” Hansen, supra, 311 F.2d at 479. Hansen is distinguishable in that it dealt with a different type of security. Assuming arguendo that local F.H.A. officials did waive the liens involved in this case, such action being contrary to the published regulation would not be binding on the Government. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); United States v. Ulvedal, 372 F.2d 31, 35 (C.A.8 1967). Affirmed. . See United States v. Kramel, 234 F.2d 577 (8th Cir. 1956), holding that state law controls in actions by the United States to enforce its rights under F.H.A. farm mortgages. But see, United States v. Hext, 444 F.2d 804, 807-808 (5th Cir. 1971), holding that a uniform federal interpretation is required. . See, 7 CFR § 1871.7 (1972). A “farm and home” plan, or Form FHA 431-2 is basically an information statement which reflects information relative to the borrower’s operations. . The Court reserved the right to file a memorandum opinion setting out with more clarity its views, which it did at 343 F.Supp. 123. . 7 C.F.R. § 1871.5 (1967). 31 Fed.Reg. 14213-14 (Nov. 1966), effective during the period of this agreement. The section is substantially the same ns 7 C.F.R. § 1871.8 (1972). . “(1) To pay on the debts owed to the Farmers Home Administration which are secured by liens on the property sold. (2) To purchase from the proceeds of the sale, or to acquire through exchange, property more suitable to the borrower’s needs, subject to the following conditions : The new property, together with any proceeds applied to the indebtedness, will have security value to the Farmers Home Administration at least equal to that of the lien formerly held by the Farmers Home Administration on the old property. The new property must be made subject to a lien in favor of the Farmers Home Administration by the execution of a new security instrument or by operation of the “replacement” or “after acquired property” clauses in lien instruments. (3) To make payments to other creditors having liens on the property sold which are superior to the liens of the Farmers Home Administration provided any amount remaining after payments are made to the other creditors is used in accordance with the provisions of subparagraphs (1) and (2) of this paragraph. (4) To pay costs required to preserve or realize on security property because of an emergency or catastrophe when the need for funds cannot be met through a Farmers Home Administration loan in sufficient time to prevent the borrower and the Farmers Home Administration from suffering a substantial loss.” . Compare, Quaker Oats Co. v. McKibben, 230 F.2d 652 (9th Cir. 1956). The Ninth Circuit Court of Appeals affirmed the trial court which held that the mortgagee had by implied agreement, given the mortgagors permission to sell directly to third parties and without written consent so long as any check drawn in payment was made jointly payable to mortgagors and mortgagee. Unlike the instant cause, payment by the purchasers of the secured property in issue was by cheek made payable to both mortgagors and mortgagee. . See n. 5.

f2d_475/html/0308-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellant, v. Anthony SICILIA, Defendant-Appellee. No. 72-1366. United States Court of Appeals, Seventh Circuit. Argued Dec. 8, 1972. Decided March 1, 1973. Rehearing Denied April 13, 1973. James R. Thompson, U. S. Atty., Matthias A. Lydon and William T. Huyck, Asst. U. S. Attys., Chicago, Ill., for appellant. Louis Carbonaro, Chicago, Ill., for appellee. Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges. PELL, Circuit Judge. This is an appeal by the Government, pursuant to 18 U.S.C. § 3731, from an order of the district court finding that special agents of the Federal Bureau of Investigation had failed to advise Sicilia of his constitutional rights pursuant to the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that, therefore, all of “the evidence procured was illegally seized and inadmissible.” On February 26, 1970, four F.B.I. agents went to the A & S Cartage Company pursuant to information given them by a confidential informer that one of three Clark fork lift trucks stolen from an interstate shipment was on the premises. Only Agents DiStefano and Mieseler went inside. Agent Mieseler, who had not previously been involved in the investigation, had gone on this trip because he had known the president of A & S Cartage, Anthony Sicilia, from a previous but unrelated investigation. There is a substantial discrepancy between the parties’ versions as to what the agents said and did during the initial interview with Sicilia. The agents both testified that they informed him of the nature of the investigation and that he told them that he had recently purchased a Clark fork lift. The agents, according to their testimony, then asked him to sign a consent to search form, which he did. Thereafter they searched the building and found the stolen vehicle. When they returned to the office, the agents then read Sicilia the standard statement of rights (Miranda). He refused to sign the waiver or discuss the fork lift truck further. On the other hand, Sicilia testified, and the district court in its findings of fact found Sicilia’s testimony in this respect to be true, that the agents did not inform him of the nature of the investigation, that they did not read him the consent to search form, that he never knowingly signed such a form, and that the only form he signed was what he thought was a receipt for the seized fork lift. Sicilia also testified, and the district court found to be true, that the agents asked him questions about his recent purchases of fork lifts. On the basis of these findings the district court concluded that at the time the agents arrived on the premises “the investigation was no longer a general inquiry into an unsolved crime but began to focus on a particular suspect, to-wit: the defendant. This court finds that the defendant was entitled to be given the Miranda warnings prior to being questioned. . . . ” The only citation of authority by the district court in support of its order was the Miranda case. We note that the Court stated that the principles there announced “deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 477, 86 S.Ct. at 1629. Here it cannot be contended that Sicilia was the subject of in-custody interrogation. Rather he was at most the subject of limited questioning in the comforting confines of his own office at a company of which he was the chief executive officer. To avoid this obvious limitation on the applicability of Miranda to this case, the district court apparently adopted the focus theory enunciated in United States v. Dickerson, 413 F.2d 1111 (7th Cir. 1969). In Dickerson, this court held that once a taxpayer was under criminal investigation he must be given a warning of his constitutional rights as spelled out in Miranda before any further questioning can take place. It is from this decision that Sicilia on appeal, and apparently the district court in the proceedings below, extrapolates the theory that once a criminal investigation “focuses” on an individual he must be warned of his constitutional rights. In our view this analysis is inaccurate. The nature of the facts in Dickerson limits its general applicability. That case revolves about the distinction between two types of I. R.S. agents: revenue agents and special agents. In general, special agents are concerned with criminal investigations. On the other hand, the audit type of investigations are handled by revenue agents with no particular contemplation of criminal prosecution. There, therefore, is considerable potential for the taxpayer being misled as to the nature of the investigation. In the case of the F.B.I. agents, they are ordinarily associated in the public view with criminal investigation. Specifically in the present case there was no ambiguity in the investigative call on Sicilia — the agents were out to catch a thief. Thus, the underlying rationale for Dickerson, the potential for confusion in the mind of the person being interviewed as to the nature of the inquiry, can be said to justify an expansion of the Miranda requirements beyond the in-custody case for the warning to be required. The potential for confusion not being present in the case before us, we decline to extend the Dickerson requirement of Miranda warning to it. We find no special risk that Sicilia was misled as to the nature of the investigation. He was neither in custody nor “otherwise deprived of his freedom of action in any significant way.” See Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311 (1969). At the time the agents initially interrogated Sicilia, there is no indication in the record which would have brought about an in-custody type of situation. Even if the agents had had positive proof that the stolen fork lift was on the premises of A & S Cartage, rather than just the uncorroborated tip of an informant, there would have been no reason to assume that Sicilia, even though he was president of the corporation, had been the individual who had purchased the stolen fork lift, or that he even had any special knowledge of its presence on the premises. The fact that after the F.B.I. agents had specifically identified the Clark fork lift as one of those stolen and Sicilia had stated that he had purchased it, the agents then gave Sicilia a Miranda warning is irrelevant to the issue of the first interview. We can only attribute this to some feeling on their part in the nature of an abundance of caution. United States v. Krilich, 470 F.2d 341, 349 (7th Cir. 1972). A probably unnecessary subsequent Miranda warning can scarcely create the necessity for such warning in the earlier and different factual situation. Sicilia also argues that the search which discovered the stolen Clark fork lift truck was invalid because he was not warned of his rights similar to a Miranda warning. Thus, the district court found that he was not given a consent to search form, even though the Government did produce a consent to search signed by Sicilia who obviously was not an unsophisticated derelict. Si-cilia argues that, even if we were to hold this finding of the district court clearly erroneous, we would still have to invalidate the search since the consent to search form itself is not a sufficient warning of Miranda rights. On the facts of this case, we hold that there was a valid consensual search of the premises of A & S Cartage and that the discovery of the stolen fork lift was not illegal. As to the initial claim that the warnings required by the Fifth and Sixth Amendments under Miranda are a sine qua non to a valid consensual search under the Fourth Amendment, this court has clearly rejected such a view. United States v. Young, 471 F.2d 109 (7th Cir. 1972); United States v. Hayward, 471 F.2d 388 (7th Cir. 1972); United States v. Habig, 474 F.2d 57 (7th Cir., filed Jan. 24, 1973). While some of Sicilia’s testimony may raise doubts as to its credibility, we have herein accorded the customary deference to the district court’s credibility determination based upon its observation of the witnesses. From that position, the district court chose to disbelieve the two F.B.I. agents and to accept the version presented by Sicilia. Taking his testimony as true it is illuminating, and dispositive, on the present issue. Q. Will you relate to the Court what questions they asked you and what answers you gave? A. They asked me first whether I owned any Clark lift trucks. I said, “Yes.” “Do you own any other type of lift trucks ?” I said, “Yes.” Meisler [sic] did all the questioning at that time. He said, “Did you purchase a Clark lift truck recently?” And I said, “Yes, about two months ago I did purchase one.” Then Meisler [sic] said, “Can we examine the lift trucks that you have on your docks ?” And I told him, yes, he could see any of them. At that moment I called up my superintendent, Jim Broderick, and told him that two fellows — I didn’t even tell them they were FBI — were coming down to examine all our lift trucks and I told him to show them all of them. Later on, about five minutes later, he called back and he said one of the trucks that you recently purchased is in a trailer, we’re taking it over to our other warehouse. I told Jim Broderick to show him— to show these agents that one, too. They went down and they were gone for some time— No other reason appears in the record, and no other reason is suggested or suggests itself, for the F.B.I. agents to ask to look at lift trucks on the docks except that they were in some way involved in a crime or criminal investigation. Not only did Sicilia consent to such a search by his own testimony, but he also called his superintendent and told him that two men were coming down to look at the lift trucks and that they were to be shown “all of them.” It is clear that Sicilia’s express consent was both voluntarily and intelligently given. Since no specific warnings were required prior to the search, we hold that the search was proper. We thus do not reach the question of whether the district court’s finding of fact relating to the signing of the consent to search form is clearly erroneous and should be set aside since it conflicts with the fact that there was a signed form and a signed receipt for the lift truck even though Sicilia testified, and the district court apparently found, that he signed only one paper that day. For the reasons given hereinbefore the judgment of the district court is reversed and the case is remanded for further proceedings. While the case is not being remanded for a new trial within the technical meaning of Circuit Rule 23, the development of the factual situation as to one salient aspect of this litigation had progressed sufficiently for us to deem it advisable, and so to order, that the case be reassigned on remand to another judge. Reversed and remanded. . Following an evidentiary hearing on December 9 and 11, 1970, the district court entered an order granting defendant’s motion to suppress. On March 13, 1972, another panel of this court determined that it could not rule on the case without findings of fact and conclusions of law. It therefore remanded the case to the district court directing it to make such findings, United States v. Sicilia, 457 F.2d 7S7 (7th Cir. 1972). On April 21, 1972, the district court entered the required findings of fact and conclusions of law. It is from this order that the Government appeals.

f2d_475/html/0312-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. John H. JANSEN, Defendant-Appellant. No. 72-1246. United States Court of Appeals, Seventh Circuit. Argued Oct. 30, 1972. Decided March 15, 1973. Rehearing Denied April 23, 1973. Carl M. Walsh, Maurice J. Walsh, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., William T. Huyck, Dan K. Webb, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before ENOCH, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges. PELL, Circuit Judge. Defendant John Jansen appeals from his conviction by a jury of violating 18 U.S.C. § 111. The two-count indictment against him had charged that he “did forcibly assault, resist, oppose, impede, intimidate and interfere with” two named officers of the Internal Revenue Service while they were engaged in the performance of their official duties. At 2 p. m. on July 8, 1971, officers Edward Grant and Larry Morris, accompanied by several other IRS employees, went to The Orange Tree Tavern in Chicago to collect $4784 in federal taxes allegedly past due or, in the alternative, to “seize” the tavern. On meeting the defendant, who managed the tavern which was owned by his father, the officers identified themselves and explained the purpose of their visit. Jansen responded that he did not have enough money on hand to satisfy the debt. Grant thereupon read him the levy and declared the business seized for nonpayment of taxes. When Jansen stated he could raise the money that day and requested additional time to accomplish this, the agents agreed to wait until 4 p. m. In the interim period, the agents proceeded with the seizure, e. g., had a locksmith change the locks and ordered the bartender to count and turn over to them the contents of the cash register. Shortly before 4 p. m., the tax still unsatisfied, officer Grant suggested to Jansen that he begin to gather his possessions in readiness to leave the tavern, which would be closed. Jansen’s reaction to this announcement led to his indictment: (1) with arms upraised, he blocked the doorway and told the IRS officers he would not allow them to leave; (2) twice, by striking at officer Morris and holding down the telephone hook, he prevented Morris from calling the police; (3) he ignored Grant’s warning to stand clear; (4) he knocked Grant’s credentials from the agent’s hand and ran to the back of the cocktail lounge, where Grant pursued him and retrieved the credentials; and (5) he grabbed the moneybag holding the contents of the seized cash register from Morris’s hands and, when Morris started to give chase, raised his hands toward Morris. Later, after Jansen was arrested, officer Grant recovered the moneybag at which time he discovered $234 was missing. Jansen urges reversal on the basis of certain alleged procedural errors, the most significant of which arises from testimony of his having had a prior conviction for a misdemeanor. The attention given to the earlier conviction supposedly distracted the jury from the real issues at stake and created ineradicable prejudice against the defendant. Apparently in an effort to show Jansen’s good character, his counsel asked on direct examination: “Have you ever been convicted of a crime?” Jansen replied in the negative. At a subsequent conference between counsel and the court called at the Government’s request and held outside the presence of the jury, Jansen’s lawyer explained that he had made an unfortunate slip of the tongue; he and Jansen had practiced and he had intended to ask the question “Have you ever been convicted of a felonyV The defendant had been convicted of criminal damage to property, a misdemeanor under Illinois law. The Government attorney later elicited testimony from the defendant on cross-examination concerning the prior conviction. The trial court overruled defense counsel’s objection to the impeaching questions. We find no abuse of discretion in the court’s determination not to strike the exchange between Jansen and his attorney, the course of action suggested by the attorney at the conference. Counsel had posed the question at the beginning of the direct examination. The prosecutor was well into his cross-examination of Jansen when the discussion with the court took place. That conference lasted until the end of the court day and was resumed the following morning. Thus, the jury had heard the defendant’s denial a substantial period of time before the defense attorney proposed that the exchange be struck. The purported fact had been placed without question before the jury, and we are unaware of any basis for saying that it was error not to strike out the question and answer, particularly in the belated posture here involved. If counsel had listened to his own words and had sought immediately to correct them, the result might have differed. He apparently did neither. The Government acknowledges that, absent defense counsel’s question on direct, the prosecution would have been precluded from cross-examining Jansen about his prior misdemeanor conviction. It argues, however, that once the matter was raised, the prosecutor had a duty to impeach the veracity of defendant’s answer. The Government distinguishes this limited use of the misdemeanor conviction from an assault on Jansen’s general credibility as a witness. A defendant’s general credibility as a witness can be impeached only by a felony conviction. See United States v. Bishop, 457 F.2d 260, 262 (7th Cir. 1972). We also note that the court, in its charge, instructed the jury as to the limited purpose for which it was to consider the misdemeanor conviction. Because Jansen made his statement on direct examination, the present case falls outside the rule that a witness may not be impeached by contradiction as to collateral or irrelevant matters elicited on cross-examination, see, e. g., United States v. Lambert, 463 F.2d 552, 557 (7th Cir. 1972). Further, although we are aware of Wigmore’s argument against allowing contradiction of all extraneous or volunteered assertions made on direct examination, 3A Wigmore, Evidence § 1007 (Chadbourn rev. 1970), decisions by the United States Supreme Court and by several courts of appeals, among them this court, strongly suggest that the impeachment here was permissible. See, e. g., Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); United States v. Rosenfield, 469 F.2d 598, 600 (3d Cir. 1972); United States ex rel. Walker v. Follette, 443 F.2d 167 (2d Cir. 1971); United States v. Holtzman, 440 F.2d 923 (7th Cir. 1971); United States v. Colletti, 245 F.2d 781 (2d Cir. 1957), cert. denied, 355 U.S. 874, 78 S.Ct. 125, 2 L.Ed.2d 78. We therefore hold that the trial court did not err in overruling the defendant’s objections to the impeachment questions. On redirect examination, defense counsel attempted to rehabilitate his client. However, the court sustained objections to three of the five questions counsel posed. The result was that Jansen was allowed to respond only to queries whether he had ever been convicted of a felony and what his plea to the misdemeanor charge had been. Although the circuits differ as to the extent to which they permit a witness, on redirect examination, to explain a conviction shown for impeachment purposes, most leave such rehabilitation to the discretion of the trial judge. E. g., United States v. Pinna, 229 F.2d 216, 219 (7th Cir. 1956). The cases we have found that treat this problem, however, involve the use of a prior conviction to impeach a witness’s general credibility. Here, through an admission elicited from the defendant, the prosecutor in effect corrected misinformation that Jansen had given on his direct examination. The wisdom of limiting discussion about the misstatement is thus much more obvious under these circumstances than when a party has tried to discredit a witness’s character. If not disallowed, defense counsel’s questions on redirect would have opened a clearly collateral matter. We therefore cannot agree that the trial judge abused his discretion in rejecting two of the “rehabilitative” questions: how old Jansen had been at the time of the conviction and What sentence he had received. As for the third disallowed question — “When I asked you whether you had been convicted of a crime yesterday, what did you understand me to mean?” —we concur with the Government that the form of the question was bad. It called for Jansen’s subjective conclusion about his attorney’s intention. Jansen also contends that the prosecutor made improper statements during closing argument about defendant’s credibility and that the trial judge made improper comments when ruling on defendant’s objection to those statements. We find no reversible error. First, the prosecutor’s inadvertent reference to “United States v. Jansen” rather than to “The People of the State of Illinois v. Jansen,” the accurate title of the defendant’s misdemeanor case, could not have confused the jury or prejudiced Jansen’s right to a fair trial. Second, the Government attorney used the impeaching conviction as but one of several examples of what he considered to have been “lies” by the defendant. A prosecutor is allowed to comment on the credibility of a defendant who takes the witness stand. United States v. Deloney, 389 F.2d 324, 326 (7th Cir. 1968), cert. denied, 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417. Cf. United States v. Porter, 432 F.2d 548 (9th Cir. 1970), cert. denied, 400 U.S. 928, 91 S.Ct. 192, 27 L.Ed.2d 188. Third, the prosecutor’s rather ill-considered statement that by this false testimony Jansen had “perjured himself” was objected to, and the objection as made was sustained. When so ruling, the trial judge did not, as Jansen charges, imply that he agreed with the prosecutor’s characterization of the defendant’s testimony. Rather, as we read the record, the judge was explaining why he was sustaining the objection and why the jury should ignore the Government’s statement. At trial, Jansen had two intended lines of defense: (1) his use of force had been so minimal as to be legally insignificant, and (2) emotional distress had caused him to act as he had on the afternoon of July 8, 1971, and he therefore had lacked the intent necessary to commit the crime charged. On appeal, the defendant emphasizes the second argument. He maintains that the trial court precluded the effective presentation of this “defense” by not permitting him to show that (a) the amount of the tax due was in controversy; (b) a certified check in the amount of the tax supposedly due was in fact delivered at about 4:20 p. m. but was refused by the agents; and (c) the defendant later received a refund of approximately $3500. In addition to the claim that the court ruled erroneously on these evidentiary matters, the defendant also contends that the court stated repeatedly in the presence of the jury that the proffered defense had nothing to do with the crime charged. We find no reversible error. We first note that at least matters (a) and (c) were before the jury through Jansen’s own testimony. More importantly, however, we disagree that the three points, even if true, constitute a defense to a charge of violating 18 U.S.C. § 111 or negate the existence of an intent forcibly to assault, resist, impede, etc. This court’s decision in United States v. Spingola, 464 F.2d 909 (7th Cir. 1972), upon which Jansen relies, is inapplicable to this case. “The purpose of this section [§ 111] is to provide federal officers the protection of federal courts when such officers are performing their duties.” United States v. Johnson, 462 F.2d 423, 427 (3d Cir. 1972). The statute’s aim is frustrated if an individual is allowed to resist federal agents when engaged in their official duties because the individual believes he owes less than the amount demanded. See United States v. Johnson, supra, where the Third Circuit upheld the trial court’s refusal to admit evidence tending to show that defendant, who had blocked the exit, was the true owner of property seized by IRS agents. Jansen, however, seeks to avoid the force of section 111 by arguing that his motive in preventing Grant and Morris from leaving the tavern was to aid, not obstruct, the IRS officers in the performance of their duties, that is, the collection of delinquent taxes. The defendant mistakenly assumes that he had a right to delay the seizure of the premises; actually, the officers had waited until 4 p. m. as an accommodation to Jansen. We reject the defendant’s proposition that a private individual may decide how and when federal officers acting within the scope of their authority should carry out their duties. This is not the proper criterion for determining whether the individual has breached section 111. As for the trial judge’s supposed negative comments on Jansen’s theory of defense, the transcript citations to which defendant refers us reveal no such prejudicial remarks. Jansen next seeks reversal on the basis of the district court’s charge to the jury. Most of the contentions are within the framework of reference of “plain error,” which ordinarily, as it does here, connotes a failure by trial counsel to comply with the salutary purpose of Rule 30, Fed.R.Crim.P., to bring to the attention of the trial judge claimed deficiencies of both instructions to be given and those refused. Here, trial counsel failed to tender any instructions, and, although counsel were afforded an opportunity to object both before and after the giving of the charge, the defense’s minimal objections were not of a nature to point out to the experienced trial judge the errors which were first articulated on this appeal. In this context, we would be rendering scant service either to the letter or to the spirit of Rule 30 if we adhered to any lesser standard than that suggested in the Webster definition of “plain,” i. e., evident or obvious. On that basis, we find the contentions advanced to be without merit. Jansen attacks the court’s “inference from conduct” general intent instruction as undermining the alleged defense of lack of specific intent. Without reaching the always troublesome question of whether specific intent is required for proof of guilt of a particular crime, we note that the district court did, in its charge, state the necessity of proof of specific intent before a conviction could be had, utilizing in this respect the La Buy instruction, 33 F.R.D. 523 (1963). Jansen also attacks the court’s instruction on the burden of proof as conveying “a sense of rebuke for [defendant’s] daring to plead not guilty. . . .” Jansen’s interpretation of the court’s instruction is unwarranted as the challenged statements were part of a full discussion concerning the presumption of innocence and reasonable doubt. Jansen attacks the failure of the court to give an instruction pertaining to the credibility of witnesses generally while including in its charge reference to the fact that “the defendant’s testimony is to be judged in the same way as that of any other witness, bearing in mind that he is the defendant in the case and of course has an interest in the result of the trial.” At best, trial counsel may have mildly and ambiguously suggested that the defendant is no different than any other witness, but, of course, he is different in that he does have an interest. We do not know why the general credibility of witnesses instruction was not given, but we do know that trial counsel neither suggested nor tendered it. While counsel on this appeal were not the trial counsel, and perhaps thereby are freer in finding fault, we are unable to agree with the contentions that the instructions deprived Jansen of a fair trial. Finally, Jansen argues that the trial judge, in sentencing him, imposed “extra punishment” for his having elected to exercise his rights to plead not guilty and to have a jury trial. The judge sentenced Jansen to one year in prison and fined him $1500 on each count, the terms of imprisonment to run concurrently. For this argument, Jansen relies on certain comments the judge made. If the judge did penalize the defendant for pleading not guilty, he, of course, acted improperly. See United States v. Lehman, 468 F.2d 93, 110 (7th Cir. 1972), cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232. We have carefully examined the pertinent portion of the transcript, however, and we conclude that the remarks, when read in context, do not bear the construction that defendant seeks to place upon them. We first note that, prior to imposing sentence and before making the allegedly objectionable comments, the judge expressly complimented defense counsel: “I think your way of . . . defending the case was a wise one. If it could have been won, and I don’t think it could have been won, you chose the right way to do it.” Second, we find the group of statements ending with “The feeling of contrition here has come too late” to be ambiguous. A reasonable interpretation is that the judge “considered a policy of leniency following a plea of guilty to be proper but that sentence concessions flowing from such a plea are inapplicable to the full trial situation.” Lehman, supra, 468 F.2d at 110. Third, the final comments of which Jansen complains, particularly “He has chosen the wrong course in this case. ... He has aggravated his offenses,” came after the sentence had been pronounced and reflected, we believe, the judge’s impatience with defense counsel’s continuing to discuss mitigating circumstances. The judge considered the matter closed. We have examined the other claimed errors and find them without merit. Accordingly, we affirm the conviction of John Jansen. Affirmed. . 18 U.S.C. § 111 provides in part: “Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his offieial duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.” Section 1114 includes “any officer, employee or agent ... of the internal revenue . . . . ” . The transcript reads : “Q I believe you stated yesterday on direct examination, Mr. Jansen, that you had never been convicted of a crime, is that correct? “A Yes, it is. “Q Mr. Jansen, are you the same John [J] ansen who on August 27, 1964 was convicted of the crime of criminal damage to property in a case entitled People of the State of Illinois v. John Jansen? “A I pled guilty to damaging property, yes.” . The scope of the impeaching crime is often said to include a misdemeanor involving moral turpitude. McCormick, Handbook of the Law of Evidence § 43, at 90 (1954). While the misdemeanor of which Jansen was convicted is a crime, there is no contention that it involved moral turpitude. . Counsel dropped the matter and took no other tacks at rehabilitation. Also, there was no formal offer to prove. However, such an offer is unnecessary where it is clear what the substance of the proposed evidence would be. See United States v. Dellinger, 472 F.2d 340, 384 (7th Cir., 1972). . Wigmore’s comment that “it would seem a harmless charity to allow the witness to make such protestations on his own behalf as he may feel able to make with a due regard to the penalties of perjury” also does not refer to the limited impeachment situation present in the instant case. 4 Wigmore, Evidence § 1117, at 191 (3d ed. 1940 and 1970 Supp.). . We note that the jurors had been given information which could have enabled them to calculate Jansen’s age at the time of his misdemeanor conviction: Jansen had testified on direct that he was 29 years old, and, on cross-examination, he had said that he was the same John Jansen who had been convicted in 1964. The question about the sentence imposed was clearly intended to diminish the significance of the conviction. If Jansen had been allowed to answer, the Government might then have contended that it, too, should be allowed to go into the details surrounding the misdemeanor conviction in order to rebut the misleading inferences that such testimony might create. According to the Government, the misdemeanor charge had resulted from plea bargaining; the charge originally had been burglary and arson. In our opinion the district court properly curtailed the expeditions into these collateral and potentially confusing extraneous matters. Cf. United States v. Dow, 457 F.2d 246, 250 (7th Cir. 1972). . Cf. Finn v. United States, 219 F.2d 894, 901 (9th Cir. 1955), cert. denied, 349 U.S. 906, 75 S.Ct. 583, 99 L.Ed. 1242.

f2d_475/html/0320-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Daniel SATIACUM et al., Appellants, v. Melvin R. LAIRD, Secretary of Defense, et al. No. 72-2054. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 4, 1972. Decided Nov. 5, 1972. Mr. Edward L. Genn, with whom Messrs. Ralph J. Temple, Washington, D. C., and Terrence A. Sidley, Alexandria, Va., were on the motion, for appellants. Mr. J. Michael McGarry, Asst. U. S. Atty., with whom Mr. R. Kenly Webster, Principal Deputy Gen. Counsel, Dept, of the Army, was on the opposition, for appellees. Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges, PER CURIAM: The court has before it the application of Indians who seek to hold services at Arlington Memorial Cemetery, at the gravesites of two Indians buried there, and at the Amphitheatre for those who cannot be accommodated at those grave-sites. It is represented in both the papers before us, and by formal representation in open court, that the services will be purely memorial, religious and ritual in nature, and without any characteristic of being “partisan”- — a term used here, as it is used by the Government, to mean activities and expressions in support of or in opposition to policies of the Government. There is no basis in the presentation of the case to us to dispute the veracity of the representation made by and in behalf of the plaintiff Indians. The Government did not contest the testimony of the Indian religious leader as to the nature of those services, including the ritual use of pipe and eagle feathers. In considering the claim of plaintiff Indians that they are entitled to restrain the officers in charge of the Cemetery from prohibiting this service, we begin with the premise that the Government may validly prohibit partisan activity in the Cemetery. The question arises out of the Government’s position that the use of the Cemetery may be denied on the ground that the memorial and ritual service at the Cemetery is “closely related” to other activities of a partisan nature being conducted during this week outside the Cemetery, by Indians who will be part of the group taking part in the service in the Cemetery. Given the content of the services contemplated, as set forth above, they do not appear to be “closely related” to partisan activities outside the Cemetery.- In response to questions at oral argument yesterday, it appears that the Government is of the view that section 205(a)(3) of the Department of the Army Technical Manual, governing Arlington National Cemetery operations, prohibits ceremonies at the Cemetery if they coincide in point of time with “partisan” activities outside the Cemetery, irrespective of the relationship between the content of the services and outside activities. A serious question is presented whether such a regulation does not unduly trammel freedom of religion, by prohibiting memorial, religious services inside the Cemetery. There may also be a question as to the impingement on the right of free speech outside the Cemetery, and the right to visit the seat of Government to present grievances, by requiring those exercising such a right to give up a right of religious nature sought to be exercised during the same general period of time. The papers before us further indicate that the application to hold the ceremonies was made in behalf of Indians who were coming to Washington merely for this purpose as well as Indians who were during the same period engaged in activities to seek changes in legislative or executive programs. In view of these points, and in view of the absence of a close relationship between the proposed services and outside activities, the court concludes that plaintiffs have met their burden of showing a likelihood of success on the merits on the ground that the legal premise underlying the District Court’s denial of relief is erroneous. In view of the constitutional rights involved, plaintiffs plainly will suffer irreparable injury unless- the relief sought is granted. Bennett v. McNamara, Civil Action No. 305-68 (D.D.C. February 5, 1968) motion for summary reversal and/or stay denied, No. 21,643 (D.C.Cir. February 6, 1968), relied on by defendants, does not call for a contrary result. Plaintiffs themselves in Bennett described in their papers the Arlington services “as an integral part” of their activities outside the Cemetery. From this, it was reasonably inferable that words and acts in the Cemetery services would relate to outside activities of a partisan nature. The services there contemplated, however dignified and ceremonial, were intended to be an integral part of the “partisan” efforts to change Government programs. The Bennett plaintiffs had come to Washington for the purpose of protesting the war in Vietnam, and their memorial service at Arlington for those who had died in that war was so clearly identified in content with the partisan nature of plaintiffs’ visit, that it could fairly be said that the services themselves were an expression of policy of a partisan nature. Government counsel have indicated that they may wish to present this matter to the Supreme Court. Accordingly, our order will be stayed in effect until Monday noon, November 6, 1972. APPENDIX Department of the Army, Technical Manual 10-287, section 205(a)(3), states: Partisan activities are inappropriate in national cemeteries, and all services or any activities inside the cemetery connected therewith must be nonpartisan in nature. A service will be considered partisan and therefore inappropriate if it includes commentary in support of an [sic] opposition to, or attempts to influence, any current policy of the Government of the United States or any state of the United States. If the service, although itself purely memorial, is closely related to partisan activities being conducted outside the cemetery, it will be considered partisan and therefore inappropriate. . The regulation appears as an appendix following this opinion.

f2d_475/html/0322-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Michael E. JONES, Appellant. No. 72-1018. United States Court of Appeals, District of Columbia Circuit. Dec. 22, 1972. Rehearing Denied April 18, 1973. Messrs. Paul Daniel and Donald G. Avery, Washington, D. C. (both appointed by this Court), were on the brief for appellant. Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry, James E. Sharp, and William E. Reukauf, Asst. U. S. Attys., were on the brief for appellee. Before DANAHER, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges. PER CURIAM: The appellant had been at liberty on personal recognizance since August 20, 1969 when on March 19, 1971, he filed a motion to dismiss the indictment for lack of a speedy trial. The motion was denied and a jury trial went forward at once. The jury returned guilty verdicts on five counts charging assault with intent to commit robbery while armed and associated offenses. It is now urged that the conviction was invalid because of an inordinate delay which had given rise to a prima facie presumption of prejudice. Just as the appellant’s guilt was overwhelmingly established, so was evidence of actual prejudice completely lacking. Where we have discussed in our cases various gradations of distinctions under particular circumstances as we considered the applicability of the principles enunciated in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905), we have never lost sight of the important element of public justice. Here, and in the future, our assessment of that element as well as of the rights of the defendant must be guided by considerations outlined so cogently in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors there spelled out have indeed been analyzed and applied as affording a balancing test in United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129, as recently as September 25, 1972. On February 15, 1969, one Gatling, an employee of Safeway Stores was to take a bag of money from a store to a bank. That employee was accompanied by an armed guard. Gatling, who was to drive the truck, presently found himself looking into the barrel of a gun. The culprit seized the bag of money, got out of the truck and fled, only to be pursued by the guard, and a gun battle ensued in the course of which Jones was wounded. The episode had been witnessed by a customer who had seen Jones earlier and who presently observed Jones trying to place a pistol in the trunk of a nearby car. An off-duty police officer saw Jones run past him at which time Jones still had the pistol in his hand. Within minutes, other police converged on the scene, the pistol Jones had carried was retrieved, and the officers noticed that three rounds had been fired. Various witnesses additionally contributed other details, indeed, seldom do we encounter so completely established proof of such a crime. Identification of Jones was established peradventure. Jones was promptly arrested, was indicted April 14, 1969, and arraigned 4 days later. On May 5th he filed a motion to suppress identification testimony and two motions relating to Grand Jury proceedings. Those motions were heard on June 27, the Grand Jury minutes were produced and ultimately the motion to suppress was withdrawn. Jones was released on personal recognizance on August 26, 1969. The case was called October 3, 1969, October 21, November 13, December 5 and thereafter, but was not reached for trial. Jones was at liberty throughout the last mentioned period. He filed his motion to dismiss for want of a speedy trial on March 17, 1971. The motion was denied two days later and trial went forward immediately. We certainly cannot fault the trial judge in light of the record which we have carefully considered. We could, of course, dispose of the issues and speak only in general terms. We have decided, rather, to be more specific, and thus hopefully more helpful, by supplementing our earlier analysis in United States v. Parish, supra. Thus, we turn back once again to Barker v. Wingo, supra. There the Court while not “disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought”, established a balancing test as the method by which claims of Sixth Amendment speedy-trial denials are to be resolved. In the process, Barker identifies particularly four factors of prime significance: “[I]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192. As this enumeration indicates, and indeed as Barker emphasizes, the accused’s conduct as well as the prosecution’s is to be weighed. Id. at 530, 92 S.Ct. 2182. The balance here decidedly disfavors appellant. To be sure, the passage of 25 months before trial of a street-robbery case calls for an assessment of the circumstances contributing to the delay. See United States v. Ransom, 151 U.S.App.D.C. 87, 88, 465 F.2d 672, 673 (1972); Smith v. United States, 135 U.S.App.D.C. 284, 286, 418 F.2d 1120, 1122 (1969). No real basis appears here for faulting either side for the first ten months, which were largely consumed by the exigencies of indictment, pretrial motions and, as the record clearly enough reflects, efforts toward disposition of the case by plea. The undisputed explanation for not reaching trial during the ensuing fourteen-month period was the trial judge’s heavy involvement in other litigation. This is not to say that this hard fact completely answers appellant’s speedy-trial complaint, for while a “more neutral reason” like “overcrowded courts” is to be “weighted less heavily,” it is nonetheless to be counted “since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker v. Wingo, supra, at 531, 92 S.Ct. at 2192. It is to say that the delay was not “arbitrary, purposeful, oppressive or vexatious,” see Hinton v. United States, 137 U.S.App.D.C. 388, 393, 424 F.2d 876, 881 (1969); Smith v. United States, 118 U.S.App.D.C. 38, 41, 331 F.2d 784, 787 (en banc 1964), or “the result of . negligence or callous indifference to the requirement of speedy trial . . . ,” see Hedgepeth v. United States, 124 U.S.App.D.C. 291, 295, 364 F.2d 684, 688 (1966), and that it must be taken for the institutional delay that it really was. Moreover, the burden on the court was not the only apparent reason for not getting to trial earlier during the last fourteen-month period. Appellant voiced no speedy trial considerations until two days before March 19, 1971, the date on which trial commenced, when he moved to dismiss the indictment. It is impossible to say that, despite the attendant difficulties, appellant would not have obtained an earlier trial had he asked for it. In Barker, the Court took pains to “emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U.S. at 532, 92 S.Ct. at 2193. There is no ineaningful assertion of the right where, as here, the accused waits until the eve of trial to invoke it, and then only as a basis for getting rid of the prosecution. The conclusion that the accused was uninterested in a speedy trial seems as inevitable here as the Court found it to be in Barker. Id. at 534, 92 S.Ct. 2182. Lastly, the record falls short of indicating any substantial prejudice to appellant in consequence of the delayed trial. There is always, of course, a disquieting encroachment on personal liberty attendant upon any indictment— whether the accused is free on bail or not — -which can be dispelled only by trial and acquittal. Id. at 532-533, 92 S.Ct. 2182. But as Barker teaches, the impact of delayed trial is lessened considerably by pretrial release, and much more by a lack of prejudice to presentation of the defense. Id. at 530, 92 S.Ct. 2182. Our appellant remained enlarged on bail for 17 of the 25 months complained of and, as the trial judge found, no embarrassment to his defense resulted. His sole contention in the latter connection is that an alibi witness died prior to trial, and that claim is discounted by the circumstances. Appellant did not mention the alleged witness to his counsel until the day the motion to dismiss. was filed, and the overwhelming evidence against appellant belies any thought that the witness — if indeed there was one — could possibly have swayed the jury’s verdict. See Coleman v. United States, 142 U.S.App.D.C. 402, 408, 442 F.2d 150, 156 (1971). Nor does it appear that the sentence imposed upon appellant was in any real way connected with the delay of trial. Appellant points to an observation, made in the report evaluating his potential for benefit from a commitment as a youth offender, that he was “comparatively older than the population within the Youth Center.” That statement, in light of other reported considerations seriously militating against youth offender treatment, was hardly capable of influencing his sentence. We are entirely satisfied that the judgment must be Affirmed. . See e. g., Part II of our opinion in United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971), and discussion in United States v. Dunn, 148 U.S.App.D.C. 91, 101, 459 F.2d 1115, 1125 (1972) and cases cited. . District Judge Aubrey E. Robinson, Jr. at the motions hearing observed: “We cannot make mechanistic decisions and try cases ad seriatim in terms of the chronology of the date of indictment, because to do so would work far greater injustices not only to individual defendants but to the system than could be conceived. Priorities develop for various and sundry reasons, and they have to be considered on an ongoing basis.

f2d_475/html/0325-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

POTOMAC PASSENGERS ASSOCIATION, Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY and Baltimore & Ohio Railroad Company. NATIONAL ASSOCIATION OF RAILROAD PASSENGERS, Appellant, v. CENTRAL OF GEORGIA RAILWAY COMPANY, Southern Railway Company and National Railroad Passenger Corporation. Nos. 71-1321, 71-1546. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 8, 1972. Decided Jan. 5, 1973. Certiorari Granted May 14, 1973. See 93 S.Ct. 2273. Messrs. Pierre E. Dostert and Gordon P. MacDougall, Washington, D. C., for appellants. Mr. Charles A. Horsky, Washington, D. C., with whom Mr. William D. Iverson, Washington, D. C., was on the brief, for appellees Central of Georgia Ry. Co. and Southern Ry. Co. Mr. William O. Bittman, Washington, D. C., with whom Mr. Curtis E. von Kann, Washington, D. C., was on the brief, for appellee National R. Passenger Corporation. Mr. Robert O. Smith, Jr., Baltimore, Md., was on the brief for appellees Chesapeake & Ohio Ry. Co. and Baltimore & Ohio R. Co. Messrs. Francis M. Shea and Richard T. Conway, Washington, D. C., also entered appearances for appellees in No. 71-1321. Before BAZELON. Chief Judge, and WRIGHT and WILKEY, Circuit Judges. J. SKELLY WRIGHT, Circuit Judge: This consolidated appeal consists of two separate cases, each concerning interpretation of the recently enacted Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq. (1970) (hereinafter referred to as the Amtrak Act). These cases were initially consolidated because it appeared that they presented the same or closely related legal issues, namely (1) whether parties other than the Attorney General, employees and employee representatives have standing to sue the National Rail Passenger Service Corporation (hereinafter Amtrak) or individual railroads for violations of the Amtrak Act; (2) whether federal district courts have jurisdiction over suits brought by litigants other than the Attorney General, employees and employee representatives to enjoin Amtrak or individual railroads from violating the Amtrak Act; and (3) whether the Amtrak Act creates a private right of action in favor of parties injured by violations of the Act. It now appears, however, that the appeal in No. 71-1321 involves a question much different from those listed above, namely: Does a federal district court have jurisdiction to determine whether a specific train provides “intercity rail passenger service” or “commuter and other short-haul service” within the meaning of the Amtrak Act? If the train provides “intercity rail passenger service” it may properly be discontinued under the authority of the Amtrak Act without any review by the regulatory commissions of the states through which it passes or by the Interstate Commerce Commission. If it provides “commuter and other short-haul service,” on the other hand, its discontinuance is neither authorized nor prohibited by the Amtrak Act, but rather is subject to the pre-existing jurisdiction of state regulatory commissions or the ICC. To avoid any further confusion between the issues involved in these two cases, our opinion will treat each ease separately. No. 71-1546 This case requires us to decide whether injured and aggrieved parties have standing to seek injunctions against violations of the Amtrak Act, or whether Section 307 of the Act, 45 U.S. C. § 547, bars suits by all parties other than the Attorney General of the United States, employees and employee representatives. Since the case is here on an appeal from a dismissal for lack of standing to sue and the District Court never reached the merits, we may accept plaintiff’s-appellant’s version of the facts. Appellee Central of Georgia Railway Company (Central) filed a notice of discontinuance for its “Nancy Hanks” passenger train which operates between Savannah and Atlanta, Georgia, and for two other trains operating between Albany, Georgia and Birmingham, Alabama. Appellant National Association of Railroad Passengers, a national organization of railroad patrons, sought to enjoin the discontinuances on the ground that they violated Sections 404(a) and 802 of the Amtrak Act, 45 U.S.C. §§ 564(a) and 642. Section 802 provides that “no railroad may discontinue any intercity rail passenger service whatsoever other than in accordance with the provisions of this chapter * * Section 404(a) bars a railroad from discontinuing any of its intercity passenger trains prior to January 1, 1975, unless that railroad has entered into a contract with Amtrak pursuant to Section 401(a)(1) of the Act, 45 U.S.C. § 561(a)(1). The latter provision authorizes Amtrak to contract with a railroad “to relieve the railroad * * * of its entire responsibility for the provision of intercity rail passenger service.” Although Central has entered into a contract with appellee Amtrak to relieve Central of its entire responsibility for intercity rail passenger service, appellant contends that Central and Amtrak have not complied with Section 401 (a)(1) because Central is but a subsidiary of appellee Southern Railway Company (Southern) which has not entered into a contract with Amtrak. In appellant’s view, then, the Act requires that Amtrak either enter into a contract to relieve Southern of its entire responsibility for intercity rail passenger service or enter into no contract at all. After oral argument on appellant’s motion for a temporary restraining order, the District Court dismissed the action on the ground that appellant did not have standing to maintain this action under Section 307 of the Act. We reverse and remand. I The parties have suggested several characterizations of the issue presented. Appellant accepts the “standing” characterization employed by the District Court. Central and Southern suggest that this is incorrect and that the real issue is whether a private right of action exists to restrain an alleged violation of the Amtrak Act. Amtrak suggests that the issues are, first, whether the District Court has jurisdiction to entertain this action at the instance of this plaintiff and, second, whether the action of Amtrak and the railroads is reviewable at the behest of this plaintiff. The fine distinctions among the doctrines of standing, jurisdiction, reviewability, and causes of action often pose thorny problems for the law. Compare Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), with Barlow v. Collins, 397 U.S. 159, 167, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (Mr. Justice Brennan, concurring in the result and dissenting). Compare Bell v. Hood, 327 U.S. 678, 679, 66 S.Ct., 773, 90 L.Ed. 939 (1946) (majority opinion), with id. at 685, 66 S.Ct. 773 (Mr. Chief Justice Stone, dissenting). Fortunately, however, we need not resolve these problems here, for in this case analysis of all these doctrines leads to the same conclusion — allowing adjudication of the merits. Our opinion focuses on standing, but we will also demonstrate that analyzing the case under the doctrines of jurisdiction, review-ability, and private causes of action achieves an identical result. II At the outset, we reject the position that the doctrine of standing is wholly inapplicable to this case. It is argued that the standing doctrine has developed solely in the context of determining what persons or groups may challenge the action of a government official or agency, a matter not involved in this case since the Amtrak Act specifically provides that Amtrak is not an agency or instrumentality of the federal government. See 45 U.S.C. § 541. Most applications of the doctrine of standing, it is true, involve review of administrative agencies. See, e. g., Data Processing Service v. Camp, supra; Barlow v. Collins, supra; Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). However, the doctrine is by no means limited to such situations. The question of standing arises in determining who is a proper plaintiff to adjudicate the constitutionality of statutes and ordinances. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204-208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); City of Chicago v. Atchison, Topeka & Santa Fe R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958). More relevant to our own case, standing has been recognized as an issue in determining who is a proper plaintiff to assert that a corporation created by the Government is violating its statutory authority. See Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). A. The applicable standard. Recent Supreme Court cases have announced a three-part test to determine whether a plaintiff has standing to seek judicial review of administrative action. As set forth in Data Processing those tests are: (1) whether the plaintiff has alleged that he suffered injury in fact, economic or otherwise, 397 U.S. at 152, 90 S.Ct. 827; (2) whether the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question, 397 U.S. at 155-156, 90 S.Ct. 827; and (3) whether judicial review has been precluded by the legislature, 397 U.S. at 156, 90 S.Ct. 827. See also Barlow v. Collins, supra, 397 U.S. at 164-165, 90 S.Ct. 832. It appears from Data Processing, a case involving review of administrative action, that this tripartite test represents both a formulation of Article Ill’s “case” or “controversy” requirement and an interpretation of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 (a)(1) and 702 (1970). See Data Processing Service v. Camp, supra, 397 U.S. at 153, 156, 90 S.Ct. 827. See also Barlow v. Collins, supra, 397 U.S. at 169-170, 173-175, 90 S.Ct. 832 (Mr. Justice Brennan, concurring in the result and dissenting). The question arises, then, whether the same tripartite test should govern standing to sue a corporation that is neither an agency of the federal government nor subject to the APA. Public policy favors adopting a standing test as liberal as that which has arisen in the administrative law context to determine whether a given plaintiff can sue a congressionally created corporation to enjoin it from violating its enabling statute. A significant aspect of recent standing decisions is a recognition that judicial review is necessary to ensure the integrity of federal regulatory programs, an integrity that is violated as much when a corporation created by the Government violates its enabling act as when a Government agency violates the law. See Ballerina Pen Co. v. Kunzig, 140 U.S.App.D.C. 98, 102 n. 8, 433 F.2d 1204, 1208 n. 8 (1970), cert. dismissed, 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971). What we said there with respect to administrative agencies is also pertinent to judicial overview of the actions of Government-created corporations: “ * * * Logic tells us that Congress lays down the statutory framework within which the various agencies it establishes are to operate with very definite goals in mind — the agencies are designed to function according to the will of Congress; they are not given life, breadth and scope of their own to function as they see fit; rather, they must function as Congress intended them to function. * * X- » 140 U.S.App.D.C. at 101-102, 433 F.2d at 1207-1208. It is also important to note that, while the Amtrak Act states that Amtrak is not a Government agency, the corporation has several features making it, in the words of the Secretary of Transportation, “quasi-public.” For example, a majority of the corporation’s board of directors is appointed by the President. 45 U.S.C. § 543(a). The corporation received its initial financing from the United States Treasury, see 45 U.S.C. § 601, and continued financing is facilitated through Government guarantees on corporate obligations, see 45 U.S.C. § 602. Amtrak’s books and records are to be audited by the Comptroller General of the United States, see 45 U.S.C. § 644(2) (A), and the results of audits are to be made available to the Congress, see 45 U.S.C. § 644(2) (B). Because of Amtrak’s quasi-public character, and the consequential public interest in ensuring that its actions conform to its legislative mandate, we conclude that the liberal tripartite standing test developed by the Supreme Court in the administrative agency context should be used to determine whether appellant has standing to seek judicial review of actions by Amtrak allegedly in violation of its enabling act. B. Application of the Data Processing standing test to this case. The first two tests are easily satisfied. With respect to the injury in fact requirement, the National Association . of Railroad Passengers alleged in its complaint that it has a number of members in the affected area of the State of Georgia who would suffer from any discontinuance of the Nancy Hanks. Compare Sierra Club v. Morton, supra. The interest sought to be protected by the Association is clearly within the zone of interests to be protected by the Amtrak Act. That railroad passengers Were the intended beneficiaries of the Act is obvious from the congressional findings and declaration of purpose in Section 101 of the Act, 45 U.S.C. § 501: “The Congress finds that modern, efficient, intercity railroad passenger service is a necessary part of a balanced transportation system; that the public convenience and necessity require the continuance and improvement of such service to provide fast and comfortable transportation between crowded urban areas and in other areas of the country; * * * that the traveler in America should to the maximum extent feasible have freedom to choose the mode of travel most convenient to his needs *X* -X- -X* -X- -X- -X- » The only complicated issue in this case is the third part of the Data Processing test, namely, whether Congress intended to preclude standing for this plaintiff. It is important to emphasize that we do not begin our analysis of this issue from a neutral posture, but rather from a strong presumption in favor of judicial review. Where there is no express denial of judicial review, the issue is whether “nonreviewability can fairly be inferred,” Barlow v. Collins, supra, 397 U.S. at 166, 90 S.Ct. 832, 837, and, as Mr. Justice Douglas emphasized, preclusion of judicial review “is not lightly to be inferred.” Ibid. Judicial review “is the rule, and nonreviewability an exception which must be demonstrated.” Ibid. It is “ ‘only upon a showing of “clear and convincing evidence” of a contrary legislative intent’ that the courts should restrict access to judicial review.” Id. at 167, 90 S.Ct. at 838, quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). It is with this strong presumption in mind that we now turn to analyze whether we can infer congressional intent to preclude judicial review from either (1) the language of the Act itself, (2) the legislative history, or (3) the Act’s purpose. 1. Implications to be drawn from the statute itself. Section 307 of the Amtrak Act, 45 U.S.C. § 547, provides: “(a) If the Corporation or any railroad engages in or adheres to any action, practice, or policy inconsistent with the policies and purposes of this chapter, obstructs or interferes with any activities authorized by this chapter, refuses, fails, or neglects to discharge its duties and responsibilities under this chapter, or threatens any such violation, obstruction, interference, refusal, failure, or neglect, the district court of the United States for any district in which the Corporation or other person resides or may be found shall have jurisdiction, except as otherwise prohibited by law, upon petition of the Attorney General of the United States or, in a case involving a labor agreement, upon petition of any employee affected thereby, including duly authorized employee representatives, to grant such equitable relief as may be necessary or appropriate to prevent or terminate any violation, conduct, or threat. “(b) Nothing contained in this section shall be construed as relieving any person of any punishment, liability, or sanction which may be imposed otherwise than under this chapter.” Appellees contend that under the well established maxim of statutory construction expressio unius est exclusio alterius the statute’s express provision of standing for the Attorney General, employees and employee representatives must be read as an implied exclusion of standing for other parties. We think too much is made of the maxim in this case. Whatever superficial appeal the maxim may have, courts have often noted that it must be applied with a certain degree of caution. It is only an aid to statutory construction, not a rigid rule of law. Neuberger v. C.I.R., 311 U.S. 83, 88, 61 S.Ct. 97, 85 L.Ed. 58 (1940) ; Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 1 Cir., 312 F.2d 214, 220 (1963), affirmed, 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964); Renken v. Harvey Aluminum (Incorporated), D.Ore., 226 F.Supp. 169, 175 (1963). The Supreme Court has recognized that rules of statutory construction such as this “come down to us from sources that were hostile toward the legislative process itself and thought it generally wise to restrict the operation of an act to its narrowest permissible compass. However well these rules may serve at times to aid in deciphering legislative intent, they long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will' interpret the text so far as the meaning of the words fairly permits so as to carry out in particular eases the generally expressed legislative policy.” S.E.C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943) (footnotes omitted). See also Springer v. Philippine Islands, 277 U.S. 189, 207, 48 S.Ct. 480, 72 L.Ed. 845 (1928); F.T.C. v. Standard Motor Products, Inc., 2 Cir., 371 F.2d 613, 617-618 (1967); Hunt Foods & Industries, Inc. v. F.T.C., 9 Cir., 286 F.2d 803, 807 (1960), cert. denied, 365 U.S. 877, 81 S.Ct. 1027, 6 L.Ed.2d 190 (1961); Matheson v. Armbrust, 9 Cir., 284 F.2d 670, 674 (1960), cert. denied, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961). Another court has noted: “ * * * The doctrine expressio unius est exclusio alterius is at best an unreliable basis for ascertaining intention. Its premise is that the draftsman has made a comprehensive review of all possible related provisions, from which the inference is to be drawn that his silence indicates a discriminating judgment of rejection. Such a conclusion usually is unrealistic, for it assumes too much foresight in the draftsman. * * * ” Durnin v. Allentown Federal Savings & Loan Assn., E.D.Pa., 218 F.Supp. 716, 719 (1963). See also Note, Implying Civil Remedies From Federal Regulatory Statutes, 77 Harv.L.Rev. 285, 290-291 (1963). It seems reasonable to us that the express provision of standing for the Attorney General was not an attempt to bar other injured and aggrieved parties from bringing suit, but rather an attempt to authorize the Attorney General to bring suit to enforce what otherwise might be viewed as private rights. See Wood v. National Railroad Passenger Corp., D.Conn., 341 F.Supp. 908, 912 (1972). Cf. Allen v. State Board of Elections, 393 U.S. 544, 555 n. 18, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). The very brief explanation of Section 307 in the section-by-section analysis of the House Report comports with this view. “Section 307 authorizes the Attorney General of the United States to sue the corporation or any railroad to prevent acts of omission or commission in violation of this legislation.” H.R.Rep.No. 91-1580, 91st Cong., 2d Sess., at 9 (1970), U.S. Code Cong. & Admin.News, p. 4743. That Congress intended to authorize suits by the Attorney General, and not to bar suits by other parties, is also evident in the scope of authority granted to the Attorney General. He is not simply given power to seek injunctions against violations of the Act, but is authorized to bring suit against Amtrak or any railroad for any actions that obstruct, interfere with, or are inconsistent with the policies of the Act. He is not only authorized to remedy ongoing violations, but any threatened violation, interference, refusal, failure or neglect. By singling out the Attorney General, Congress did not attempt to provide the sole means for litigating violations of the Act, but merely emphasized, even to the point of redundancy, that the Attorney General had broad powers to seek equitable relief under the Act. It was quite understandable for Congress to want to make this clear. The proposal to set up a quasi-public corporation to operate the railroads was, in the words of Senator Prouty, the proposal’s draftsman, “a departure from the traditional ways of assisting vital segments of our national transportation system.” It was, in the words of other members of Congress, “novel,” “ingenious,” “imaginative,” and “innovative.” Given the novelty of the proposal, Congress undoubtedly felt that it could neither foresee nor spell out all the kinds of actions by Amtrak or the railroads that might be inconsistent with the Act’s policies. Congress therefore want to make it clear that the judiciary, at the behest of the Attorney General, had power to read between the lines of the statute and to enjoin actions or threatened actions which, though not necessarily violations of any express provision of the Act, interfered with the Act’s purpose of revitalizing intercity rail passenger service. There is no reason to read into this congressional emphasis an implied purpose to bar other parties from litigating ongoing violations of express provisions of the Amtrak Act. We might also note that were we to adopt appellees’ interpretation of the statute Amtrak and the railroads would be unable to sue each other for violation of their mutual obligations under the Act. For example, should a railroad ignore its obligation to compensate Amtrak under Section 401(a)(2) of the Act, 45 U.S.C. § 561(a)(2), Amtrak would be unable to go into court and sue for the money owed since such a suit would be for a failure to discharge a responsibility under the Act and thus within the scope of Section 307. It is hard to believe that, having given Amtrak a broad mandate to revitalize the nation’s intercity rail service, the Congress would have hampered it in this fashion. Amtrak is by statute a for-profit corporation, see 45 U.S.C. § 541, and we presume Congress intended it to have those powers vital to a profit-making enterprise, including the power to bring suit against those with whom it contracts. We hesitate to interpret Section 307 in a manner which would deny it that power. Turning to the reference in Section 307 to suits by employees and their representatives, appellees argue that to allow any injured and aggrieved party to sue for violations of the Act would turn this provision into mere surplusage and that such an interpretation should be avoided. See, e. g., McDonald v. Thompson, 305 U.S. 263, 266, 59 S.Ct. 176, 83 L.Ed. 164 (1938); D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932). We reject this reasoning on two grounds. First, like the Attorney General, employees and . their representatives are not only empowered to litigate actual violations of the Act; they can bring suit against any actual or threatened “action, practice, or policy inconsistent with the policies and purposes” of the Act. To permit other parties to seek injunctions against actual violations of express provisions of the Act does not turn this language into surplusage, for labor’s authority to sue is much broader. Second, it is reasonable to assume that Congress wanted to take special precautions to make it clear’ that employees and their representatives had standing under the Act. Because the primary purpose of the Act was to improve intercity rail passenger service for the benefit of passengers, Congress might well have feared that under the Data Processing standing test employees and their representatives would not have been considered members of the class intended to be protected by the legislation, at least not in all cases in which their interests were affected. See Data Processing Service v. Camp, supra, 397 U.S. at 154-156, 90 S.Ct. 827; Barlow v. Collins, supra, 397 U.S. at 164-165, 90 S.Ct. 832. That Congress merely intended to emphasize the rights of labor is evident from other provisions of the Act. For example, Section 405(a), 45 U.S.C. § 565(a), requires railroads to make “fair and equitable arrangements to protect the interests of employees affected by discontinuances of intercity rail passenger service * * * ” and other subsections define the substantive content of such arrangements. Despite the clarity of this requirement, Section 401(a) of the Act, 45 U.S.C. § 561(a), again emphasizes that a valid contract under the Act must include protective arrangements for employees. We are therefore confident that, by singling out employees and their representatives in Section 307, Congress was not attempting to prevent other parties from bringing suit, but was simply making it abundantly clear that labor’s interests would be protected as well. Since we can explain the express provision of standing in the Attorney General, employees and employee representatives on grounds unrelated to any congressional intent to preclude other injured and aggrieved parties from bringing suit, we cannot reasonably infer from the statutory language an intent to bar other parties from bringing suit, especially in light of the strong presumption in favor of review with which we began our analysis. 2. Implications to be drawn from the legislative history. As originally drafted, Section 307 provided jurisdiction “upon petition of the Attorney General of the United States or, in a ease involving a labor agreement, upon petition of any individual affected thereby * * S. 3706, 91st Cong., 2d Sess., § 307(a) (May 7, 1970), reprinted in Supplemental Hearings, supra note 3, at 44. The National Legislative Director of the United Transportation Union presented the Subcommittee with an amendment that would have deleted the phrase “in a case involving a labor agreement, upon petition of any individual affected thereby” and would have substituted the phrase “of any person adversely affected or aggrieved thereby, including the representatives of the employees of any railroad or of the Corporation.” He claimed that the amendment was designed “[t]o provide a legal remedy to any aggrieved person including the duly authorized representatives of the employees of the railroads and of the Corporation for any violations of the Act by the Corporation or by any railroad.” Following this testimony, the General Counsel of the Railway Labor Executives Association appeared before the Subcommittee and introduced a similar amendment. He stated: “The third substantive amendment we propose would modify the language of section 307(a) on pages 14 and 15 of the bill so as to provide that any aggrieved party, including employee representatives, could institute legal proceedings for violations of the law. “As the bill now reads, only the Attorney General, except in cases involving a labor agreement, could bring such actions * * Later, Secretary of Transportation Volpe offered some comments on the proposed amendments. His letter to the Committee stated: “Labor proposes that subsection (a) of section 307 be amended to make sanctions available not only against the Corporation but against all railroads. It also proposes that any person adversely affected or grieved [sic], including employee representatives, be permitted to seek relief. “Sanctions are normally imposed by the Government. Consequently, I would be opposed to permitting ‘any person’ to seek enforcement of section 307. I would have no objection, however, if the section were revised to permit employee representatives, as well as employees adversely affected, to seek equitable relief.” As is evident from the language of Section 307 as enacted, the Committee never adopted the proposed amendment, Rather it changed the phrase “in a case involving a labor agreement, upon petition of any individual aggrieved thereby” to read “in a case involving a labor agreement, upon petition of any employee affected thereby, including duly authorized employee representatives.” Appellees suggest that the Committee’s refusal to adopt the proposed amendment indicates Congress’ intent not to allow any person aggrieved to have standing to sue. While the argument has a superficial appeal, we are constrained to reject its implications. Interpretation of statutes cannot safely rest upon changes made in congressional committee without explanation. Trailmobile Co. v. Whirls, 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328 (1947). Courts should avoid delving into “legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 615, 89 L.Ed. 921 (1945). Especially is this true when a court is asked to draw inferences from congressional failure to adopt proposed amendments to legislation. “Logically, several equally tenable inferences could be drawn from the failure of the Congress to adopt an amendment * including the inference that the existing legislation already incorporated the offered change.” United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1359, 8 L.Ed.2d 590 (1962). In the instant case we are unable to draw inferences from the legislative history with any confidence. The proposed amendment was never debated or criticized by members of Congress so that failure to adopt the amendment might reasonably be construed to be congressional rejection of that which the amendment provided for. Compare National Automatic Laundry and Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 291, 443 F.2d 689, 706 (1971). The Committee might well have believed, notwithstanding the remarks of railway labor representatives, that Section 307 as originally drafted did not bar suits by all injured and aggrieved parties. Indeed, the only mention of the scope of Section 307 during debate on the floor of Congress suggests that Congress interpreted the section to permit such suits. When the Senate considered the Amtrak Act, it had before it both the proposal by Senators Hartke and Prouty (the one eventually enacted into law) and a competing proposal put forth by Senators Pell and Kennedy. In support of his proposal, Senator Kennedy introduced into the Congressional Record a chart summarizing the basic differences between the two proposals. Looking at the item on the chart called “Sanctions,” we find this simple notation to describe both proposals: “In Federal District Court by affected parties for violations of Act.” 116 Cong.Rec. (Part 11) 14275 (1970). At least one member of Congress, therefore, thought the Act, as reported from committee, did allow suits by “affected parties.” And there is no indication that any member of Congress thought otherwise. Nor do we find it significant that labor representatives testifying at the committee hearings said that the Act, as originally drafted, barred all parties other than the Attorney General and employees from bringing suit. The individual opinions of witnesses at hearings are of dubious value in interpretation of legislation. McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493, 51 S.Ct. 510, 75 L.Ed. 1183 (1931); Pacific Ins. Co. v. United States, 9 Cir., 188 F.2d 571, 572, cert. dismissed, 342 U.S. 857, 72 S.Ct. 85, 96 L.Ed. 645 (1951); United States v. Kung Chen Fur Corp., 188 F.2d 577, 584, 38 CCPA 107 (1951); Railroad Retirement Board v. Duquesne Warehouse Co., 80 U.S.App.D.C. 119, 122, 149 F.2d 507, 510 (1945), affirmed, 326 U.S. 446, 66 S.Ct. 238, 90 L.Ed. 192 (1946). Finally, the Act itself indicates that where Congress intended to preclude judicial review it knew very well how to make its wishes clear. Section 201, 45 U.S.C. § 521, provides that the Secretary of Transportation is to designate a “basic system” of points between which intercity passenger trains shall be operated, and Section 401(b) of the Act, 45 U. S.C. § 561(b), requires Amtrak to operate trains within the basic system unless such trains are being operated by carriers not contracting with Amtrak or by regional transportation agencies. Section 202 of the Act, 45 U.S.C. § 522, expressly provides with respect to review of the Secretary’s determination of the basic system: “The basic system as designated by the Secretary shall become effective for the purposes of this chapter upon the date that the final report of the Secretary is submitted to Congress and shall not be reviewable in any court.” (Emphasis added.) Congress could just as easily have made clear its desire to limit the right to seek review to the Attorney General and labor by placing the word “only” before the phrase “upon petition of the Attorney General * * * ” in the statute. Compare Wood v. National Railroad Passenger Corp., supra, 341 F.Supp. at 911, with Congress of Railway Unions v. Hodgson, D.D.C., 326 F.Supp. 68, 78 (1971). That it failed to do so indicates to us that it had no intent to bar other parties from seeking judicial review. 3. Implications to be drawn from the purposes of the Amtrak Act. A command of a statute to preclude judicial review may sometimes be inferred from its purpose. Barlow v. Collins, supra, 397 U.S. at 167, 90 S.Ct. 832. See also Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). It is argued that to allow all injured and aggrieved parties to sue for violations of the Amtrak Act will subject the railroads and Amtrak to crippling litigation, involving massive expenses and distractions, which may well prevent them from devoting adequate time, money and attention to the task for which Congress brought Amtrak into being, namely saving the country’s intercity rail passenger service. Although such arguments as these normally carry little weight, they merit some discussion here. The legislative history makes it quite clear that one of Congress’ purposes in enacting the Amtrak Act was to enable railroads to discontinue uneconomical trains that were draining their resources. The House Report recognized: “In order to achieve economic viability in a basic rail passenger system, the Secretary [of Transportation] stated that there will have to be a ‘paring of uneconomic routes’. # * -x “In other words, a rational reduction of present service will be required to save any passenger service, -x- * * >> The legislative history also indicates that one of the faults of the system prior to passage of the Amtrak Act was that uneconomical trains could not be discontinued until after lengthy administrative hearings before the ICC and appeals before three-judge District Courts from ICC rulings. The Amtrak Act dealt with this problem by providing that railroads entering into a contract could immediately terminate all of their intercity rail passenger service. See 45 U.S.C. § 561(a)(1). But we are unable to conclude from this legislative purpose that Congress intended to deny standing to injured and aggrieved passengers. It must not be forgotten that the chief purpose of the Amtrak Act was to save the passenger train from extinction. “The basic purpose of this bill is to prevent the complete abandonment of intercity rail passenger service * * H.R.Rep.No.91-1580, supra, at 1, U.S. Code Cong. & Admin.News, p. 4735. Congress intended to ensure survival of the passenger train by enacting an elaborate regulatory system which would encourage railroads to turn over all their intercity passenger service to Amtrak. It was hoped that Amtrak would then “revitalize rail passenger service in the expectation that the rendering of such service along certain corridors can be made a profitable commercial undertaking, particularly with new equipment or advanced vehicles.” Id. at 1-2, U.S.Code Cong. & Admin.News, p. 4735. Achievement of Congress’ objectives plainly requires compliance with the provisions of the Amtrak Act, and judicial review of Amtrak’s actions is necessary if compliance is to be assured. Allowing parties other than the Attorney General and labor to contest violations of the Act is not only fully consistent with, but is also necessary to achieve, this objective. As the Supreme Court noted on another occasion when it was confronted with a statute that provided for review at the behest of the Attorney-General without expressly providing for or barring review by other parties: “The achievement of the Act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. * * * The Attorney General has a limited staff and often might be unable to uncover quickly [violations of the Act]. * * * ” The guarantees of the legislation “might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement '* * Allen v. State Board of Elections, supra, 393 U.S. at 556-557, 89 S.Ct. at 827. (Footnotes omitted.) The Attorney General’s action in the case which is a companion on appeal to the instant case supports the Court’s observations. After the District Court’s decision to deny review for lack of standing, a member of Congress sent a letter to the Attorney General asking that he enter the litigation to remove procedural obstacles to adjudication on the merits. In refusing to do so, the Attorney General expressed the belief that he had no power under the Amtrak Act “to sue for a construction of the Act or to enjoin a purely technical violation.” He maintained that his only authority was to bring suits “to protect and enhance the legislative purpose.” Indeed, appellees in this case have been unable to refer us to a single instance in which the Attorney General has either instigated or participated in litigation under the Amtrak Act, except for a few cases brought by other parties in which he intervened solely to support the defense that parties other than labor and the Attorney General did not have standing to sue. Cf. Allen v. State Board of Elections, supra, 393 U.S. at 556 n. 22, 89 S.Ct. 817. To rely on the Attorney General as the sole source of litigation under the Act, as he would be in cases where labor’s interests were not adversely affected, is thus to rest enforcement of the entire regulatory scheme on the Attorney General’s virtually unreviewable distinction between a mere “technical” violation and one that seriously interferes with the legislative purpose. Absent some express and definite indication that it intended such a result, we find it difficult to believe that Congress would have hung a program as important as this by such a thin thread. We think such a result is neither compelled by the language of the statute, reasonably to be implied from the legislative history, nor conducive to achievement of the Act’s laudable purpose of revitalizing the nation’s intercity rail passenger trains. We therefore hold that parties other than the Attorney General, employees and employee representatives who are injured and aggrieved by actions of Amtrak or railroads in violation of the Amtrak Act have standing under that Act to seek injunctions against such actions in federal court. Ill Amtrak suggests that the real issue in this case is not standing, but rather the jurisdiction of the District Court. Focusing on the jurisdictional nature of Section 307, Amtrak argues that by expressly giving the District Court jurisdiction in cases brought by the Attorney General, employees or their representatives Congress intended to deprive the District Court of jurisdiction over suits brought by all other parties. But even were we to accept Amtrak’s characterization of the issue presented, we would be unable to agree with its conclusion. Jurisdiction of the District Court need not rest on Section 307. Appellant’s complaint alleged jurisdiction on the basis of 28 U.S.C. § 1337 (1970) which provides: “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.” Appellees’ answer to Section 1337 jurisdiction is the Supreme Court’s decision in Switchmen’s Union v. National Mediation Board, supra. In that case the Supreme Court held that the general grant of jurisdiction in Section 1337 could not be invoked to sustain jurisdiction to review decisions of the National Mediation Board certifying a representative for collective bargaining, even though such a ease admittedly seemed to meet the requirements of Section 1337. Switchmen’s Union is cited in the Court’s opinion in Barlow v. Collins, supra, as authority for the proposition that “[a] clear command of the statute will preclude [judicial] review; and such a command of the statute may be inferred from its purpose.” 397 U.S. at 167, 90 S.Ct. at 838. We think Switchmen’s Union is obviously distinguishable from our case on several significant grounds. First, the Court admitted in that case that “[i]f the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.” 320 U.S. at 300, 64 S.Ct. at 97. It found that the right of collective bargaining involved in that case was being protected without judicial review since the Mediation Board was determining the appropriate craft or class in which an election should be held. In other words, in that case the Mediation Board was already acting as a neutral body resolving disputes between labor and management or between competing labor groups. In sharp contrast, in our case no neutral administrative body had resolved a dispute between the antagonists — Amtrak and the railroads on the one hand and railroad passengers on the other. Amtrak has simply made a determination about the meaning of its own enabling statute. In this situation we are unable to conclude, as the Supreme Court concluded in Switchmen’s Union, that there is considerable question as to whether judicial review would strengthen the rights protected by the legislation. Id. at 301, 64 S.Ct. 95. It is also important to note that the finding of a command of the statute to preclude judicial review in Switchmen’s Union was based on the entire history of Congress’ treatment of railway labor problems. As the Court emphasized, Congress intentionally left large areas of the field “in the realm of conciliation, mediation, and arbitration.” Id. at 302, 64 S.Ct. at 98. To create a new judicially enforceable right in this kind of situation would have been contrary to this long history. In our case, on the other hand, the history of railroad discontinuances indicates that until now administrative and judicial remedies were available at the behest of passengers. As is discussed more fully in our opinion in No. 71-1321, infra, prior to passage of the Amtrak Act railroads had to seek approval of their train discontinuances before either the state regulatory commissions or the ICC. Passenger groups and other affected parties were allowed to intervene and argue their cases in these forums. We cannot help but believe that if Congress had wanted to take away these rights it would have done so in a more explicit fashion. Thus for the same reasons that we found no congressional intent in Section 307 to overcome the strong presumption of standing in favor of persons intended to be protected by legislation, we now find no congressional intent to overcome the general jurisdictional grant in Section 1337. Appellees’ final challenge to Section 1337 jurisdiction is to note that Section 1337 merely permits jurisdiction; it does not create a cause of action. See Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1951). The question then becomes, can a private right of action be implied under the Amtrack Act? We think there is ample precedent for implying such a private cause of action. “[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” Bell v. Hood, supra, 327 U.S. at 684, 66 S.Ct. at 777. When Congress seeks to protect a group such as railroad passengers, we may reasonably imply, absent express and definite indications to the contrary, that Congress intended this group to have judicial relief to achieve the protection Congress intended. See J. I. Case Co. v. Borak, 377 U.S. 426, 431-432, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). It is argued that the principle should not apply because railroad passengers are merely indirect beneficiaries of the Amtrak Act. We-most heartily disagree. As indicated earlier, the congressional statement of purpose makes clear that the main function of the Amtrak Act was to preserve and improve train service. The object of the legislation was not just trains, but the people who ride them. The private civil action, involving injured individuals acting as private Attorneys General, is becoming an accepted method of policy enforcement. See Gomez v. Florida State Employment Service, 5 Cir., 417 F.2d 569 (1969). See also Note, Implying Civil Remedies From Federal Regulatory Statutes, supra. Not only is it an accepted method, but it is one that the courts have an interest in encouraging. The judicial process works best when those with “a direct stake in the outcome” participate. Sierra Club v. Morton, supra, 405 U.S. at 740, 92 S.Ct. at 1369. It is important that cases be brought by those with “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues * * Baker v. Carr, supra, 369 U.S. at 204, 82 S.Ct. at 703. Courts have supported these policies by recognizing private rights of action in a wide variety of situations and refusing to recognize those actions only in those cases where such was the express intent of Congress, see, e. g., Powell v. Washington Post Co., 105 U.S.App.D.C. 374, 267 F.2d 651, cert. denied, 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544 (1959), or where private actions are inconsistent with other important policies such as exhaustion of administrative remedies, see, e. g., Montana-Dakota Utilities Co. v. Northwestern Public Service Co., supra, B. F. Goodrich Co. v. Northwest Industries, Inc., 3 Cir., 424 F.2d 1349, cert. denied, 400 U.S. 822, 91 S.Ct. 41, 27 L.Ed.2d 50 (1970). Neither of these factors is present in the case of the Amtrak Act. We therefore conclude that a complaint alleging a violation of the Amtrak Act states a cause of action arising under an Act of Congress regulating commerce and thus may be litigated in federal district court under Section 1337. Reversed and remanded. No. 72-1321 On April 1, 1971, appellee Baltimore & Ohio Railroad Company (B & O) filed a notice with the ICC stating that it would discontinue six of its trains effective May 1, 1971. Four of the trains operate between the District of Columbia and Cumberland, Maryland. The other two operate between the District and Baltimore. The notice was filed pursuant to Section 401(a)(1) of the Amtrak Act, 45 U.S.C. § 561(a)(1). That section provides -that a railroad which has entered into a contract with Amtrak “shall be relieved of all its responsibilities as a common carrier of passengers by rail in intercity rail passenger service * * * ” provided that the railroad give notice of the discontinuance. Appellant Potomac Passengers Association, a group of rail commuters in the Washington, D.C. area, brought this action to obtain a declaration that the trains provided “commuter” rather than “intercity” service and are thus exempt from discontinuance under the Amtrak Act. In addition, appellant sought an injunction against the discontinuances on the ground that they violated the Amtrak Act. The District Court, accepting without comment appellant’s characterization of the lawsuit as one for a violation of the Amtrak Act, held that appellant did not have standing to sue under Section 307 of the Act and dismissed the complaint. See Congress of Railway Unions v. Hodgson, supra, 326 F.Supp. at 79-80. Were we to accept this characterization of the lawsuit, the case would present the same issue as that in No. 72-1546, supra, and we would reverse and remand for a hearing on the merits for the same reasons as control that case. It now appears, however, that this characterization is improper. While this lawsuit admittedly seeks a judicial interpretation of a provision of the Amtrak Act, it cannot properly be characterized as a suit for a violation of the Amtrak Act, and it is therefore not controlled by the standing requirement of Section 307. Instead this suit, properly understood, seeks a declaratory judgment that the trains discontinued by B & 0 provide “commuter” service and are therefore outside the coverage of the Amtrak Act that is, that their discontinuance is neither authorized nor barred by the Act but is subject to the pre-existing jurisdiction of state regulatory agencies and the ICC. We hold that the District Court has jurisdiction to hear the merits of this declaratory judgment action and therefore reverse and remand. To understand the posture of this case, it is helpful to summarize briefly the history of the law governing passenger train discontinuances. Prior to 1958 discontinuances of all passenger trains, without distinction as to whether they provided intercity or commuter service, required the approval of the appropriate regulatory agency in each of the states in which the train operated. See United States v. City of Chicago, 400 U.S. 8, 11 n. 3, 91 S.Ct. 18, 27 L.Ed.2d 9 (1970). This procedure had many faults which Congress attempted to cure by enacting Section 13a of the Interstate Commerce Act, 49 U.S.C. § 13a. This section gave the ICC the power to approve train discontinuances, again without distinction as to the kind of service — intercity or commuter — provided. The ICC’s jurisdiction was not exclusive, however. If a railroad so desired, it could continue to seek authorization for a discontinuance from the appropriate state regulatory agencies. At its option, or after the state commission refused to approve the discontinuance, a railroad seeking to discontinue an interstate train could bypass the state regulatory agencies by filing a notice of proposed discontinuance with the ICC. Unless ordered by the Commission to continue the service in question, the railroad could, 30 days after filing its notice, discontinue the service notwithstanding the laws or constitution of any state or the decision or order of, or pendency of any proceeding before, any court or state authority to the contrary. That is, the jurisdiction of the state agencies was exclusive until a notice of discontinuance was filed with the ICC. Once such a notice was filed, the ICC had exclusive jurisdiction. The Amtrak Act in no way affected this procedure as it applies to passenger trains providing commuter service. The Act applies solely to “intercity rail passenger service,” defined in the Act as “all rail passenger service other than (A) commuter and other short-haul service in metropolitan and suburban areas, usually characterized by reduced fare, multiple-ride and commutation tickets, and by morning and evening peak period operations * * 45 U.S.C. § 502(5). Without going into the more complicated aspects of the Act, it basically permits railroads that have signed contracts with Amtrak to discontinue their intercity rail passenger service, and it bars railroads that have not signed contracts with Amtrak from discontinuing such service prior to 1975. All references in the Act are to intercity rail passenger service; the Act neither authorizes nor bars discontinuance of trains providing commuter and other short-haul service. It simply has no effect on such trains. This is evident not only from the language of the Act but also from the legislative history. Therefore, a railroad desiring to discontinue a train providing commuter and other short-haul service must seek approval from either the regulatory agencies of the states through which the train passes or from the ICC, just as it did prior to passage of the Amtrak Act. B & O has not sought such approval in this instance because it believes that the trains it discontinued provide intercity rail passenger service, not commuter and other short-haul service. It therefore believes that the discontinuances were authorized under the Amtrak Act. Potomac Passengers Association has requested both a declaration that these trains provide “commuter and other short-haul service” and an injunction against the discontinuances. The issue, then, is whether the District Court has jurisdiction and power to grant either remedy. At the outset, it is evident that Section 307 of the Amtrak Act does not affect the result. That section, by its own terms, applies only to suits seeking equitable relief necessary to prevent or terminate (1) violations of the Act, (2) conduct that is inconsistent with the policies and purposes of the Act or obstructs or interferes with activities authorized by the Act, (3) failure to exercise responsibilities imposed by the Act, and (4) threats of such actions. Discontinuance of a commuter train, however, is not a violation of the Act, is not inconsistent with the policies of the Act, and does not interfere with activities authorized by the Act. The Act has nothing to do with commuter trains. If the trains at issue provide intercity rail passenger service, as B & 0 contends, there is no question but that their discontinuance is lawful under the Act. If the trains provide commuter and other short-haul service, as appellant alleges, there is no question but that their discontinuance is unlawful — not under the Amtrak Act, but under the laws of the states through which they pass, since approval has admittedly not been sought from either the state regulatory agencies or the ICC. Section 307, therefore, has nothing to do with this case, as is evident from subsection (b): “Nothing contained in this section shall be construed as relieving any person of any punishment, liability, or sanction which may be imposed otherwise than under this chapter.” The foregoing discussion also indicates that the District Court has no power to enjoin discontinuance of these trains. If they provide intercity rail passenger service, their discontinuance is coneededly lawful. If they provide commuter service, since no notice of discontinuance has yet invoked the jurisdiction of the ICC, their discontinuance is a violation of state, not federal, law. The District Court has no power to issue an injunction enforcing state law in this instance, for to do so would usurp the primary jurisdiction of the state regulatory agencies and would circumvent the procedure established by the state to enforce its own laws. Should B & O seek approval of the discontinuances from the ICC, an injunction would be inconsistent with the ICC’s primary jurisdiction. It is equally clear, however, that the District Court has jurisdiction to render a declaratory judgment as to whether these trains provide intercity rail passenger service or commuter and other short-haul service within the meaning of the statute. That is, the court may decide whether discontinuance of these trains is still subject to the jurisdiction of the state regulatory agencies and the ICC or whether they are exempted from such jurisdiction by the Amtrak Act. The sole issue in this case is interpretation of a federal law regulating the railroads, and the case is therefore one meeting the jurisdictional requirements of 28 U.S.C. § 1337 which grants jurisdiction of civil actions arising under any Act of Congress regulating commerce. The power to construe the Amtrak Act and declare the nature of these trains is subsumed within the power granted by the Declaratory Judgment Act, 28 U.S.C. § 2201 (1970). We therefore reverse and remand the case to the District Court with instructions to adjudicate the merits of the controversy and issue appropriate declaratory relief. So ordered. . The Act requires that railroads discontinuing trains give notice in accordance with the notice procedures in § 13a(1) of the Interstate Commerce Act, 49 U.S.C. g 13a (1) (1970),. See 45 U.S.C. g 561(a)(1) (1970). Since the purpose of the Act is to allow, discontinuances of intercity rail passenger service without approval of either the ICC or state regulatory agencies, this notice does not invoke the jurisdiction of the ICC; it merely serves to give passengers advance warning of the discontinuance. See Ex Parte Order No. 217, 36 Fed.Reg. 5219, 5220 (March 18, 1971); 49 C.F.R. g 1122.9 (Oct. 1, 1972). . The Supreme Court’s most recent cryptic pronouncement on standing seems to indicate that the standing test may be based solely on the APA. See Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See also note 10 infra. . Supplemental Hearings on H.R. 17849 & S. 3706 Before Subcommittee on Transportation & Aeronautics, House Committee on Interstate & Foreign Commerce, 91st Cong., 2(1 Sess., at 67-68 (1970) (hereinafter cited as Supplemental Hearings). . S.Rep.No.91-765, 91st Cong., 2d Sess., at 77 (1970). . 116 Cong.Rec. (Part 27) 36597, 36598, 36895 (1970). . Supplemental Hearings, supra note 3, at 122. . IMd. . Id. at 134. . Id. at 85. . It is also conceivable that the Committee rejected labor’s proposed amendment because it may have constituted an unconstitutional expansion of federal jurisdiction. As quoted in text, the amendment would have permitted any person “adversely affected or aggrieved” to bring suit. (Emphasis added.) Since the provision was worded in the alternative, it may reasonably have been read to allow persons who are aggrieved but not injured to bring suit. The Supreme Court had indicated, prior to passage of the Amtrak Act, that the “case” or “controversy” requirement of Article III required that the plaintiff himself be injured in fact. See, e. g., Data Processing Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed. 2d 184 (1970). There was substantial scholarly debate as to whether the Court's standing tests were in fact constitutionally required. See, e. g., Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 Yale L.J. 816 (1969). If injury in fact was required by Article Ill’s case or controversy requirement, then settled principles of law, dating back to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), indicated that Congress had no power to expand the jurisdiction of federal courts beyond the scope of Article III to cases in which the plaintiff was not injured in fact. Congress might well have believed, therefore, that the proposed amendment was unconstitutional. It was not until after enactment of the Amtrak Act that the Supreme Court, in a footnote seemingly inconsistent with recent pronouncements such as Data Processing, said that “where a dispute is otherwise justiciable” the question of standing “is one within the power of Congress to determine.” Sierra Club v. Morton, supra note 2, 405 U.S. at 732 n.3, 92 S.Ct. at 1365. . H.R.Rep.No.91-1580, 91st Cong., 2d Sess., at 3 (1970), U.S.Code Cong. & Admin.News, p. 4737. (Emphasis in original.) . Hearings on H.R. 12084 etc., Before Subcommittee on Transportation & Aeronautics, House Committee on Interstate & Foreign Commerce, 91st Cong., 1st Sess., at 307 (1969). See, e. g., Chicago & Eastern Ill. R. Co. Discontinuance of Trains, 331 I.C.C. 447 (1968), appeal dismissed, sub nom. City of Chicago v. United States, N.D.Ill., 294 F.Supp. 1103, reversed & remanded to District Court, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340 (1969), vacated & remanded to ICC, N.D.Ill., 312 F.Supp. 442, reversed & remanded to District Court, 400 U.S. 8, 91 S.Ct. 18, 27 L.Ed.2d 9 (1970); Chicago & Eastern Ill. R. Co. Discontinuance of Trains, 333 I.C.C. 626 (1968), reversed & remanded, N.D.Ill., 308 F.Supp. 645 (1969), prob. jurisdiction noted, 398 U.S. 957, 90 S.Ct. 2172, 26 L.Ed.2d 541 (1970), judgment vacated & ease remanded to District Court with directions to remand to ICC, 400 U.S. 987, 91 S.Ct. 449, 27 L.Ed.2d 434 (1971). . It is important to note that, even though allowing suits by parties other than the Attorney General and employees will doubtless result in increased litigation, such litigation will not burden the railroads as much as litigation under preAmtrak procedure. The major problem with pre-Amtrak procedure was not the presence of litigation, but the fact that litigation involved, in the ease of the ICC, determining the nebulous question of whether the service “is required by public convenience and necessity and will not unduly burden interstate or foreign commerce * * *.” 49 U.S.C. § 13a (1) (1970). Resolution of this issue required numerous public hearings at various sites along a given train’s route and analysis of complex corporate financial records. It is doubtful that issues arising under the Amtrak Act -will involve resolution of such difficult factual issues or will entail the same amount of time such fact-finding consumes. For example, in the present case the facts are undisputed and the sole question is the legal issue of whether the Act permits Amtrak to contract with a subsidiary without contracting with its parent. . Letter from Assistant Attorney General L. Patrick Gray, III, to Congressman John Slack, Nov. 19, 1971, in appellant’s Reply to Supplemental Memorandum. . See 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 (1966). . See 49 C.F.R. § 1122.4(d) (Oct. 1, 1972). . See generally Kennedy v. Baltimore & Ohio R. Co., 342 I.C.C. 19, 21 (1972): “It is well settled that section 13a (1) is a permissive section of the act and does not impose any requirement upon a carrier to file a notice of proposed discontinuance. The first sentence of the statute states that a carrier ‘may, but shall not he required to, file with the Commission * * [Emphasis supplied.] If a carrier does not choose to file with the Commission, jurisdiction is retained by the States.” . See Pennsylvania R. Co. v. Sharfsin, M.D.Pa., 240 F.Supp. 233, 235, vacated & remanded on other grounds, sub nom. Pennsylvania Public Utility Comm’n v. Pennsylvania R. Co., 382 U.S. 281, 86 S.Ct. 423, 15 L.Ed.2d 324 (1965), affirmed, 3 Cir., 369 F.2d 276 (1966), cert. denied, 386 U.S. 982, 87 S.Ct. 1288, 18 E.Ed.2d 231 (1967); Chicago & Eastern Ill. R. Co. v. United States, supra note 12, 308 F.Supp. at 648. . A prior version of the bill referred in one section simply to “passenger service.” The mistake was quickly brought to the attention of the Committee and the words “intercity rail” inserted before “passenger service” “to avoid the application of this section to commuter service.” Supplemental Hearings, supra note 3, at 110. . “The bill will apply only to intercity passenger trains and would not apply to service which is primarily commuter service.” 116 Cong.Rec. (Part 11) 14164 (1970) . “[T]his legislation * * * refers to intercity transportation of passengers by rail. It does not include commuter service. Of relevance here is the fact that the Senate has approved a bill specifically allocating $3 billion for commuter and other urban transportation. * * * Basically, commuter service is excluded from the bill * * Id. at 14178. See also note 19, supra. . The ICC has recognized its continued jurisdiction over commuter trains if a railroad invokes that jurisdiction by filing a notice of discontinuance with the Commission. See Chicago S. Shore & S. Bend R. Restructuring of Pass. Serv., 342 I.C.C. 154, 179-180 (1972). See also Penn Central Transp. Co. Discontin. or Change in Serv., 338 I.C.C,. 318, 320 (1971). Cf. Kennedy v. Baltimore & Ohio R. Co., supra note 17, 342 I.C.C. at 21. . The complaint also alleged that the discontinuances were illegal because the discontinuance notices were posted prior to the signing of the contract with Amtrak, even though the discontinuances did not go into effect until after the signing of the contract. Appellant has not pursued this issue on appeal. If the issue is pursued further, of course, nothing we say here should be read as a reflection of our views on the merits of that issue. . “The [Public Service] Commission [of the State of Maryland] may require the continuance of any service rendered to the public by any public service company under any franchise, right, or permit, after its expiration date, if any; and no service under a franchise, right or permit shall be discontinued or abandoned without the consent of the Commission, which shall be granted if the Commission finds that the present or future public convenience and necessity permits such discontinuance or abandonment.” 7 Ann.Code of Md., Art. 78, § 75 (1969). “No railroad or other public utility shall discontinue any regular passenger train, or other public service facility, or change any regular passenger train schedule or timetable, without first obtaining authority from the [Public Service Commission of the State of West Virginia] so to do * * 9 W.Va.Code Ann. § 24-3-1 (1971). . See Kennedy v. Baltimore & Ohio R. Co., supra note 17. See also note 1, supra. . See, e. g., 7 Ann.Code of Md., Art. 78, § 99 (1969): “When the [Public Service] Commission [of the State of Maryland] is of the opinion that any public service company subject to its jurisdiction is violating or is about to violate any of the provisions of this article, it shall cause action to be brought in its name for mandamus or injunction * * . Once a notice of discontinuance is filed with the ICC, that ageney can exercise administrative discretion and expertise in several ways. First, the ICC has the option of investigating the discontinuance or simply letting the discontinuance take effect. See City of Chicago v. United States, supra note 12, 396 U.S. at 165, 90 S.Ct. 309. Even if the ICC does enter into an investigation, the decision whether or not to enjoin the discontinuance pending the outcome of the investigation is also within the discretion of the ICC. “Upon the institution of such investigation, the Commission * * * may require such train or ferry to be continued in operation or service, in whole or in part, pending hearing and decision in such investigation, but not for a longer period than four months beyond the date when such discontinuance or change would otherwise have become effective.” 49 U.S.C. § 13a(1). (Emphasis added.) Finally, of course, the ICC uses its expertise in deciding whether to approve the discontinuance or whether continued operation of the train “is required by public convenience and necessity and will not unduly burden interstate or foreign commerce * * *.” Ibid. Where matters such as these are entrusted by statute to an administrative agency, the doctrine of primary jurisdiction requires that the parties not circumvent the agency by means of a court action. See Far East Conference v. United States 342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576 (1952). See also Trans-Pacific Airlines v. Hawaiian Airlines, 9 Cir., 174 F.2d 63 (1949). . In its complaint appellant requested that the District Court refer the intercity-commuter issue to the ICC, a procedure that some other courts have used. See, e. g., Illinois Commerce Comm’n v. Chicago & Eastern Ill. R. Co., 400 U.S. 987, 91 S.Ct. 449, 27 L.Ed.2d 434 (1971); In re Penn Central Transportation Co., E.D.Pa., 329 F.Supp. 572 (1971). See also In re Penn Central Transportation Co., 3 Cir., 457 F.2d 381 (1972). The ICC has already decided several such referral cases. See, e. g., Penn Central Transp. Co. Discontin. or Change in Serv., supra note 21; Penn Central Transp. Co. Status of Pass. Serv., 338 I.C.C. 621 (1971); same, 338 I.C.C. 660 (1971); same, 338 I.C.C. 690 (1971); Chicago & Eastern Ill. R. Co. Discontinuance of Trains, 338 I.C.C. 714 (1971). We intimate no views at the present time as to either the propriety of such a referral in the instant case or the validity of the standards developed by the ICC in the above cited cases.

f2d_475/html/0344-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellant, v. Rodney McCOY, Appellee. No. 72-1028. United States Court of Appeals, District of Columbia Circuit. Jan. 5, 1973. Mr. Harold H. Titus, Jr., U. S. Atty., Messrs. John A. Terry, Philip L. Kellogg, and Robert E. L. Eaton, Jr., Asst. U. S. Attys., were on the brief for appellant. Mr. Sherman L. Cohn, Washington, D. C., was on the brief for appellee. Before Mr. Justice CLARK, of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges. Mr. Justice Tom Clark, United States Supreme Court, Retired, sitting by designation pursuant to 28 U.S.C. § 294(a) (1970). PER CURIAM: Within thirty minutes following a robbery of Benson’s Jewelry Store at 1319 F Street, Northwest, on September 19, 1970 by three young men, two suspects meeting the broadcast (lookout) description of the robbers were arrested about nineteen blocks away with a plastic bag containing two trays of the stolen rings. They also had one gun meeting the description of the gun used in the robbery. At the time of their arrest one of the suspects (not appellee) told the police officer who asked where they got the rings: “We . . . just robbed a junkie” (Tr. 126). The two suspects were immediately returned to the scene of the robbery and were positively identified by the victim within about forty-eight minutes of the robbery. Appellee was subsequently indicted. At a suppression hearing held on September 27-29, 1971, just over a year following the crime, the trial judge suppressed an identification of appellee by the principal victim, Mr. Stein. The trial judge held that the circumstances of this identification were so unnecessarily suggestive as to create a likelihood of mistaken identity. There was confusion in the place, the witnesses have contradicted one another, and contradicted themselves in various testimony. Considering the whole matter, the totality of the circumstances, there is such a likelihood of unreliability that the defendant is deprived of due process. The motion to suppress identification is granted. Identification is suppressed. (Tr. 236-237) The lengthy transcript has been completely read and studied and we find that the District Court was clearly in error in suppressing the identification. Mr. Stein, the victim, was the Government's only eyewitness at the suppression hearing. He testified that the robbery consumed about five minutes and during part of this time he was forced to lie on the floor, but even then he was “watching” (Tr. 76). On two separate instances which totaled about two minutes, when he was standing, Mr. Stein had an opportunity to observe appellee under excellent lighting conditions. During one of these instances when the robber held a gun on Mr. Stein, only about 18 inches separated them. They were also within about 18 inches from each other when the robber searched Mr. Stein for weapons. On this occasion Mr. Stein was directly facing the robber. It is thus unquestioned that Mr. Stein had a good opportunity to observe the robber. Following his arrest the police transported appellee and his accomplice back to the scene of the robbery in a patrol wagon. The lapse of time was sufficiently short so that this on-the-scene confrontation was a reasonable thing to do. Mr. Stein was then asked to come down from his office onto the street to see if he could identify any of the robbers. Nobody said anything to him about any of the men in the wagon (Tr. 88). He was not then told that the jewelry had been recovered. He was just asked, without any improper suggestion, to view the suspects to see if they were the persons responsible (Tr. 41, 42, 87, 88). The police even refused to reply to his inquiries as to whether “these are the guys that did the job. Have you got back my money?” (Tr. 100). The suspects were then presented to the victim in a manner that was scrupulously fair. Later he was given an opportunity and did identify the stolen jewelry (Tr. 84). Mr. Stein viewed the two suspects while they were seated together in the rear of the patrol wagon and his identification was instantaneous and positive (Tr. 31, 45). “Those are two people that just held us up” (Tr. 45). He testified that he identified them by their features and that he knew positively that they were the men that held the gun on him (Tr. 98, 99). Q Now, at that time when you looked into the end of that wagon, was there any question in your mind that those two men were the men on the left and the man in the middle ? A Not the slightest question. Tr. 88. One distinguishing characteristic of appellee was that he had a “little bit of a whiskers, very wispy” (Tr. 98). A “little mustache” (Tr. 52). “[A] little bit of a . . . beard . . . .” (Tr. 73). The arresting officers testified to the same identifying features (Tr. 146). Another circumstance tending to support the reliability of the identification was the fact that Mr. Stein, a few minutes before these two suspects were presented to him, had refused to identify as one of the robbers another suspect produced by the police-radio broadcast (Tr. 189, 194). At the time of the suppression hearing held a year following the robbery there was some discussion of appellee’s eye condition. He apparently had some sight handicap (Tr. 56). After he was arrested on the day of the robbery he told the police he could not read and at the suppression hearing a year later he had a cane such as blind people use. However there is no evidence in the record that this sight handicap was an observable defect on the day of the robbery. It is unquestioned that appellee when first observed by the arresting officers on the day of the crime was walking without a cane, had no cane with him, was not stumbling and had no diffibulty getting into the police wagon or subsequently in dialing a telephone number (Tr. 144-145). Also none of the arresting officers noticed anything unusual in appellee’s characteristics (Tr. 136). Thus the fact that the victim in a two minute span, while the robber was moving about and participating in an armed robbery, did not observe a feature of appellee’s eyes that was likewise not observed by the arresting officers who had a much better opportunity over a longer period of time on the same day to observe appellee leads to the conclusion that the feature of appellee’s appearance, if it existed on that date, was not then sufficiently prominent so that the failure to observe it indicated any defect or deficiency in the powers of observation of the victim (the witness). It is likewise unquestioned that appellee was the person arrested with the loot in his possession shortly after the robbery. There is also nothing in this record that indicates there was anything unduly suggestive in the circumstances of this identification. The so-called confusion amounted to nothing more than the presence of police and curious observers at the scene of the crime and did not in any way affect the identification. What is termed contradiction in testimony is nothing more than the usual slight variances which generally appear in all truthful testimony when several witnesses are testifying a year subsequent to events involving the actions of a number of people. In all essential details there was no substantial contradiction in the testimony. Under the circumstances we conclude that the record indicates the identification fully conformed to due process requirements and was reliable and fully admissible for jury consideration in the trial of the ease in line with our holdings in Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969) and United States v. Hines, 147 U.S.App.D.C. 249, 255, 455 F.2d 1317, 1323 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). The trial court's conclusion to the contrary was clearly erroneous and is Reversed. . The “lookout” information was obtained from the complainant (Tr. 180) and broadcast. The arresting officer remembered the lookout information as follows: “The general broadcast was for three Negro males in their early twenties wearing black wet-look jackets” (Tr. 106). The exact “lookout” information broadcast over the police radio network stated: All units wanted for robbery holdup occurred about five minutes ago at 1319 F as in Prank North West. Negro male correction three Negro males in their early 20’s all of them small build all of them had on black wet-look jackets two of them were armed obtained an undetermined amount. They were last seen inside the store at 1319 P Prank North West • . . .16:41. Govt. Ex. 1, p. 2. . One of the robbers hit a girl with his gun and caused her to fall to the floor (Tr. 51, 77). . A third suspect fled. . His alleged accomplice was a juvenile.

f2d_475/html/0347-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. Edward T. WIMBUSH, Appellant. No. 72-1136. United States Court of Appeals, District of Columbia Circuit. Jan. 11, 1973. As Amended Jan. 23, 1973. Mr. Donald J. Mulvihill, Washington, D. C. (appointed by this Court), was on the brief for appellant. Mr. Harold H. Titus, Jr., U. S. Atty., Messrs. John A. Terry, Philip Kellogg and Robert Alan Jones, Asst. U. S. Attys., were on the brief for appellee. Before Mr. Justice TOM CLARK of the Supreme Court of the United States, and WRIGHT and WILKEY, Circuit Judges. Sitting by designation pursuant to Title 23, U.S.C. § 294(a). PER CUÍtIAM : We origihally unanimously decided this case by a simple Order affirming the judgment of the District Court without opinion under Local Rule 13(c). The two points raised in Appellant’s Brief and Reply Brief were given careful consideration, the court entertained no doubt as to the correctness of the result reached, and the court had no inclination to expend judicial energies in digging other furrows in well-ploughed fields of law. Nor did appellant’s vigorous plea for oral argument alter our view that this was a case which could and should be disposed of on briefs. Now comes the appellant with a “Petition for Rehearing and Suggestion for Rehearing in Banc,” based not on any point raised in his original Brief, but by a motion calling our attention to two recent decisions of this court. Appellant Wimbush was here convicted of (1) assault with intent to kill while armed with a dangerous weapon (22 D.C.Code § 502)- — for which he was sentenced to serve three to nine years; (2) assault with a dangerous weapon (22 D.C.Code § 502) — for which he received a two to six-year sentence; and (3) carrying a pistol without a license (22 D.C.Code § 3204) — for which he received one year. All sentences are to be served concurrently. Appellant now relies on United States v. Hill, 152 U.S.App.D.C. 213, 470 F.2d 361 (1972), and United States v. Benn and Hunt, 155 U.S.App.D.C. --, 476 F.2d 1127 (1972), in each of which a conviction for a lesser included offense was vacated. Appellant particularly cites us to footnote 22 in Benn, which cites the vacation of the lesser included offense conviction in Hill as precedent for the same action in Benn. Appellant asks that the judgment of conviction be reversed, or alternatively that the conviction for assault with a dangerous weapon be vacated. This was a particularly vicious crime. While couched in advocate’s phraseology, the Government’s opening statement is supported by the record: Appellant shot a 5-foot 4-inches tall, 138-lb. 19 year-old youth, who was armed with only a chicken sandwich, at least four times with a .38 caliber revolver. One or more of the shots were fired into the victim’s back as he tried to escape. Appellant claimed self-defense . To avoid any confusion in our precedents, we here take the same action as in United States v. Benn, order the conviction for assault with a dangerous weapon vacated (for which appellant received a 2-6 year sentence). Also as in Benn, in accordance with footnote 24 (not cited by appellant), in the circumstances of this case We do not find it necessary to remand these cases to the District Court for resentencing on the greater offense. The cases in which we have followed such a procedure have involved convictions under the Federal Bank Robbery Act, 18 U.S.C. § 2113, hence been governed by Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). United States v. Parker, 143 U.S.App.D.C. 57, 442 F.2d 779 (1971); Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (1969). We affirm the conviction of assault with intent to kill while armed with a dangerous weapon (22 D.C.Code § 502) and the three to nine year sentence imposed therefor, and affirm the conviction for carrying a pistol without a license (22 D.C.Code § 3204) and the one-year sentence imposed therefor, the two sentences to run concurrently as the District Court ordered. So ordered.

f2d_475/html/0349-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. Thomas E. CARTER, a/k/a Thomas L. Carter, Appellant. No. 71-2016. United States Court of Appeals, District of Columbia Circuit. Jan. 12, 1973. Mr. John P. Furman, Washington, D. C. (appointed by this Court), was on the brief for appellant. Mr. Harold H. Titus, Jr., U. S. Atty., Messrs. John A. Terry, Kenneth Michael Robinson and Miss Ruth R. Banks, Asst. U. S. Attys., were on the brief for appellee. Before Mr. Justice TOM CLARK of the Supreme Court of the United States, and McGOWAN and ROBB, Circuit Judges. Sitting by designation pursuant to Title 28, U.S.C. § 294(a). PER CURIAM: The appellant was indicted in nine counts. The first count charged that the appellant, armed with a pistol robbed Oliver J. Joy, Jr. on January 11, 1971. (22 D.C.Code §§ 2901, 3202.) The second count charged the robbery of Joy on January 11, 1971. (22 D.C.Code § 2901.) The third count alleged that the appellant assaulted Joy with a pistol on January 11, 1971. (22 D.C.Code § 502.) Counts four and five charged that on January 16, 1971 the appellant assaulted Oliver J. Joy, Jr. and Ronald Bell with a pistol. Counts six and seven alleged the armed robbery and robbery of Guadencio Vasquez on January 17, 1971. The eighth and ninth counts alleged assaults with a pistol on Guadencio Vasquez and Yolanda Vasquez on January 17, 1971. In short, the first three counts charged offenses on January 11, the fourth and fifth counts alleged offenses on January 16, and the last four counts related to offenses that occurred on January 17. By motion pursuant to Rule 14 F.R. Crim.P. the appellant moved both before and at the commencement of trial, for separate trials on each of the three groups of counts. His motion was denied and the case went to trial before a jury on all nine counts. He was convicted on counts one and three, alleging the armed robbery of Joy and the assault on him on January 11; on counts four and five, charging the assaults on Joy and Bell on January 16; and counts six, eight and nine, charging the armed robbery of Guadencio Vasquez and the assaults on Guadencio Vasquez and Yolanda Vasquez on January 17. The appellant contends that it was error to deny his motion for separate trials. We hold that it was prejudicial error to join the trial of the charges relating to offenses against Guadencio Vasquez and Yolanda Vasquez, on January 17, with the trial on the other counts, alleging offenses against other persons on January 11 and January 16. At trial the government’s proof was that on the night of January 11, 1971 a man entered the American Service Station on Kenilworth Avenue, N.E. in Washington, and held up and robbed the station manager, Oliver J. Joy, Jr. The robber had a .45 caliber semi-automatic pistol in his hand and was wearing a fur coat and fur hat. On January 16 at about 11:30 P.M. the same man, wearing a fur coat and fur hat, returned to the station. Seeing him, Joy drew his derringer whereupon the man “pulled out his pistol”, readied it for firing by retracting and releasing the slide, “started wielding it around” and pointed it at Joy. The man then left. Joy and his assistant Ronald Bell identified the appellant as the man in the fur coat and fur hat. This in substance was the government’s proof on the first five counts of the indictment. On the other four counts of the indictment the proof for the government was that about 1:30 A.M. on January 17,1971 two men with guns held up Guadencio Vasquez on the parking lot of a restaurant at East Capitol Street and Benning Road, N.E., in Washington. The restaurant is at least two miles from the American Service Station on Kenilworth Avenue. Vasquez was accompanied by his daughter. He testified that one of the men, wearing a fur coat and fur hat, and armed with a gun that “looked like a .38” took his money while the other man held a gun on his daughter. He identified the appellant as the man who took his money. From what has been said it is apparent that the offenses at the American Service Station on January 11 and January 16 were in fact separate and distinct from, and unrelated to, the offenses on the parking lot on January 17. The scene of the January 17 offenses was different, the victims were different, and the only common factor was that in each case the offender was a man wearing a fur coat and fur hat. There was no evidence of a common scheme or plan embracing the commission of all the offenses. Nor was the identification of the appellant by Vasquez admissible to support his identification by others as the offender at the American Service Station. That a man wears a fur coat and hat may help witnesses to identify him, but it does not establish a pattern of criminal conduct and make evidence of every offense he commits while so attired admissible in a single trial. The government argues in its brief that there was no error since “the evidence of each offense was simple and distinct, so that the jury could not possibly have been confused”. The argument misses the point, which we think obvious, that the jury must have viewed the evidence cumulatively. In other words, as a practical matter the jury must have been influenced by the sum total of the evidence, without segregating, in insulated compartments, the proof under each group of counts. No other conclusion is reasonable. Indeed, this was the view of the prosecutor who in his closing argument told the jury: “Within the same week, ladies and gentlemen, four individuals saw Thomas Carter committing criminal acts in this city. Can four people be wrong? (TR. Vol. II, p. 36) . . . It is too ironic [sic] that those three witnesses who were robbed and assaulted on different nights some three miles away from one another picked photographs of the same man on the same day, January 20 . . .” (TR. Vol. II, p. 51.) Without prolonging this discussion, we think this case is controlled by our decisions in Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); and Kidwell v. United States, 38 App.D.C. 566 (1912). We find no merit in the appellant’s attack on the photographic identification procedures followed by the police, or in his claim that the evidence was insufficient to support the conviction on counts five and six. The judgement is reversed and the case is remanded with directions to sever the trial on counts six, seven, eight and nine from the trial on the other counts. It is so ordered.

f2d_475/html/0351-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

EASTERN FOUNDATION COMPANY, INC. v. Jack Norman CRESWELL et al., Appellants. No. 71-1941. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 15, 1972. Decided Jan. 29, 1973. Richard W. Galiher, Jr., Washington, D. C., with whom William H. Clarke, Frank J. Martell, William J. Donnelly, Jr., and Richard W. Galiher, Washington, D. C., were on the brief, for appellant. Branko Stupar, Washington, D. C., for appellee. Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and HARRISON L. WINTER, Circuit Judge for the Fourth Circuit. Sitting by designation pursuant to Title 28, U.S.C. § 291(a). LEVENTHAL, Circuit Judge: In this case, in which Eastern Foundation Co. (Appellee) brought an action under the terms of an excess liability policy that it purchased from Appellants, underwriting members of Lloyd’s of London, the issue is the binding effect, by way of collateral estoppel, of a prior litigation in which Eastern was a party but Appellants were not. The coverage terms of the primary insurer, Hartford Accident and Indemnity, written in the amount of $25,000, were incorporated by reference into Appellants’ excess liability policy, which extended basic coverage to $1,000,000. The insurance was obtained by Eastern in connection with its work as a subcontractor to provide the sheeting and shoring for a building being constructed by George A. Fuller Company as general contractor. Eastern completed installation of the sheeting and shoring on May 14, 1964, and left the job site. On May 21, 1964, the eastern wall of the excavation caved in. Eastern repaired the damaged portion at a cost of $26,407.75 and sued Fuller, in Civil Action 295-65, to recover that amount as damages (quantum meruit), alleging that Fuller’s negligence caused the collapse. Fuller claimed against Eastern —by setoff (from money withheld, though due under the sheeting and shoring contract) and by counterclaim — for expenses to Fuller, occasioned by the collapse, in re-excavating and repairing damage to work done by others. Fuller claimed that Eastern was negligent and, in the alternative, that Eastern was contractually liable to replace the shoring regardless of negligence. There were other parties to the action, each alleging various causes for the collapse. Although it resisted being impleaded as third party defendant, Hartford actively defended Eastern during the litigation. In Civil Action 295-65 District Judge Hart made findings of fact that included the following: The collapse of the sheeting and shoring was proximately caused by a leak or rupture of sewer or water mains, causing hydrostatic pressure to build up that exceeded the design load of the sheeting and shoring. It has not been proved by a preponderance of evidence (a) that Eastern was negligent or deviated from specifications, (b) that Fuller was responsible, either by its pumping or its removal of the berm on the side of the excavation, for the breaking of the pipes or the collapse of the shoring; or (c) that any of the other parties (doing blasting; or digging; or running heavy machinery, etc.) was responsible, as had been claimed. Although Eastern had left the site, its work had not been accepted by the Contractor. Under Eastern’s contract with Fuller, Eastern was “obligated to repair and replace all loss and damage of any kind which might happen to the Work at any time prior to final completion and acceptance thereof from any cause whatsoever.” “Eastern also assumed the risk to indemnify Fuller for all damages and expense, which Fuller was obligated to pay, arising out of or in consequence of the collapse of the sheeting and shoring from whatever cause.” Prior to commencement of work, Eastern furnished certificates from Hartford and Lloyd’s of London “that it had obtained insurance against contractual liability as required by its subcontract with Fuller.” The District Court dismissed Eastern’s complaint, and entered judgment on Fuller’s counterclaim. Hartford, the primary insurer, paid Eastern its policy limit of $25,000, Appellants refused to pay, and Eastern brought this action for $26,407.75, due it for expenses incurred by it under its contract with Fuller in resheeting and reshoring the area that collapsed. The District Court granted Eastern a summary judgment in that amount, agreeing with Eastern that the responsibility for the occurrence was litigated in the earlier action. Appellants say that the earlier litigation, between Eastern and Fuller, did not determine Appellants’ liability under the policy, which, it is contended, is not the same for Eastern’s expense in doing its own work again as for its liability to provide reimbursement for the cost of work done by others (Fuller et al.). We find Appellants’ approach sound in part, and requires a trial. 1. Under “Coverage Z” of the Hartford policy, the insurers agreed to indemnify Eastern for: all sums which [Eastern], by reason of the liability assumed [by Eastern in its contract with Fuller] shall become legally obligated to pay as damages because of injury to or destruction of property . . . caused by accident. Obviously, Appellants must respect the force of the first judgment insofar as it determined that Eastern was contractually obligated to pay Fuller for the replacement shoring. Appellants say that their undertaking to indemnify Eastern on an obligation to pay “damages” does not apply because Eastern itself did the replacement. We do not agree. The essential risk was that which Eastern had assumed, by contract, embracing “injury to or destruction of property caused by accident.” It should make no difference whether Eastern fulfilled its obligation by replacing the shoring itself or whether Eastern, defaulting on the contract, was adjudged liable in damages to compensate Fuller for having the shoring replaced by another. 2. We are concerned with the summary determination of amount, that Appellants were obligated to pay Eastern the sum of $26,497.75. This issue was stipulated, not litigated at the first trial, and Eastern had the incentive to maximize its claim of cost. The amount was not necessary to decision, since the ruling was that Eastern could not recover, from Fuller, whatever the cost of its re-shoring. There would have been a basis for partial summary judgment against Appellants for costs incurred by Eastern in reimbursing Fuller, but that is not enough to sustain the judgment rendered. 3. More important is the bearing of the prior litigation on Appellants’ defense based on Exclusion (i) in the policy, which excludes from the contractual liability coverage of the policy all damages resulting from: . injury to or destruction of any . . . work completed by [Eastern] out of which the accident arises. In our view, the policy, with this clause, operates as follows: (a) The point of departure, subject to the definition of the exclusion clause, is the general obligation of the insurer to indemnify the insured for all damage to property that it was required by its contract to bear, and this applies whether the cause of the damage is an accident, unknown, or the insured’s negligence. When the insured subcontractor transmitted that insurance policy to the general contractor, lie knew he was fully protected. (b) When the damage is to property other than the work product of the insured, that liability remains unqualified. (c) When the damage is to the work product of the insured — and the insured bears either the cost of repair and replacement or the obligation to pay damages in that amount — then there is insurance coverage except as to any expense or obligation to repair or replace work product of the insured that has been defectively constructed. Our reading of the policy is supported by the decisions in the margin and their underlying analysis. It is in the light of these principles that we must consider the claim of collateral estoppel. Judge Hart did make a finding that there was no preponderance of evidence that Eastern was guilty of negligence in the doing of its work. But he did not rely on this finding in his conclusion or judgment, which was based exclusively on contract liability of Eastern, which he found to exist regardless of negligence or lack of negligence. The issue of Eastern’s negligence therefore was not necessary to judgment. There is a question whether a so-called “evidentiary fact” can be the basis of a claim of collateral estoppel, but we need not pursue that legal issue, because here we do not discern that any necessary finding of fact was dependent upon or even aided by the finding that it had not been shown that Eastern was negligent. To this must be added the consideration that neither Eastern nor Hartford was interested in proving Eastern’s negligence. Hartford was not interested in the applicability of “Exclusion clause (i),” which is the only provision as to which Eastern’s negligence is pertinent, for its $25,000 liability was exhausted by Eastern’s liability for expenses incurred by Fuller and others, a matter on which Eastern’s negligence was not pertinent. All of this is apart from the problem that would have been presented if Hartford had been interested in showing Eastern’s negligence in order to exculpate itself as insurer under “(i),” at the same time that it was representing Eastern in the litigation. This case has become confused by the fact that Appellants have interlaced suggestions of Eastern’s fault, which we think would provide a defense under “(i),” with other contentions, that the policy does not apply to Eastern’s work as a matter of coverage (apparently argued as excluding coverage even assuming Eastern was not negligent), which we do not accept. Insofar as a defense under (i) may turn on the possibility that Appellants will be able to prove Eastern was negligent, we do not think they were conclusively estopped or bound on this point by the prior litigation. And to the extent that Appellants may be held liable, they have the right to contest the amount of Eastern’s expenses in re-shoring, without being bound by a stipulation by Fuller that was immaterial to the first judgment. Reversed and remanded. . In the amount of $20,209, obtained by taking the expense incurred by Fuller, of $34,009, and deducting the $13,800 Fuller had previously withheld from Eastern. . There would have been a basis for summary judgment against Appellants for $9,000 — to indemnify Eastern for the $34,000 it had to pay Fuller (see note 1), less the $25,000 obtained from Hartford. Possibly Appellants recognized a. liability for this amount. In any event, it does not seem to have become focused as an issue in this litigation. . E. g., Aetna Cas. & Sur. Co. v. Harvey W. Hottel, Inc., 110 U.S.App.D.C. 80, 289 F.2d 457 (1961); Home Indem. Co. v. Miller, 399 F.2d 78 (8th Cir. 1968); Geddes & Smith, Inc. v. Saint Paul-Mercury Indem. Co., 51 Cal.2d 558, 334 P.2d 881 (en banc, per Traynor, J., 1959); Volf v. Ocean Accident & Guar. Corp., 50 Cal.2d 373, 325 P.2d 987 (en banc, per Traynor, J., 1958); Liberty Bldg. Co. v. Royal Indem. Co., 177 Cal.App.2d 583, 2 Cal.Rptr. 329 (1960); Hauenstein v. Saint Paul-Mercury Indem. Co., 242 Minn. 354, 65 N.W.2d 122 (1954); McGann v. Hobbs Lumber Co., 150 W.Va. 364, 145 S.E.2d 476 (1965). . See, e. g., Fibreboard Paper Prods. Co. v. Machinists Union, Local 1304, 344 F.2d 300, 306 (9th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 61, 15 L.Ed.2d 71 (1965); Kestatement of the Law of Judgments § 68, comment (o) (1942); 1B J. Moore, Federal Practice ¶ 0.443 [5]. . See the leading case of The Evergreens v. Nunan, 141 F.2d 927 (2d Cir., per L. Hand, J.), cert. denied, 323 U.S. 720, 65 S.Ct. 49, 89 L.Ed. 579 (1944). But cf. 1B J. Moore, Federal Practice ¶ 0.442 [2], . See Comment, The Effect of Collateral Estoppel on the Assertion of Coverage Defenses, 69 Colum.L.Kev. 1459 (1969).

f2d_475/html/0355-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. Edward B. WILLIAMS, Jr., Appellant. No. 71-1447. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 19, 1972. Decided Jan. 31, 1973. James S. Hostetler, Washington, D. C. (appointed by this court), for appellant. James F. Flanagan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Richard L. Cys, Asst. U. S. Atty., also entered an appearance for appellee. Before WRIGHT, TAMM and McCREE, Circuit Judges. Of the 6th Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a) (1970). J. SKELLY WRIGHT, Circuit Judge: Effective February 1, 1971, Section 207(6) of the District of Columbia Court Reform and Criminal Procedure Act added the following sentence to subsection (j) of 24 D.C.Code § 301: “No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence.” Prior to February 1, 1971 the prosecution had the burden in criminal cases of proving criminal responsibility beyond a reasonable doubt once the defendant had raised the insanity defense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). Appellant here was charged with offenses committed on November 11, 1968. On trial appellant raised the insanity defense and, over objection, the trial court charged the jury, pursuant to Section 207(6), that appellant had the burden of establishing his insanity defense by a preponderance of the evidence. The only question we consider on appeal is whether this instruction violated the ex post facto clause of the Constitution. We find that it did. A long time ago the United States Supreme Court defined ex post facto laws to include “[e]very law which alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). (Emphasis in original.) That definition represents the law today just as it did in 1798. The retroactive application given Section 207(6) by the trial court “alter[ed] the legal rules of evidence” so that appellant was convicted on “less, or different, testimony, than the law required at the time of the commission of the offence.” Certainly the court’s charge, “ ‘in its relation to the offence, or its consequences, alter[ed] the situation of the accused to his disadvantage.’” Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 623, 42 L.Ed. 1061 (1898), quoting United States v. Hall, 2 Wash.C.C. 366. Moreover, Congress, in enacting Section 207(6), specifically intended to alter the situation of the accused to his disadvantage. Congress was concerned that existing law “ * * * permití [ed] dangerous criminals, particularly psychopaths, to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity * * H.R.Rep.No.91-907, 91st Cong., 1st Sess., 74 (1970). Under the circumstances, appellant’s conviction must be reversed on ex post facto grounds. So ordered. . Art. 1, § 9, cl. 3 of the United States Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” . See Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Kring v. Missouri, 107 U.S. (7 Otto) 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867); Frisby v. United States, 38 App.D.C. 22 (1912). See also, generally, Croseky, The True Meaning of the Constitutional Provision of Ex Post Facto Laws, 14 U.Chi.L.Rev. 539 (1947). . We find no language in the statute or in its legislative history, and we have been cited to none, which indicates that Congress intended it to be applied retroactively. . In view of the express intent of Congress and the obvious effect of the statute, the Government’s argument that § 207(6) provides for a mere procedural change which, applied retroactively, does not significantly alter the situation to appellant’s disadvantage may be dismissed as pure advocacy. Compare Kring v. Missouri, supra note 2, and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), with Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925).