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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Carlton BLECKLEY, Defendant-Appellant. No. 72-3362 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 10, 1973. Rehearing Denied April 30, 1973. C. Frank Strickland, Jr., Gainesville, Ga., for defendant-appellant. John W. Stokes, Jr., U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: This is an appeal from a judgment of conviction entered on a jury verdict that Bleckley wilfully and by means and use of a dangerous weapon, a 30-30 rifle, forcibly assaulted a United States Deputy Game Warden who was engaged in the performance of his official duties, in violation of 18 U.S.C.A. § 111. Bleckley’s sole point on appeal is that the Government failed to prove his sanity beyond a reasonable doubt and that he was entitled to a directed verdict of acquittal. Bleckley’s defense of insanity at the time of the offense was properly submitted to the jury on conflicting evidence under a correct charge conforming to the standards of Blake v. United States, 5 Cir. 1969, 407 F.2d 908. “As we said in Blake ‘the evidence could go either way.’ Here the jury found that it went against the defendant. The jury need not be bound by defendant’s expert testimony, especially since there are ‘material variations between the experts themselves * * *.’ Mims v. United States, 5 Cir., 1967, 375 F.2d 135, 143. It was for the jury, not the Court.” United States v. O’Neal, 5 Cir. 1970, 431 F.2d 695, cert. denied, 401 U.S. 917, 91 S.Ct. 898, 27 L.Ed.2d 818. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. SCENIC SPORTSWEAR, Respondent-Appellee. No. 72-1735. United States Court of Appeals, Sixth Circuit. March 22, 1973. Walter C. Phillips, Director Region 10, N. L. R. B., Atlanta, Ga., Michael F. Messitte, N. L. R. B., Marcel MalletPrevost, Asst. General Counsel, N. L. R. B., Washington, D. C., on brief, for petitioner-appellant. Alfred W. Yadnais, Chattanooga, Tenn., William P. Hutcheson, Humphreys, Hutcheson, Moseley & Clements, Chattanooga, Tenn., on brief; Richard Adelman, Battle, Fowler, Stokes & Kheel, New York City, of counsel, for respondent-appellee. Before McCREE and KENT, Circuit Judges, and McALLISTER, Senior Circuit Judge. PER CURIAM. This is a petition by the National Labor Relations Board for enforcement of its order dated April 21, 1972 and reported at 196 N.L.R.B. 72. The complaint alleged “ . . . that the respondent violated Section 8(a)(1) when on June 29, [1971] it announced and granted wage increases and three paid holidays to its employees for the purpose of thwarting the Union’s organizational campaign and that respondent further violated Section 8(a)(1) when on July 20, [1971] it engaged in surveillance of its employees’ union activities.” The Trial Examiner exonerated respondent on the wage increase charge, but, with respect to the surveillance allegation, he found that five female employees from respondent’s Chattanooga plant were on their 30 minute lunch break and sitting on the church steps across the street from the plant listening to a union organizer when Mr. Romita, the assistant to the president, walked up and said he was there "to see that you don’t tell these girls a bunch of lies.” Romita then intimated that this union had caused the closing of the two factories where he had previously been employed. From these and other facts, the Trial Examiner found that “[w]hether or not properly characterized as ‘surveillance’, Romita’s conduct which was designed to, and had the effect of, disrupting and interfering with Allen’s [an organizer for the International Ladies’ Garment Workers’ Union] attempt to meet with the employees and freely discuss with them union representation constituted, I find, unlawful interference with the employees’ Section 7 rights and, as such, was violative of Section 8(a)(1) of the Act.” The Board issued a cease and desist order and required the posting of notices. Upon review and consideration of the entire record, and having in mind the deference to be paid to the expertise of the Board, we hold that the weight of evidence supports the Board’s finding of an 8(a)(1) violation. We hold further that the Board’s order is appropriate to remedy the violations found to have occurred. The respondent’s other major contention is that it was denied procedural due process because it was found guilty of an offense different from that charged in the complaint and that, since it had not been apprised of the unfair labor practice found, it was not afforded an opportunity to present evidence to refute it. In 1938, the United States Supreme Court held that a slight variation between the findings- and the complaint does not violate due process so long as the complaint informs the respondent of the acts which constitute the charged unlawful behavior and respondent is given an opportunity to respond. NLRB v. Mackay Radio and Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). This court has on previous occasions said that Board complaints need not meet the strict particularity in pleading required of indictments, declarations at law, or bills in equity. Consumers Power Co. v. NLRB, 113 F.2d 38 (6th Cir. 1940). Their principal function is to provide notice, NLRB v. Johnson, 322 F.2d 216 (6th Cir. 1963), cert. denied, 376 U.S. 951, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964), and this function is met whenever the acts found can be “fairly comprehended in the language of the complaint.” Tex Tan Welhausen Co. v. NLRB, 419 F.2d 1265, 1270 (5th Cir. 1969), vacated and remanded, 397 U.S. 819, 90 S.Ct. 1516, 25 L.Ed.2d 805 (1970), on remand 434 F.2d 405 (5th Cir. 1970). From an examination of the entire record and briefs, we hold that respondent was fully apprised by the complaint of the nature of the unlawful conduct found by the Board and was given ample opportunity to present evidence and argument before the Trial Examiner to refute the finding of interference with its employees’ Section 7 rights. Judge KENT would deny enforcement. He views the record as not supporting the conclusion that Romita was interfering with the employees’ Section 7 rights because the charged unfair labor practice involved only a single occurrence and there was no evidence that the employees were engaged in organizational activity, had any desire to listen to the organizer, ask him questions, or even talk to him. Enforcement granted.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Bobby Richard WHITE, Appellant. No. 72-1114. United States Court of Appeals, Fourth Circuit. Argued June 6, 1972. Decided March 20, 1973. Roy G. Hall, Jr., Winston-Salem, N. C. (Court-appointed counsel), for appellant. Bradley J. Cameron, Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges. BOREMAN, Senior Circuit Judge: Bobby Richard White, tried by the court without a jury, appeals his conviction on an indictment which charged him with making a false report, willfully, maliciously, and with reckless disregard for the safety of human life, concerning an attempt to do an act which would be a crime prohibited by Title 18 U.S.C. § 32, in violation of 18 U.S.C. § 35(b). We affirm. Shortly after midnight on the 17th of June, 1971, White entered a Piedmont Airlines jet which was parked for the night in the airport in Winston-Salem, North Carolina. He was carrying a cloth handbag. Confronting Captain Leon Fox, the only person aboard, White stated that the bag contained nitroglycerin and sulfuric acid and ordered Fox to fly him to Cuba, stating “If I drop this bag it will blow us to bits. I don’t give a damn.” Fox made preparations to comply with White’s command and the plane was actually refueled to capacity. At trial Fox testified that he was convinced White was serious because of the latter’s statement. Fox advised White that he would need a crew to assist him and White permitted only one other person to come aboard, Warren Tadlock, vice-president of flight operations for Piedmont Airlines, who suspected that the bag contained nothing harmful because he had some information that White had handled the bag carelessly earlier in the evening. Tadlock was ordered to crawl forward on his hands and knees along the aisle to the co-pilot’s seat and, while he was doing so, White held the bag on his back. Tadlock seized the bag from White’s grasp when the latter’s attention was diverted by the unexpected arrival of a federal sky-marshal who then subdued White. The bag was subsequently found to contain nothing but personal effects. White was sentenced to a five-year term of imprisonment but after a period of observation and study pursuant to 18 U.S.C. § 4208(b), he was resentenced to a term of four years. On appeal, White presents two issues: (1) the indictment is fatally defective for failing to allege all the essential elements of the crime in that it fails to allege specifically the intent required to constitute a violation of § 32, and also in that it fails to cite the particular clause or paragraph of 18 U.S.C. § 32 claimed to have been violated by his alleged acts and conduct; (2) no crime has been committed because § 32 requires an intent to damage or destroy an aircraft and his threats were always conditional. In support of its argument that the indictment is not defective, the prosecution relies on United States v. Chunn, 347 F.2d 717, 720 (4 Cir. 1965): “ 'It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. . . . Even prior to Chunn this court had approved the concept and practice of liberalized criminal pleadings so long as the indictment contains a concise and definite statement of the essential facts constituting the offense charged. Finn v. United States, 256 F.2d 304, 306 (4 Cir. 1958). See also Hagner v. United States, 285 U.S. 427, 431-433, 52 S.Ct. 417, 76 L.Ed. 861 (1932), and Rule 7(e) F.R.Crim.P. Title 18 U.S.C. § 35(b) requires the combination of three elements to constitute a crime: (1) willfully and maliciously, or with reckless disregard for the safety of human life, imparting false information, (2) knowing such information to be false, (3) concerning an attempt being made or to be made to do an act which would be a violation of chapter 2 of Title 18 U.S.C. (i.e., here 18 U.S.C. § 32). It is important to bear in mind that the substantive offense of which White stands convicted is the violation of § 35 (b) pertaining to the giving of false information and that White is not charged with a substantive violation of any of the provisions of 18 U.S.C. § 32. Therefore, with this caveat, we look to 18 U.S.C. § 32 to determine the essential elements of a crime thereunder. The first paragraph of § 32 (see footnote 3) makes it a crime to willfully damage or destroy a civil aircraft used or employed in interstate commerce; the paragraph contains no reference to the means employed to accomplish the damage or destruction. The second paragraph of § 32 makes it a crime to willfully do certain acts with respect to an engine, propeller, appliance, or spare part of such aircraft, with intent to damage or destroy such aircraft. The third paragraph of § 32 makes it a crime to willfully place any destructive substance in or upon any such aircraft “with like intent.” Thus, it clearly appears that the second and third paragraphs which refer to “such aircraft” must be read and considered in connection with the first paragraph which pertains to a civil aircraft used or employed in interstate commerce. The second paragraph provides that the proscribed acts must be done with the intent to damage or destroy the aircraft. Obviously, the phrase in the third paragraph — -“with like intent”— must be construed to mean the intent to damage or destroy such aircraft. As we construe the remaining paragraphs of § 32 they can have no possible relevance in the instant case. White complains that the indictment should have specified a particular paragraph of § 32 rather than the entire section. However, an examination of the record discloses beyond doubt or question that counsel for White was fully aware of the nature of the charges at all times. From the discussion and argument before the court by defense counsel and counsel for the prosecution, it is clear that the case was tried upon the theory and with the understanding that the indictment was intended to charge defendant with knowingly giving false information concerning an attempt to do an act which would be a crime prohibited by the third paragraph of § 32, i. e., placing a destructive substance aboard the aircraft. This understanding on the part of the defendant and his counsel is further evidenced by their contention that the charge in the indictment that the defendant gave false information with respect to the placing of a destructive substance aboard the aircraft was insufficient to charge a violation of § 35(b) unless accompanied by an allegation that the information given disclosed the intent to damage or destroy the aircraft, such intent being an essential element of the crime prohibited by § 32. It is interesting to look to 18 U.S.C. § 35 as first enacted, to take note of the subsequent changes therein from its original form, and to examine the very few cases decided thereunder. In Smith v. United States, 283 F.2d 16 (6 Cir. 1960), the defendant was convicted of conveying to a federal agency in charge of an airport control tower, by telephone, false information that a bomb was on an outgoing civil aircraft. While the question presented in the instant case was not there involved, our attention is attracted to the wording of the one-count indictment drawn under § 35 in its original form, as follows: “Robert James Smith did willfully impart and convey and cause to be imparted and conveyed, false information, knowing the same to be false, concerning an attempt and alleged attempt being made and to be made to willfully place and cause to be placed a destructive substance, to wit: a bomb, in, upon and in proximity to a civil aircraft used, operated and employed in interstate commerce with intent to damage, destroy, disable and wreck such aircraft, a crime prohibited by section 32, Title 18, United States Code, a part of Chapter II, Title 18, United States Code, . . . . ” (Emphasis added.) In support of his contention that the indictment in the ease before us is fatally defective for failure to charge the false communication of the essential element of intent to damage or destroy the aircraft, as provided in § 32, White relies upon Carlson v. United States, 296 F.2d 909 (9 Cir. 1961). In that case an information was drawn under § 35, the misdemeanor statute in the form as originally enacted, and charged that the defendant “. . . did wilfully impart and convey to Gayle Zimmer, a stewardess, false information concerning an alleged attempt being made to wilfully place a destructive substance, to wit: explosives, upon American Airlines Flight number 8, a civil aircraft used, operated and employed in interstate commerce, well knowing such information to be false.” (296 F.2d at 910) The court concluded that in order to determine the elements of the offense sought to be charged it was necessary to examine 18 U.S.C. §§ 32 and 35. Upon such analytical examination the information was held to be fatally defective. At 296 F.2d p. 911 the court stated: “The act concerning which false information was given, as alleged in the information (the wilful placing of explosives upon an aircraft) finds its counterpart only in the third paragraph of section 32, quoted above. But, under that paragraph of section 32, the wilful act there described is not a crime unless done ‘with like intent,’ namely, the intent stated in the second paragraph of section 32, ‘to damage, destroy, disable, or wreck any such aircraft; . . . ’ “This indispensable intent factor of the second element of the crime described in section 35 is wholly missing from the language of the information. Stated differently, the alleged false information was not (as required in order to constitute an offense) that explosives had been wilfully placed on an aircraft with intent to damage the aircraft, but was only that explosives had been wilfully placed on an aircraft.” The court went on to note that the only false reports which are forbidden by § 35 are those concerning an act which would be a crime prohibited by “this chapter” and pointed with approval to the form of the indictment in Smith v. United States, supra, observing that the Smith indictment evidenced the same construction of the statute as the Carlson court placed upon it. The next reported case involving a prosecution under 18 U.S.C. § 35 in its original form is United States v. Allen, 317 F.2d 777 (2 Cir. 1963). There the defendant and a friend, Roth, were at the ticket counter of an airline in Connecticut and Roth was intending to fly to Chicago. Roth had two bags, one large and one small. An attendant took the large bag a short distance down the counter for weighing, asking whether Roth was to carry the small bag. The defendant handed Roth the small bag, asking “Is that the bag with the bomb in it?” The attendant, then about six feet away, looked toward the defendant who said to Roth, “I don’t think he likes me.” The bags were searched but revealed no bomb and Roth took the plane to Chicago. In Allen the form of the information was not set forth but was referred to in the introductory paragraph of the opinion (p. 777) as a “one-count information charging wilful conveying of false information, known to be false, concerning an alleged attempt to damage a civil aircraft, in violation of 18 U.S.C. § 35 (the bomb hoax or false tip statute), a misdemeanor, . . .” The court in Allen expressly rejected the decision of the Ninth Circuit in Carlson, supra, and stated as the basis for its - holding: “The legislative history is persuasive that specific evil intent was not required, for the House Report No. 1979, 84th Congress, 2nd Session, on the bill which became this Act contains this language: ‘The committee has amended the bill to make it clear that the legislation is intended to cover fictitious reports, as well as false reports that attempts are being made or contemplated. It is obvious that such false alarms can seriously disrupt air-carrier service, whether such reports are the work of pranksters or of subversive or other malicious elements.’ 2 U.S.Code Congressional and Administrative News, 84th Congress, 2nd Session, 1956, p. 3146. This language surely expresses the intent to cover words spoken in jest as well as those uttered with the specific purpose to harm the carrier by interruption of traffic.” (317 F.2d at 778.) The committee report to which reference is made in the foregoing quotation from Allen pertained to proposed changes in and amendments to the form of the bill as originally introduced into the Congress which bill, as amended by committee, was enacted into law as 18 U.S.C. § 35. The intent with which the Congressional Report was concerned was the purpose of the perpetrator of the hoax in making his false report. The language of the report has no application to the issue in the present case since we are here concerned with the intended use of a destructive substance only as falsely communicated to the airline official. Although the information in Allen was drawn under § 35 as originally enacted, the word “willfully” had been removed by the amendment of 1961 at the time the Allen court handed down its decision. In that connection the court observed: “The amendment to this Act by the 1st session of the 87th Congress in 1961 removing ‘wilfully’ from the misdemeanor section is no indication that practical jokers were not intended to be covered by the earlier Act, for the Act as amended still makes conveying of the false information without malice a misdemeanor, while it adds a felony provision when done wilfully and maliciously or with a reckless disregard for human life. Allen’s statement, even if meant for a jest, would today fall within the misdemeanor section, as we hold it did under section 35 before the amendment.” The conviction of Allen was affirmed. In United States v. Sullivan, 329 F.2d 755 (2 Cir. 1964), cert. denied, 377 U.S. 1005, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964), the defendant was tried and convicted of a misdemeanor by a jury upon an information drawn under 18 U.S.C. § 35(a). The substance of the charge was that the defendant, while aboard a certain aircraft which was being used for and employed in interstate air commerce, imparted and conveyed the false information that he then and there had “a power T.N.T. bomb aboard in his luggage, which information concerned an attempt to do an act which would be a crime prohibited by Title 18 United States Code, section 32, the said defendant . . . knowing the information to be false. (Title 18 United States Code, section 35(a)).” The identical issue presented in Allen, supra, was before the court in Sullivan and at page 756 the court stated: “To be sufficient, the information need not allege specifically a threat to destroy the plane, nor is there any required allegation of malice or evil purpose. These points were clearly decided by this court in United States v. Allen, . . . .We found support for this result in the legislative history of the act. The Committee on the Judiciary of the House of Representafives, in reporting the 1961 amendment to 18 U.S.C. § 35, had this to say about the subsection here involved: ‘Subsection (a) would make it a misdemeanor for anyone to impart or convey information about a false bomb or bomb hoax, knowing the same to be false, even though such an act was done without malice. 2 U.S.Code Congressional and Administrative News, 87th Congress, First Session, 1961, p. 3053.’ ” We are unable to find support in the quoted Congressional Report for the position taken by the court. The phrase “even though such an act was done without malice” can only be construed to apply to the purpose behind the act of the perpetrator of the hoax. The phrase cannot logically be construed to mean that the requirement of § 32 of “intent to damage or destroy” in placing the bomb on board an aircraft, were it true, is not an essential element. Such a construction would fly in the face of the unambiguous language of the statute that the false report must concern “an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter.” We look to the unambiguous words of the criminal statute to determine its meaning and not to the purported intentions of a congressional committee. Another case from the Second Circuit, United States v. Rutherford, 332 F.2d 444 (2 Cir. 1964), cert. denied, 377 U.S. 994, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1964), involved an information drawn under 18 U.S.C. § 35(a) and the court merely stated its reliance upon its earlier decision in United States v. Allen, 317 F.2d 777, without further discussion. The Government contends that the Second Circuit cases, namely, Allen, Sullivan and Rutherford, supra, are apposite here. Our research has failed to disclose any reported case involving a prosecution under 18 U.S.C. § 35(b), the felony section. The cases hereinbefore cited and discussed from the Sixth, Ninth and Second Circuits involve misdemeanor charges under either § 35 as originally enacted or as amended and re-enacted in 1961 as § 35(a). We do not accept any of those decisions as persuasive authority in our search for the correct answer to the question presented here; we are constrained to observe only that they reflect the law of the respective circuits from whence they came in misdemeanor prosecutions. To constitute a substantive violation of the third paragraph of 18 U.S. C. § 32 more is required than merely placing a destructive substance aboard an aircraft; such act must be accompanied by an intent, at least, to damage the aircraft. We reach the conclusion that by incorporation of the reference to § 32 in the indictment there is no charge of a violation of § 35(b) unless the false information concerning the placing of a destructive substance on board the aircraft includes, expressly or by implication, information concerning an intent to damage or destroy the plane. However, the statement of this conclusion does not dispose of this appeal. The indictment in the instant case (see footnote 1) specifically alleges that White falsely reported that he had a bag containing a destructive substance “with which he could destroy the aircraft.” White argues that the words of the indictment must follow the language of the statute and that the use of the word “could” is insufficient to charge the intent to damage or destroy the aircraft since it is conditional or ambiguous. We disagree. It is not a requirement of the Federal Rules of Criminal Procedure that an indictment follow the exact language of the statute although in many, if not most, instances that would appear to be the better practice. It is sufficient if the indictment sets forth the essential facts constituting the crime charged with words of “similar import.” Hall v. United States, 410 F.2d 653, 659 (4 Cir. 1969), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969); United States v. Chunn, 347 F.2d 717, 719 (4 Cir. 1965); United States v. Martell, 335 F.2d 764, 765 (4 Cir. 1964); Finn v. United States, 256 F.2d 304, 306 (4 Cir. 1958). Accord, Hockenberry v. United States, 422 F.2d 171, 173-174 (9 Cir. 1970). United States v. Zarra, 298 F.Supp. 1074, 1077-1078 (M.D.Pa.1969), aff’d, 423 F.2d 1227 (3 Cir. 1970), cert. denied, 400 U.S. 826, 91 S.Ct. 52, 27 L.Ed.2d 56 (1970). The words “with which he could destroy the aircraft” carry with them the unmistakable implication of a communication of the intent which is an essential element of a substantive violation of the third paragraph of § 32. Consideration of the indictment as a whole leads us to conclude that all essential elements of the crime are sufficiently set forth therein. White’s final challenge is to the sufficiency of the proof to sustain the conviction. He contends that there would have been no substantive violation of § 32 even had he actually been in possession of a destructive substance since he did not have or indicate the intent to damage or destroy the aircraft and even stated that he did not wish to do so unless forced to it. White erroneously characterizes his actions, statements and conduct as expressions of a desire to destroy the plane but accompanied by a statement that he would not do so. However, from the events which were developed by the evidence White’s threats were of certain, imminent harm to the aircraft unless an alternative should be provided by compliance with his demand that he be flown to Cuba. The law of criminal assault is filled with examples of such qualified threats which have served as the bases of convictions. For the reasons herein stated the conviction is affirmed. Affirmed. . The charging part of the indictment is as follows: On or about June 18, 1971, in the County of Forsyth, in the Middle District of North Carolina, BOBBY RICHARD WHITE, while aboard a Piedmont Airlines aircraft, Flight number 25, an aircraft which was being used for and employed in interstate commerce, wilfully and maliciously and with reckless disregard for the safety of human life, imparted and conveyed the false information that he then and there had a bag containing nitroglycerin and sulfuric acid with which he could destroy the aircraft, which information BOBBY RICHARD WHITE knew to be false and which concerned an attempt to do an act which would be a crime prohibited by Title 18, United States Code, Section 32; in violation of Title 18, United States Code, Section 35(b). . 18 U.S.C. § 35(b) in pertinent part: (b) Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both. . § 32. Destruction of aircraft or aircraft facilities Whoever willfully sets fire to, damages, destroys, disables, or wrecks any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; or Whoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft engine, propeller, appliance, or spare part with intent to damage, destroy, disable, or wreck any such aircraft ; or Whoever, with like intent, willfully places or causes to be placed any destructive substance in, upon, or in proximity to any such aircraft, or any aircraft engine, propeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material used or intended to be used in connection with the operation of any such aircraft, or any cargo carried or intended to be carried on any such aircraft, or otherwise makes or causes to be made any such aircraft, aircraft engine, propeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material unworkable or unusable or hazardous to work or use; or Whoever, with like intent, willfully sets fire to, damages, destroys, disables, or wrecks, or places or causes to be placed any destructive substance in, upon, or in proximity to any shop, supply, structure, station, depot, terminal, hangar, ramp, landing area, air-navigation facility or other facility, warehouse, property, machine, or aparatus used or intended to be used in connection with the operation, loading, or unloading of any such aircraft or making any such aircraft ready for flight, or otherwise makes or causes to be made any such shop, supply, structure, station, depot, terminal, hangar, ramp, landing area, air-navigation facility or other facility, warehouse, property, machine, or apparatus unworkable or unusable or hazardous to work or use; or Whoever, with like intent, willfully incapacitates any member of the crew of any such aircraft; or Whoever willfully attempts to do any of the aforesaid acts or things— shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. Note: “Destructive substance” mentioned in the third paragraph of § 32 above is defined in 18 U.S.C. § 31 as follows: “Destructive substance” means any explosive substance, flammable material, infernal machine, or other chemical, mechanical, or radio-active device or matter of a combustible, contaminative, corrosive, or explosive nature; . . . . Section 35 was first enacted as a misdemeanor statute by Act of July 14, 1956, 70 Stat. 540, in the following form: § 35. Imparting or conveying false information Whoever willfully imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title— shall be fined not more than $1,000, or imprisoned not more than one year, or both. . By Act of October 3, 1961, 75 Stat. 751, the statute was amended by the deletion of the word “willfully” from the original version, was re-enacted with no other changes and designated as § 35(a). The same Act of October 3, 1961, also created § 35(b), the section involved in the instant case and reproduced in footnote 2, supra. It will be observed that § 35(b) contains the words “willfully and maliciously, or with reckless disregard for the safety of human life,” and that a violation of this section is made a felony. By Act of July 7, 1965, 79 Stat. 210, Congress further amended § 35(a) to substitute a civil penalty of not to exceed $1,000 in place of the fine and imprisonment provisions of the 1961 misdemeanor version but this amendment has no relation to the question now before the court. . The 1961 amendments were requested by the Justice Department in an Executive Communication from the Attorney General of the United States to the Speaker of the House of Representatives and reasons for the request were assigned: Our efforts to curb the high incidence of false bomb reports necessarily have included the prosecution of people who claimed they had no intention to create any apprehension or disturbance but were merely playing a practical joke. In prosecuting such individuals, we have taken the position that the word ‘willfully,’ as used in section 35, does not necessarily embrace any evil purpose but comprehends merely a voluntary and conscious imparting or conveying of the false information with which the statute deals. However, the courts have not uniformly adopted our position. Adding to the judicial confusion over the applicability of the statute in prankster cases is the disinclination on the part of jurors to accept our position, resulting in undue acquittals in such cases. [Emphasis added.] To clarify the statute, and to render it more effective, I submit to the Congress a bill which would make it a felony for one to convey a false report willfully and maliciously, or with reckless disregard for the safety of human life, and a misdemeanor to do so with knowledge of its false character even though without malice or reckless disregard for human life. Such a statute would clearly show the congressional intention to make it a criminal offense to give false reports even without an evil or reckless motive and would provide a more adequate penalty for those whose actions warrant it. (1961 U.S. Code Cong. & Admin.News, p. 3053) The proposal of the Attorney General as to amendments was adopted in the Senate Report accompanying the bill to amend original § 35. Sen.Rep. No. 1055, 87th Cong., 1st Sess., 1961; 1961 U.S.Code Cong. & Admin.News, p. 3053: The committee believes that the proposed legislation, as recommended by the Attorney General and as approved by the House of Representatives, is meritorious and recommends it favorably. It is apparent from the foregoing quotations that the purpose of the amendments was to “reshape” the statute to eliminate the confusion which had arisen in connection with attempts to prosecute pranksters for misdemeanors under § 35 as originally enacted. However, the addition of § 35(b) was designed to make it a felony to voluntarily and consciously impart or convey false information with an “evil purpose,” i. e., willfully and maliciously, or with reckless disregard for the safety of human life. . See Carlson v. United States, 296 F.2d 909, 911 (9 Cir. 1961). . Appellant states in his brief that his threats were to be equated with the common-law example: “If it were not assize time, I would not take such language from you,” which did not constitute an assault. . Among the threats uttered by White to Captain Fox was the following: “Well, I don’t want to take any children’s father with me, but unless we get going, I am going to drop this and blow us up.” . Compare White’s statement in note 9, supra, with the threat “Turn around, or I will blow your head off,” which threat constitutes an assault. 6 Am.Jur.2d § 30, p. 32.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. EVEREST MANAGEMENT CORPORATION et al., Defendants-Appellees, Competitive Associates, Inc. and Competitive Capital Corporation, Applicants for Intervention-Appellants. No. 239, Docket 72-1782. United States Court of Appeals, Second Circuit. Argued Dec. 18, 1972. Decided Dec. 18, 1972. Meyer Eisenberg, Washington, D. C. (D. Barry Morris and Lawler, Sterling & Kent, Washington, D. C., on the brief), for applicants for intervention-appellants. Milton S. Gould, New York City, for defendants-appellees, Laventhol, Krekstein, Horwath & Horwath. Paul Gonson, Asst. Gen. Counsel, SEC, Washington D. C. (Walter P. North, Acting Gen. Counsel, David Ferber, Solicitor, and John M. Turner, Jr., Atty., SEC, Washington, D. C., on the brief), for plaintiff-appellee. Before MOORE, MULLIGAN and TIMBERS, Circuit Judges. TIMBERS, Circuit Judge: This appeal presents the question whether victims of alleged securities fraud are entitled to intervene in an SEC enforcement action as of right under Fed.R.Civ.P. 24(a)(2) or, alternatively, whether the district court abused its discretion in denying permissive intervention under Fed.R.Civ.P. 24(b)(2). We hold that appellants were not entitled to intervene as of right and the district court did not abuse its discretion in denying permissive intervention. We affirm. I. On November 11, 1971, the SEC brought an action in the Southern District of New York to enjoin 44 defendants from violating, inter alia, the anti-fraud provisions of the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940 and certain provisions of the Investment Company Act of 1940 designed to prevent self-dealing and gross abuse of trust. The complaint contained 45 counts which charged defendants with a broad scheme of stock manipulation, bribery, and fraud involving many investors. On January 5, 1972, appellants — Competitive Associates, Inc., an open-end investment company, and Competitive Capital Corp., the investment adviser, of Competitive Associates — filed a motion to intervene as plaintiffs in certain counts against certain defendants in order to assert claims for money damages. They sought to intervene in 3 of the 45 counts in order to assert claims against 7 of the 44 named defendants. The proposed intervenors’ complaint sought money damages of $6,000,000 based on alleged violations of various antifraud provisions of the federal securities laws and based also on what the proposed intervenors’ complaint described as “Breach of Fiduciary Obligations and Fraud.” After hearing oral argument on the motion to intervene on February. 22, 1972, at which time the motion was opposed by counsel for the SEC and by counsel for various defendants, the district court, David N. Edelstein, Chief Judge, entered an order on March 22, 1972 denying the motion. We affirm. II. Appellants’ first contention on appeal is that they were entitled to intervene as of right pursuant to Rule 24(a)(2). This claim, although originally asserted in the district court, was withdrawn at the time of argument below and before the court decided the intervention motion. Under these circumstances, appellants are foreclosed from raising this claim on appeal. See United States v. Lipton, 467 F.2d 1161, 1168 (2 Cir. 1972); Winnick v. Manning, 460 F.2d 545, 550 (2 Cir. 1972); United States v. Deutsch, 451 F.2d 98, 117 (2 Cir. 1971), cert. denied, 404 U.S. 1019 (1972); United States v. L. N. White and Co., 359 F.2d 703, 710-11 (2 Cir. 1966). Aside from the lack of timeliness, there is no merit to the claim. Rule 24(a)(2) provides: “Upon timely application anyone shall be permitted to intervene in an action': ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” It is true that appellants have “an interest relating to [a] . . . transaction which is [a] subject of the action” and that their interest is not adequately represented by existing parties because only appellants claim damages. The remaining issue, therefore, is whether appellants are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest.” We hold they are not. ^Appellants concede that they will not be precluded by res judicata or collateral estoppel from bringing their own action for money damages regardless of the disposition of the SEC action. Appellants’ essential argument is that if intervention is denied they will be required to bear the financial burden of duplicating the SEC’s efforts; and, not having the SEC's investigative staff and resources available to them, they may be unable to develop as complete and reliable a record as they might if intervention were allowed. This is not the sort of adverse practical effect contemplated by Rule 24(a)(2). Whatever bearing such considerations might have upon the exercise of a district court’s discretion on a motion for permissive intervention, we hold that such considerations do-, not require intervention as of right, j III. Appellants’ second contention is that the district court abused its discretion in denying permissive intervention pursuant to Rule 24(b)(2) which provides in relevant part: “Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Of the two factors to be considered in determining whether permissive intervention should be granted, there can be no doubt here that appellants’ claims and the SEC’s claims in the main action have a number of common questions of law and fact. The remaining issue, therefore, is “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” We hold that the district court did not abuse its discretion in concluding that it would. There is some surface appeal to the claim that victims of securities fraud should be allowed to intervene in an SEC enforcement action based on the same fraud. As appellants here argue, they as intervenors would be able to take full advantage of the superior resources and investigative facilities of the SEC. They also might be spared much effort in presenting their case at trial. The federal courts consistently have favored vigorous enforcement of the securities laws through private actions. See J. I. Case Co. v. Borak, 377 U.S. 426, 432 (1964); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 786-87 (2 Cir. 1951); Speed v. Transamerica Corp., 235 F.2d 369, 373 (3 Cir. 1956). To allow private litigants to intervene in an SEC enforcement action might be said to conform to this policy. Despite the surface gloss of this argument favoring intervention, we hold that the district court did not abuse its discretion in denying permissive intervention. The SEC’s workload, despite its limited budget and staff, would be substantially increased if such intervention were allowed. Additional issues would have to be tried in the main action. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 185-94 (1963). For example, a private party seeking damages would have to prove scienter and causation, elements of proof not required in an SEC injunction action. Mutual Shares Corp. v. Genesco, Inc., 384 F.2d 540, 547 (2 Cir. 1967). Already complicated securities cases would become more confused and complex. The SEC can bring the large number of enforcement actions it does only because in all but a few cases consent decrees are entered. The intervention of a private plaintiff might tend to discourage or at least to complicate efforts to obtain a consent decree. We hold that the complicating effect of the additional issues and the additional parties outweighs any advantage of a single disposition of the common issues. See Lip-sett v. United States, 359 F.2d 956, 959-60 (2 Cir. 1966). Moreover, the importance to a private litigant of being permitted to intervene in an SEC action strikes us as exaggerated by appellants. They claim that they would not have access to the SEC’s extensive resources and information regarding this particular action if a consent decree were to be entered. As the SEC candidly informs us, however, the parties and the courts in private litigation often can obtain information from SEC investigations where such information can be given without prejudice to further enforcement proceedings or other law enforcement interests. Furthermore, if a consent decree is not entered, the private litigant will have the benefit of the tactics and strategy of the SEC in the prosecution of the action. Finally and of crucial importance here, Rule 24(b) necessarily vests broad discretion in the district court to determine the fairest and most efficient method of handling a case with multiple parties and claimsTj Whether, under unusual circumstances, it might be appropriate for a district court to allow a private party to intervene in an SEC enforcement action, suffice it to say that this is not such a ease. The record in the instant case overwhelmingly supports the propriety of the district court’s exercise of discretion in denying permissive intervention. We are fortified in our reluctance to reverse such a discretionary order by the reliable information that there is not a single reported case in which an appellate court has reversed solely because of an abuse of discretion in denying permissive intervention. 7A Wright and Miller, Federal Practice and Procedure § 1923, at 631-32 (1972). We hold that the district court did not abuse its discretion in denying permissive intervention. Affirmed. . At the conclusion of the argument of this appeal on December 18, 1972, we affirmed from the bench in order to permit the SEC enforcement action in the district court to go forward without further delay. In view of the importance of the questions presented and the sparseness of authority regarding the issues involved, however, we believe that we should briefly state the reasons for our affirmance of the order of the district court. Hence this opinion. . The traditional view was that an appellate court would reverse if a district court had erroneously denied intervention as of right; but that the order was not appeal-able, and the appeal should be dismissed, if the district court had properly denied intervention. Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2 Cir. 1964). This made appealability turn on the merits. The only consequence of such a restriction on appealability was that, on finding that the district court was correct, the appellate court would dismiss the appeal rather than affirm, we have held, however, that a district court’s order denying intervention is final for purposes of appeal; and that it should be reviewed on the merits and affirmed if intervention was properly denied Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 188-89 (2 Cir. 1970). We follow that rule here. . In view of our holding on the merits, we dismiss as moot the SEC’s motion to strike that portion of appellants’ brief dealing with intervention as of right and to dismiss that portion of the appeal dealing with permissive intervention. . It has been held that stare decisis by itself, in a proper case, may supply the practical disadvantage that is required for intervention under Rule 24(a) (2). Nuesse v. Camp, 385 F.2d 694, 702 (D.C.Cir. 1967); Atlantis Development Corp. v. United States, 379 F.2d 818, 828-29 (5 Cir. 1967). This is not such a case., Among other reasons, the SEC is adequately representing the interests of appellants insofar as the stare decisis problem is concerned. . Appellants rely heavily on the Fifth Circuit’s holding in Radial v. Hill, 435 F.2d 59 (5 Cir. 1970), cert. denied, 403 U.S. 904 (1971), that the determination of issues in an SEC injunction action would not have collateral estoppel effect in a subsequent private action brought against the same defendants and based on the same transaction. Appellants argue, accordingly, that, unless intervention in the present SEC action is permitted, a total relitigation of the issues would be required in a subsequent action. [...quired in a subsequent action. Suffice it to say that in our view it is preferable to require private parties to commence their own actions than to have SEO actions bogged down through intervention. . But, lest we forget, see Appeal of the United States Securities and Exchange Commission, 226 F.2d 501 (6 Cir. 1955).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. DUNHAM CONCRETE PRODUCTS, INC. et al., Defendants-Appellants. No. 71-2791. United States Court of Appeals, Fifth Circuit. March 23, 1973. Rehearing and Rehearing En Banc Denied May 23, 1973. James A. McPherson, New Orleans, La., Ossie B. Brown, Baton Rouge, La., for defendants-appellants. Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Howard E. Shapiro, Stephen Rubin, Harry First, Carl D. Lawson, Wilford L. Whitley, Jr., Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee. Before RIVES, WISDOM and RONEY, Circuit Judges. RONEY, Circuit Judge: This case involves a federal statute, now repealed, that is asserted to immunize a defendant from criminal prosecution under the antitrust laws for transactions about which he had testified in a private antitrust case, at a time when the statute was effective. We hold that a proper reading of the statute fails to immunize the defendant, that there is no merit to the claims of error in the grand jury proceedings that produced the indictment, and that the trial proceedings contain no reversible error. We affirm the convictions. A jury convicted three corporate defendants and their part-owner and manager Ted F. Dunham, Jr. of (1) attempting to monopolize trade in concrete products, in violation of Section 2 of the Sherman Act, 15 U.S.C.A. § 2, and (2) conspiring to affect commerce by attempting to obtain property through physical violence, in violation of the Hobbs Act, 18 U.S.C.A. § 1951. On the Sherman Act count, Louisiana Ready-Mix Company and Dunham Concrete Products, Inc. were each fined $30,000, Anderson-Dunham, Inc. was fined $40,000, and Ted Dunham was fined $30,000 and was sentenced to six months in prison. On the Hobbs Act count, Louisiana Ready-Mix and Dun-ham Concrete were fined $5,000 each, Anderson-Dunham was fined $10,000, and Ted Dunham was fined $10,000 and was sentenced to three years in prison, with two and one-half years suspended. Dunham’s prison sentences are to run consecutively. Although all defendants filed a notice of appeal, only Anderson-Dunham, Inc. and Ted Dunham, Jr. have prosecuted their appeals. The appeals of the other two corporate defendants, Louisiana Ready-Mix Company and Dunham Concrete Products, are therefore dismissed. Rule 12(c), F.R.A.P. I. Immunity In 1967 Dunham, certain Dunham corporations, and a labor representative were sued in a private antitrust action that sought treble damages for an alleged conspiracy to restrain trade in the Baton Rouge, Louisiana, concrete products market. Dunham was deposed three times by the private plaintiff during the preliminary stages of the civil litigation. The testimony elicited from him in the first two depositions covered matters that later constituted the substance of the Sherman Act violations, and the third deposition dealt with Dun-ham’s knowledge of the alleged Hobbs Act violation. We assume that Dun-ham’s deposition testimony would qualify him for immunity if the immunity statute is applicable. The corporate defendant Anderson-Dunham, Inc., does not claim immunity because the statute specifically applies only to natural persons and, moreover, a corporation has no Fifth Amendment privilege through which immunity may be asserted. George Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968). The question is whether a person, who testifies in a private civil antitrust suit in which the Government has no involvement, is entitled to immunity from criminal prosecution under 15 U. S.C.A. § 32. The Government contends that, because only the Government can grant immunity, the statute does not apply to nongovernment litigation. Dunham contends that he is entitled to immunity (1) under the wording of the statute, (2) because permitting immunity here would further the legislative purpose of Section 32, and (3) because prior ease law tends to support his view of the scope of the statute. Enacted as part of the general appropriations act of February 25, 1903, Section 32 provides that “No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit or prosecution under sections 1 through 7 of this title and all Acts amendatory thereof or supplemental thereto, and sections 8 to 11 of this title .. . .” Act of February 25, 1903, c. 755, § 1, 32 Stat. 904. We note that this decision will be one of limited effect. Sections 32 and 33, which grant a broad transactional immunity, have now been repealed by Public Law 91-452, Title II, §§ 209, 210, 84 Stat. 929 (October 15, 1970). The current immunity statute, 18 U.S.C.A. § 6002, permits only a narrowed use immunity, and Section 6003(a) explicitly states that immunity is to be conferred by the District Court “upon the request of the United States attorney.” Under the current statute, then, only the Government can confer immunity. Hence, our decision here will affect only appellant Dunham and such other antitrust criminal prosecutions, if any, in which the defendants testified in private litigation prior to October 15, 1970, the effective date of repeal for Sections 32 and 33. The District Court held that Dunham was not immune under Section 32 from prosecution. This holding was correct. To hold otherwise would be contrary to the wording of the statute, its legislative history, and its purpose. 1. Section 32 was enacted as part of the general appropriations act of February 25, 1903, that declared in part: “That for the' enforcement of the provisions of the [Interstate Commerce] Act . . . the [Sherman] Act . . . and . . . [the antitrust provisions of the Wilson Tariff] Act, . . . the sum of five hundred thousand dollars ... is hereby appropriated . . to be expended under the direction of the Attorney-General in the employment of special counsel and agents of the Department of Justice to conduct proceedings, suits, and prosecutions under said Acts in the courts of the United States: Provided, That no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said Acts.” 32 Stat. 903-904 (1903). The language of the appropriation portion of the statute indicates that the purpose of the appropriation was to fund judicial enforcement activities by the United States. See United States v. Welden, 377 U.S. 95, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964); United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943). The money was “to be expended under the direction of the Attorney-General in the employment of special counsel and agents of the Department of Justice . . . .”32 Stat. 904. These Justice Department personnel were “to conduct proceedings, suits, and prosecutions” under the then-current antitrust laws. 32 Stat. 904. In addition, the immunity proviso in question here was appended. Dunham argues that, if Congress had intended that only the Government be authorized to accord immunity under Section 32, the statute would read “Government proceeding, suit by the United States or prosecution.” We disagree. We think that the “proceedings” to which the statute refers are the same “proceedings” with which the appropriation as a whole is concerned. Thus, since the “proceedings, suits, and prosecutions” referred to in the appropriation section of the bill were those brought by the Justice Department, so also must those terms, when used in the immunity proviso, refer to those “proceedings, suits, and prosecutions” conducted by “special counsel and agents of the Department of Justice.” This reading of the phrase in question has previously been approved by the Supreme Court in another context. In United States v. Welden, supra, the defendant in a criminal antitrust prosecution had previously testified under subpoena before a Congressional subcommittee under subpoena about the same matters. Welden moved to dismiss the indictment on the ground of immunity under Section 32, contending that the language in the proviso applying to “any proceeding” encompassed more than the nearly identical language in the previous clause in the statute authorizing court enforcement by the Department of Justice and was broad enough to cover Congressional investigations. The Supreme Court, however, rejected this contention and stated: “By any common-sense reading of this statute, the words ‘any proceeding, suit, or prosecution under said Acts’ in the proviso plainly refer to the phrase ‘proceedings, suits, and prosecutions under said Acts in the courts of the United States,’ in the previous clause.” 377 U.S. at 97, 84 S.Ct. at 1084 (Court’s emphasis). Hence, to read Section 32 as Dunham seeks would require us to read the phrase one way in one clause, and to construe it another way in a subsequent clause. This we cannot do. The phrase must be given the same meaning in both clauses. 2. The legislative history of Section 32 indicates very little about its intended scope. The appropriation was viewed by its sponsors as legislation that would strengthen antitrust enforcement by the Attorney-General. 36 Cong.Rec. 411-12 (1902). The immunity section itself was also intended to facilitate antitrust enforcement. Because it had proven “extremely difficult to establish the existence of combinations or conspiracies without the testimony of persons who [were] guilty parties thereto,” an immunity provision would have “great utility in aiding in effectively enforcing the antitrust laws.” H.R.No.1506, 56th Cong., 1st Sess. 2; 33 Cong.Rec. 6478 (1900). The legislative history of the 1906 amendment to the immunity statute, 34 Stat. 798, 15 U.S.C.A. § 33, however, confirms our view that Congress intended for Section 32 immunity to be granted solely by Government officials. Section 33 specifically limited immunity under existing immunity statutes to persons testifying under oath and in obedience to a subpoena. The Senate version of Section 33, S. 5769, read substantially like the present statute, but the House version extended immunity only to a person “who, as a witness on the part of the Government in any proceeding authorized by any of said statutes, testifies on oath or in obedience to a subpoena produces relevant evidence.” 40 Cong.Rec. 8738 (1906) (emphasis added). The floor manager of the bill in the House, Representative Littlefield, stated that “[w]e do not intend that any person shall have the power to offer immunity to a witness except the Government of the United States . . . .” 40 Cong.Rec. 8739 (emphasis added). Although Congressman Littlefield preferred the House version, he admitted that both the House and Senate bills expressed the same intent and accomplished precisely the same purpose. Thus, Section 33 was intended to limit immunity, including Section 32 immunity, to those instances where a responsible Government official would offer it. 3. Finally, to hold that Section 32 authorizes a private plaintiff to immunize antitrust violators would be to disregard the legislative purpose of the. statute. The underlying purpose of the immunity clause was the same as that of the appropriation: to strengthen antitrust enforcement by the Attorney-General. Dunham argues that, by permitting private plaintiffs to confer Section 32 immunity, Congress would have been strengthening antitrust enforcement by encouraging and by facilitating private enforcement. Although the courts have historically emphasized the importance of the private antitrust action as a means of achieving the policy goals of the antitrust laws, see, e. g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Byram Concretanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649 (3d Cir. 1967); Rutherford v. United States, 365 F.2d 353 (9th Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 598, 17 L.Ed.2d 449 (1966); Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d 841 (2d Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964), private civil actions can only supplement, and not supplant, governmental efforts both civil and criminal. As the Supreme Court stated in holding that a private antitrust decree does not bar a subsequent Government injunction, “it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws.” United States v. Borden Co., 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903 (1954). Hence, a construction of Section 32 that would have hindered Government action, civil or criminal, would not be effectuating the legislative intent underlying Section 32. Dunham’s proposed construction of Section 32 might indeed hinder governmental enforcement of the criminal provisions of the antitrust laws. . First, the decision to prosecute or not to prosecute criminal violations of the antitrust laws would become a decision to be made, not by responsible Government officials, but by private antitrust plaintiffs. A zealous antitrust plaintiff could easily immunize an entire industry from criminal prosecution under the antitrust laws. Second, the possibility of collusive suits must be reckoned with. If Dun-ham’s view of the Congressional intent were correct, co-conspirators could have used each other to confer immunity from criminal prosecution. Dunham discounts this fear contending that the courts could guard against collusive suits by permitting Section 32 immunity to attach only if the defendant had testified or had produced evidence in a bona fide adversary proceeding. The intent of the Act, however, was to ease prosecution, not to complicate it. Third, under Dunham’s view of Section 32, the Government’s power to offer immunity in exchange for information would have been extremely limited. Potential defendants would have had an alternate source of immunity, the private plaintiff, and the Government’s power to determine which persons should be prosecuted would have been substantially lessened. Yet this tool to expose anti-competitive conspiracies was, according to one of the drafters of the immunity statute, one of the basic needs underlying the enactment of the statute. See H.R.No.1506, supra. In view of the legislative history and the clear intent of the statute, we hold that Section 32 authorized immunity from criminal prosecution only to the extent that the Government actively acquiesced. 4. Although we are told that this is the first case to present to an appellate court the question of whether a private plaintiff may confer Section 32 immunity, the available case law almost uniformly supports the Government’s position in this case. Welden v. United States, supra, held that Section 32 immunity applied only to persons testifying in judicial proceedings and did not apply to persons testifying before committees or subcommittees of Congress. United States v. Monia, supra, held that a witness who, under subpoena, testified before a grand jury about an alleged Sherman Act violation obtained immunity from prosecution for that offense, even though he did not claim his Fifth Amendment privilege against self-incrimination. In construing 15 U.S.C.A. § 33, 34 Stat. 798 (1906), the 1906 amendment to Section 32, the Court stated in dictum that the purpose of the amendment was “to protect the Government’s interests by preventing immunity unless the prosecuting officer, or other Government official concerned, should compel the witness’ attendance by subpoena and have him sworn.” 317 U.S. at 429, 63 S.Ct. at 411. Welden, supra, restated this view, declaring: “United States v. Monia, 317 U.S. 424, 429-430, [63 S.Ct. 409, 412, 87 L.Ed. 376], recognized that ‘the sole purpose’ of the 1906 statute was to limit immunity to persons ‘who, in obedience to a subpoena, testified or produced evidence under oath,’ so that the decision whether or not to grant immunity would be that of the appropriate ‘Government officials,’ rather than of private citizens anticipating indictment.” 377 U.S. at 106, 84 S.Ct. at 1089. Thus, both Welden and Monia indicate that the decision to grant immunity under Sections 32 and 33 was not intended to be left to private citizens. Several Circuit and District Court cases support this view of Section 32. For example, in a private antitrust suit, H. Wagner & Adler Co. v. Mali, 74 F.2d 666 (2d Cir. 1935), the Second Circuit held that the District Court had erred by requiring defendants to answer interrogatories that were possibly incriminating. In dictum, the Court stated that Section 32 would not cure the impropriety because it could not confer an immunity from criminal prosecution. According to the Court: “[s]ince the body of the statute is concerned with proceedings brought by the Department of Justice, it would seem a natural construction to limit similarly the proviso. Moreover, it would be an amazing thing to allow a private suitor to confer immunity upon a defendant or other witness by calling him in a private action.” 74 F.2d at 670. See also E. H. Rohde Leather Co. v. Duncan & Sons, Inc., 15 F.2d 103 (W.D.Wash.1926). Dunham relies on two cases, one of which is not on point and the other of which has limited precedential content. The former, Rutherford v. United States, supra, held only that Section 32 immunity may be granted to a defendant in a Government suit for monetary damages under the Sherman Act. The Ninth Circuit’s holding in Rutherford is not inconsistent with our present holding, because there the Government actively participated in the decision to grant immunity. Dunham’s other case is an unreported decision of the District Court for the Western District of Washington, Sabado-Ollero, Inc. v. United Dairymen’s Ass’n, Civil No. 7144 (W.D.Wash., Aug. 31, 1970), mandamus ref. sub nom. United States v. Sabado-Ollero, Inc., 432 F.2d 1359 (9th Cir., 1970). The District Court there required a defendant to give deposition testimony in a private antitrust suit after being granted Section 32 immunity. The immunized defendant was deposed by the private plaintiff, and the United States applied to the Ninth Circuit for a writ of mandamus to compel the District Court to rescind and vacate its order that granted immunity. In a per curiam order, without ruling on the merits, the Ninth Circuit refused the Government’s mandamus petition. The witness had already been compelled to testify under the District Circuit order of immunity, so the Ninth Circuit’s order could have been based on the unfairness that would have occurred if it had not protected a defendant-witness who had been compelled to testify under a District Court order granting him immunity. To this extent, it is not persuasive precedent in this case. II. Grand Jury Appellants contend that the indictment should have been dismissed because a Government grand jury witness (1) testified before the grand jury as an expert on the antitrust problems of the concrete building materials industry, when in actuality he was not a qualified expert; (2) improperly summarized for the grand jury the Government’s presentation; (3) offered an expert opinion to the grand jury on the precise point to be determined by it; (4) improperly referred to an earlier grand jury proceeding by not relating the earlier testimony in its entirety; (5) gave wholly hearsay testimony, based upon other grand jury witnesses’ testimony and upon documents subpoenaed by the grand jury and its predecessor ; and (6) was provided copies of grand jury exhibits, without a court order, in violation of Rule 6(e), F.R.Crim.P. The witness was Ernest Hays, an economist with the Economic Section of the United States Justice Department’s Antitrust Division. His specific function before the grand jury was to compare the pay scales and other terms of two Teamsters Union contracts. The contracts themselves (one was with appellant Anderson-Dunham, Inc., the other with a competitor) had already been submitted to the grand jury as exhibits by a previous witness, and Hays’ testimony pointed out particular contractual provisions that were more favorable tó appellant Anderson-Dunham, Inc. His testimony focused on two subjects: the lower wage scales paid by AndersonDunham, Inc. and the absence of an arbitration clause in the Anderson-Dun-ham labor contract, a clause present in the competitor’s contract. Appellants argue that Hays’ testimony “improperly influenced” the grand jury’s decision to indict. Upon a careful reading of Hays' grand jury testimony, we conclude that appellants’ objections to it are groundless and that the District Court correctly refused to dismiss the indictment. First, Hays did not testify as an expert; he simply made arithmetical computations and compared the provisions of two labor contracts. At no time was Hays asked his “expert opinion” about anything. Second, nowhere in Hays’ grand jury testimony does he “argumentatively summarize” the Government’s presentation. Appellants fail to indicate precisely where this alleged summary may be found, and we must conclude that Hays” testimony was not improper in this respect. Third, nowhere did Hays offer an expert conclusion on the “precise point” to be determined by the grand jury. His testimony was explanatory and descriptive, and it offered no conclusions based upon expert judgment. Fourth, appellants contend that Hays’ testimony was improper because it made an incomplete reference to testimony given before a previous grand jury. Reading the testimony, we can find only one instance where such a reference was made, and that was where Hays pointed out that, although they reached different numerical results, his arithmetic computations merely confirmed to conclusions of the witness who had testified before a previous grand jury. Appellants cite In re Grand Jury Investigation of Banana Industry, 214 F.Supp. 856 (D.Md.1963), for the proposition that the Government, when referring to testimony heard by a previous grand jury, must read the entirety of the testimony to the current grand jury. Unlike the Banana Industry case, though, appellants here can point neither to carefully prepared and highly selective summaries nor to any prejudicial effect from the partial reference. In this context, the partial reference to testimony before a previous grand jury did not constitute a ground for dismissing the indictment. Fifth, appellants contend that part of Hays’ grand jury testimony was hearsay, is therefore incompetent, and consequently was improper. Assuming that this contention is correct, it nontheless states no legal basis for dismissing the indictment. Courts are not required to dismiss indictments based solely upon hearsay evidence. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Even if Hays’ grand jury testimony was that of an unqualified expert, was an argumentative summary, and was opinionated on the precise point or points to be determined by the grand jury, there would not be sufficient cause for dismissing the indictment. The rule is clear that Government officials may assist the grand jury in analyzing the evidence before it. For example, in United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956), cert. denied sub nom. Valley Bell Dairy Co., Inc. v. United States, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957), the Fourth Circuit held that the grand jury could return a valid indictment even after hearing a digest of testimony prepared by Government counsel. According to the Court, “[i]n investigations of this sort [antitrust], it is necessary that the grand jury have the aid of counsel, not only in examining witnesses but also in digesting the great mass of evidentiary matter produced before them . . . . ” 238 F.2d at 720-721. And in United States v. Rintelen, 235 F. 787, 791 (S.D.N.Y.1916), Judge Augustus Hand observed: “Assuming that a grand jury were simply supplied with the witnesses and nothing more . what sort of an investigation would be had, or intelligent consideration secured, in a difficult or complicated matter?” An indictment, regular on its face and returned by a legally constituted grand jury, is presumed to be founded on competent evidence, United States v. James, 290 F.2d 866 (5th Cir.), cert. denied, 368 U.S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961), and the law is well established that the submission to a grand jury of some incompetent proof is not a ground for dismissing the indictment. See United States v. Nunan, 236 F.2d 576 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957); see also Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958) (illegally obtained evidence); Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963) (perjured testimony). Hays’ testimony here constituted only a small part of the evidence presented to the grand jury, and appellants cannot, and in fact do not, dispute that at least some competent evidence was presented to the grand jury. That is sufficient to sustain the indictment. United States v. Tane, 329 F.2d 848 (2d Cir. 1964); Coppedge v. United States, supra. Finally, as the Sixth point, appellants argue that the indictment should have been dismissed because Hays, without a court order as required by Rule 6(e), F.R.Crim.P., was given access to otherwise secret grand jury exhibits to help prepare his grand jury testimony. Apart from the question of whether appellants have standing to remedy the alleged breach of grand jury secrecy, the remedy in any case would not be to dismiss the indictment. Instead, as courts have recognized, if the Government abuses the grand jury in this way, a contempt citation will be adequate to halt any impropriety and to protect grand jury secrecy. See, e. g., United States v. United States District Court, supra, 238 F.2d at 721; In re Petroleum Industry Investigations, 152 F.Supp. 646 (E.D.Va.1957). III. New Trial Appellants contend that multiple trial errors, alone or cumulated, entitle them to a new trial. We disagree. 1. Appellants argue that the trial court violated their Sixth Amendment Right of Confrontation when it permitted two Government witnesses to testify as to declarations of deceased alleged co-conspirators. Appellants complain that “it is impossible to cross-examine a dead man.” Out-of-court statements of a co-conspirator, made in furtherance of the conspiracy and during its pendency, have long been held admissible in the federal courts as a settled exception to the hearsay rule. See Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Johnson, 466 F.2d 508 (5th Cir. 1972); United States v. Harvey, 464 F.2d 1286 (5th Cir. 1972); United States v. Williamson, 450 F.2d 585 (5th Cir. 1971), cert. denied, 405 U.S. 1026, 92 S.Ct. 1297, 31 L.Ed.2d 486 (1972); United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); United States v. Nall, 437 F.2d 1177 (5th Cir. 1971); McGregor v. United States, 422 F.2d 925 (5th Cir. 1970); Holsen v. United States, 392 F.2d 292 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 640, 21 L.Ed.2d 573 (1969); Orser v. United States, 362 F.2d 580 (5th Cir. 1966); C. McCormick, Law of Evidence § 244 at 521-24 (1954); 4 Wigmore on Evidence § 1079 (3d ed. 1940); cf. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The admission into evidence of statements made by a declarant who was dead at the time of trial has also long been permitted. See, e. g., Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Accordingly, “[t]he death of a coconspirator will not render inadmissible statements made by him during the pendency of the conspiracy.” 2 Wharton, Criminal Evidence 187 (12th ed. 1955). See Lewis v. United States, 38 F.2d 406 (9th Cir. 1930). Admission of these statements did not, therefore, constitute error. 2. Appellants assert that, in the trial court’s preliminary instructions to the jury, the court did not give appellants’ requested charge as to the distinction between direct and circumstantial evidence, and, according to appellants, the subsequent proper charge given at the close of the trial only confused the jury and did not cure the earlier error. This contention is meritless. Appellants fail to point out any alleged defects in the charge and do not show how the charge harmed them. We have carefully examined both charges, and any possible error in the preliminary charge was surely cured by the subsequent instructions. 3. Appellants object to the testimony of Roland Stevens, a Government witness. Stevens testified that, in the years 1955 to 1957, he encountered difficulties in operating a ready-mix concrete company in competition with appellant Anderson-Dunham, Inc. He further testified that, during the same period of time, Dunham attempted to force him to agree to divide the ready-mix concrete market between them. Appellants contend that this testimony was inadmissible because it recounted events remote in time to the period from 1966 to 1969 covered by the indictment. Although criminal defendants may not be convicted for acts occurring prior to the period of time spanned in the indictment, federal courts in antitrust cases have, for the purpose of showing intent, consistently admitted evidence of conduct prior to the time covered by the indictment. See, e. g., United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760 (1920); Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); United States v. Schine, 260 F.2d 552 (2d Cir. 1958), cert. denied, 358 U.S. 934, 79 S.Ct. 318, 3 L.Ed.2d 306 (1959); Kansas City Star Co. v. United States, 240 F.2d 643 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957); American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir. 1944), aff’d 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); United States v. Pullman Co., 50 F.Supp. 123 (E.D.Pa.1943), aff’d by an equally divided court, 330 U.S. 806, 67 S.Ct. 1078, 91 L.Ed. 1263 (1947); 2 Wigmore on Evidence § 302 (3d ed. 1940); cf. Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); Panotex Pipe Line Co. v. Phillips Petroleum Co., 457 F.2d 1279 (5th Cir. 1972). The jury was here instructed to consider this “background evidence” solely for the purpose of showing the purpose and character of the particular transactions covered by the indictment, so it was proper to admit evidence of a course of conduct engaged in in previous years to assist the jury in attempting to determine whether or not appellants possessed the requisite intent to restrain trade during the years covered by the indictment. 4. Appellants argue that their cross-examination of Wallace Heck, a Government witness, was unduly restricted by the trial court. Heck was an alleged victim of the charged conspiracy, and appellants sought to impeach his credibility by showing that he had settled a state court civil suit that had criminal implications. The trial court correctly sustained Government counsel’s objection to this line of questioning, because only prior convictions of felonies or of misdemeanors involving moral turpitude are admissible in evidence to impeach the credibility of a witness. Leary v. United States, 383 F.2d 851 (5th Cir. 1967), rev’d on other grounds, 395 U.S. 6, 89 S.Ct. 1532', 23 L.Ed.2d 57 (1969). See also Brown v. Coating Specialists, Inc., 465 F.2d 340 (5th Cir. 1972). 5. Appellants assert that the trial court erred in reading the indictment to the jury as part of the charge and in permitting the jury to take a copy of the indictment into the jury room. The trial court, both at the beginning of the trial and in its final instructions, specifically instructed the jury that the indictment was not evidence but was merely the formal manner by which the Government accuses a person of a crime. In the light of these clear instructions, and in the absence of a timely objection on either point, we hold that the trial court committed no error in reading the indictment to the jury, see Kroll v. United States, 433 F.2d 1282 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112 (1971), nor did it abuse its discretion by permitting the jury to have a copy of the indictment present during their deliberations, see United States v. Smith, 460 F.2d 1323 (5th Cir. 1972); United States v. Green, 433 F.2d 946 (5th Cir. 1970). 6. Appellants object to a written message sent by the trial court to the jury. Appellants contend that the message imposed a deadline for reaching a verdict and “blasted them into a conviction.” The record does not show, however, what this written message stated, so we cannot speculate about its effects. Appellants did not request that the contents of this message be included in the trial transcript, nor have they sought to supplement the record under Rule 10(c), F.R.A.P. The burden of supplementing the record is on the party seeking to enlarge the transcript, and a failure to comply with Rule 10(c) leaves the matter outside the record. Browder v. United States, 292 F.2d 44 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 366, 7 L.Ed.2d 193 (1961). An appellate court cannot go behind the record, Smith v. United States, 343 F.2d 539 (5th Cir.), cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965), so appellants’ contention must be rejected for want of a sufficient record on appeal. Cf. Sanford Brothers Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir. 1969). Affirmed. . Congress has not enacted Title 15 of the United States Code into positive law, so the Statutes at Large take precedence over the codification. United States v. Welden, 377 U.S. 95, 98, 84 S.Ct. 1082, 12 L.Ed.2d 152 n. 4 (1964).

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Charles LEE, Plaintiff-Appellant, v. Yamashita Shinnihon KISEN, Defendant-Appellee, J. P. FLORIO & CO., INC., Third Party Defendant-Appellee. No. 71-1094. United States Court of Appeals, Fifth Circuit. April 2, 1973. Frank S. Bruno, New Orleans, La., for plaintiff-appellant. James G. Burke, Jr., Thomas W. Thorne, Jr., B. Ralph Bailey, New Orleans, La., for J. P. Florio & Co., Inc. Before JOHN R. BROWN, Chief Judge, and MOORE and RONEY, Circuit Judges. Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by; designation. RONEY, Circuit Judge: This appeal raises the question of whether the district judge properly transferred the case to the admiralty docket because the plaintiff failed to establish the requisite jurisdictional amount for a civil action, in which he would have been entitled to a jury. Holding that this is not one of those rare cases where it appears to a legal certainty that the claim is for less than the jurisdictional $10,000, we reverse and remand for a jury trial. The action arises out of injuries suffered by the longshoreman plaintiff, Charles Lee, when he was loading cargo on a vessel. Plaintiff’s position is that the injury occurred because of the faulty and negligently placed dunnage flooring on the vessel. A 600-pound drum which Lee was moving fell into an aperture between layers of dunnage and onto a piece of dunnage that broke, causing the drum to smash the ring finger of his right hand. Filed as a diversity suit under general maritime law, the complaint alleged negligence of the shipowner and unseaworthiness of the vessel and demanded a jury trial. At the conclusion of plaintiff’s case, the Court granted defendant’s motion for directed verdict on the negligence claim and submitted the unseaworthiness claim to the jury. When the jury deadlocked, the trial judge dismissed it, ruled that the plaintiff had failed to prove the jurisdictional amount requisite to civil jurisdiction, and transferred the cause to the admiralty docket. The Court rendered judgment for defendant on the merits, and plaintiff appealed. From the commencement of the lawsuit, the defendants had been urging the Court either to dismiss the cause for lack of jurisdiction or transfer it to the admiralty docket, and the trial judge frequently expressed doubt that the plaintiff could satisfy the jurisdictional requirements. The action of a longshoreman for personal injury occurring on a vessel in navigable waters can be brought on the civil side of the federal District Court when there is diversity of citizenship, the requisite jurisdictional amount of the claim, and personal jurisdiction of the defendants, all present in this case. 28 U.S.C.A. §§ 1331, 1332; see M. Norris, Maritime Personal Injuries § 82. Plaintiff has the burden of proving to the Court that the damages sought meet the jurisdictional requirement. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). But to justify dismissal by the Court, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount. St. Paul Mercury Indemn. Co., v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see Opelika Nursing Home, Inc. v. Richardson, 5 Cir., 448 F.2d 658 (1971). For this reason, the trial judge, considering the jurisdictional amount claim on three separate occasions, each time deferred ruling on the question until the end of the trial. The Court’s basis for ultimately finding plaintiff’s jurisdictional claim was insufficient was that, even assuming that proposed, additional surgery were necessary, Lee had shown only nine weeks and two days of lost wages (approximately $1,850), minimal medical expenses, and residual disabilities which the Court thought suspect. In the Court’s view, the balance of the damages sought on the plaintiff's claim for pain and suffering could not bring the amount to the $10,000 level. The possibility of residual disability is the key to our decision. After medical treatment, plaintiff returned to work, during his union’s strike, as a carpenter and then to his regular employment. Lee testified that his hand hurt every time he struck or strained his fingers and that this condition had continued for the two-year period prior to trial. Defendant endeavored to impeach plaintiff with subsequent contradictory testimony and with undisputed evidence that Lee had sought no medical care from the time of his discharge from immediate treatment in January, 1969, until shortly before the trial in July, 1970. The employer’s doctor, who had treated Lee after the accident, testified that, although the bone chip had not united, the injury had healed routinely and the nonunited fracture would not cause any difficulty. Upon Lee’s complaints of pain, however, the doctor suggested minor surgery. Shortly before trial, plaintiff was examined by an orthopedic surgeon, who also found the fracture not to have united, but who did not recommend further surgery because of the possible discomfort from scar tissue which would be created by removal of the bone fragments. The surgeon did not testify, however, and his report was merely proffered in evidence. Although discretion is vested in the trial court to determine whether the claim meets the jurisdictional amount, Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939), the standard— whether expressed in terms of good faith or legal certainty — clearly favors those parties seeking to invoke the jurisdiction of the federal court. See Opelika Nursing Home, Inc. v. Richardson, supra. It does not appear to this Court that plaintiff’s jurisdictional claim was made in bad faith or that, if his evidence is taken as true and viewed most favorably to him, it can be said to a legal certainty that a reasonable jury could not have found the pain and suffering inherent in plaintiff’s claimed residual disability to be in an amount sufficient to invoke federal civil jurisdiction. We cannot agree, consequently, with the trial court’s dismissal of this civil action for lack of jurisdictional amount. We affirm the trial court’s granting a directed verdict on the negligence claim. On remand, consequently, only the issue of unseaworthiness remains for consideration. It is unnecessary for us to consider the other points of plaintiff’s appeal which relate to alleged trial errors. Reversed and remanded.

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Donald Edward MOZINGO, Petitioner-Appellee, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent-Appellant. No. 72-1755. United States Court of Appeals, Ninth Circuit. Feb. 12, 1973. Daniel W. McGovern, Deputy Atty. Gen. (argued), Russell Iungerich, Deputy Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondent-appellant. Gerald F. Uelman (argued), School of Law, Loyola University, Los Angeles, Cal., for petitioner-appellee. Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges. PER CURIAM: Donald Edward Mozingo, a California state prisoner, petitioned the district court for a writ of habeas corpus. He complained that at a Parole and Community Service hearing, which resulted in the suspension of his parole for engaging in a bar room brawl, and in a subsequent parole revocation hearing on March 13, 1970, based on the same charge, he was denied the asserted due process right of confronting and cross-examining the witnesses who testified against him. After a hearing the district court ordered that a writ issue unless, within sixty days, the warden and the State of California institute a new hearing on these charges before the California Adult Authority, 341 F.Supp. 296. Such a hearing, the court ordered, must meet the requirements of due process, “including the right of the petitioner to the assistance of counsel, to confront adverse witnesses and to present witnesses on his own behalf.” The warden appeals. Appellant has moved for an order vacating the district court order as moot and dismissing the petition. In support of this motion appellant points out that, following the revocation of parole in question, Mozingo was once more re-, leased on parole, violated the terms of the latter parole, and is now in custody as a result of the revocation of the latter parole. At oral argument we asked counsel for appellant to ascertain whether the California Adult Authority would agree to disregard the complained-of March 13, 1970, parole revocation in the future if this court ordered the district court to vacate its judgment and dismiss the petition as moot. Counsel has reported to us that he has been unable to obtain such an assurance. Because of possible prejudice to Mozingo inherent in the questioned revocation of parole, notwithstanding the subsequent parole revocation not here in question, we deny the motion that the proceeding be terminated as moot. See Scarpelli v. Gagnon, 317 F.Supp. 72 (E.D.Wis.1970), aff’d, Gunsolus v. Gagnon, 454 F.2d 416, 418, 423 (7th Cir. 1971) , cert. granted, 408 U.S. 921, 92 S.Ct. 2490, 33 L.Ed.2d 331 (1972). Having in view the previous state court proceedings in which Mozingo sought to set aside the parole revocation in issue, we also reject appellant’s contention that Mozingo has failed to exhaust his state remedies. In entering the order under review, the district court relied primarily upon the decisions of this court in Wilburn v. Nelson, 458 F.2d 502 (9th Cir. 1972); and Dennis v. California Adult Authority, 456 F.2d 1240 (9th Cir. 1972). We agree with the district court that, under the circumstances of this case, the Wilburn and Dennis decisions call for a conditional grant of the writ such as was ordered in this case. Because of the subsequent parole revocation proceedings referred to above, Mozingo is not entitled to release pending the reinstituted parole revocation proceedings provided for in the district court order. Affirmed. . Counsel for appellant cites three cases to support his contention that the challenge to the parole revocation of March 13, 1970, is moot. The most recent case, Nelson v. United States, 443 F.2d 75 (5th Cir. 1971), appears to support this proposition. However, the court in Nelson apparently did not consider the possible collateral consequences of the challenged parole revocation. If there were none, then Nelson is distinguishable from Mozingo. In Mozingo, each time parole was revoked the sentence was refixed for a longer term, thus collateral consequences continue even though he was paroled again and that parole was revoked. What we say of the Nelson case is also true of Blackburn v. United States Parole Board, 429 F.2d 364 (5th Cir. 1970). In Marchand v. Director, United States Probation Office, 421 F.2d 331, 336 (1st Cir. 1970), the court did recognize a distinction between the petitioner, who was no longer under the continuing jurisdiction of the parole board, and someone who was under that jurisdiction. Thus, Marchand is distinguishable from Mozingo because of the absence of collateral consequences in Marchand. . The basic constitutional requirements which must be satisfied as a matter of course in every parole revocation proceeding, as announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), are applicable to revocations of parole entered after June 29, 1972, when Morrissey was decided (see 408 U.S. at 490, 92 S.Ct. 2593 and are not applicable to Mozingo’s parole revocation of March 13, 1970. See M’Clary v. California Adult Authority, 466 F.2d 1122 (9th Cir. 1972). See also, People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313 (1972). However, prior to Morrissey, this court held that due process requires that parole boards employ such procedures, to be determined on a case-by-ease basis, as are “reasonably . and fairly designed to enable it to ascertain whether issues existed concerning the asserted violation and to make an informed decision upon such issues.” Dennis v. California Adult Authority, 456 F.2d 1240, 1241 (9th Cir. 1972). See also M’Clary, supra; Wilburn v. Nelson, 458 F.2d 502 (9th Cir. 1972). This rule of case-by-case determination, which was the basis for the conditional writ granted by the district court here, is not affected by the non-retroactivity of Morrissey.

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Margaret JENKINS, Plaintiff-Appellant, v. U. S. POST OFFICE et al., Defendants-Appellees. No. 72-2287. United States Court of Appeals, Ninth Circuit. March 15, 1973. Peter Greenfield (argued), Legal Services Center, Seattle, Wash., for plaintiff-appellant. Joseph B. Scott, Atty. (argued), Alan S. Rosenthal, Atty., Harlington Wood, Jr., Asst. Atty. Gen., Civil Div., Dept, of Justice, Washington, D. C., Stan Pitkin, U. S. Atty., Ernest Scott, Jr., Asst. U. S. Atty., Seattle, Wash., for defendants-appellees. Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge. Honorable Robert O. Belloni, United States District Judge, District of Oregon, sitting by designation. BELLONI, District Judge: This is an appeal from an order granting summary judgment in favor of the United States. Margaret Jenkins (plaintiff) was employed as a postal trainee by the United States Post Office. Her appointment was “career conditional” with a one year probationary period. Plaintiff’s employment was terminated in the course of the probationary period because of her “failure to meet minimum standard requirements.” Plaintiff was informed of her discharge by letter which additionally advised her that “[t]here is no allowable appeal from this decision through the Post Office Department procedures.” Plaintiff maintains that she was entitled to a pre-dismissal hearing. Conceding that the right to a hearing is not authorized by any statute or regulation, plaintiff contends that such a hearing is required by the Fifth Amendment, and that her termination from government employment without a hearing constituted a deprivation of liberty and property without due process of law. We find plaintiff’s arguments unconvincing and affirm the decision of the district court. Plaintiff suggests that the Constitution requires a hearing to protect an individual’s liberty any time a government employee is discharged under circumstances which reflect unfavorably upon his character. This proposition is overly broad. “[A]ny reason [assigned for the dismissal] other than reduction in force is likely to be to some extent a reflection on a probationer’s ability, temperament, or character.” Medoff v. Freeman, 362 F.2d 472, 476 (1st Cir. (1966). Nonetheless, not every dismissal attains constitutional proportions. “Where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). However, a posting procedure similar to that which concerned the Court in Constantineau is not at issue here. Plaintiff’s reliance on Constantineau is inappropriate. Plaintiff did not have a property interest in her continued employment. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The Court, in Roth, further observed that “[p]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth at 577, 92 S.Ct. at 2709. Plaintiff was a probationary employee and as such had no right to continued employment. Plaintiff’s status did not give rise to a property interest entitling her to a predismissal hearing. Affirmed.

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UNITED STATES of America ex rel. Joe McGILL, Petitioner-Appellant, v. Theodore SCHUBIN, Warden, Ossining Correctional Facility, Respondent-Appellee. No. 711, Docket 72-2302. United States Court of Appeals, Second Circuit. Argued March 28, 1973. Decided April 2, 1973. Robert A. Stolzberg, The Legal Aid Society, Prisoners’ Rights Project, New York City (William E. Hellerstein, New York City, on the brief), for petitioner-appellant. Stephen P. Seligman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee. Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, District Judge. Senior District Judge of the District of Maryland, sitting by designation. PER CURIAM: Joe McGill appeals from an order of the Southern District denying his petition for habeas corpus. On June 18, 1969, in the Supreme Court of New York County, appellant was convicted of the crime of criminal possession of a dangerous weapon and was sentenced to a four-year indeterminate term. After serving two years and eight months if his sentence, he was released from confinement on a conditional release, pursuant to New York Penal Law § 70.40. Eleven months later, appellant violated a condition of his release and was returned to prison. Prior to his conditional release, the maximum expiration date of appellant’s term was May 30,1972. However, when his release was revoked, the state, pursuant to the statutes governing conditional release, refused to give appellant sentence credit for the eleven months that he was conditionally released prior to his violation. As a result, the maximum expiration date of his sentence was extended to April 21, 1973. Appellant claims that the denial of sentence credit and the consequent extension of his maximum expiration date was improper. After vainly seeking habeas corpus in the state courts, appellant filed the present petition in the Southern District in which he raised the same claims he had asserted in the state proceeding. On appeal from the district court’s denial of his petition, appellant makes two contentions: 1) that the state’s depriving him of sentence credit for the time served on his conditional release prior to his violation and thus extending his maximum release date violated the double jeopardy clause of the fifth amendment, made applicable to the states by the due process clause of the fourteenth amendment; and 2) that by denying appellant, a conditional releasee, sentence credit while affording such credit to parolees who violate their parole, the state violated appellant’s right to equal protection of the law. For reasons that follow, we do not find these contentions to be meritorious and, therefore, we affirm the order of the district court. The New York conditional release provisions are very similar to the federal parole statute, which provides for denial of sentence credit when parole is violated. When presented with challenges to the validity of this federal provision, the courts of appeals have consistently found it to be constitutional (See, e. g., O’Callahan v. Attorney General, 351 F.2d 43 (1st Cir. 1965), cert. denied, 382 U.S. 1017, 86 S.Ct. 632, 15 L.Ed.2d 531 (1966); Moore v. Smith, 412 F.2d 720, 725 (7th Cir. 1969); and Dolan v. Swope, 138 F.2d 301 (7th Cir. 1943)), although this circuit has apparently not yet considered the question. The courts have rejected appellant’s double jeopardy claim on the ground that the denial of credit for time served on parole when a parole violator is returned to prison does not amount to an extension of the parolee’s sentence, but rather is “potentially a part of the original sentence, [and] hence not invalid for violation of the double jeopardy inhibition.” Dolan v. Swope, supra, p. 304. We agree with this analysis of the issue and find it equally applicable to the conditional release provisions of New York law. Accordingly, we reject appellant’s contention that the denial of sentence credit for the time he spent on conditional release violated the double jeopardy clause. When a parolee, in contrast to a conditional releasee, violates the terms of his release, New York law provides that, upon his return to prison, he shall be given credit on his sentence for the time spent on parole prior to the violation. Appellant contends that, in treating conditional releasees more harshly than parolees with regard to sentence credit for time spent on release, the state is violating equal protection because there is no rational basis to support this difference in treatment. However, we conclude that the distinction drawn in New York law is amply supported by rational grounds. In its brief, the state has informed us that, because of the nature of conditional release, an inmate who is so released will have already served at least two-thirds of his sentence, whereas parole is typically effected at an earlier portion of the sentence. The significance of this fact is that the state can reasonably conclude that a parolee will have a sufficient amount of time remaining in his sentence to deter him from absconding or engaging in prohibited conduct during the crucial readjustment period immediately following his release from prison, but that a conditional releasee, with a much shorter portion of his sentence remaining at this time, will be substantially less deterred if he need only serve the remainder of his sentence without forfeiture of time spent on release. The state has an interest in providing an adequate sanction in the event that conditional releasees violate the conditions of their release. We cannot say that this interest does not supply a rational basis for the distinction that New York has drawn. It does not matter that the state scheme may result in harsher sanctions for the conditional releasee than for the parolee. The broader considerations that go into the decision to grant parole justify the state in concluding that a conditional releasee represents a greater risk to the community and requires a sharper deterrent than does a parolee. Thus, we reject appellant’s equal protection contention and, accordingly, affirm the district court’s denial of the petition. . § 70.40(1) (a) provides that a prison inmate serving an indeterminate term may be conditionally released, if he so elects, when his total accumulated good-behavior time is equal to the remaining unserved portion of his maximum term. The difference between conditional release and parole is that the latter is granted only at the discretion of the parole board while the former is granted, with no prior exercise of discretion, as soon as the accumulated good-behavior time equals the unserved portion of the sentence. . Penal Law § 70.40(1) (b) and (3) (b) provide that the conditional releasee shall not receive sentence credit for the period of release unless he completes the period of the release without breaching the conditions thereof. Correction Law § 827(5) makes such a term a condition to which the prisoner must agree at the time he elects to be released. . 18 U.S.C. § 4205. . Penal Law § 70.40(1) (a). . Conditional release is tied to the amount of accumulated good-behavior time, which Penal Law § 70.30(4) limits to a maximum of one-third of the prisoner's maximum or aggregate maximum term.

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Marion H. WILLIAMS, Petitioner, v. Harold J. CARDWELL, Respondent. No. 72-1924. United States Court of Appeals, Sixth Circuit. Argued Feb. 12, 1973. Decided March 30, 1973. George W. Hairston (Court appointed), Columbus, Ohio, for appellant; George, Greek, King, McMahon & Mc-Connaughey, Columbus, Ohio, on brief. Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, for appellee; William J. Brown, Atty. Gen., Columbus, Ohio, on brief. Before WEICK, MILLER and LIVELY, Circuit Judges. PER CURIAM. Williams, an inmate of the Ohio penitentiary at Columbus, Ohio, was convicted by a jury in the Common Pleas Court of Franklin County of unlawfully participating in a prison riot and unlawfully holding or participating in holding hostages by force and threat, all in violation of § 2921.18 Ohio Revised Code. His conviction was affirmed on appeal by the Court of Appeals for Franklin County and his motion for leave to appeal to the Supreme Court of Ohio was dismissed by that Court on the ground that no constitutional question was presented. He then applied to the District Court for a writ of habeas corpus alleging that his conviction in the state court was a violation of his constitutional rights in six different particulars. The District Court granted an evidentiary hearing and, in addition, considered the case on the trial record and the briefs and arguments of counsel. The District Court prepared and filed an Opinion and Order in which he considered all of the issues raised by Williams and denied the writ. Williams has appealed to this court on a single' issue, namely, that he was denied the effective assistance of counsel because the lawyer who was appointed by the state court to represent him seven months before the trial was denied permission to interview other inmates at the prison, and was denied access to Williams’ prison and medical records until the day of the trial. Williams’ defense at the trial was that he did not participate in the riot and was unable to do so because he was “high” on drugs. The District Court found, however, that the appointed counsel was afforded an opportunity to and did interview the prison inmates which he subpoenaed at the time of the trial, and that he was also permitted to inspect Williams’ prison and medical records, The counsel did offer medical evidence in support of his contention that Williams was high on drugs. The state court charged the jury on the issue of intent. The District Court found that counsel adequately represented Williams and failed to prove that the earlier denial of access was prejudicial. In our opinion, the findings of fact of the District Court in his well-considered opinion were supported by substantial evidence and are not clearly erroneous. In his conclusions of law, the District Court correctly applied the law. The judgment of the District Court is therefore affirmed.

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AKIN MOBILE HOMES, INC., Plaintiff-Appellant, v. SECRETARY OF HOUSING & URBAN DEVELOPMENT and Department of Housing & Urban Development, etc., Defendants-Appellees. No. 72-3572 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 5, 1973. Thomas M. Hendricks, Jr., Pigford & Hendricks, Howard R. Pigford, Meridian, Miss., for plaintiff-appellant. Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., 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: The appellant’s suit was dismissed below without prejudice to the plaintiff’s right to sue the United States under the Tucker Act in the U. S. Court of Claims. The suit arose out of a dispute concerning contractual negotiations between the parties for the lease on an emergency basis of approximately 400 mobile homes to HUD for the use of residents of Southern Mississippi rendered homeless by Hurricane Camille, which struck the Mississippi Gulf Coast on August 17, 1969. According to the complaint the plaintiff was required to pay state and local taxes in the amount of $76,002.25, an item not contemplated in the telegraphic negotiations between the parties. The complaint alleged that HUD had renegotiated other contracts to take care of similar inequities with other lessors similarly situated, and that officials of HUD had failed and refused to renegotiate appellant’s contract. The district judge was not in error in concluding that this case should be dismissed for lack of jurisdiction and further that Title 12, U.S.C., Section 1702, does not provide a basis for concurrent jurisdiction of the district court with the Court of Claims. The judgment appealed from is Affirmed. . The amount claimed exceeded the district court’s $10,000 limitation pi jurisdiction under the Tucker Act, Title 28, U.S.C., Section 1346(a)(2). . The memorandum-opinion and judgment of the lower court are reported sub nom. Akin Mobile Homes, Inc., a Mississippi Corporation v. Secretary of Housing & Urban Development and Department of Housing & Urban Development, An Agency of the U. S. Government, Washington, D.C., S.D.Miss.1972, 354 F.Supp. 1036.

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UNITED STATES of America, Appellee, v. Marshall Lee VAUGHAN, Appellant. No. 72-1636. United States Court of Appeals, Tenth Circuit. Argued and Submitted Feb. 22, 1973. Decided March 29, 1973. Rehearing Denied May 1, 1973. Jim Merz, Oklahoma City, Okl., for appellant. Floy E. Dawson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the Brief), for appellee. Before SETH, McWILLIAMS and BARRETT, Circuit Judges. PER CURIAM. The defendant was charged with possession of marijuana in violation of 21 U.S.C. § 844, tried, and found guilty. He has taken this appeal, raising only the issue as to the refusal of the trial court to suppress evidence secured by a search of defendant’s automobile. The incident which gave rise to the search arose when defendant Vaughan, a civilian, approached one of the main entry gates to Tinker Air Force Base in Oklahoma. This is a large base with thousands of civilian employees. Although the pickup truck that he was driving had a base decal on the windshield, he was stopped by the gate guards and asked for identification. Due to the possibility that a demonstration against the Vietnam War was imminent, the Base Commander had issued orders that no visitors were to be allowed on the base. When stopped at the gate, Vaughan stated that he was going to pick up his wife for lunch, and that she worked at the commissary. When asked for identification, he presented the gate guard with an expired Marine Corps Reserve Identification card, which the guard confiscated. Defendant was directed to park by the side of the street. The guard then called his supervisor, and when he arrived the two proceeded to search Vaughan’s vehicle. No consent was requested or given. The supervisor reached under the front seat of the pickup where he found a child’s coonskin cap. In the cap was a small amount of marijuana, and Vaughan was then arrested. Prior to trial, Vaughan moved to have the marijuana suppressed, asserting that it had been obtained as the result of an illegal search and seizure. The trial court denied the motion, and this is the error asserted by defendant on this appeal. The Government’s position is that a person within the restricted area of a military reservation is subject to having his person and his vehicle searched in the interest of military security. Further it asserts that submitting to search could be validly imposed as a condition to gaining access to a military reservation. Both of these positions are correct; however, the facts of the instant case do not lead to such a ready solution, and we must hold that the search here conducted was improper. The testimony of the gate guard, William Ladd, who originally stopped defendant, is very significant. A portion is quoted: “Q [By Jim Merz, appellant’s attorney] Now, what was his status, if you know, at the time he [Vaughan] was making request for entering on the base? Was he a visitor or what was he? “A No, he wasn’t visiting, he was going to pick up his wife. “Q All right, now, assume his card was in proper order, would you have allowed him on the base ? “A At that time, no. “Q Why not? “A Because we were on strict security. “Q How did that relate to visitors ? “A Visitors were not allowed. “Q No visitors? “A No vistors, not at that time. “Q So, he couldn’t get on anyway? “A He couldn’t get on.” And later in the testimony: “Q Now, if I understand you correctly, your testimony was that this man was not going on the base. “A He would be turned around. “Q And denied access to the base, is that correct? “A Yes. “Q I mean prior to the search, he wasn’t going on the base, right? “A Right.” The record demonstrates that the gate guard had made a determination that Vaughan was not going to be allowed access to the base. Also, the commanding officer had ordered there be no visitors, and thus the interest or purpose of the Base Commander in protecting the security of the base was never involved. Defendant was not going to be permitted on the base in any event. Thus in order for the search to be proper, it would have had to meet the standards of a search conducted on any public street. The parties have agreed that there was no probable cause for the search, that Vaughan did not consent to it, and that it was not made incident to a lawful arrest. Thus the search was invalid. The only case brought to our attention which has considered this type of search, United States v. Crowley, 9 F.2d 927 (N.D.Ga.1922), relied on here by the Government to support the validity of the search, is distinguishable from the case at bar. In the Crowley case, a taxi was being searched pursuant to allowing it access to the base. In this case, a determination had already been made prior to the search that Vaughan would not be allowed access to the base, and the search of his pickup was thereafter decided upon. The Government also points to the large sign posted at the entrance to the Air Force Base and says that consent to the search may be implied. The sign read as follows: “WARNING. U. S. AIR FORCE BASE. IT IS UNLAWFUL TO ENTER THIS AREA WITHOUT PERMISSION OF THE COMMANDER OF TINKER AIR FORCE BASE. WHILE ON THIS INSTALLATION ALL PERSONNEL AND THE PROPERTY UNDER THEIR CONTROL ARE SUBJECT TO SEARCH.” While we agree, as we said before, that once within the area where security was imposed, a search conducted without probable cause and without consent could be proper. Also the submission to search could be imposed as a valid condition to gaining access to the base. However, once a determination has been made not to allow defendant entry to the base, any search conducted thereafter must meet Fourth Amendment standards. Defendant was stopped at the gate, and moved then to one side of the street; he never was within the area where security was imposed; instead he was refused entry. Where the precise boundary of the base may have been thus made no difference. We note, too, the Judge Advocate General’s Opinion, 1953/1738, set forth in Volume 3, Digest of Opinions, Search and Seizure, Section 11.1 at pages 769-70, in which it is stated that an incoming person should not be searched over his objection, but should be denied any access to the base. The case must be reversed and remanded with instructions to grant appellant’s motion to suppress the evidence seized during the search in issue.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. David F. IRVIN and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company, Respondents. No. 72-1168. United States Court of Appeals, Third Circuit. Argued Feb. 5, 1973. Decided March 22, 1973. Peter G. Nash, Patrick Hardin, Marcel Mallet-Prevost, Abigail Cooley Baskir, Michael S. Winer, Washington, D. C. , for Petitioner, National Labor Relations Board. Francis T. Coleman, William H. Howe, Counihan, Casey & Loomis, Washington, D. C., for Respondents. Edward L. Carey, Bernard Dunau, Washington, D. C., for United Mine Workers of America as amicus curiae. Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge. OPINION OF THE COURT GIBBONS, Circuit Judge. This case is before us on the application of the National Labor Relations Board (the Board) filed pursuant to Section 10(e) of the National Labor Retions Act, 29 U.S.C. § 160(e), for enforcement of the November 8, 1971 order against the respondents David F. Irvin and James B. McKelvy, partners doing business as The Irvin-McKelvy Company (the Employer). The Employer is engaged in construction work for coal mine operators in the bituminous coal fields. The charging party in the proceedings before the Board was International Union of District 50, Allied and Technical Workers of the United States (District 50). United Mine Workers of America (UMW), though not a respondent here, participated in the proceedings before the Board as a party to a contract with the Employer, and has filed an amicus curiae brief with this court. The case involves the application of Section 8(f) of the National Labor Relations Act, 29 U.S.C. § 158(f), to prehire collective bargaining agreements in the construction industry made successively with rival labor organizations. Section 8(f) was enacted as Section 705 of the Labor-Management Reporting and Disclosure Act of 1959, Pub.L. No. 86-257, 73 Stat. 519. It amended Section 8 of the National Labor Relations Act by adding a new subsection, applicable to the construction industry, providing among other things that it would not be, as it would otherwise have been, an unfair labor practice for an employer engaged primarily in that industry, to make a collective bargaining agreement with a labor organization covering its employees prior to the time the majority status of that labor organization had been established in a manner authorized by Section 9 of the Act, 29 U.S.C. § 159. The amendment was adopted to meet specific problems which had arisen in the construction industry under the prior law because of the transitory nature of the employer-employee relationship in that industry. During the Wagner Act period the Board had declined to exercise jurisdiction over the industry. In 1947, after passage of the Taft-HartIey amendments, the Board applied the provisions of the Act to the industry with consequent difficulties. These difficulties are discussed in Senate Report No. 187, House Report No. 741, and Conference Report No. 1147, 86th Cong., 1st Sess. (1959). 1959 U.S.Code Cong. & Ad.News, 86th Cong., 1st Sess. 2318, 2344, 2441, 2513. In summary, prehire agreements which would otherwise be invalid were authorized in the construction industry because of the dual necessities (1) that construction bidders know in advance of bid what their labor costs would be, and (2) that construction employers have access to an available pool of skilled craftsmen for quick reference. The Employer here falls within § 8(f). It employs a more or less stable work force of approximately eighteen employees. Prior to June, 1964, the employees were not represented for collective bargaining. At that time, in order to obtain work from bituminous coal operators needing construction, the Employer signed a collective bargaining agreement with District 50. This agreement was supplanted, on June 27, 1967, by an industrywide contract between the Coal Mine Construction Contractors Association, Inc. (CMCCA) and District 50, by its terms effective from June 1, 1967 to May 31, 1970. Both the original June, 1964 contract and the June, 1967 contract contained a union security clause and a dues checkoff clause. The June, 1967 contract contained a “most favored nations” clause to the effect that if District 50 executed any contract with a construction contractor in the coal fields and that contract contained more favorable provisions than the CMCCA-District 50 contract, any employer signatory to the latter could immediately have the benefit of identical provisions. On October 29, 1968, District 50 entered into a contract with Zeni-McKinney-Williams Corporation identical with the CMCCA agreement, except that it was a “project only” agreement rather than one for the term June 1, 1967 to May 31, 1970. Shortly thereafter the general counsel of CMCCA advised District 50 that CMCCA considered the Zeni-McKinneyWilliams contract to be more favorable than the fixed-term agreement, and that all members of CMCCA were thereafter bound to District 50 only for the period of time required for the completion of those construction projects then being worked on. District 50 has always disputed this construction of the “most favored nations” clause, but the Board found that after it entered into a “project only” agreement with a competitor, District 50’s contract with the Employer was converted to a project agreement. That finding is not in dispute in this enforcement proceeding. In late 1968 the Employer joined the Association of Bituminous Contractors (ABC) in order to avail itself of an agreement which on December 10, 1968, ABC had signed with UMW. By this time the Employer’s customers were advising that to get their construction business the work would have to be done by UMW labor. The Employer continued to recognize the District 50 contract on three or four existing projects. It concluded that as of April 1, 1969, all projects to which the District 50 contract applied were substantially complete. Beginning on April 1, 1969, therefore, it applied to all its employees the provisions of the ABC-UMW contract. The employees joined the UMW. District 50 filed with the Board a charge that the Employer violated Sections 8(a)(1), (2), (3) and (5) of the Act by withdrawing recognition from it and recognizing the UMW. The Board concluded that as of April 1, 1969, all of the Employer’s employees working on projects still not completed on March 31 were members of District 50, and that on those projects District 50 had majority status. It ruled, therefore, that in ceasing to recognize District 50 as of April 1, 1969, the Employer violated Sections 8(a)(5) and (2) of the Act, and that in requiring employees on projects still in progress on March 31, 1969, to join the UMW the Employer violated Sections 8(a)(3) and (1) of the Act. The Board recognized that the conversion of the District 50 contract from a term to a project agreement left the Employer free to make a § 8(f) prehire agreement with the UMW covering . subsequent projects, but it qualified that recognition by the language “so long as it did not employ at such projects a work force of which a majority were District 50 members.” Irvin-McKelvy Co., 194 NLRB No. 8, 78 LRRM 1516, 1518. As shall be developed hereafter, the qualifying language introduced a serious ambiguity, which was not clarified by those parts of the Board’s cease and desist order dealing with the status of the UMW. The Board ordered the Employer to cease and desist from: “(d) Requiring membership in the Mine Workers as a condition of employment on any projects covered by Respondent’s contract with District 50. ...” In its brief in support of the application for enforcement, the General Counsel takes the position that the Board intended the quoted cease and desist provision to apply not only to pre-March 31, 1969 projects, but also to post-March, 1969 projects on which the Employer’s regular work force, members of District 50 by virtue of the union security clause in the § 8(f) contract with that union, may be employed. That position, the General Counsel urges, is consistent with the further provision in the Board order that the Employer: “2. (a) Withdraw and withhold recognition from the Mine Workers as the collective-bargaining representative of Respondent’s employees who are working on projects covered by the District 50 contract unless and until such labor organization shall have been certified by the National Labor Relations Board.” (emphasis supplied) The Employer moved before the Board for a clarification of this order. On June 1,1972, the Board ruled: “By its Decision and Order, the Board intended that when the Respondent, on any project, new or old, continues to use a work complement constituting an appropriate unit of which a majority continues to consist of members of District 50, the Respondent is not free to sign a contract with the United Mine Workers of America or any other labor organization covering the said unit.” The clarifying order and the italicized language in the original Board order, according to the General Counsel, indicates that the Board has applied to the CMCCA-District 50 contract the presumption of Machinists Local 1424 v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960); that is, that the six-month limitation in Section 10(b) of the Act, 29 U.S.C. § 160(b), prohibited an inquiry into the majority status of District 50 and the contract carried with it a presumption of majority status. An appreciation of the General Counsel’s position requires familiarity with the Board’s decision in R. J. Smith Construction Co., 191 NLRB No. 135, 77 LRRM 1493 (1971), enforcem't pending sub nom. Local 150, International Union of Operating Engineers v. NLRB, No. 71-1689 (D.C.Cir.) In that case the Board had before it successive § 8(f) contracts with rival unions. The employer repudiated the first contract, and the first union as charging party urged a § 8(a)(5) violation. The charging party contended that Machinists Local 1424 v. NLRB, supra, gave it, by virtue of its contract, the benefit of an irrebuttable presumption of continued majority status. The Board held; “Such is not the case with an 8(f) agreement. As previously described, an 8(f) agreement, because of its prehire nature, need not be made with a majority union to be legal. For this reason, there is no basis, either in logic or in policy, to extend to the union which is party to such a contract, an irrebuttable presumption of majority status. Indeed, we conclude that-any such presumption would be irreconcilable with the final proviso to Section 8(f). It is, of course, necessary sometimes to go behind the 10(b) period to see what kind of contract is involved in a particular ease— .... However, once that is accomplished and it is determined that the particular contract is validated by Section 8(f) rather than by Section 9(c)(3) — one to which no irrebuttable presumption of majority status can be attached 5— 5. It is possible that, in some situations, at least a rebuttable presumption of majority will arise from an 8(f) contract. This might occur, for example, when a union-security agreement is present in the 8(f) contract and has been enforced. That is not the case here.” that is the end of the pre-10(b) inquiry. R. J. Smith Construction Co., supra, 77 LRRM at 1495-96. The instant case presents the fact situation hypothesized in footnote 5 of the Board’s R. J. Smith Construction Co. decision. District 50 is party to a § 8(f) contract with a union security agreement which was enforced. The effect of the General Counsel’s interpretation of the Board’s decision is that the Employer may not change the collective bargaining representative of those employees who became members of District 50 under the compulsion of that § 8(f) agreement except by virtue of a § 9(c) or § 9(e) representation petition. The Employer has, in other words, lost the § 8(f) option with respect to such employees. The Employer, responding to the application for enforcement, urges as a first position that the Board erred in finding that the District 50 contract had not terminated on April 1, 1969. With respect to those projects which were underway prior to March 31, 1969, however, substantial evidence in the record as a whole supports the Board’s finding that in three or four instances the projects were not complete on that date. Since the District 50 contract was by this time a project agreement, it still applied to these projects. Accepting the Board’s findings in this respect, two questions are presented. First, where an employer’s business has more than one bargaining unit (in this case the unfinished projects and subsequent projects to which the first contract by its terms did not apply) may a § 8(f) employer, without a representation proceeding, make a § 8(f) agreement with a new union, although he employs at the new bargaining unit persons who by operation of the union security clause in the first contract became members of the first union? Second, may a § 8(f) employer, without a representation proceeding, repudiate a § 8(f) contract containing a union security clause which has been enforced, and enter into a new § 8(f) contract covering the bargaining unit and employees to which the first contract applied? The first question arises from the Board’s prohibition against recognizing the UMW on new projects where District 50 members are employed. The second question is applicable only to those portions of the Board’s decision finding a violation and its order granting relief with respect to the three or four projects uncompleted on April 1, 1969. The General Counsel contends that both questions must, by virtue of the so-called Midwest Piping rule, be answered in the negative. In Midwest Piping & Supply Co., 68 NLRB 1060, 17 LRRM 40 (1945), the Board held that an employer violated the Act by executing an agreement with one of two rival unions while a representation dispute was pending. The employer, the Board held, must resort to the representation proceedings specified in the Act. But we think that the General Counsel’s position gives too little heed to the changes wrought, in the construction industry, by the enactment of § 8(f). By that section construction industry employers were excused from the duty of neutrality mandated by the prohibition against unlawful assistance in §§ 8(a)(1), (2) and (3). At the same time the final proviso of § 8.(f) establishes that recognition via the § 8(f) route shall not be a bar to a § 9(c) petition by employees or by a rival labor organization for a representation election. In the construction industry the employer need not remain neutral in representation matters, but both the employees and rival labor organizations are free to resort to the Board for a representation election at any time. The foregoing discussion suggests, we think, the correct answer to the first question, at least in a context where the first § 8(f) contract is, as here, a project rather than a term agreement. Since there is no duty of neutrality in representation matters, on new projects the Employer was free to assist the UMW by entering into a prehire contract. The union membership of the prospective employees on new projects was irrelevant, at least until such time as they or District 50 petitioned the Board for a representation election pursuant to Section 9(c) of the Act. The second question, however, is somewhat more complex. While it is clear that a construction industry employer is free to assist a selected union by a prehire agreement that would, except for § 8(f), be unlawful, it does not appear that such an employer has been excused from the duty of bargaining collectively. A refusal to bargain collectively with a designated representative of employees is an unfair labor practice under § 8(a)(5), subject to the provisions of § 9(a). The latter section provides : “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining. . . .” 29 U.S.C. § 159(a). The Employer suggests that District 50 was never “designated or selected by the majority of the employees in a unit” because the designation was made by it pursuant to § 8(f). It contends that the Board has recognized that,this is the reality of the situation in R. J. Smith Construction Co., supra, which, properly interpreted, leaves a construction industry employer free at all times to repudiate a collective bargaining contract with one union and enter a new one with another. While the contract in R. J. Smith Construction Co., supra, did not contain a union security clause, this, the Employer urges, should make no difference, since that clause is no more free of the taint of employer assistance than the balance of the contract. Without suggesting how we would rule if presented with the repudiation during its term by a § 8(f) employer of a collective bargaining agreement containing no union security provisions, we reject the interpretation of § 8(f) advanced by the Employer here, where there was a union security clause and a dues checkoff provision, both of which were complied with until April 1, 1969. Nothing in either the text or the legislative history of § 8(f) suggests that it was intended to leave construction industry employers free to repudiate contracts at will. It is significant, we think, that despite the instant contract provisions and their enforcement, the employees did not, from June, 1964 to April, 1969, petition for a representation election. There was at least tacit acquiescence in the designation of District 50 as collective bargaining representative. Whatever may be the correct rule in- the absence of union security and dues checkoff clauses, at least where the union’s role has by the operation of such clauses been brought home to the employees quite directly, and they have refrained from seeking a representation election, an employer is not free to repudiate his § 8(f) contract during its term. That being so, the Employer violated § 8(a) (5) when it unilaterally substituted the terms of the ABC-UMW contract as of April, 1969, on the three or four projects then unfinished. Because of the passage of time since the last action by the Board (June 1, 1972) it seems highly likely that all projects which were unfinished on March 31, 1969, have now been completed. If this is the ease, the CMCCA-District 50 contract has expired by its terms. Since we have concluded that the Board decision was correct only insofar as it found unfair labor practices in connection with the projects existing but uncompleted on March 31, 1969, the need for injunctive enforcement of the Board’s order may no longer exist. The application for enforcement will be denied insofar as it applies to construction projects commenced by the Employer after April 1, 1969. The application for enforcement will be denied insofar as it applies to construction projects commenced by the Employer prior to, but uncompleted on April 1, 1969, without prejudice to an application by the General Counsel, within thirty days from the filing of our judgment, on notice to the attorney for the Employer, to which a response may be filed within ten days of such notice, setting forth reasons, if any, which may still exist for enforcement of the Board’s order with respect to such projects. If such an application is filed it will be referred by the Clerk to the same panel of this court which heard this application. . The Board’s order is reported at 194 NLRB No. 8, 78 LRRM 1516 (1971). . Section. 8(f) provides: “It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in subsection (a) of this section as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to subsection (a) (3) of this section : Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.” . The employees did not complain since the hourly wage rates in the ABC-UMW contract were significantly higher. The record discloses these examples: . Members Fanning and Brown dissented from the bolding in R. J. Smith Construction Co., 191 NLRB No. 135, 77 LRRM at 1496. They would hold that even in the absence of a union security clause a § 8(f) employer must bargain collectively with a union with which it has made a § 8 (f) contract until its expiration or until a representation election changes the collective bargaining representative. Cf. NLRB v. AAA Electric, Inc., 472 F.2d 444 (6th Cir. 1973).

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Leo HENZEL, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee. No. 72-1495. United States Court of Appeals, Fifth Circuit. April 6, 1973. Rehearing and Rehearing En Bane Denied May 25, 1973. Filindo B. Masino, Philadelphia, Pa., for petitioner-appellant. Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Arnold R. Ginsberg, Asst. Atty. Gen., Miami, Fla., for respondentappellee. Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges. PER CURIAM. Petitioner Henzel is a parolee from a Florida state conviction for grand larceny. His third successive federal petition for a writ of habeas corpus was denied by the District Court. Petitioner then filed pro se a petition for rehearing, and later requested that the court delay ruling thereon until he could obtain counsel. Petitioner subsequently filed pro se a lengthy supplemental petition. The District Court considered these petitions despite the fact that they raised numerous grounds not presented in the third petition, and denied the request for rehearing. Petitioner appeals. We affirm. Petitioner is represented on appeal by counsel who has filed a lengthy brief raising four contentions. The major point is that part of petitioner’s trial was conducted during his involuntary absence. This precise issue was determined adversely to petitioner in state court. It was raised in petitioner’s second federal habeas suit, and was again determined adversely to him on the basis of specific findings. That decision was not brought up for appellate review. It cannot be reviewed on this appeal. Denial of a speedy trial is urged, but petitioner has made no effort to have this issue determined in his various state court post-conviction proceedings. Other points raised on appeal are denial of effective counsel, with respect to which there was a bypass of state proceedings, petitioner having raised the issue in state court and then expressly abandoned it, and inconsistency of the verdict, which is not of constitutional dimension. There being no error on any of these points, we affirm. Various other points were raised by the two rehearing petitions and were denied but have been abandoned because not presented on appeal. These are knowing use of perjured testimony, knowing suppression of evidence, and denial of access to Florida post-conviction remedies. See Lipscomb v. U. S. Bd. of Parole, No. 71-2505 (5th Cir., Jan. 3, 1972). We consider the claim of lack of jurisdiction of the Florida trial court over the offense to have been abandoned also. Petitioner did not raise this in any contention of error or brief it, and on oral argument of this appeal he adverted to it only briefly and then in his reply to the state's argument. Affirmed. . An appeal was filed but dismissed.

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UNITED STATES of America, Plaintiff-Appellee, v. Donald Rudolph GARDNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Neal Le BOULANGER, Defendant-Appellant. No. 72-1509, 72-1510. United States Court of Appeals, Ninth Circuit. March 22, 1973. Lewis A. Wenzell (argued), Philip DeMassa, of Federal Public Defenders, William J. Zumwalt, San Diego, Cal., for defendant-appellant. Thomas M. Coffin, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee. Before HUFSTEDLER and WRIGHT, Circuit Judges, and LUCAS, District Judge. LUCAS, District Judge: These appeals are from appellants’ respective criminal convictions for violating the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S.C. 801 et seq. Appellants were charged in a four-count indictment of conspiring to import nine ounces of heroin, importing nine ounces of heroin, conspiring to possess with the intention of distributing nine ounces of heroin, and possessing with the intention of distributing nine ounces of heroin. Appellant Le Boulanger was found guilty on all counts in violation of 21 U.S.C. §§ 952, 960, 963, 841(a)(1) and 846. Appellant Gardner was found not guilty on all counts of the indictment, however, the jury found him guilty of the lesser included offense of simple possession of a controlled substance in violation of 21 U.S.C. 844. On September 26, 1971, around 11 A. M., appellants entered the San Ysidro, California port of entry in a 1971 Buick, owned by Le Boulanger but driven by Gardner. While inspecting the car’s rear trunk, in response to Gardner’s declaration of a quantity of plaster of parís, the customs official became suspicious of the appellants’ demeanor, and directed their car to the secondary inspection point. The appellants were then escorted to the customs office for personal inspection. Le Boulanger preceded Gardner and the official at an abnormal distance and rate. While that official’s attention » was directed to Gardner producing his personal effects, the desk official noticed that Le Boulanger had furtively released some objects from his person which later were found to be nine ounces of heroin. A subsequent personal search of Le Boulanger revealed an instrument kit for hypodermic injections and $138.00. A search of Gardner revealed $5.00, two traffic citations, and some miscellaneous papers, one of which revealed Le Boulanger’s phone number at his residence in Placerville, California. Discovery and testimony also revealed that Gardner had performed various menial duties for Le Boulanger at the latter’s place of business in Fremont, California. Part of his duties included the driving of his 1971 Buick. Gardner had been employed since March 1971, and had seen Le Boulanger under the influence of what he assumed to be narcotics. He had never questioned him about his use of narcotics because of his status as an employee of Le Boulanger. Le Boulanger testified that they had gone to San Diego at his request to see the San Diego Chargers-Oakland Raiders game, that the trip to Tijuana was for the express purpose of Gardner’s visit to a local red-light district, and that while Gardner was so occupied he had driven his car around in the hills, administering one injection during that time. He denied the importation of the heroin, and the discarding of the two packages in the custom’s office. Some evidence was introduced that a series of phone calls was made from the San Diego hotel room, however the Government later deemphasized these messages as a basis for its theory that appellants had formed the alleged conspiracy as charged. See discussion infra. The sole issue presented in Gardner’s case is whether sufficient evidence was presented to sustain the verdict reached by the jury that he was guilty of the lesser included offense of simple possession of the heroin. We hold the evidence to be insufficient, and reverse Gardner’s conviction with instructions that the charges be dismissed. The appellate court may inquire whether the evidence, considered in a light most favorable to the Government, permitted a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. The test is not whether the evidence must exclude every possibility but that of guilt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). Given this test, nevertheless, this Court is convinced that the largely circumstantial evidence introduced cannot permit a rational conclusion that Gardner was guilty of simple possession of the heroin beyond a reasonable doubt. Clearly, the issue is not whether Gardner had actual possession, but whether he had constructive possession, i. e., dominion and control over the heroin at the time in question. The test for the latter in this Circuit is whether “One [has] a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer . . . But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug and cannot be said to have possession of it.” United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir., 1972) quoting Hill v. United States, 379 F.2d 811, 814 (9th Cir., 1967). See Arellanes v. United States, 302 F.2d 60S, 606 (9th Cir., 1962). There are two rather disturbing inconsistencies in the case against Gardner: (1) the jury found insufficient evidence to convict him of the four counts charged, yet found him guilty of simple possession; and (2) the law supporting the verdict reached would have him exercising the requisite dominion and control over the heroin at the time in question, notwithstanding a relatively complete subordination to Le Boulanger as his servant. These inconsistencies are unsupportable. Considerable deference must be attributed to the jury’s assessment of a defendant’s trial demeanor, and of his overall testimony as viewed in the context of the entire case presented. However, the ultimate findings suggest that the jury had some doubts about Gardner’s knowledge of the heroin in relationship to whatever power he exercised over the final disposition of that contraband which had been concealed on Le Boulanger’s person. Gardner’s role at the custom’s checkpoint was one of complete subordination to the authority of Le Boulanger. This subordination was a fundamental aspect of the original excursion to San Diego, which was instigated and financed in its entirety by Le Boulanger. This arrangement was consistent with the prior employment pattern of Gardner performing as Le Boulanger’s chauffeur, as well as his janitor at a Fremont billiard parlor owned by Le Boulanger. The complete assumption of responsibility by Le Boulanger over Gardner while chauffeuring his car was emphasized by the former’s payment of the latter’s traffic violations, when incurred under those circumstances. These factors, which epitomized an unequivocal and complete master-servant relationship, preclude the requisite inference that, beyond a reasonable doubt, Gardner was able to determine or otherwise influence Le Boulanger’s disposition of the heroin. Since Le Boulanger’s authority over Gardner was so clearly established as to disallow any such influence by the latter over the eventual disposition of the heroin, the element of possession under 21 U.S.C. 844 has not been met, and Gardner’s conviction thereunder is therefore without sufficient foundation. See United States v. Flom, 464 F.2d 554, 555 (9th Cir., 1972); see also Feldstein v. United States, 429 F.2d 1092, 1094-1095 (9th Cir., 1970); rehear, denied (1970); cert. denied 400 U.S. 920, 91 S.Ct. 174, 27 L.Ed.2d 159 (1970); rehear, denied 400 U.S. 1002, 91 S.Ct. 452, 27 L.Ed.2d 454 (1971). Furthermore, the employment relationship coupled with the incidents of the trip to San Diego does not lend itself to the conclusion that a joint venture was contemplated by the parties. In this respect, Gardner stands on firmer ground than his analogous counterpart, Lonnie, whose conviction was reversed in Murray v. United States, 403 F.2d 694 (9th Cir., 1968); rehear, denied (1969). Lonnie’s conviction was reversed on grounds of insufficient evidence to establish constructive possession of the heroin, notwithstanding the facts that he had instigated, financed and substantially controlled the actual logistics for the trip to Mexico. In this case, Gardner was at best a “casual facilitator” of Le Boulanger’s designs, neither instigating, financing, nor determining the travel arrangements for the trip. Gardner participated as a mere chauffeur, not as an equal participant. (But for his unilateral desire to go to Tijuana, Gardner had nothing to say about the itinerary, and even this endeavor was subject to and dependent upon Le Boulanger’s acquiescence in providing the transportation.) A fortiori, neither is an inference allowable that Gardner was embarked upon a joint venture simply to procure narcotics, since the record clearly demonstrates that he had no independent voice in the joint activities of the two men. Cf. Eason v. United States, 281 F.2d 818, 820 (9th Cir., 1960); rehear, denied (1960); see United States v. Bonds, 435 F.2d 164 (9th Cir., 1970). Nor can whatever assumption Gardner may have had and made as to Le Boulanger’s prior usage of drugs shore up a joint venture theory in light of the total circumstances considered as a whole. See Evans v. United States, 257 F.2d 121, 126 (9th Cir., 1958); rehear, denied (1958); cert. denied 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958); rehear, denied 358 U.S. 901, 79 S.Ct. 221, 3 L.Ed.2d 150 (1958). Accordingly, Gardner’s conviction of simple possession of a controlled substance, in violation of 21 U.S.C. 844, is reversed, and the charges against him are to be dismissed. The issues presented in Le Boulanger’s case are: (1) whether sufficient evidence was presented to sustain the verdict that he was guilty of the conspiracy charges in counts one and three, particularly in light of the jury’s exculpation of Gardner on the same counts; (2) whether the trial court erred in not requiring the Government to elect between counts two and four, on the theory that the element of possession in count four was merely incidental to the importation charge in count two; and (3) whether appellant’s remedy for the alleged error described in the second issue lies in an appropriate motion under Rule 35, Fed.R.Crim.Proc. The first issue concerns a corollary question whether the Court is relieved from considering Le Boulanger’s appeal as to the third and fourth counts under the concurrent sentence doctrine inasmuch as he did not contest the conviction under the second count and the sentence thereunder is concurrent with the former two. United States v. Jones, 446 F.2d 12, 13 (9th Cir., 1971). Appellant contested the conviction under the first count of conspiring to import the narcotics (which resulted in an additional fine) thus insofar as the conspiracy element is given the requisite consideration it applies with equal force to count three, the doctrine notwithstanding. The doctrine is invoked in its entirety, however, with respect to the conviction under count four, the Court declining to pass upon the issues raised thereunder as a result of the sentence under count two. Consequently, the last two issues are rendered substantially moot. The first issue raises the sufficiency of the Government’s case, based upon circumstantial evidence, that Le Boulanger had a third cohort, an “unknown” conspirator. Circumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable. United States v. Nelson, supra 419 F.2d at 1239. However, the application of this proposition is dependent upon the particular nature of the individual case. It has been determined in dicta that a conspiracy requires a plurality of actors, and that an acquittal of one of two conspirators operates as an acquittal of the other. See Lubin v. United States, 313 F.2d 419, 423 (9th Cir., 1963); rehear, denied (1963). It has also been determined that the requisite plurality of actors can be met if the indictment charges a conspiracy among “specifically named defendants and other persons unknown to the grand jury,” and if at trial “it is shown by substantial evidence” that parties unknown at the time of the indictment had entered into the alleged conspiracy, and that one or more of the overt acts alleged were in fact committed by a member of the conspiracy. Didenti v. United States, 44 F.2d 537, 538 (9th Cir., 1930) (emphasis added); see also Romontio v. United States, 400 F.2d 618, 619 (10th Cir., 1968); rehear, denied (1968). The circumstantial evidence which was adduced in Didenti is totally distinguishable in character and weight to that raised in the instant case. In Didenti, the Government was not only able to locate and identify two other co-conspirators (Guarrazi and Pinsetto) but was able to establish, by testimony from one of the acquitted conspirators named in the indictment, the substantial complicity of those two co-conspirators in the unlawful still operation. In contrast, the existence of a “third,” “unknown” conspirator in this case is, at best, a mere inference allowable from a relatively barren structure of circumstantial evidence advanced by the Government, and it is essentially devoid of any substantial foundation in fact. Le Boulanger did make several phone calls from the San Diego hotel, but the Government could not successfully trace them to a “third” cohort. And he did enter the border checkpoint with a large amount of heroin, but the logical presumption that it originated from a source in Tijuana only creates an inferential beginning, not a firm conclusion. Thus, these factors which readily create a framework for the Government’s conspiracy case are not the kind of circumstantial evidence which can supply the requisite foundation for a conspiracy conviction. The inference which the Government would have the jury draw as to the requisite plurality of actors, the presence of a “third” conspirator, is at once “too speculative” and “remote” to allow a conviction beyond a reasonable doubt that Le Boulanger was engaged in a narcotics conspiracy to import the heroin. See United States v. Nelson, supra 419 F.2d at 1240; see also United States v. Steele, 469 F.2d 165, 168-169 (10th Cir., 1972). The inherent weakness of this tripartite conspiracy theory advanced on appeal was emphasized by the absence in the Government’s closing argument before the jury of any reference to a “third” conspirator. In the final analysis, the Government apparently based its case upon Le Boulanger and Gardner’s complicity as the foundation for its conspiracy charges. The Government’s conspiracy theory is wholly unsupported by “substantial evidence” once Gardner is removed from the conspiracy equation, and perforce it must fail. Thus, Le Boulanger’s convictions under the conspiracy counts, one and three, are without sufficient foundation, and cannot stand. Accordingly, Le Boulanger’s convictions under counts one and three are reversed, and those counts under the indictment are to be dismissed. The Court refrains from passing upon the conviction under count four under the concurrent sentence doctrine. Le Boulanger’s conviction on count two is affirmed. The judgment as to Gardner’s conviction is reversed. The judgment as to Le Boulanger’s conviction under counts one and three is reversed. The case is remanded to the District Court for proceedings consistent with this opinion.

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Delbert HAWKINS et al., Plaintiffs-Appellees, v. Thomas COLEMAN et al., Defendants-Appellants. No. 72-2190. United States Court of Appeals, Fifth Circuit. April 2, 1973. Samuel J. Ferro, Jr., Warren Whit-ham, Dallas, Tex., for defendants-appelIants. John F. Jordan, Dallas Legal Services Foundation, Inc., Dallas, Tex., for Hawkins. Douglas R. Larson, Dallas, Tex., for Tolliver. Jed I. Oliver, William F. Cole, Dallas Legal Aid Society, Inc., Dallas, Tex., for Crowel. Before RIVES, GOLDBERG and MORGAN, Circuit Judges. PER CURIAM: Delbert Hawkins was suspended indefinitely by the principal of his school, part of the Dallas Independent School District, after being involved in a fight. He instituted a suit, styled as a class action, in the District Court for the Northern District of Texas challenging the propriety of his suspension and the constitutionality of the school regulations setting forth suspension procedures. After a preliminary hearing, the court found sufficient evidence to justify issuance of a preliminary injunction reinstating Delbert Hawkins and enjoining use of the current suspension rules pending resolution of the underlying suit. Further proceedings have been held in abeyance awaiting this court’s consideration of the propriety of the preliminary injunction. At this point, it is patently obvious to the court that this injunction is now moot as to Delbert Hawkins. He has been back in school since the above order and the term for which he was suspended has long since passed. Thus, at this time, the only issue before this court is whether the district court properly issued that part of the preliminary injunction temporarily restricting use of the disciplinary procedures. We find no abuse of discretion by the district court here in enjoining use of these rules pending ultimate resolution of the case. We do not feel we can address the merits of this case at this time. The injunction is moot as to Delbert Hawkins and a trial on the merits is not before us. We are concerned that we may not have a live controversy before this court. There has been no decision in the trial court as to the propriety of a class action in this case. Furthermore, the record before this court contains only the bare rules and the evidence of a single isolated suspension. There is no evidence of the usual procedure followed. Therefore, we feel that the district court should proceed with the matters now being held in abeyance. Remanded.

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UNITED STATES of America, Appellant, v. Errol ZEIGER. No. 72-2065. United States Court of Appeals, District of Columbia Circuit. Nov. 9, 1972. Before McGOWAN, MacKINNON and ROBB, Circuit Judges. ORDER PER CURIAM. This cause came on for consideration of an appeal under 23 D.C.Code § 104(d) from an order of the District Court, 350 F.Supp. 685, dated November 7, 1972, which admitted proffered polygraph testimony, and the Court heard argument of counsel. On consideration of the foregoing, and of the record on appeal herein, it is Ordered by the Court that the order of the District Court appealed from in this cause is hereby reversed and this case is remanded to the District Court for further proceedings.

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Rafael E. BENNETT et al., Appellants, v. The PANAMA CANAL COMPANY. No. 71-1522. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 31, 1972. Decided Jan. 31, 1973. Stanley B. Gruber, New York City, of the Court of Appeals of New York, pro hac vice, by special leave of court, for appellants. A. Fred Freedman, Washington, D. C., and Abraham E. Freedman, New York City, were on the brief, for appellants. George M. Beasley, III, Atty., Dept, of Justice with L. Patrick Gray, III, Asst. Atty. Gen., at the time the brief was filed, Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and Alan 5. Rosenthal, Atty. Dept, of Justice, were on the brief, for appellee. Before McGOWAN and ROBB, Circuit Judges, and WYZANSKI, Senior United States District Judge for the District of Massachusetts. Sitting by designation pursuant to Title 28, U.S.C. § 294(d). WYZANSKI, Senior District Judge. This is a class action brought on behalf of approximately 800 linehandlers employed by Panama Canal Company. Appellants complain that appellee did not pay them wages at the level required by 5 U.S.C. § 5342(b), which they say directs that all “vessel employees” of appellee be paid in accordance with wage practices of the maritime industry. Appellants seek as relief three years of back wages and an injunction ordering that hereafter wages be paid at the statutory rate. The District Court, Gesell J., in a characteristically able and pithy opinion, (see Learned Hand, The Spirit of Liberty (1952), Charles Neave, pp. 156-157) found these as facts. When a vessel passes through the Panama Canal a crew of eight to twelve linehandlers is put aboard at different stages of transit to handle lines for towing and positioning the vessel. This task requires skill and training, is hazardous, and is highly specialized. Line-handlers on a ship are in contact with linehandlers on shore who hand lines to the towing machinery or belay. The ship linehandlers work under the direction of a boatswain or instruction from the Canal Officers, but are also under general supervision of the vessel’s regular officers. Appellee determines the linehandlers’ wages hourly on the basis of local wages in the Panama Canal Zone. The rate is above the minimum required by the Fair Labor Standards Act. Appellee has changed that rate from time to time after periodic review in the light of local conditions. However, these rates have been only a fraction of the straight-time monthly pay received by able-bodied seamen in the maritime industry. Overtime rates are similarly disparate. Appellants contend that they are “vessel employees” within the coverage of 5 U.S.C. § 5342(b), and that that statute must be given mandatory effect. The District Court held that appellants perform a unique function and that there is no wage practice of the maritime industry applicable to them. Supporting the first of those conclusions, the court noted that, unlike ordinary seamen, appellants do not go to sea, have more regular hours and stabler work conditions, and need not develop the variety of skills required of those who work at sea under wholly different conditions. The court further held that since there is not any wage practice of the maritime industry for linehandlers, appellee necessarily established its own pay level for them, and that appellee had proceeded in a far from arbitrary fashion inasmuch as the rates were in line with blue-collar labor rates and were occasionally carefully reviewed. Summarizing, Judge Gesell concluded that appellee had not been shown to have violated 5 U.S.C. § 5342(b). We agree. The district court’s findings of fact are supported by substantial evidence. U.S.C. § 5342(b) does not require appellee to pay appellants in accordance with the wage practices of the maritime industry. The statute provides that “the employees of the Panama Canal Company may be paid in accordance with the wage practices of the maritime industry.” Ordinarily “may” is a permissive not a mandatory term. Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 662, 43 S.Ct. 651, 67 L.Ed. 1157 (1923); John Reiner & Co. v. United States, 325 F.2d 438, 441, 163 Ct.Cl. 381, 388 (Ct.Cl.1963). Here the permissive interpretation is conclusively proven to be correct not merely by the fact that when in the same statute Congress intended a mandatory direction it used the auxiliary “shall” not “may” — a contrast which is generally significant, see United States v. TaporIdeal Dairy Co., 175 F.Supp. 678, 682 (N.D.Ohio, 1959), aff’d 283 F.2d 869 (6th Cir. 1960), but also the legislative history of the statute. In 1959 the Fifth Circuit had distinguished between “may” and “shall” in determining whether Canal Zone pilots holding security positions were to be paid rates related to those of similar government employees of the United States. Reinheimer v. Panama Canal Co., 413 F.2d 153 (5th Cir. 1969) [interpreting 2 C.Z.C. 144 (b)]. The court held that the auxiliary “may” was to be given a permissive interpretation. This holding was drawn to Congress’s attention by persons who in matters cognate to this case represented appellants, or at least the labor organization to which appellants belonged. Despite efforts of those persons, Congress declined to substitute “shall” for “may.” See H.R. 9092, 92nd Cong. 1st Ses.; S.Rep. No. 758, 92nd Cong., 2nd Sess. 6; Cong.Rep. No. 92, 1275 92nd Cong., 2d Sess. 3 (1972). (1972; 5 U.S.C. § 5342(b). In full awareness of the discretionary character of the auxiliary verb “may” as used in 5 U.S.C. § 5342(b), and of the judicial- interpretation which was in accord with that discretionary character, Congress reenacted the statute unchanged. That sewed up whatever loose ends might have been thought to have been previously left to pull. See Judge Gesell’s second starred footnote in his opinion in the District Court. We also consider the almost irrebuttable presumption which followed from reenactment with knowledge. Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 319, 76 S.Ct. 752, 2 L.Ed.2d 788 (1958). The defeat sustained in the halls of Congress is not to be undone by an unwarranted victory in the halls of Justice. The statute remains, as it was intended by Congress to be, permissive not compulsory. There are other points raised which we prefer not to discuss inasmuch as they are unnecessary to dispose of appellants’ case which has already sustained a mortal wound. Affirmed.

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James M. MOORE et al., Appellants, v. ADMINISTRATOR, VETERANS ADMINISTRATION, Chairman and Commissioners, United States Civil Service System. No. 71-1508. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 26, 1972. Decided Feb. 14, 1973. Edward L. Merrigan, Washington, D. C., for appellants. Julius A. Johnson, Asst. U. S. Atty., John A. Terry, Robert S. Rankin, Jr., and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellees. Before DANAHER, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges. PER CURIAM: Appellants, career nursing assistants at a Veterans Administration Hospital, were removed from their positions for mistreating a patient and failing to report the incident. Following notice of dismissal and appellants’ written denials of the charges, separate hearings were conducted for each appellant and the charges sustained. On appeal to the Administrator of the Veterans Administration, the decision of removal was upheld. Thereafter appellants pursued their ample administrative remedies, and, following a lengthy series of appeals before the Civil Service Commission, their removal was again sustained. Having exhausted these procedures, appellants brought suit in the District Court seeking reinstatement and back pay. On cross motions for summary judgment, the trial court found for the appellees from which ruling this appeal is taken. Throughout these proceedings, appellants’ principal contentions have been that they have been deprived of a full and fair hearing in the denial of their request to call two investigators as witnesses at the Veterans Administration hearings and their non-access to the investigators’ report of the incident involving the abuse of the patient in which both appellants were implicated. Additionally appellants allege a lack of substantial evidence to support the administrative decision. The facts are not complex. During the morning hours of June 9, 1966, patient Levy, who had a reputation as a verbal (but non-physical) agitator, was taken from the Day Room by one Nursing Assistant McDowell and led to a seclusion area. He was joined in the hall en route by appellants Nursing Assistants Moore and Vaughn. When they arrived in the seclusion area a tussle ensued during which all four participants were described as rolling around on the floor. The tussle was estimated as lasting from three to five minutes. None of the participants reported the incident. Later in the afternoon of the same day, a resident doctor noted a change in patient Levy’s behavior and he was given a physical examination. This revealed extensive bruises over the patient’s entire abdomen and some scratches on his wrist and back. Two doctors testified essentially that it would be most unusual for such wounds to be self-inflicted or the result of efforts to subdue an unruly patient. Rather they indicated the bruises resulted from repeated blows from an external source — fist, blunt instrument, knee or elbow. Patient Levy testified that McDowell started hitting him while Moore and Vaughn were holding his arms. In general, however, patient Levy’s testimony is confused and contradictory concerning the events in question. Appellants claim that the hearing committee’s refusal to call the two investigators who developed the evidence against them was violative of the Fifth and Sixth Amendments relying on the authority of Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486, order dismissing petition for cert. vacated, remanded on rehearing, 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963) and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 101 (1959). These cases are clearly inapplicable to the situation presented here. This investigation was conducted solely to determine whether the facts warranted the bringing of charges. The central reason that appellants’ claims must fail is that the information gathered by these investigators was not relied upon in determining the status of these employees. The decision to dismiss them was based solely on the evidence elicited at the hearings and not on the investigative report. At these hearings, testimony of every witness having first-hand knowledge of the incident was presented and appellants were afforded full and complete rights of cross-examination. The two investigators had witnessed none of the relevant events and their testimony would necessarily consist primarily of hearsay. This case is thus readily distinguishable from Vitarelli and Williams in that in both those cases the factual basis for the dismissal of the employees consisted of information supplied by confidential informants or contained in affidavits to which the employees had no access and, since these witnesses were not called, the employees were denied their right to cross-examination and confrontation as well as their due process right to a full and fair hearing. Essentially the same reasoning disposes of the appellants’ request for the investigative report itself. Since the decision to dismiss them did not depend upon the report to support the charges, but rather was based solely on the testimony of live witnesses subject to the right of full cross-examination, we think it apparent that refusal to make it available to the appellants did not constitute a denial of due process or the right of confrontation. Appellants also seek to apply the principle of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) to the instant case, claiming that it requires the production of the investigative report. While we have held the Jencks doctrine applicable to administrative proceedings, appellants misconceive the scope of that rule. It requires only that where a witness has already testified “about an event long past, and it is shown that this witness at or about the time of the event made a written report to the Government concerning that event, and the testimony is material, and the credibility of the witness . . . upon this precise point is attacked, the Government upon demand must produce the report made by the witness.” Communist Party v. SACB, 102 U.S.App.D.C. 395, 409, 254 F.2d 314, 328 (1958). This is manifestly inapplicable here where the investigators were not in fact called as witnesses and did not testify at all. In general, it is well established that no right to a preliminary investigatory file exists in administrative law: The APA contains no provision for pre-trial discovery in the administrative process and, of course the provisions of the Federal Rules of Civil Procedure for discovery do not apply to administrative proceedings. Therefore, in absence of special statutory provision, and in absence of special administrative regulation, no procedure for discovery is normally available in a federal administrative proceeding. 1 K. Davis, Administrative Law Treatise, § 8.15, at 588 (1958). Finally, we turn to the question of the sufficiency of the evidence. The hearing testimony, when distilled, showed simply that the victim was conducted to and from the seclusion area in the company of the appellants. Objective medical examination subsequently revealed that in all probability appellant had been beaten. It is uncontested that no report of the incident was made as required by hospital rules. The victim’s testimony is at best inconclusive. While we might not have reached the conclusion that appellants were so directly involved in the incident as to warrant dismissal were we considering the issue de novo, our scope of review is much more confined. Applying the familiar “substantial evidence” test, we agree with the trial court that [the] record in this case contains not a mere scintilla, but substantial evidence of plaintiffs’ participation in the incident which led to patient Levy’s injuries, and there is no apparent justification for their behavior. Thus, the decision to remove plaintiffs from their employment cannot be characterized as arbitrary or capricious. Some participation in the affair by the appellants is well established and the failure to report the incident certainly lends support to the likelihood of their active involvement in the beating. This failure to report, when coupled with some degree of participation, seems more than sufficient grounds for removal. Accordingly, the order of the District Court granting the defendants’ motion for summary judgment is Affirmed. . The removals were based on the following charges contained in letters dated September 23, 1966 and sent to appellants by the Deputy Chief Medical Director of the Hospital: I. You were a party to the abuse of patient Sam Levy at approximately 7:45 a. m. on June 9, 1966, in the seclusion area of Ward 4A, Building 131, in that you assisted Nursing Assistants Lowell R. McDowell and George H. Vaughn/James M. Moore in escorting patient Levy against his will to the seclusion area, where you and the other two nursing assistants attacked patient Levy, inflicting severe bruises to his abdominal area, abrasions below the left shoulder blade and multiple scratches to the back of his left hand. II. You failed to immediately report any incident or injuries involving patient Sam Levy, as described in paragraph I, to YA hospital officials. Exhibit A-l, J.A. 18. . Appellants appealed the Veterans Administration decision to the Chicago Regional Director of the Civil Service Commission who determined the appellants were denied a full and fair hearing in the failure to produce the two investigators. (J.A. 36). The Agency appealed this decision to the Board of Appeals and Review of the Commission which reversed the Regional Director and remanded for consideration on the merits. (Exhibit E, J.A. 48). The Regional Director, reviewing the ease on the merits again recommended appellants be restored to their positions based on a finding that the evidence was insufficient to support the first charge and that the second charge (failure to report the incident), while sustained, was not sufficient ground for removal. (J.A. 55). The Agency again appealed and the decision of the Regional Director was again reversed by the Board of Appeals and Review holding that both charges were sustained by the preponderance of the evidence. (Exhibit G, J.A. 61). Appellants then requested the Commissioners to reopen their cases for consideration of the decision of the Board of Appeals and Review which was denied with the finding that the representations made in support of appellants’ request did not demonstrate probable error or sufficient justification for reopening the cases. (Exhibit J, J.A. 80). Thereafter the complaint was filed in the district court from whose granting of defendants’ motion for summary judgment this appeal is taken. . See the analysis and findings of the Regional Director, J.A. at 55 et seq. The facts set out in this opinion are drawn from both the Regional Director’s findings, id., and those of the Board of Appeals and Review, J.A. at 66 et seq. . At the outset it should be noted that the decision to call Agency employees as witnesses is discretionary with the hearing committee. 5 C.F.R. 771.216 (1971). . The Vitarelli opinion dealt with informants who furnished information which “was to be used ... in assessing an employee’s status.” Vitarelli v. Seaton, 359 U.S. 535, 544, 79 S.Ct. 968, 975, 3 L.Ed.2d 101 (1959). . The Jencks Act, 18 U.S.C. § 3500, by its terms applies, of course, to the narrow situation in which a criminal prosecution is brought by the United States and a witness has testified at trial as to matters contained in a report in possession of the Government. . Communist Party v. S. A. C. B., 102 U.S.App.D.C. 395, 409, 254 F.2d 314, 328 (1958). See note 3, supra. . See, e. g., Mendelson v. Macy, 123 U.S.App.D.C. 43, 356 F.2d 796 (1966); Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533 (1965); Eustace v. Day, 114 U.S.App.D.C. 242, 314 F.2d 247 (1962).

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Thomas E. KEANE et al., Appellants, v. NATIONAL DEMOCRATIC PARTY et al. Thomas E. KEANE v. NATIONAL DEMOCRATIC PARTY, et al., Appellants. Thomas E. KEANE et al. v. NATIONAL DEMOCRATIC PARTY and William Cousins et al., Appellants. Nos. 72-1629 to 72-1631. United States Court of Appeals, District of Columbia Circuit. Argued July 4, 1972. Decided Feb. 16, 1973. Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge and MacKINNON, Circuit Judge. PER CURIAM: On October 10, 1972, the Supreme Court, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 73, vacated the judgment of this court in this cause, 152 U.S.App.D.C. 157, 469 F.2d 563, and remanded the cause to this court to determine whether the case has become moot. Accordingly, the case is before us now (1) on the appeal of Keane et al., plaintiffs in the District Court, from the judgment of that court denying the declaratory and injunctive relief plaintiffs requested and dismissing their complaint, and (2) on the appeals of the National Democratic Party et al., defendants, and of intervenor-defendants, Cousins et al., from the judgment of the District Court denying the declaratory and injunctive relief sought in the counter-complaint filed by the defendants. In the period intervening since the action of the District Court the 1972 Convention of the National Democratic Party, acting within its competence, seated at the Convention the delegation whose right thereto was contested by plaintiffs, Keane et al., in the District Court. Insofar as the complaint involved such right of representation the case thus became and is now moot. Insofar as the complaint involves questions as to rights of the competing delegates to post-Convention representation in National Democratic Party matters, we think the case is not moot. This court being advised, however, that these questions are pending before the Credentials Committee of the National Committee of the Party, we find no equitable basis upon which the District Court or this court should now intervene by declaratory or injunctive relief. Insofar as the case involves the request for injunctive or other relief sought by intervenor-defendants, Cousins et al., or previously though no longer sought by the National Democratic Party et al., defendants, we are also of the opinion that no exceptional circumstances appear to justify now the relief requested. By reason of the foregoing, the judgment of the District Court dismissing the complaint and counter-complaint is affirmed. MacKINNON, Circuit Judge, concurring in part and dissenting in part: As I view the complaint it sought only the seating of the Keane delegates at the Democratic National Convention and that issue has been determined by the Supreme Court staying our judgment and by the subsequent action of the Democratic National Committee seating the anti-Keane delegation. I do not consider that this lawsuit involves questions as to the collateral consequences of that action or as to the actions taken by the Democratic Party subsequent to the adjournment of the convention. However, I do not consider that the action is moot insofar as it seeks a declaration that “the Rules of the Democratic National Party violate the First, Fourteenth and Fifteenth Amendments to the U. S. Constitution and the Civil Rights Act of 1871.” Complaint of Plaintiff at p. 13. In our earlier opinion, Brown v. O’Brien, 152 U.S.App.D.C. 157, 469 F.2d 563 (1972), we passed upon such issues to the extent necessary and upheld the constitutionality of Guideline C-6 sufficiently to decide that petitioners Keane, et al, were not entitled to be seated at the convention. While the Supreme Court thereafter vacated our judgment, Keane v. Nat. Democratic Party, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 73 (Oct. 10, 1972), the issue as to the constitutional validity of Guideline C-6 continues, is almost certain to recur and the timing of its likely reoccurrence close to our national presidential elections would make it evasive of review within the time available. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). I would therefore renstate our judgment insofar as it upholds the constitutional validity of Guideline C-6.

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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Appellants, v. Vernon D. ACREE, Commissioner of Customs, et al., Appellees. No. 72-1032. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 16, 1973. Decided Feb. 21, 1973. Neal Fine, Washington, D. C., with whom James Neustadt and Raymond J. Malloy, Washington, D. C., were on the brief, for appellants. Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Nathan Dodell, Asst. U. S. Attys., were on the brief, for appellees. Before TUTTLE , Senior Circuit Judge, and WRIGHT and MaeKINNON, Circuit Judges. Of the Fifth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). PER CURIAM: This case involves a constitutional challenge to 5 U.S.C. § 7501 (1970) which prescribes the procedure by which members of the competitive civil service may be removed from their positions or suspended without pay. The statute provides in pertinent part: (a) An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service. (b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to— (1) notice of the action sought and of any charges preferred against him; (2) a copy of the charges; (3) a reasonable time for filing a written answer to the charges, with affidavits; and (4) a written decision on the answer at the earliest practicable date. Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission. The gist of appellants’ complaint is that the statute facially conflicts with the due process clause of the Fifth Amendment by permitting Government agencies to refuse employees subject to discipline a hearing where they may confront and cross-examine witnesses against them and present witnesses on their own behalf. Appellants also challenge, for the same reason, the validity of Civil Service Commission regulations relating to suspension of employees for less than 30 days. 5 C.F.R. § 752.-301-304 (1972). Finally, appellants challenge the validity of Bureau of Customs disciplinary procedures in this case on the same ground. Two Customs inspectors stationed in New York, appellants Patrick J. Brennan and Joseph N. Coyne, were questioned in April 1966 by Customs agents regarding their alleged acceptance of gratuities from crewmen aboard the S.S. UNITED STATES. In June 1967 Brennan was notified that a proposal was pending to suspend him without pay for five working days and Coyne was notified of a proposed suspension for eight days. Each was given an opportunity to respond in writing to the written charges against him and each was given an opportunity to make an oral reply through counsel to the charges. In March 1968 the Regional Commissioner of Customs handed down his decision: three days’ suspension for each man. An appeal to the Commissioner of Customs was taken and the suspensions were affirmed. Neither Brennan nor Coyne availed himself of the opportunity to appeal the Customs Bureau decision to the three-tier appellate process of the Civil Service Commission. See 5 C.F.R. § 752.304 (1972). After serving their suspensions, both men returned to active duty. In January 1970 the disciplined inspectors were notified of the creation of a new position which would give them, if they were eligible for the position, enhanced civil service status and higher salary. Each applied, but was informed he was ineligible because of the presence of disciplinary action on his record during the preceding two years. Joined by the American Federation of Government Employees, which represents civilian employees of the federal government obviously affected by the disciplinary procedures at issue, they filed suit in the District Court here, seeking a declaration that the statute and regulations described above are unconstitutional, an injunction against their future enforcement, and, with respect to Brennan and Coyne, expungement of the earlier suspensions from their records and an order requiring that their applications for promotion be immediately processed. Initially, the District Court denied appellants’ motion for a three-judge court on the ground that the constitutional question presented was insubstantial. This court then denied a writ .of mandamus to overturn the District Court’s ruling. Although it indicated that appellants’ constitutional claim was neither necessarily frivolous nor foreclosed by previous decisions, this court held that appellants were seeking essentially equitable rather than injunctive relief and that a three-judge court was not warranted. Back in the District Court, the Government’s motion to dismiss was granted on the ground that appellants had failed to exhaust their administrative remedies by failing to appeal the adverse decision of the Bureau of Customs to the Civil Service Commission as the regulations permitted. See 5 C.F.R. § 752.304. We reverse. Ordinarily, the exhaustion doctrine requires parties not merely to initiate administrative proceedings which may grant them relief and thus forestall the need for judicial intervention, but also to pursue such proceedings to their conclusion. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). But there are cases where the customary rationales for the exhaustion of administrative remedies doctrine — avoidance of unnecessary judicial intervention and the need for full, unhampered exercise of agency expertise on a well developed factual record of its own making, see, e. g., McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) — do not apply and the doctrine’s application thus becomes pointless. In some cases the doctrine is no more than “an exercise in futility,” see Lodge 1858, American Federation of Government Employees v. Paine, 141 U.S.App.D.C. 152, 166, 436 F.2d 882, 896 (1970), particularly where it is clear beyond doubt that the relevant administrative agency will not grant the relief in question. See Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S.Ct 331, 72 L.Ed. 673 (1928). In such cases, nothing is lost by circumventing an open, but assuredly ineffectual, avenue of administrative appeal and moving to the courts. We believe this is such a case. Here there was no chance that appellate review by the Civil Service Commission would have reversed the Bureau of Customs order on the merits, thus obviating the need for a court to grant Coyne and Brennan the expungement remedy they now seek. The applicable provision of the Civil Service Commission’s regulations makes it clear that the scope of review is exceedingly limited: in cases involving suspensions of less than 30 days where there is no allegation of certain kinds of illicit discrimination not relevant here, the Commission will only review “the procedures used in a suspension under this sub-part.” 5 C.F.R. § 752.304(b). Of course, even this circumscribed review might have given the Customs inspectors the relief they sought were it plausible to assume that the Commission would have disapproved the failure of the Bureau of Customs to grant Coyne and Brennan rights of cross-examination and confrontation and remanded the case for new proceedings. But we believe this outcome was exceedingly unlikely, since the procedures specified in the Civil Service Commission regulations applicable to the Bureau of Customs and followed in this case require only written notice detailing the reasons and facts supporting a proposed adverse action, an opportunity to reply in writing and to file affidavits, and notice of the agency’s decision in writing, supported by reasons. 5 C.F.R. § 752.302. In our judgment, it would be blinking reality to expect the Commission, in an adjudicatory proceeding, to hold an agency subject to its regulations to a higher standard of procedural protection than its own rules require. Nor do we think it likely that the Commission would act in advance of a court in overturning rules promulgated by itself and consistent with the applicable governing statute. Our conclusion that appeal to the Civil Service Commission would have been futile is based on more than extremely strong inference. We may take judicial notice of the fact that while this appeal was pending the director of the Civil Service Commission’s Bureau of Policies and Standards, in a letter to the president of the American Federation of Government Employees, stated that the Commission would not require an agency to provide a hearing where, as here, the regulations do not require one. See Exhibit C, Joint Appendix at 113. Since we believe the District Court erred in dismissing this action for failure to exhaust administrative remedies, we remand the case for a hearing on the merits of appellants’ constitutional claim. So ordered. MacKINNON, Circuit Judge (dissenting) : I dissent because the foregoing opinion misapplies the law. Appellants admittedly failed to exhaust their administrative remedies and they have no valid ground for this refusal. They contend that if they had appealed the Commission would not have reviewed their suspensions on the merits. This conclusion is completely speculative. Every case stands on its own footing and the results of an appeal cannot be determined in advance. Hadnott v. Laird, 149 U.S.App.D.C. 358, 361, 463 F.2d 304, 307 (1972). Also, the constitutional requirement for a hearing could have been raised and argued on such appeals. As the Supreme Court held in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947): [T]he very fact that constitutional issues are put forward constitutes a strong reason for not allowing this suit either to anticipate or to take the place of the Tax Court’s [administrative agency’s] final performance of its function. The Commission could have decided entirely in appellants’ favor. Cafeteria Workers v. McElroy, 367 U.S. 886, 894-895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) also makes it clear that the suspension for three days after being given notice, an opportunity to respond in writing and to be represented by counsel is not necessarily a denial of “due process.” The suspensions were not summary in nature. What appears here is that appellants were satisfied with the action taken in 1968 but they became dissatisfied in 1970 when the disciplinary action was given as one reason for not considering them for promotions. They say they did not envision that their discipline would have such result. I find it incredible to believe that any Government employee (particularly in the Customs Service where honesty is a prime requisite) would not recognize that discipline for acceptance of illegal gratuities from members of the crew of a large passenger liner would be held against them. If it were not subject to such use, the Customs Service would rapidly deteriorate. I also dissent because appellants are guilty of laches and will require the Government to litigate their culpability on stale evidence. By allowing this case to proceed in the District Court the opinion of the majority has deprived the administrative agency of its lawful jurisdiction to decide the issue. The District Court has no jurisdiction in these cases in their present posture; that lies exclusively with the Customs Service. . This court said: “ * * * [Petitioners are not now entitled to a three-judge district court because their present complaint does not ‘formally [allege] a basis for equitable relief’ against the operation of the federal statute. Idlewild Bon Voyage Liquor Corp. v. Epstein [370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962)]. In the district court, petitioners seek declaratory and injunctive relief against the statute in question, but their complaint fails to allege that either they or any members of a class they purport to represent are now threatened by proceedings under the statute. Petitioners also request the district court to remedy the effects of past disciplinary actions under the statute against the two petitioner-employees by requiring the responsible officials to expunge notations of the actions from their employment records, and to process immediately their applications for promotion, previously denied because of the disciplinary actions. However, this ancillary equitable relief would not constitute an ‘injunction restraining the enforcement, operation or execution of [an] Act of Congress’ within the meaning of 28 U.S.C. § 2282 (1964). See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153-155 [, 83 S.Ct. 554, 9 L.Ed.2d 644] (1963). Until and unless petitioners make allegations that would justify injunctive relief against the operation of a federal statute, they may not invoke the three-judge procedure, and their remaining claim for a declaratory judgment is properly considered by a single district judge. Cf. Mitchell v. Donovan, 398 U.S. 427 [, 90 S.Ct. 1763, 26 L.Ed. 2d 378] (1970).” American Federation of Government Employees et al. v. Gesell, D.C.Cir., No. 24,815 (April 22, 1971) (unreported). . Compare Hadnott v. Laird, 149 U.S.App.D.C. 358, 361, 362, 463 F.2d 304, 307-308 (1972), where a panel of this court invoked the doctrine in a case where the claimants had not even initiated administrative proceedings and where there was reason to believe the agency might have acted affirmatively on their claim.

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Peter J. BRENNAN, Secretary of Labor, and Mike Trbovich, et al. v. UNITED MINE WORKERS OF AMERICA, et al., Appellants. No. 72-2064. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 20, 1972. Decided Feb. 22, 1973. Willárd P. Owens, Washington, D. C., with whom Edward L. Carey and Charles L. Widman, Washington, D. C., were on the motion for summary reversal for defendants-appellants. Michael Stein, Atty., Dept, of Justice, with whom Walter H. Fleischer, Atty., Dept, of Justice, was on the response to intervenors’ motion for summary affirmance. Joseph A. Yablonski, Washington, D. C., with whom Clarice R. Feldman, Washington, D. C., were on the motion for expedited appeal and summary affirmance for intervenor-appellee. Isaac N. Groner, and Charles R. Both, Washington, D. C., entered appearances on behalf of intervenor-appellee. Before BAZELON, Chief Judge, and LEVENTHAL and ROBB, Circuit Judges. Joseph A. Yablonski, and Clarice R. Feldman withdrew, their appearances as counsel for Intervenor-Appellees, subsequent to the argument and Isaac N. G,roner and Charles R. Both were substituted therefor. PER CURIAM: This appeal involves a suit brought by the Secretary of Labor under Title III of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), seeking to terminate trusteeships imposed by the United Mine Workers of America (UMWA) upon seven of its subordinate bodies known as “Districts.” The District Court found serious violations of Title III of the LMRDA committed by the UMWA by maintaining trusteeships over these Districts for more than eighteen months. Hodgson v. United Mine Workers, 344 F.Supp. 990 (D.D.C.1972). It concluded that the continuation of these trusteeships was not necessary for a purpose permitted by the Act and subsequently ordered secret ballot elections, conducted under the supervision of the Secretary of Labor, and other wide-ranging relief to restore union democracy to those entities. The UMWA appeals from the decision. Upon consideration of cross mo-, tions for summary disposition, and having heard oral argument, we affirm. The main contention of the UMWA on appeal is that contrary to the holding of the District Court, these Districts are not subordinate “labor organizations” engaged in an industry affecting commerce within the meaning of the LMRDA, and accordingly are not subject to the trusteeship strictures of the Act. In pertinent part the LMRDA defines a “labor organization” as including any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment .... We hold that these Districts fall within this functional definition. Contrary to appellant’s characterization of them as mere administrative arms of the UMWA, these Districts live a vigorous and substantial life of their own. As the Court below noted, the Districts organize nonunion mines, handle some grievances, and deal directly with employers. Indeed, the UMWA’s own constitution confirms the real authority of the Districts and their officers. In thus holding that the District Court properly concluded that these Districts are subordinate “labor organizations” within the meaning of section 402(i), we align ourselves with other courts that have ruled concerning the Districts’ status under this and related statutory schemes, and give full force to the Congressional intent “to provide comprehensive coverage of labor organizations engaged in any degree in the representation of employees or administration of collective bargaining agreements.” We also conclude that the relief ordered by the District Court, though admittedly comprehensive, was “appropriate” and within the Court’s broad equitable powers to fashion a suitable remedy for the inevitable atrophy of democratic principles and procedures during the decades that these Districts were in trusteeship. See Schonfeld v. Raftery, 271 F.Supp. 128, 148 (S.D.N.Y.), aff’d, 381 F.2d 446 (2d Cir. 1967). See also Hecht Company v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 88 L.Ed. 754 (1944). This case is remanded to the District Court to enable it to proceed, under its assertion of continuing jurisdiction, with the matters referred to in its recent Report to this Court, and with any other issues that may arise as the terms of its Order are implemented. Cf. System Federation v. Wright, 364 U.S. 642, 646-650, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961). It is so ordered. . Pub.L. No. 86-257, §§ 301 et seq., 73 Stat. 530-532, 29 U.S.C. §§ 461 et seq. (1970) (hereinafter cited to the U.S. Code provisions and as “the Act.”). . The UMWA Districts involved are District 4 (Western Pennsylvania); District 6 (Ohio and West Virginia panhandle) ; District 7 (now 25) (Eastern Pennsylvania anthracite region); District 17 (Southwestern West Virginia); District 23 (Western Kentucky); District 30 (Eastern Kentucky); District 31 (Northern West Virginia), . 29 U.S.O. § 464(c) (1970) provides in part that after “the expiration of eighteen months the trusteeship shall be presumed invalid . . . and its discontinuance shall be decreed unless the labor organization shall show by. clear and convincing proof that the continuation of the trusteeship is necessary for a purpose allowable under section 462 of this title.” In the instant case, the District Court found that these trusteeships had been in existence for decades. . The limited purposes for which a trusteeship may be established and maintained are detailed in 29 U.S.C. § 462 (1970) of the LMEDA. . The Memorandum Opinion declaring these trusteeships to be unlawful was filed by the District Court on May 24, 1972. Hodgson v. United Mine Workers, 344 F.Supp. 990 (D.D.C.1972). This Court subsequently permitted intervention in the Secretary’s suit by a group of individual UMWA members for purposes of framing a suitable remedy, Hodgson and Trbovich v. United Mine Workers, 153 U.S.App.D.C. 407, 473 F.2d 118 (opinion filed Nov. 13, 1972), and the final Order declaring relief was issued by the District Court on September 29, 1972. . The District Court’s decree of September 29, 1972,. permanently enjoined the UMWA from maintaining trusteeships in the offending Districts and ordered them promptly to hold nominations and conduct secret ballot elections, under the supervision of the Secretary of Labor, to fill the District offices which formerly had been appointed positions during the trusteeships. The District Court did permit incumbent District officers to remain in office, under the Secretary’s supervision, pending these elections. In these rulings, the Court borrowed freely from the election provisions of Title IV of the LMEDA, 29 U.S.C. §§ 481 et seq. (1970). The Court’s Order further required the convening of District meetings to adopt new District constitutions, and specified the voting rights and procedures to be utilized therein. Moreover, the District Court prohibited the UMWA from altering the geographical boundaries of these Districts, or otherwise restructuring them in such a way as to deprive the UMWA members therein of their membership rights, without their prior approval. Finally, the District Court retained jurisdiction to provide whatever additional relief was necessary to effectuate its decree. . See note 3 supra and accompanying text. 29 U.S.C. § 402(h) (1970) of the LMEDA defines a “trusteeship” as “any receivership, trusteeship, or other method of supervision or control whereby a labor organization suspends the autonomy otherwise available to a subordinate body under its constitution or bylaws.” The UMWA also contends that even if these Districts are legitimately classed as subordinate “labor organizations,” they have never suffered a loss of “autonomy otherwise available” and thus are not in trusteeship. We believe there is ample evidence in the record to support the District Court’s rejection of this claim. . 29 U.S.C. § 402 (i) (1970). This section, in the portion not quoted in the text, also adds to the Act’s coverage “any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization The UMWA argues that because this list and a similar one found in 29 U.S.C. § 402(j) (1970) of the LMEDA do not include “Districts” by name, the inference should be drawn that a District subordinate to an international union is not covered. It is clear, however, that this portion of § 402(i) was added to the general coverage provisions quoted in the text to increase the scope of the statute’s reach and not restrict it. See 105 Cong.Rec. 6516 (1959) (remarks of Senators Goldwater and Kennedy). See also H.R.Rep.No.741, 86th Cong., 1st Sess. at 28, U.S.Code Cong. & Admin. News 1959, p. 2424. . See Monborne v. United Mine Workers, 342 F.Supp. 718, 722 (W.D.Pa.1972). Cf. NLRB v. United Mine Workers, 202 F.2d 177 (3d Cir. 1953) (proceeding under the NLRA); Antal v. District 5, United Mine Workers, 334 F.Supp. 903 (W.D.Pa.), aff’d, 451 F.2d 1187 (3d Cir. 1971). Compare International Union, U.M.W.A. v. Dist. 50, U.M.W.A., 140 U.S.App.D.C. 349, 356 n. 5, 435 F.2d 421, 428 n. 5 (1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1372, 28 L.Ed.2d 645 (1971), with Ragland v. United Mine Workers, 188 F.Supp. 131 (N.D.Ala.1960). . H.R.Rep.No. 741, 86th Cong., 1st Sess. at 28, U.S.Code Cong. & Admin.News 1959, p. 2451. . See note 6 supra. . 29 U.S.C. § 464(a), (1970) of the LMRDA authorized the plaintiff in Title III suits to seek “such relief (including injunctions) as may be appropriate.” . Our decision today facilitates our ready disposition of a series of motions filed in this Court after this case was submitted to us at the conclusion of oral argument. The untimely motion to intervene on appeal is dismissed as moot, though we note in passing that the arguments that presumably would have been presented by the proposed intervenors were -generally already before the Court in the presentation of the appellant. Further, though we presently see no reason under the circumstances of this case to deny the motion by counsel for the intervenors below to appear instead for the UMWA on this appeal, the positions of the UMWA and the intervenors on this appeal now being identical, that motion is also dismissed as moot, since today’s decision terminates the need for appellate counsel in this litigation. Similar motions for leave to appear, now pending before the District Court, will be acted upon by that Court in the light of the circumstances there appearing. Finally, we refer the UMWA’s motion for extension of time to file trusteeship reports to the District Court for its consideration pursuant to our remand.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. Jerome JOHNSON, Appellant. UNITED STATES of America v. Samuel A. SMITH, Jr., Appellant. Nos. 23886, 24331, 72-1271, 23887, 72-1326. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 18, 1973. Decided Feb. 26, 1973. Frank J. Costello, Washington, D. C. (appointed by this Court for appellant in No. 72-1326), argued for appellants. Stephen S. Millstein, Washington, D. C. (Appointed by the Court for appellant in Nos. 23,886, 24,331, and 72-1271). Julius A. Johnson, 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. Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges. BAZELON, Chief Judge: Smith and Johnson were tried jointly before a jury and convicted of four counts of robbery while armed and five counts of assault with a dangerous weapon. Johnson was also convicted of one count of carrying a pistol without a license. On their appeal, the Government conceded that the trial court erred by failing to order sua sponte an identification hearing as required by our opinions in Clemons v. United States, 408 F.2d 1230, 133 U.S.App.D.C. 27 (1969), and Solomon v. United States, 408 F.2d 1306, 133 U.S.App.D.C. 103. It contended, however, that the error was harmless in the circumstances of this case. We disagreed and remanded the case for a hearing on the pre-trial identifications, reserving the other issues raised in the appeal. A hearing was held on July 23, 1971, and the trial judge entered an order and opinion on March 14, 1972, holding that all pre-trial identifications had been proper and all identification evidence had been properly admitted. Both defendants have appealed from these rulings and have renewed their original appeals. New briefs have been submitted and the case has been reargued. Having carefully considered the judge’s rulings on remand, and acknowledging his broad responsibility for resolving conflicts in testimony, we hold that the identifications were properly admitted under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). On the renewed appeal, we affirm the armed robbery convictions and the conviction for assault with a dangerous weapon on Albert Traylor, designated as count 13 in the indictment. But we reverse the convictions for assault with a dangerous weapon on each of the four individuals found to have been robbed, and we vacate all sentences imposed and remand for resentencing. The indictment contained fourteen counts. The first twelve consisted of four sets of three offenses: robbery while armed, robbery, and assault with a dangerous weapon. Each set designated a different victim. The jury returned a verdict of guilty on each of the four counts of robbery while armed. It returned no verdicts on the simple robbery counts. And it returned a verdict of guilty on each of these four counts of assault with a dangerous weapon. Additionally, it returned a verdict of guilty on count 13, which alleged an assault with a dangerous weapon on a fifth individual, Albert Traylor, who was present at the scene of the offense but was not robbed. The fourteenth count is no longer before us. See note 1 supra. In view of some variance in the wording of the relevant statutes, there has been some doubt in this circuit as to whether assault with a dangerous weapon, 22 D.C.Code § 502 (1967), is a lesser included offense of robbery, 22 D.C.Code § 2901 (Supp. V, 1972), while armed, 22 D.C.Code § 3202 (Supp. V, 1972). See Sutton v. United States, 434 F.2d 462, 472, 140 U.S.App.D.C. 188 (1970). We now hold that it is, and that this ruling is required by our previous decisions construing 22 D.C.Code § 3202 (Supp. V, 1972). See Wimbush v. United States, 154 U.S.App.D.C. -, 475 F.2d 347 (1973); United States v. Benn & Hunt, 155 U.S.App.D.C. —, 476 F.2d 1127 (1972). It follows that it was error to receive verdicts from the jury on counts 3, 6, 9 and 12. We also think that all of the remaining sentences must be vacated and the ease remanded for resentencing. The trial judge entered a formal judgment sentencing appellant Johnson as follows: [A] Ten (10) to thirty (30) years on counts 1, 4, 7 & 10. [B] Three (3) years to nine (9) years on counts 3, 5, 6, 9 & 12, said sentences to run consecutively. [C] Three (3) years to nine (9) years on count 14, to run concurrently with sentences in counts 1, 4, 7, 10, 3, 5, 6, 9 & 12. He entered a formal judgment sentencing appellant Smith to: [A] Nine (9) years to twenty-seven (27) years on counts 1, 4 & 10. [B] Two (2) years to six (6) years on counts 3, 6, 9, 12, 13 said sentences to run consecutively. The consequences of this arrangement are extremely problematic. The initial difficulty we encounter is determining the total length of appellants’ sentences. We are not told whether the sentences on the armed robbery counts, designated [A] here, are to be served concurrently with each other. We are told that the second group of sentences, designated [B] here, are to run “consecutively,” but we cannot determine whether this means consecutively to each other, consecutively to the sentences designated [A], or both. A similar problem exists with the sentence designated [C] here, but that conviction has been reversed and we need not address it. Our second difficulty arises because the counts on which the trial judge imposed sentences do not fully correspond to the counts on which the jury returned verdicts of guilty. Appellant Johnson was sentenced on count 5, a simple robbery count on which the jury did not rule. He was not sentenced on count 13, which charged the assault with a dangerous weapon on Albert Traylor, despite the jury’s guilty verdict on that count. Appellant Smith was not sentenced on count 7, which charged the armed robbery of James Lewis, despite the jury’s guilty verdict on that count. Our final difficulty is that appellant Johnson’s oral sentencing, on December 23, 1969, does not correspond to the written judgment entered the same day. At the oral sentencing the trial judge imposed sentences on the same ten counts that the jury rendered guilty verdicts on. Even if we accept this as his true intent, however, we are still unable to determine which sentences run consecutively to, or concurrently with, which others. Nor can we explain the imposition of sentences on the four assault counts in view of the fact that the trial judge had instructed the jury to disregard them if it found appellants guilty on the corresponding armed robbery counts. See note 2 supra. There is some indication that all of the above, which compel a remand for resentencing, may be attributed to the performance of defense counsel. We put aside the fact that defense counsels’ failure to request a suppression hearing required a remand for an examination of the pre-trial identifications, as well as the fact that counsel failed to object when the jury returned verdicts in violation of the trial judge’s instructions. We address ourselves only to counsel’s performance at sentencing. The sum total of defense counsel’s presentation at appellant Johnson’s sentencing hearing reads as follows: My name is [deleted], appointed counsel in this case. I would like to call to the attention of the Court that the Defendant had asked that a new attorney be appointed and I wrote a letter to the Court and to advise the Defendant as to what steps he would take, but I am told now that he intended only tp have a new attorney on appeal. Counsel then sat silent while the defendant declined the opportunity to exercise his right of allocution. He remained silent while the trial judge imposed “consecutive” sentences on counts that the same trial judge — in counsel’s presence —had instructed the jury to pass over. Finally, he said nothing when the trial judge prompted the prosecutor to state that a prior conviction existed in order to support a more severe sentence on count 14, carrying a pistol without a license. This court has ruled that “[t]he right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution.” Gadsden v. United States, 223 F.2d 627, 630, 96 U.S.App.D.C. 162. Although counsel’s performance at sentencing is subject to standards of measurement, we do not reach the question of effective assistance because we must vacate and remand for correction of the plain errors in the sentencing noted above. The convictions of assault with a dangerous weapon in counts 3, 6, 9 and 12 are reversed. The convictions on all other counts are affirmed, but all sentences are vacated and the case is remanded for resentencing. So ordered. . The Government also conceded in its brief that there was no evidence in the record to sustain the conclusion that appellant Johnson had no license for the pistol. That conviction, on the count designated 14 in the indictment, was therefore reversed. . Indeed, the trial judge appears to have understood the law to require this result when he charged the jury. [I]f you find the defendants guilty of armed robbery, any one or all of counts one, four, seven and ten, then you need not consider the counts alleging the robbery, and assault -with a dangerous -weapon on the same complainant. (emphasis added.) Yet for reasons that do not appear on the record, the Deputy Clerk called for verdicts on the assault counts and the jury foreman provided them. And neither defense counsel, the trial judge, nor the prosecutor objected. . Bracketing added. . With respect to our remand for -resentencing, it may be appropriate to point out the following statute, enacted after Johnson and Smith were sentenced: A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not. 23 D.O.Oode § 112 (Supp. V, 1972) (emphasis added). . On appeal both the Government and the newly appointed defense attorneys have assumed that the trial judge imposed two sets of concurrent sentences, one being the armed robbery sentences and the other the assault sentences, and intended the two sets to be imposed consecutively. While possible, we cannot say that this interpretation is more likely than a number of others. . Regarding these matters, sec Marshall v. United States, 436 F.2d 155, 159 n. 11, 141 U.S.App.D.C. 1 (1970); United States v. Thompson, 154 U.S.App.D.C. -, 475 F.2d 931 (1973). . He could have .pointed out that the indictment did not charge a prior conviction. He should at the very least have demanded that the prosecutor produce evidence of a conviction, if indeed there was one that met the statutory requirements. See 22 D.C.Code § 3204 (1967). . See Standards Relating to the Defense Function, Approved Draft, 1971, American Bar Association Project on Standards for Criminal Justice (1971) § 8.1; Report of the National Advisory Commission on Criminal Justice Standards and Goals, to the National Conference on Criminal Justice, January 23-26, 1973, Corrections § 5.18.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Horace CASE, Appellant, v. Arthur E. MORRISETTE. No. 22810. United States Court of Appeals, District of Columbia Circuit. Argued March 12, 1970. Decided Feb. 27, 1973. Richard J. Hopkins, Washington, D. C., for appellant. Joel C. Wise, Washington, D. C., with whom Roger Peed, Washington, D. C., was on the brief, for appellee. Before TAMM, ROBINSON and MacKINNON, Circuit Judges. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: The sole question presented for our decision is whether an owner of property in a subdivision acquired a right to park vehicles on a lot which an inscription on a revised copy of the subdivision plat, annexed to a declaration of covenants and referred to in the grantee’s deed, indicated had been set aside for that purpose. The District Court, on facts not materially in dispute, answered that question in the negative, and entered judgment against the plaintiff-owner. This appeal challenges the legal conclusions the court drew from the facts and the validity of the judgment which the court was thus led to pronounce. We would be less than candid if we did not mention at the outset that we have encountered a number of difficulties which we should not have been required to solve. We have found omissions from the record of information which would have greatly simplified our review. We have, in some instances, been confronted with questions which neither side has addressed, and in others with positions assumed without factual support and contentions advanced without citation of authority or even supporting reasoning. This has compelled us to expend a great deal of time and effort which otherwise could have been avoided. Our own investigation into this case has involved a thorough analysis of the record and painstaking examination of relevant bodies of legal doctrine in order to deal adequately with the manifold problems uncovered. On the basis of our study, we conclude that the trial judge clearly erred in the disposition which he made. Accordingly, we reverse the judgment appealed from and remand for further proceedings. I Dexter Heights, in Southeast Washington, was developing during World War II as a subdivision of 89 lots with apparently a nearly equal number of residential units. Throughout the remainder of the war, the subdivider, Dexter Realty Company, rented these units to persons engaged in the defense effort; thereafter the units, with the lots on which they were built, were sold individually to returning veterans. In 1949, Horace Case, the appellant, came into the ownership of Lot 44-0 in Square 5869, improved by the dwelling numbered 1349 Talbert Terrace, Southeast, in which he continues to reside The parcel sprouting this litigation — Lot 43 in Square 5869 — also abuts Talbert Terrace and is wholly unimproved. A revision of a portion of the original subdivision plat of Dexter Heights, on which revised plat the layout of the 89 lots and other features are depicted, is attached to and recorded with a declaration of covenants imposing use restrictions uniformly on the subdivided properties. In the written declaration, all lots are identified by reference to their lot and square numbers as shown on the revised plat appended. The written declaration makes no mention of a servitude on Lot 43 — the allegedly encumbered lot — for vehicular parking. In regard to Lot 43, the declaration refers to the revised plat and states that it is subject to a building line restriction shown thereon, and to a recorded agreement between the subdivider and the District of Columbia concerning water and sewer connections and party walls. The annexed copy of the revised subdivision plat, however, bears, within the boundaries it marks for Lot 43, an inscription reading “To be Graded & Cinder Covered for Car Parking (50 cars) Provide Driveway Entrance from Talbert Terrace.” Lot 43 has never been graded, cinder-covered or furnished a driveway entrance from Talbert Terrace. It has never been used for parking, and without grading and a driveway entrance it could not be so used. In 1963, the corporate successor to Dexter Realty Company conveyed Lot 43 to Arthur L. Morrisette, the appellee. The deed to Morrisette characterizes Lot 43 as “comprising the area for car parking ... as shown on the” copy of the revised subdivision plat recorded with the declaration of covenants. Morrisette proposes to develop Lot 43 for parking, not by residents of Dexter Heights, but by tenants of an apartment complex he plans to construct on adjacent land. It was to prevent Morrisette from doing so that Case brought suit in the District Court. He claimed that the inscription on the revised subdivision plat in regard to Lot 43 gave rise to a right appurtenant to the other properties comprising Dexter Heights to use Lot 43 for parking to the extent of 50 cars. On this theory Case sought a judgment declaratory of that right, an injunction restraining Morrisette from interfering with it, and a mandatory injunction compelling Morrisette to grade and cinder-cover Lot 43 and provide it with an entrance driveway from Talbert Terrace. Morrisette, advancing several defenses, asserted primarily that the inscription did not confer any such interest in Lot 43 upon other property owners in Dexter Heights. The District Court, after a trial without a jury, rendered judgment in favor of Morrisette, and this appeal followed. II Upon completion of the evidentiary and argumentative presentations, the trial judge orally announced his decision and his reasons therefor, and shortly thereafter filed written findings of fact and conclusions of law. The written findings indicate nothing as to the basis for the judge’s decision, and only one of the accompanying conclusions is in any wise helpful on that score. That conclusion was that Case had “failed to show that the [declaration grants to him or other lot owners in the subdivision . . . any right, title, or interest in . . . Lot 43. . . . ” Some additional and much needed enlightenment is derived from the judge’s statement at the end of the trial. The question, said the judge, was whether the inscription on the revised subdivision plat within the boundaries marked for Lot 43 created an easement for parking. That question the judge answered , in the negative for reasons which, as nearly as we can glean, were the following. Firstly, the written declaration of covenants imposed a number of restrictions on the lots comprising Dexter Heights, but did not mention an area set aside for parking. Secondly, Lot 43 has never been used or useable for parking, and the property owners had not asserted any right to have it made suitable for that purpose. Thirdly, “[a]n easement cannot be created by ambiguous language.” The last clause of the inscription pertaining to Lot 43 — “Provide Proper Driveway from Talbert Terrace” — “is ungrammatical and not understood.” And “the legend on the plat is purely descriptive and was not intended to create an easement or other property rights.” Fourthly, no equitable servitude on Lot 43 arose because it was never used for parking. In examining the District Court’s decision that property owners in Dexter Heights have no claim on Lot 43, we remain advertent to the consideration that “ [¶] indings of fact shall not be set aside unless clearly erroneous,” and in that regard we do not distinguish between written and transcribed oral findings. But although the findings “come here well armed with the buckler and shield” conferred by the “clearly erroneous” standard, they do not have the force and effect of a jury verdict. To be sure, the findings are presumptively correct and the burden of persuading us that they are “clearly erroneous” rests upon Case. Equally certain it is that we are not to weigh the evidence de novo, or disturb the findings simply because we might have reached a contrary result on the same evidence. And not only must we give “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses,” but we must also measure the findings by the “clearly erroneous” test even when they are based on inferences drawn from documents or undisputed facts. On the other hand, a finding is “clearly erroneous” if it is without substantial evidentiary support or if it was induced by an erroneous application of the law. Beyond that “[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.” In reviewing the trial judge’s decision in this case, then, we must look to all of the evidence of record to determine whether the findings can pass muster. And in making that determination, we also bear in mind that conclusions of law do not find shelter in the “clearly erroneous” requirement. Ill The core question, as the District Court stated, is whether the inscription made within the area of Lot 43 as marked on the copy of the revised subdivision plat annexed to the declaration of covenants imposed on that lot a servitude in favor of the other lots in Dexter Heights. In approaching a solution to this question, we remember that Case seeks relief by way of a declaration of the right he conceives and an injunction enforcing that right. We need not, then, ponder whether the inscription survives the strictures of the common law as to covenants running with the land for purposes of actions for damages occasioned by breach. The relevant inquiry here is whether the inscription meets the far less onerous prerequisites to equitable enforcement of property servitudes. Those prerequisites are two in number. The first is a servitude en-grafted upon one parcel of land with a view to benefiting one or more other parcels. The second is notice of the servitude, to the' party against whom enforcement is sought, at the time he took the burdened parcel. Put another way, an owner of a benefited parcel may enforce such a servitude against the owner of the burdened parcel who acquired it with .notice of the servitude. The right of enforcement does not depend upon privity of contract or estate between the parties, or upon whether by the rules of the common law either benefit or burden of the restriction runs with the land. It rests, rather, upon the obvious injustice of permitting one who purchased the burdened parcel.with notice of the restriction to frustrate its object. As we begin our investigation to determine whether Case met these two preconditions, we encounter one of the record deficiencies to which we have previously alluded. The revised plat of Dexter Heights delineating the scheme of the 89 lots which were successively improved, rented and ultimately sold was, as we have said, attached to and constituted a part of the declaration of use restrictions and that declaration was recorded in the office of the Recorder of Deeds. A copy of the revised plat was admitted into evidence, and witnesses and counsel invariably spoke thereto at trial and in like fashion the arguments presented in this court are addressed to it. By statute, however, the exclusive legal office for the recording of subdivision plats is the office of the Surveyor of the District of Columbia, and any recording of such plats in the office of the Recorder of Deeds is made “not lawful.” The parties have offered no explanation as to why the copy of the revised plat of Dexter Heights accompanying the declaration of covenants was indulged recordation in the latter office, and the record is barren of any indication that the revised plat was also recorded in the office of the Surveyer. The documents of title introduced into evidence, however, also refer to another plat of Dexter Heights — a plat indeed recorded in the office of the Surveyor. But no copy of this other plat was proffered at trial, and the trial record thus leaves some of its essential features in the dark. To further complicate the problem, the record gives positive indication that this plat and the revised plat are not identical. From just the little we can gather, it seems rather clear that the plat recorded in the office of the Surveyor shows a subdivision of Dexter Heights into only nine large lots. On the other hand, the copy of the revised plat recorded with the declaration in the office of the Recorder of Deeds — which is before us — unquestionably made a further Carving of those lots into a total of 89 new lots. Thus the former emerges as the plat of the original subdivision of Dexter Heights and the latter as a revision — a further subdivision superimposed upon a copy of the original. To add to our woes, there is a complete absence of anything to suggest that the inscription written on the revised plat in regard to Lot 43 is also written on the original plat recorded with the Surveyor. In this state of the record, we must assume that the inscription appears only on the revised plat annexed to the declaration filed in the Recorder of Deed’s office, which is referred to in the deed to Morrisette. So it is that we become confronted with a problem as to whether the notice prerequisite to enforcement of equitable servitudes obtained in this case. The initial question, arising from the statutes governing recordation of subdivision plats in the District, is whether under the circumstances portrayed subsequent purchasers are charged with constructive notice of plats filed with the Recorder of Deeds, and thus are not permitted to rely upon the representations implicit in plats recorded with the Surveyor. The parties have not addressed this question at all, but we have given it our most careful consideration. Despite the complexities germinated by the sad condition of the record, we are satisfied that ample notice was imparted here. To be sure, as is statutorily demanded, subdivision plats must be duly recorded in the office of the Surveyor. In our view, however, once that requirement has been met, the statutes do not prohibit an owner from incorporating a revised copy of the same plat into another recordable instrument in order to impress, through a suitable endorsement on the plat, a servitude upon a single lot in the original subdivision. In such circumstances, the revised plat is being used only as a method of imposing a servitude, and not to establish the areas and boundaries of the lots in the subdivision, which is the principal purpose of the filing of a plat in the office of the Surveyor. While, as we shall see, it is true that equitable servitudes can be created by inscriptions on subdivision plats filed with the Surveyor, they may also be created by deeds, with or without plats' attached. In fact, it is more customary to establish easements and other land servitudes by deed rather than by the official subdivision plat. In this case, the deed conveying title to Morrisette specifically described the parcel under scrutiny as Lot 43 on the plat recorded in the office of the Surveyor. It then referred to that parcel as “comprising the area for car parking as shown on the plat” appended to and recorded with the declaration" of covenants Thus the revised plat was merely being used to indicate that Lot 43 was subject to the parking servitude inscribed thereon. In that posture, resort to the revised plat filed with the Recorder of Deeds was not improper, and Morrisette was placed on notice of the inscription affecting the property he purchased. Beyond the foregoing, Morrisette testified at trial that he had knowledge of the revised plat and of the inscription thereon when he bought Lot 43. Thus, beyond peradventure, Morrisette had actual as well as constructive notice of the inscription, and either was plainly enough. In these circumstances, it is immaterial that the copy of the revised plat bearing the inscription was recorded in the office of the Recorder of Deeds rather than in the office' of the Surveyor. IV Since appellee had full notice of the inscription on the copy of the revised subdivision plat pertaining to Lot 43, the issue is reduced to what the sub-divider of Dexter Heights might have had in mind in placing it there. The creation of equitable servitudes is basically a matter of intention — not secret, unexpressed thoughts on the matter, we hasten to add, but intention derived from the written language when viewed in the light of the surrounding circumstances. It must appear that the subdivider’s object wás to create a servitude for parking on Lot 43 which would inure to the benefit of the other lots in Dexter Heights. If such an intention emerges clearly on the record before us, it follows that the District Court erred in ruling in Morrisette’s favor. There can be no question as to the legal sufficiency of an inscription on a plat to impose an equitable servitude on land when the intention to do so is manifest. Servitudes enforceable in equity, no less than other types of property interests, may be created without express grant; even easements, of the nature of which the servitude claimed in this ease partakes, may spring up purely by implication. Rights of either character may arise from a plat inscription which, either alone or in conjunction with other objective circumstances, clearly connotes a purpose to lay a burden on land for the benefit of other land. We are thus led to a consideration of the trial judge’s finding that “the legend on the plat is purely descriptive and was not intended to create an easement or other property . rights.” Unless clearly erroneous, that finding warranted the adjudication in favor of Morrisette which Case has subjected to this appeal. But it does not necessarily follow merely from the fact that the inscription “is purely descriptive” that it “was not intended to create . property rights” if, when viewed in proper context, it is clearly indicative of an intention to bind Lot 43 as an area for parking by the residents of Dexter Heights. Case argues convincingly that such an intention is plain, while Morrisette responds vigorously that it is nonexistent. Our task thus becomes defined as an appropriate inquiry as to whether, “although there [may be] evidence to support” the finding, “on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.” Our starting point is the inscription itself. Its wording is simple and direct, and unlike the trial judge we have no difficulty whatsoever in understanding the message it conveys. Lot 43, it says, was “To be Graded & Cinder Covered for Car Parking (50 Cars),” and someone — obviously the sub-divider — was to “Provide Proper Driveway Entrance From Talbert Terrace.” While we agree that a plat notation of dubious import does not suffice to levy a restriction on land use, we can read this inscription only as an unequivocal declaration that those things would be done in order to enable vehicular parking on Lot 43. And we cannot imagine that parking on Lot 43 for 50 cars was to be arranged for the benefit of any group other than the occupants of Dexter Heights. So unambiguous is the revised plat inscription in reference to parking on Lot 43 that resort to extrinsic evidence seems hardly necessary. But the fact of the matter is that our reading of the inscription becomes even more persuasive when we examine the surrounding circumstances. Dexter Heights came into being as a community of residential units, initially to be rented to defense workers and later to be sold to veterans returning from the war. As the revised subdivision plat shows, very few of the 89 lots into which Dexter Heights was carved exceed 15 feet in width, and very few abut on any sort of rear alley. There was also a restriction establishing a building setback line only ten feet inwardly from the front lot lines. That combination of circumstances practically removed any possibility of parking vehicles on the individual lots. And from the density of housing construction, resulting largely from the narrowness of the lots, it has been apparent from the beginning that on-street parking was very apt to be woefully inadequate. Very importantly, the record discloses without contradiction that a condition to the federal financing which the Dexter Heights project utilized was the provision of an area for tenant parking during the era it was to serve the housing needs of defense workers. The only inference tolerable in this milieu is that the inscription on the revised plat regarding Lot 43 was designed to satisfy that requirement. We think, too, that the inference is inevitable that the inscription was designed to benefit not only the World War II tenants but also the post-war owners of the properties comprising Dexter Heights. That is demonstrated by a series of documents recorded long prior to the end of the war, as we now explain. The revised subdivision plat is far different from a plan depicting merely the sites of housing units to be erected, which is all a project exclusively for rental would have required. It is a layout of 89 separate lots, accompanied by specification of all the data essential to exact location of the boundaries of each. Indeed, the only feature of the revised plat tending in the least to indicate the location of any dwelling unit to be constructed is the building setback line drawn thereon. The revised plat thus served plainly the cause of future sales of the individual properties comprising Dexter Heights. Moreover, the pre-construction agreement to supply separate water and sewer services for each lot and to bring party walls into conformity with building code requirements clearly looked forward to the day when the lots in Dexter Heights would be individually sold as improved properties. In like fashion, the pre-development declaration of covenants imposing a cluster of mutual restrictions on all lots in the subdivision just as clearly envisioned the day when renting would yield to selling. But despite the emphatic showing that from the inception of Dexter Heights the lots were slated for eventual sale to veterans, the record contains not so much as an inkling that the benefits of the parking that Lot 43 was undeniably to furnish to tenants immediately were not also to extend to the lot owners who were to follow them. We are mindful that, as the trial judge pointed out, the declaration of covenants did not mention a parking servitude on Lot 43. That is not surprising since the declaration on its face was directed toward restrictions that would bind and benefit all lots reciprocally, in contrast to a parking servitude which would burden only one lot without any return from any of the rest. But whatever the explanation, this circumstance carries too little weight to impinge upon the several positive identifications that Lot 43’s burden was to be every other lot’s benefit. The omission can be accounted for by any one of a number of innocuous reasons, and no basis for assuming anything different is apparent. We cannot attribute to it an importance that would threaten the strong showing made by other indubitable features of the case. Furthermore, the declaration recites that “[a] 11 the . lots [are] more fully designated and shown on plat attached hereto and made a part hereof and to which reference is hereby made. . . . ” It is settled that such an incorporation by reference summons a reading of the declaration and the revised plat appended as a single instrument. Nor are we able to accept the trial judge’s conclusion that because Lot 43 has never been used or fit for parking, no equitable servitude binding it to that purpose arose.; We do not consider any more significant the fact, noted by the judge, that Dexter Heights’ property owners have never before pressed a claim that Lot 43 should be made useable for parking of their vehicles. Events transpiring after activities assertedly creating a property interest have no bearing on the question whether the asserted interest arose. Put another way, a parking, servitude on Lot 43 either arose or failed to .arise when the inscription referring to that lot was incorporated into- the revised subdivision plat. ' Moreover, mere 'acquiescence in the violation of ;a restriction does not amount to an abandonment as long as it retains some valúe, nor', does nonuser work an abandonment of a', nónprescriptive easement When unaccompanied by clear evidence bf- an intention to abandon And since Morrisette testified at trial that he plans to make -Lot 43 suitable for parking by others than Dexter Heights residents, it is apparent that the lot possesses no physical characteristics rendering ' its development for that use unfeasible. In sum, the circumstances which the trial judge -found persuasive neither prevented the servitude from coming into being nor, without more, wrought its termination. This is not to say that these circumstances when coupled with others of similar character could not have caused a loss of the right to enforce the servitude after it arose. It is to say that the trial judge made no finding which would support that conclusion. The judge ruled that no enforceable servitude on Lot 43 emanated from the revised plqt inscription in reference to that lot. Consequently, he had no occasion to focus on the question whether subsequent events destroyed the right to bring a violation to task by injunction. Since, “on the entire evidence,” we are “left with the definite and firm conviction that a mistake has been committed,” we deem it “just under the circumstances” to leave the door open to litigation of Morrisette’s defenses. The District Court will be free to determine on remand whether enforcement of the servitude on Lot 43 would now be inequitable. It goes without saying that we intimate no view whatsoever in that regard. The judgment appealed from is reversed, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed and remanded. . We make specific reference in this opinion to some of these difficulties. . Case bought, not directly from Dexter Realty Company or its corporate successor, but from an intermediate purchaser. The property was conveyed to Case and his wife as tenants by the entireties, and Case has litigated alone in the District Court and here. The record gives no explanation for the absence of the wife as a party. Since the point has nowhere been raised, we do not pause to explore its implications. . For the sake of clarity, we point out now several important facts which we later discuss in more detail. The original plat of the subdivision of Dexter Heights is duly recorded in the office of the Surveyor of the District of Columbia, and the revised plat referred to in text is recorded with the declaration of covenants in the office of the Recorder of Deeds of the District of Columbia. See text infra at notes 49-51. The inscription on which Case relies appears on the revised plat, see text infra at note 7, but on the record before us we must assume that it does not appear on the original plat filed with the Surveyor. See text infra following note 53. Statutes in the District of Columbia in terms require recordation of subdivision plats in the Surveyor’s office and forbid their recordation in the Recorder of Deed’s office, see text infra at notes 50-51, thus jeopardizing the recordation of the revised plat as constructive notice of the inscription it contained to subsequent purchasers. A crucial question, then, is whether the recording treatment given the inscription affects its enforceability. See Part III, infra. Another question is whether in any event the inscription imposed the servitude for parking which Case contends for in this case. See Part IV, infra. . The restrictions apparently remain in full force. The declaration specifies that they would endure until January 1, 1968, and would then be automatically extended for successive periods of ten years unless by vote of a majority of the then property owners it should be agreed to change them in whole or in part. The record does not inform us as to whether there has been any vote to change. . The declaration states that “[a]ll the . . . lots [are] more fully designated and shown on plat attached hereto and made a part hereof and to which reference is hereby made. ...” . As we have stated, the residential units were built with a view to immediate rental to defense workers and ultimately to sale to veterans. The units were constructed as row houses in groups of six, originally with six-inch nonbearing partitions and in some instances with a common sewer and a common water supply. By the agreement referred to in text, Dexter Realty Company covenanted with the District of Columbia to bring all party walls into compliance with building regulations and to provide separate sewer and water connections prior to any conveyance of the units as separate properties. . As we shall see, this inscription is the focal point of the litigation. . The deed also refers to the original subdivision plat, which we later discuss. See text infra at notes 50-59. . See Fields v. District of Columbia, 143 U.S.App.D.C. 325, 443 F.2d 740 (1970). . Though brought as a class action, Case abandoned that approach in the District Court and requested that the action be treated instead as an individual suit. . See text supra at note 7. . Additional defenses are laches and the statute of limitations. The District Court did not rule on them one way or the other. See, however, text infra at notes 97-98. . See Fed.R.Civ.P. 52(a). . These findings refer only to the parties’ lot ownerships, the Dexter Heights subdivision, the declaration of covenants, the contentions of the parties and the issue as the judge conceived it. . The judge’s other conclusions relate only to jurisdiction and to the resolution of the case in Morrisette’s favor. . In relevant part, the judge stated: The last clause of this legend is ungrammatical and not understood. The question is whether this legend is sufficient to create a parking easement. The declaration itself after describing the property in detail contains a number of covenants running with the land requiring the land to be used only for residential purposes providing for certain setbacks, excluding trailors and so forth. Nowhere in among the covenants is there any mention of a parking area. An easement cannot be created by ambiguous language. The Court is of the opinion that the legend on the plat is purely descriptive and was not intended to create an easement or other property rights. Apparently the parties so understood the matter and assumed that there was no parking easement because the lot is not suitable for parking. In 1942 it was a precipice. It has never been graded or put in shape for use as a parking lot and has never been used as such and is not now being used as such. The property owners who now claim to have an easement never asserted any rights to have the lot graded and put in shape for parking and never attempted to park any cars thereon. It is quite apparent that there was no intention on the part, of either side to create the legend on the plat as a grant of an easement. It cannot be an equitable servitude because it has never been used as such. Apparently the property owners became very much dissatisfied within the past year or so and the fact that the present owners of the tract are planning to build some additional apartments in the immediate area and are objecting to this enterprise. Whether the enterprise is a desirable one or not is something that does not concern the Court. But it does explain why after a quarter of a century some of the property owners all of a sudden began to claim that they had a parking easement in a lot which was and still is a precipice. . See note 16, supra. . See note 16, supra. . See note 16, supra. . See note 16, supra. . See text supra at note 7. . See note 16, supra. . See note 16, supra. . See note 16, supra. . Fed.R.Civ.P. 52(a). . The judge’s statement at the end of the trial is transcribed as a part of the record of the trial proceedings. See Amplex of Maryland, Inc. v. Outboard Marine Corp., 380 F.2d 112, 113 (4th Cir. 1967), cert. denied, 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968); Southern Pac. Land Co. v. United States, 367 F.2d 161, 162 n. 1 (9th Cir. 1966), cert. denied, 386 U.S. 1030, 87 S.Ct. 1478, 18 L.Ed.2d 592 (1967). We perceive no inconsistency between the statement and the written findings. See United States v. Cornish, 348 F.2d 175, 181 n. 8 (9th Cir. 1965). See also FTC v. B. F. Goodrich Co., 100 U.S.App.D.C. 58, 63, 242 F.2d 31, 36 (1957). . Horton v. United States Steel Corp., 286 F.2d 710, 713 (5th Cir. 1961). . Proposals to adopt the limited review of jury verdicts as the standard for trial judges’ factual findings were rejected. See 9 C. Wright & A. Miller, Federal Practice § 2571 (1971) ; Note, Rule 52 (a) : Appellate Review of Findings of Fact Based on Documentary or Undisputed Evidence, 49 Va.L.Rev. 506, 511-516 (1963). . Coleman v. United States, 85 U.S.App.D.C. 145, 148, 176 F.2d 469, 472 (1949); Fleming v. Palmer, 123 F.2d 749, 751 (1st Cir. 1941), cert. denied, 316 U.S. 662, 62 S.Ct. 942, 86 L.Ed. 1739 (1942); Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51, 53 (4th Cir. 1967); United States v. Stewart, 201 F.2d 135, 137 (5th Cir. 1953). . Bellevue Gardens, Inc. v. Hill, 111 U.S.App.D.C. 343, 345, 297 F.2d 185, 187 (1961); Obolensky v. Saldana Schmier, 409 F.2d 52, 54 (1st Cir. 1969); Watson v. Joshua Hendy Corp., 245 F.2d 463, 464 (2d Cir. 1957); R. M. Palmer Co. v. Luden’s, Inc., 236 F.2d 496, 498 (3d Cir. 1956). . Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 381, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 309, 346 F.2d 420, 421 (1965); Lichter v. Goss, 232 F.2d 715, 719 (7th Cir. 1956). . Zenith Radio Corp. v. Hazeltine Research, Inc., supra note 31, 395 U.S. at 123, 89 S.Ct. 1562, 23 L.Ed.2d 129; United States v. National Ass’n cf. Real Estate Bds., 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); B’s Co. v. B. P. Barber & Associates, Inc., 391 F.2d 130, 132-133 (4th Cir. 1968); Neal v. Saga Shipping Co., 407 F.2d 481, 487-488 (5th Cir.), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969). . Fed.R.Civ.P. 52(a); Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 274-275, 69 S.Ct. 535, 93 L.Ed. 672 (1949); Jackson v. United States, 122 U.S.App.D.C. 324, 326-327, 353 F.2d 862, 864-865 (1965). . Advisory Committee Note to Fed.R.Civ. P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 92 L.Ed. 746 (1948). See, to the same effect, United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 10 L.Ed.2d 823 (1963); Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Graver Tank & Mfg. Co. v. Linde Air Prods. Co., supra note 33, 339 U.S. at 609-610, 70 S.Ct. 854; Bishop v. United States, 96 U.S.App.D.C. 117, 121-122, 223 F.2d 582, 586-587 (1955), judgment vacated and case remanded on other grounds, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). . Baltimore & O. R. R. v. Postom, 85 U.S.App.D.C. 207, 208, 177 F.2d 53, 54 (1949); James Julian, Inc. v. President &. Comm’rs of Town of Elton, 341 F.2d 205, 209-210 (4th Cir. 1965); Miller v. Commissioner, 203 F.2d 350, 353 (6th Cir. 1953). We do not, however, accept the converse of that proposition. In our view, “substantial evidence” and “clearly erroneous” are not synonomous; although supported by substantial evidence a finding may be set aside if it is found to be clearly erroneous. W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir. 1963); Jackson v. Hartford Accident & Indem. Co., 422 F.2d 1272, 1275-1278 (8th Cir. 1970); 5A J. Moore, Federal Practice ¶ 52.03[1], at 2621-2624 (2d ed. 1971); 9 C. Wright & A. Miller, Federal Practice § 2585, at 735; Note, 41 Tex.Law.Rev. 935, 939 (1963). . United States v. finger Mfg. Co., supra note 34, 374 U.S. 194 n. 9, 83 S.Ct. 1173; MacMullen v. South Carolina Elec. & Gas Co., 312 F.2d 662, 670 & n. 7 (4th Cir.), cert. denied, 373 U.S. 912, 83 S.Ct. 1302, 10 L.Ed.2d 413 (1963); Toro Mfg. Corp. v. Jacobsen Mfg. Co., 357 F.2d 901, 902-903 (7th Cir. 1966). . United States v. United States Gypsum Co., supra note 34, 333 U.S. at 395, 68 S.Ct. at 542. Accord, Zenith Radio Corp. v. Hazeltine Research, Inc., supra note 31, 395 U.S. at 123, 89 S.Ct. 1562, 23 L.Ed.2d 129; Guzman v. Ruiz Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962); Commissioner v. Duberstein, supra note 34, 363 U.S. at 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218; McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); United States v. Oregon State Medical Soc., 343 U.S. 326, 339, 72 S.Ct. 690, 96 L.Ed. 978 (1952). . United States v. United States Gypsum Corp., supra note 34, 333 U.S. at 395-399, 68 S.Ct. 525; Feder v. Martin Marietta Corp., 406 F.2d 260, 264 (2d Cir. 1969); Tanzer v. Huffines, 408 F.2d 42, 45 n. 8 (3d Cir. 1969); Lentz v. Metropolitan Life Ins. Co., 428 F.2d 36, 39 (5th Cir. 1970). . United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961); District of Columbia v. Seven-Up of Washington, Inc., 93 U.S.App.D.C. 272, 275, 214 F.2d 197, 200, cert. denied, 347 U.S. 989, 74 S.Ct. 851, 98 L.Ed. 1123 (1954); Caron Corp. v. Ollendorf, 160 F.2d 444, 445 (2d Cir.), cert. denied, 332 U.S. 765, 68 S.Ct. 72, 92 L.Ed. 350 (1947); Automotive Devices Co. v. Automotive Devices Co. of Pennsylvania, 292 F.2d 663, 664 & n. 3 (3d Cir. 1961); Hicks v. United States, 368 F.2d 626, 630-632 (4th Cir. 1966). . See nóte 16, supra. . See text infra at notes 46 — 47. . See text infra at notes 43-48. . See cases cited infra note 45. . See cases cited infra note 45. . Republic Steel Corp. v. Payne, 272 Ala. 483, 132 S.2d 581, 584 (1961); Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751, 755 (1958); Easton v. Careybrook Co., 210 Md. 286, 123 A.2d 342, 344 (1956); Sun Oil Co. v. Trent Auto Wash, Inc., 379 Mich. 182, 150 N.W.2d 818, 821 (1967); Reed, v. Williamson, 164 Neb. 99, 82 N.W.2d 18, 27 (1957); Simplex Precast Indus., Inc. v. Biehl, 395 Pa. 105, 149 A.2d 121, 124-125 (1959); Hercules Powder Co. v. Continental Can Co., 196 Va. 935, 86 S.E.2d 128, 134 (1955). . Osius v. Barton, 109 Fla. 556, 147 So. 862, 865 (1933); Clem v. Valentine, 155 Md. 19, 141, A. 710, 713 (1928); Reed v. Williamson, supra note 45, 164 Neb. 99, 82 N.W.2d at 27; Cheatham v. Taylor, 148 Va. 26, 138 S.E. 545, 547-548 (1927). . Coomes v. Aero Theatre & Shopping Center, 207 Md. 432, 114 A.2d 631, 634 (1955); Pratte v. Balatsos, 99 N.H. 430, 113 A.2d 492, 494-495 (1955); Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471, 472-473 (1941); 3 R. Powell, Real Property ¶ 411, at 449-465 (rev. ed. 1970); 5 id. ¶ 670, at 141-144, ¶ 671, at 148-149 (rev. ed. 1971); 3 H. Tiffany, Real Property § 861, at 487-490 (3d ed. 1939). . E. g., Marra v. Aetna Const. Co., 15 Cal.2d 375, 101 P.2d 490, 492 (1940); Cole v. Seamonds, 87 W.Va. 19, 104 S.E. 747, 748-749 (1920). . See text supra at note 4. . “The office of the surveyor of the District shall be the legal office of record of the plats and subdivisions of all private property in the District of Columbia and of all property belonging to the District of Columbia. And the copies of all records of the division of squares and lots made between the public and the original proprietors and all plats, papers, books, maps, and records now in the office of the surveyor shall remain therein.” D.C. Code § 1-605 (1967). . “It shall not be lawful for any person or persons to record any map or plat of the subdivision of land in the District of Columbia in the office of the recorder of deeds for said District, whether such map or plat be attached to a deed or other document or is offered separately for record.” D.C.Code § 45-506 (1967). . The declaration of covenants and the deeds conveying title to Case and Morrisette, respectively, all indicate differences between the plats. See note 53, infra. And while a witness testified that the copy of the revised plat introduced in evidence was a “copy of the original site plan on Dexter Heights,” it would appear that he was referring to the revised plat recorded with the declaration, and not to the one recorded in the office of the Surveyor. . The declaration of covenants identifies .nine lots — the totality of Dexter Heights —by reference to the plat recorded in the Surveyor’s office, and states that each of eight of these lots comprises a group of smaller lots — 88 in the aggregate — as shown on the revised plat recorded in the Recorder of Deed’s office, Lot 43 being the only original lot not further subdivided. The deed to Case specifically identifies the property conveyed by its lot number on the revised plat, and describes it as part of a particular numbered lot as shown on the plat recorded in the Surveyor’s office. The deed to Morrisette identifies its subject as Lot 43 on the latter plat, and refers to it as “comprising the area for car parking as shown on the plat” attached to and recorded with the declaration of covenants in the Recorder of Deed’s office. . See text infra at notes 64-67. . See text supra at note 8. Compare Smith v. deFreitas, 329 F.2d 629, 633 (3d Cir. 1964); Morton v. Clearview Homes, Inc., 324 P.2d 543, 545-546 (Okla.1958); McDonald v. Welborn, 220 S.C. 10, 66 S.E.2d 327, 330-331 (1951); Hall v. Church of the Open Bible, 4 Wis. 2d 246, 89 N.W.2d 798, 800 (1958); Dillon v. Davis, 201 Va. 514, 112 S.E.2d 137, 138-140 (1960). . Compare Kilby v. Sawtell, 203 Ga. 256, 46 S.E.2d 117, 120, 121 (1948); Crutcher v. Moffett, 205 Ky. 444, 266 S.W. 6, 7 (1924); Recco v. Chesapeake & O. Ry., 127 W.Va. 321, 32 S.E.2d 449, 453-454 (1944). . Compare University Hills, Inc. v. Patton, 427 F.2d 1094, 1100 (6th Cir. 1970); Library Neighborhood Ass’n v. Goosen, 229 Mich. 89, 201 N.W. 219, 221 (1924); Johnson v. Pattison, Iowa, 185 N.W.2d 790, 797 (1971). . See eases cited supra notes 53-56. And the fact that the servitude requires affirmative conduct does not bar suit to enforce observance by Morrisette during his tenure as owner of Lot 43. Murphy v. Kerr, 5 F.2d 908, 910-911, 41 A.L.R. 1359 (8th Cir. 1925); Thew v. Thew, 35 Cal.App.2d 691, 96 P.2d 826, 831 (1939); Everett Factories & Terminal Corp. v. Oldetyme Distillers Corp., 300 Mass. 499, 15 N.E.2d 829, 832-833, 118 A.L.R. 965 (1938). See also Annot., 68 A.L.R.2d 1022 (1959). . Compare Perkins v. Jacobs, 124 Me. 347, 129 A. 4, 5 (1925); Library Neighborhood Ass’n v. Goosen, supra note 57, 229 Mich. 89, 201 N.W. at 221. See also Murray v. Klinzing, 64 Conn. 78, 29 A. 244, 245 (1894); Sanborn v. Mueller, 38 Minn. 27, 35 N.W. 666, 667 (1887); Newbold v. Peabody Heights Co., 70 Md. 493, 17A. 372, 373-374 (1889). . Gnau v. Kinlein, 217 Md. 43, 141 A.2d 492, 495-496 (1958); Appeal of J. C. Grille, Inc., 181 Pa.Super. 456, 124 A.2d 659, 664 (1956); Ridley v. Haiman, 164 Tenn. 239, 47 S.W.2d 750, 753 (1932); Goodman v. Bingle, 48 S.W.2d 432, 433 (Tex.Civ.App.1932); Cheatham v. Taylor, supra note 46, 148 Va. 26, 138 S.E. at 549-550. . See, e. g., Archer v. Salinas City, 93 Cal. 43, 28 P. 839, 840-841 (1892); Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945, 949-951 (1931). See also cases cited infra note 62. . Smith v. Second Church of Christ, 87 Ariz. 400, 351 P.2d 1104, 1109-1112, 84 A.L.R.2d 766 (1960); Leonard v. Osburn, 169 Cal. 157, 146 P. 530, 531 (1914); Gnau v. Kinlein, supra note 60, 217 Md. 43, 141 A.2d at 496-497; Furness v. Sinquett, 60 N.J.Super. 410, 159 A.2d 455, 458 (1960); Byam v. Kansas City Pub. Serv. Co., supra note 61, 328 Mo. 813, 41 S.W.2d at 947-952; Cheatham v. Taylor, supra note 46, 148 Va. 26, 138 S.E. at 549-550. . Osius v. Barton, supra note 46, 164 Neb. 99, 147 So. at 862; Clem v. Valentine, supra note 46, 155 Md. 19, 141 A. at 712; Stewart v. Alpert, 262 Mass. 34, 159 N.E. 503, 504 (1928); Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38, 42-44 (1926); Hall v. Risley, 188 Ore. 69, 213 P.2d 818, 831-832 (en banc 1950); Ladner v. Siegel, 294 Pa. 360, 144 A. 271, 273 (1928). . Use restrictions on land have frequently been imposed by agreement apart from a conveyance. See, e. g., Clements v. Taylor, 184 S.W.2d 485, 487-488 (Tex.Civ.App.1944). Compare Schefer v. Ball, 53 Misc. 448, 104 N.Y.S. 1028, 1029-1032, aff’d, 120 App.Div. 880, 105 N.Y.S. 1142 (1907), 192 N.Y. 589, 85 N.E. 1115 (1908). They may also arise by implication. See, e. g., Wing v. Forest Lawn Cemetery Ass’n, 15 Cal.2d 472, 101 P.2d 1099, 1104-1105, 130 A.L.R. 120 (1940); Edwards v. Surratt, 228 S.C. 512, 90 S.E.2d 906, 910-911 (1956); Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673, 678-680 (1963). They have often arisen from inscriptions and notations on subdivision plats. See note 67, infra, and accompanying text. . See Rivera v. Lawton, 35 F.2d 823, 824 (1st Cir. 1929); Cuneo v. Chicago Title & Trust Co., 337 Ill. 589, 169 N.E. 760, 763 (1929); State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741, 743 (1933); Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620, 622-627 (1953). . See generally 3 R. Powell, Real Property ¶¶ 410, 411 (rev. ed. 1970). . It has been held in numerous cases that a grantee to whom realty is conveyed by reference to a plat acquires a right in the nature of an easement in the areas delineated thereon as spaces for streets, parks and other common uses. See 3 R. Powell, Real Property ¶ 409 (rev. ed. 1970) ; Annot. 7 A.L.R.2d 607 (1949). It may well be that if all relevant circumstances had been brought forth at trial, this appeal could have easily been disposed of by application of this well established rule. That possibility is foreclosed because title documents in the chain from Dexter Realty Company, the subdivider, to Case are omitted from the record before us. While the record contains the deed to Case and his wife, we cannot determine whether the rule in question is applicable without examining the other documents in the chain. . See note 16, supra. . See text supra at notes 25-34. . See note 65, supra, and accompanying text. . See text supra at notes 43-48. . Case’s argument is an undifferentiated admixture of legal doctrine drawn from the areas of dedication, estoppel and equitable servitudes. This has hardly promoted clarity of presentation. See 3 R. Powell, Real Property ¶ 409, at 426-427 (rev. ed. 1970). And even assuming an intention to publicly dedicate Lot 43 for parking, there is no basis for resort to the law of dedication because the record nowhere indicates that the District of Columbia has ever accepted Lot 43 as a parking facility. E. g., Watson v. Carver, 27 App.D.C. 555, 559 (1906). Indeed, if a public dedication of Lot 43 for parking had actually occurred, the question under consideration on this appeal would not likely have arisen, for the creation of a right in the general public to park on Lot 43 would have established a fortiori the right of owners in Dexter Heights to use Lot 43 for that purpose. Nor is there any foundation for invoking the doctrine of estoppel since the record shows plainly that Case in no way relied upon or was misled by the revised-plat inscription at the time his parcel was purchased. E. g., Washington Loan & Trust Co. v. Convention of Protestant Episcopal Church, 54 App.D.C. 14, 19, 293 F. 833, 838, 34 A.L.R. 913 (1923). . Morrisette’s argument largely adopts the trial judge’s approach without beneficial embellishment. . See text supra at note 37. . See text supra at note 7. . See note 16, supra. . See text supra at note 7. . See, e. g., Holliday v. Sphar, 262 Ky. 45, 89 S.W.2d 327, 329 (1935); Moore v. Kimball, 291 Mich. 455, 289 N.W. 213, 215 (1939); Single v. Whitmore, 307 N.Y. 575, 122 N.E.2d 918, 922 (1954); Cooke v. Kinkead, 179 Okla. 147, 64 P. 2d 682, 684-686 (1936); Satterthwait v. Gibbs, 288 Pa. 428, 135 A. 862, 863-864 (1927). . Subdivision plat inscriptions far less informative than the one under scrutiny have been held to confer legally protected rights of user upon property owners within the subdivision. See, e. g., Tweedy v. Brennan, 131 F.2d 488, 490 (7th Cir. 1942) (“[b]each”); Carroll v. Hinchley, 316 Mass. 724, 56 N.E.2d 608, 610 (“[p]ark”); Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S. 2d 13, 133 N.E.2d 505, 506 (1956) (“[b]oardwalk”). See also Klein v. Dove, 205 Md. 285, 107 A.2d 82, 83-86 (1954) (lake area); Cassell v. Reeves, 265 S.W.2d 801, 802-803 (Ky.1954) (unmarked lot); Vallone v. City of Cranston, 97 R.I. 248, 197 A.2d 310, 312 (1964) (unmarked strip). . See, e. g., Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915, 918 (1966); Kent v. Smith, 410 S.W.2d 833, 838 (Tex.Civ.App.1967). . See text supra at note 2. . Thus it was impossible to construct a driveway past the residential unit on such a narrow lot. . Only nine of the 89 lots in the subdivision have access to a rear alley. . This restriction is set both by markings on the revised subdivision plat and by provisions of the declaration of covenants. . We take judicial notice of the amount of space which the parking of a vehicle requires. . Case’s testimony at trial portrays vividly the trouble he has had in finding on-street parking near his residence. . Indeed, the fact inferable was confirmed by the uncontroverted testimony of a former officer of Dexter Realty Company, the subdivider. This witness, referring to the inscription, stated that “I know that the language was to set that lot aside as off-street parking for the defense rental clients, tenants.” . See note 6, supra. . See text supra at notes 3-4. . See 'note 16, supra. . See note 5, supra. . George v. Manhattan Land & Fruit Co., 51 F.2d 28, 31 (5th Cir. 1931); Johnston v. Thomas, 275 F.Supp. 32, 35 (S.D.Ohio 1967); Nixon v. City of Anniston, 219 Ala. 219, 121 So. 514, 516 (1929); Kraemer v. Kraemer, 167 Cal.App.2d 291, 334 P.2d 675, 681-682 (1959); Harris v. Griffith, Miss., 210 So. 2d 629, 633 (1968); Lowe v. Ragland, 156 Tex. 504, 297 S.W.2d 668, 672, 673 (1957). . See note 16, supra. . See note 16, supra. . See, however, text infral&t notes 96-97.' . Beeler Dev. Co. v. Dickens, 254 Iowa 1029, 120 N.W.2d 414, 418 (1963); Deitrick v. Leadbetter, 175, Va. 170, 8 S.E.2d 276, 278-279, 127 A.L.R. 849 (1940). Nor does mere lapse of time establish laches. E. g., Dollar v. Land, 87 U.S.App.D.C. 214, 226, 184 F.2d 245, 257, cert. denied, 340 U.S. 884, 71 S.Ct. 198, 95 L.Ed. 641 (1950); United States ex rel. Givens v. Work, 56 App.D.C. 330, 332, 13 F.2d 302, 304, cert. denied, 273 U.S. 711, 47 S.Ct. 101, 71 L.Ed. 853 (1926). . Brunthaver v. Talty, 31 App.D.C. 134, 137 (1908); Smith v. deFreitas, supra note 55, 329 F.2d at 634; Finn v. Williams, 376 Ill. 95, 33 N.E.2d 226, 228, 133 A.L.R. 1390 (1941); Klein v. Dove, supra note 79, 205 Md. 285, 107 A.2d at 85-87; Delconte v. Salloum, 336 Mass. 184, 143 N.E.2d 210, 213, 214 (1957); Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 177-178 (1942). . See text supra at note 37. . See 28 U.S.O. § 2106 (1970).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRICKLAYERS, STONE MASONS, MARBLE MASONS, TILE SETTERS AND TERRAZZO WORKERS, LOCAL UNION NO. 1 OF TENNESSEE. Nos. 72-1117, 72-1254. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 1, 1972. Decided March 1, 1973. Laurence Gold, Washington, D. C., for petitioner in No. 72-1117 and respondent in No. 72-1254. J. Albert Woll, Washington, D. C., also entered an appearance for petitioner in No. 72-1117 and respondent in No. 72-1254. Avrum M. Goldberg, Atty., National Labor Relations Board, with whom Marcel Mallet-Prevost, Asst. General Counsel, and Joseph E. Mayer, Atty., National Labor Relations" Board wére on the brief for petitioner in No. 72-1254 and respondent in No. 72-1117. Before FAHY, Senior Circuit Judge, and WRIGHT and WILKEY, Circuit Judges. FAHY, Senior Circuit Judge: A jurisdictional dispute arose between the tile setters and bricklayers of a local union, the Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee, an affiliate of the Bricklayers, Masons and Plasterers International Union of America (hereinafter referred to as the Unions). The dispute concerned the right to install acid proof paver floors for the Shelby Marble & Tile Co., a contractor employed in construction at the Joseph Schlitz Brewing Co., Memphis, Tennessee. The employer, Shelby, filed an unfair labor practice charge under the National Labor Relations Act, as amended, 29 U. S.C. § 151 et seq. (1970), that the Unions had violated section 8(b)(4)(ii)(D) of the Act by engaging in prohibited activity with an object of forcing or requiring Shelby to assign the work to the bricklayers rather than to the tile setters. Shelby had assigned the work to the latter. The Board first initiated a proceeding to resolve the jurisdictional dispute, as required by section 10 (k) of the Act. Upon the basis of the evidence adduced at the hearing the Board itself, without a recommended decision by the Trial Examiner, which was requested by the Unions, decided the jurisdictional dispute in favor of the tile setters. The prohibited activity continuing an unfair labor practice complaint was issued against the Unions. Since no additional evidence was sought to be introduced respecting the prohibited activity the Board granted its General Counsel’s motion for summary judgment that the Unions were in violation of section 8(b) (4) (ii) (D) of the Act “by attempting to force or require the Employer to assign the work ... to bricklayers . . . .” An appropriate cease and desist and notice-posting order was issued. The Board petitions under section 10(e) of the Act for enforcement of its order and the Unions petition under section 10(f) for its review. We grant the petition of the Board. I The Unions contend that the Board erred in deciding the jurisdictional dispute without a recommended decision of the Trial Examiner who received the evidence at the section 10 (k) hearing. With certain stated exceptions the Administrative Procedure Act (A.P.A.) requires such a recommended decision “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . .”, 5 U.S.C. § 554(a), “[w]hen the agency makes the decision without having presided at the reception of the evidence . ...” 5 U.S.C. § 557(b). An adjudication is defined as “agency process for the formulation of an order,” 5 U.S.C. § 551(7). From the foregoing it appears that, except as to certain rules not now relevant, only if a section 10 (k) determination is an adjudication within the meaning of section 554 would a recommended decision have been required. We hold that a determination in a section 10 (k) proceeding is not an adjudication within the meaning of 5 U.S.C. § 554. The term, it is true, is used ordinarily in contrast to “rulemaking”: “Adjudication” has not been defined generally in statutes, except by implication or reference to particular subjects and orders. However, since there are only two basic types of administrative justice — rulemaking and adjudication — the words “other than rulemaking” serve to make the essential distinction. Nevertheless, it does not encompass all forms of agency action other than rule-making. If the action in question does not lead to a “final disposition” by the agency, it may not be an adjudication. Moreover, while there is an explicit exclusion of a “certification of worker representatives” from the requirement of a recommended decision, indicating that otherwise it might be considered an adjudication, this exclusion may have been due simply to recognition that such certifications, which “rest so largely upon an election or availability of an election,” had previously been held by the Supreme Court not to be adjudicatory like a final order of the Board in an unfair labor practice proceeding. American Federation of Labor v. NLRB, 308 U.S. 401, 408-412, 60 S.Ct. 300, 84 L.Ed. 347 (1940). That decision it is true was only that a certification of representatives was not an “order” reviewable under the particular statutory scheme of the Labor Act, but it nevertheless has some relevance to our problem because of the similarity between the nature of a section 9 representation proceeding and a proceeding under section 10(k). An intermediate report by the examiner is not required in the former for reasons applicable to the latter: The need for intermediate reports, to the extent that they provide a method for obtaining the judgment of the trial examiner on issues of fact dependent for their resolution upon the demeanor of witnesses, is rarely present in a representation proceeding. The evidentiary material relates to economic facts such as the nature of the employer’s business, the duties of certain employees, and the history of collective bargaining in the plant. Issues of credibility are rarely present. For comparable reasons the Board adopted the same practice in section 10 (k) hearings shortly after that section followed section 9 into the Act, subsequent tó the enactment of the A.P.A.: The Board adopted such procedure because the decision in the proceedings under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved. It is to the subsequent adversary hearing, which leads to a final Board adjudication, that Section 8 [section 557] of the Administrative Procedure Act applies. National Union of Marine Cooks and Stewards (Irwin Lyons Lumber Co.), 83 N.L.R.B. 341 (1949). In NLRB v. Plasterers’ Union No. 79, 404 U.S. 116, 122, n. 10, 92 S.Ct. 360, 365, 30 L.Ed.2d 312 (1971) the Supreme Court appraised section 10 (k) in like manner: The § 10(k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10 (k) decision, the Board must prove the union guilty of a § 8(b)(4)(D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later § 8(b)(4)(D) determination. 'International Typographical Union, 125 N.L.R.B. 759, 761 (1959). Both parties may put in new evidence at the § 8(b)(4)(D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10 (k) hearing as a basis for the Board’s determination of the unfair labor practice. Finally, to exercise its powers under § 10 (k), the Board need only find that there is reasonable cause to believe that a § 8(b)(4)(D) violation has occurred, while in the § 8(b)(4)(D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, 125 N. L.R.B. 759, 761, n. 5 (1959). The non-adjudicatory character of the section 10 (k) determination is indicated by the relationship between a jurisdictional dispute, a decision with respect to it, and the relevant section 8(b) (4)(ii)(D) unfair labor practice. The threat to or coercion of the employer which gives rise to the charge of the unfair labor practice is sought by Congress through section 10 (k) to be ended so that the work can proceed. Voluntary settlement is encouraged. If this does not eventuate, hope remains that the ensuing determination of the dispute by the Board will solve the matter. If it is accepted by the union which has been charged with violating section 8 (b) (4) (ii) (D), no unfair labor practice complaint issues against the union. Though acceptance of the Board’s solution is not required, it is persuasively encouraged because, otherwise, a complaint does issue. Then the question is whether the prohibited conduct has continued, not whether the Board’s determination is complied with. The Supreme Court has explained the matter as follows: But the § 10 (k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer’s § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work .are legally bound to observe the § 10 (k) decision, but both will losé their § 8(b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board’s decision. This is the design of the Act; Congress provided no other way to implement the Board’s § 10(k) decision. (Footnote omitted.) NLRB v. Plasterers’ Union No. 79, supra, 404 U.S. 126-127, 92 S.Ct. at 367. The scheme for and consequence of a section 10(k) hearing thus are not adjudicatory, notwithstanding that in reaching its determination the Board resolves a factual issué. That may be the case also in a section 9 representation proceeding but would not for that reason require an intermediate report of the hearing officer, even were such a certification not explicitly excepted from section 554 of the A.P.A. The Unions point out that the protections of the A.P.A. are to be given generous scope, with limitations not lightly to be implied, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 139-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Court was concerned there with access to the courts for judicial review of final agency action, as to which the Court said, “a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” 387 U.S. at 140, 87 S.Ct. at 1511. This does not help the Unions. Other considerations bear upon our present problem of statutory construction. In the first place there is need,, obviously, for as expeditious a resolution of the jurisdictional dispute as is reasonably possible. We must also give consideration to the deep-seated concern Congress had with delays caused by judicial intervention in representation cases in pre-Wagner Act days. See American Federation of Labor v. NLRB, supra. Furthermore, we are faced with an unusually impressive administrative interpretation supporting the conclusion we reach, first adopted by the Board as long ago as 1949 in National Union of Maritime Cooks and Stewards (Irwin Lyons Lumber Co.), supra, repeated in 1959 in Local 8, Longshoremen (General Ore, Inc.), 124 N.L.R.B. 626, and until now, we believe, not questioned by courts or Congress. This interpretation of section 10 (k) by the Board is entitled to great weight. United States v. American Trucking Assns., Inc., 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933). Cf. United States v. Florida East Coast Ry. Co., supra, 410 U.S. 224, 236, n. 6, and dissenting opinion at 246, 93 S.Ct. 810, 35 L.Ed.2d 223. It is noteworthy also that in neither NLRB v. Plasterers’ Union, No. 79, supra, nor NLRB v. Radio & Television Broadcast Engineers Union No. 1212, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961), was there a hearing officer’s recommended decision in the section 10 (k) proceedings there involved, although, we must add, no question in that respect was raised. It can well be argued that the result of the section 10 (k) hearing has so formidable a bearing upon the unfair labor practice which might ensue that an intermediate finding of the hearing officer should be required, especially where, as here, in concluding that the parties had not agreed to a voluntary means of settlement which would, have precluded a Board determination of the dispute, credibility of the witnesses was a factor. Nevertheless, unless the A.P.A. so required, a trial examiner’s recommended decision was not essential, for the Constitution did not mandate it as a condition to the resolution of the factual issue by the Board. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938); Morgan v. United States, (Morgan II), 304 U.S. 1, at 26, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). In its discretion we doubt not the Board could require such a procedure, but if so we would find no abuse of discretion in the present case. Cf., United States v. Florida East Coast Ry. Co., supra, 410 U.S. 224, 236, n. 6, 93 S.Ct. 810, 35 L.Ed.2d 223. II We have reviewed the conflicting evidence as to whether all parties had agreed to a means of voluntary settlement of the jurisdictional dispute. This issue having been raised, its resolution by the Board was ancillary to the exercise of its power to determine the jurisdictional dispute under section 10(k). The evidence is not so clear one way or the other that the court should substitute a judgment of its own rather than accept the conclusion reached by the Board; and the need for the Board to resolve that issue in order to go further under section 10 (k) did not change the character of the proceedings so as to bring them within section 554 of the A.P.A. as being adjudicatory. Their non-adjudicatory character is drawn from their over-all purpose and effect, rather than from the need for the resolution of such a factual issue in a particular case. III When, as at present, the section 10 (k) determination does not end the matter and an unfair labor practice complaint issues, the proceedings become adjudicatory. Should a factual issue be involved as to the unfair labor practice, the usual intermediate decision of the Trial Examiner would be required under the,A.P.A., section 554(c)(2). Here, however, the prohibited conduct constituting the unfair labor practice was not denied. The only factual dispute was whether thére had been an agreed method of settlement. This had been resolved by the Board in the section 10(k) proceedings. To relitigate it, as the Unions sought, would not have been consistent with the plan of the statute. Nor does that plan require the Board, after the unfair labor practice complaint has issued, to require the evidence upon which it has rendered its section 10 (k) decision to be reconsidered by a Trial Examiner who would then recommend a decision. The question whether there was a voluntary agreement on a method of settlement having been resolved by the Board in the section 10 (k) proceeding, the Board’s resolution remained subject only to judicial review, unless there were occasion for the Board to open the matter for reconsideration. Such an occasion did not here arise beyond consideration of the May 18 letter, a matter disposed of in Part IV of this opinion. Accordingly, we do not fault the Board in granting its General Counsel’s motion for summary judgment, for, as above stated, our review léads to no basis for upsetting the resolution by the Board of the voluntary settlement issue. IV An additional matter is considered. When the Board made its section 10 (k) decision a timely petition for rehearing was filed by the Unions, and, also, a motion to supplement the record. This motion included a request that a letter from the Company to the International Executive Board of the Union be admitted in evidence. The purport of the motion was that the letter supported the Unions’ position that Shelby had agreed to a voluntary means of settlement of the dispute by the hierarchy of the International. In denying the petition for rehearing the Board also denied the Unions’ motion to admit the letter, on the ground it was not newly discovered or had been unavailable at the previous hearing. We are inclined to agree with Chairman Miller in his dissent from the Board’s refusal to supplement the record by admitting the letter; but, in its ruling to the contrary the Board also stated that this “supplemental exhibit does not, in our opinion, either expressly or impliedly authorize Respondent International to make a binding settlement of the dispute.” It seems to us that this clearly demonstrates that the Board considered the letter, and decided it made no difference in its determination of the issue of voluntary agreement to settle, a determination which as we have stated we do not feel justified in overruling. If there were error in not admitting the letter, the requirement that “due account shall be taken of the rule of prejudicial error,” 5 U.S.C. § 706, we think precludes granting of the Unions’ present petition. The order of the Board is enforced and the petition of the Unions is denied. . 29 U.S.C. § 158(b) (4) (ii)CD), which provides as follows: (b) It shall be an unfair labor practice for a labor organization or its agents— (4) (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: . 29 U.S.C. § 160 (k), which provides as follows: Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed. . I. e., rules “required by statute to be made on the record after opportunity for an agency hearing . . . . ” 5 U.S.C. § 553(c). . In case of adjudication sections 556 and 557 are to be complied with. 5 U.S.C. § 554(e)(2). . Senate Judiciary Comm., The A.P.A. Legislative History, Sen.Doc. No. 248, 79th Cong., 2d Sess., at 14 (1946) (hereinafter cited as The A.P.A. Legislative History). See also, United States v. Florida East Coast Ry. Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). . The A.P.A. Legislative History, at 14, 197 and 254. . 5 U.S.C. § 554(a)(6). The Senate Report in reference to the exceptions specified in 5 U.S.C. § 554 stated the following : It should be noted that these exceptions apply only “to the extent” that the excepted subject is involved and, it may be added, only to the extent that such subjects are directly involved. The A.P.A. Legislative History, at 202. . The A.P.A. Legislative History, at 202 and 261. . The A.P.A. was originally enacted in 1946. Act of June 11, 1946, ch. 324, 60 Stat. 237. . Accord, NLRB v. International Brotherhood of Electrical Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354 (1940). . The Attorney General’s Committee on Administrative Procedure in Government Agencies, Monograph No. 5, S.Doc. No. 10, 77th Cong., 1st Sess., Pt. 5, at 35, n. 144 (1941). However, if an unfair labor practice charge is raised in a representation hearing, it was the practice of the Board separately to dispose of such charge in adjudicatory proceedings prior to the determination of the representation issues. Id. at 33-34. Unfair labor practice proceedings required intermediate reports by the examiners. Id. at 21. . Section 10 (k) was added to the statute by the Act of June 23, 1947, ch. 120, 61 Stat. 149, approximately one year after the A.P.A. was enacted. See, note 9, supra. . In NLRB v. Radio & Television Broadcast Engineers Union No. 1212, supra, there was a section 8(b) (4) (ii) (D) hearing, with an intermediate report by the examiner. 121 N.L.R.B. 1207, 1209-1213 (1958). . Though in employee representation eases there is sometimes, though not often, a credibility issue, Congress has not for that reason required a recommended decision of the hearing officer. See text and note 11 at p. 1319, supra. . See, note 2, supra. . The letter reads as follows: Shelby Marble & Tile Co. May 18, 1970 Mr. Thomas F. Murphy, President B.M.P.I.U. of A. 815 Fifteenth Street, N. W. Washington, D. C. 20005 Re: Schlitz Brewery — Plant #11 Memphis, Tennessee Dear Mr. Murphy, We will greatly appreciate anything you and the Executive Board are able to do to keep the installation of acid proof paving tile in the hands of the tile setters. We sincerely feel after reviewing the installation specification and the Union Constitution and By-Laws that this is, in this instance, tile setter’s work. Further, the tile-setters in this area need this work, badly and we in turn need them to do this work for us. Very truly yours, SHELBY MARBLE & TILE COMPANY /S/ Charles A. Price, Vice President CAP :hp

f2d_475/html/1323-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Andrew KENNY, et al., Appellants, v. Robert E. HAMPTON, Chairman, United States Civil Service Commission, et al. No. 71-1290. United States Court of Appeals, District of Columbia Circuit. March 15, 1973. Rehearing Denied May 21, 1973. William G. Polking, Carroll, Iowa, was on the brief for appellants. Daniel Reiss, Jr. and L. Chris Lam-pros, Washington, D. C., were on the supplemental memorandum for appellants. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry, Ellen Lee Park, and James A. Adams, Asst. U. S. Attys., were on the brief for appellees. Before MeGOWAN, LEVENTHAL and WILKEY, Circuit Judges. PER CURIAM; Appellants are three former federal employees who, prior to October 1, 1956, voluntarily left the civil service before reaching the age of sixty-two. Each having spent more than five but less than twenty years in creditable service, the Civil Service Retirement Act of 1930 (Act) then entitled them to elect to receive either (1) a present lump sum settlement or (2) a deferred annuity beginning at age sixty-two. Each elected to receive the deferred annuity. In 1958 and 1965 Congress enacted cost-of-living annuity increases, amending the Act to adjust certain civil service annuities based on service terminated prior to October 1, 1956. The Civil Service Commission refused in part to pay these increases to appellants. Challenging these denials, appellants sued in the District Court for declaratory and injunctive relief. We affirm the trial court’s dismissal of the complaint after it considered the parties’ cross-motions for summary judgment and granted that of the Government. The 1958 increase provided in relevant part : 1. That (a) the annuity of each retired employee . . . who, on August 1, 1958, is receiving or entitled to receive an annuity . . . based on service which terminated prior to October 1, 1956, shall be increased by 10 per centum (b) The annuity otherwise payable . to (1) each survivor who on August 1, 1958, is receiving or entitled to receive an annuity based on service which terminated prior to October 1, 1956 . . . shall be increased by 10 per centum. 3. (a) An increase in annuity provided by subsection (a), or clause (1) of subsection (b), of the first section of this Act shall take effect on August 1, 1958. Act of Jun. 25, 1958, Pub.L. No. 85-465, 72 Stat. 218 (emphasis added). Appellants as retired employees seek to bring themselves within the terms of Section 1(a) of the increase by alternative arguments. Specifically, they assert either (1) that out of the class of all retired employees whose service terminated prior to October 1, 1956, to deny the annuity increase only to those whose deferred annuities commence after August 1, 1958 amounts to an unconstitutional discrimination, or (2) that the interpretation of “entitled to receive an annuity” as rendered by the Court of Claims with regard to Section 1(b)(1) of the increase, Hurtt v. United States, 309 F.2d 404, 159 Ct.Cl. 126 (1962), be extended to Section 1(a). We think that, contrary to appellants’ contentions, there is a rational basis for distinguishing between both those whose annuities commence before and after August 1, 1958, and annuitants covered by Sections 1(a) and 1(b)(1). Appellants assert that, although each of their deferred annuities were to begin subsequent to August 1, 1958 — after which date they became sixty-two, see note 1 supra — they were still “entitled” to those annuities on the specified date, and thus were qualified for the Section 1(a) increase. The Court of Claims ruled on this same question in Schellfeffer v. United States, 343 F.2d 936, 170 Ct.Cl. 178 (1965), finding inter alia that the legislative history of the increase reflected a Congressional intent that the coverage of Section 1(a) “be confined to annuitants already on the rolls (i. e., actually receiving an annuity or fully entitled to an immediate annuity) on August 1, 1958. ...” 343 F.2d at 940. The basis for this coverage limitation was to deter federal employees from separating from the service voluntarily before age sixty-two by insuring that those who did so separate would not benefit by annuity increases put into effect before they reached that age. We think the objective was a legitimate one, and the limitation reasonably calculated to achieve it. It was thought that those who voluntarily separate before age sixty-two would probably do so to realize more lucrative employment, which might also entitle them to Social Security benefits in addition to their Civil Service annuity. That some who so separated might not be as comfortably situated as was contemplated does not affect the validity of the view that the ordinary circumstances of such a separation would appear to mitigate the economic consequences of the coverage limitation. The Commission’s interpretation of the statute’s compass, supported by the Court of Claims and the Congress, cannot necessarily be charged with unreasonableness because in particular applications the . . . general interpretations may grind with a rough edge. Gulf Oil Corp. v. Hickel, 140 U.S.App.D.C. 368, 435 F.2d 440, 447 (1970) (Leventhal, J.). Appellants’ alternative claim fares no better. Section 1(a) by its terms applies to “retired employees” while Section 1(b)(1) applies to “survivors.” It was in the latter context that Hurtt, supra, decided that a widow of a federal employee was “entitled to receive an annuity on August 1, 1958” even though her annuity would not commence until after that date. Appellants are differently situated in that Mrs. Hurtt’s right to annuity payments was based on an involuntary termination of federal service (her husband’s death). The deterrence rationale for the coverage limitation of Section 1(a) as to those who may consider voluntary separation is thus inapplicable to Section 1(b)(1) survivors such as Mrs. Hurtt. Appellants cannot therefore bring themselves within the rationally more generous embrace of the latter increase provision. Appellants’ objection to the Commission’s refusal to grant them.the maximum benefit under the 1965 increase is not clear. That increase provides in relevant part: (a) Effective December 1, 1965, each annuity . . . having a commencing date before December 2, 1965 is increased by— (1) The percent rise in the price index . . . plus (2) 6% percent if the commencing date . . . occurred before October 2 1956. 5 U.S.C. § 8340 (1970) (emphasis added). The use of the phrase “commencing date,” see note 2 supra, eliminates the potential ambiguity of the “entitled to receive” language found in the 1958 increase. Appellant Dolan could not benefit from the 1965 increase at all because her annuity commenced after December 1, 1965. Appellants Kenny and Fox could not realize the 6% percent increase because their annuities began after October 2, 1956, although they do benefit from the price index increase. We see ho infirmity in the distinctions clearly drawn by the 1965 increase. The order of the District Court is Affirmed. . Appellant Kenny attained that age in November, 1961; appellant Fox in May, 1959; and appellant Dolan in January, 1967. . Our decision on the merits of this appeal pretermits the question whether the action was properly brought in the District Court. And our affirmance makes it unnecessary to decide whether some of the appellants failed to exhaust their administrative remedies; or whether one or more of the appellants may be properly certified as a representative of the class of annuitants similarly situated. . Shortly after the decision in Schellfeffer Congress enacted a clarification of the terms at issue which confirmed the court’s interpretation of them: [F]or the purposes of section 1(a) . the words “entitled to receive an annuity” shall, from and after the . effective [date of the annuity increase] . . . not include any person whose annuity commencing date occurs after the effective date of the annuity increase. Act of May 1, 1965, Pub.L. No. 89-17, 79 Stat. 109 (emphasis added). . Neither does the Commission’s denial of increased payments based on this interpretation constitute rule-making requiring, as appellants claim, concomitant rule-making procedures. 5 U.S.C. § 553(b) (A) (1970). And, with respect to appellants’ attack on the District Court’s denial of their application for a three-judge court under 28 U.S.C. § 2282 (1970), our analysis supports the view of the trial judge that their challenge to the statutory scheme failed to raise the substantial constitutional issue deemed necessary to support such applications. Green v. Board of Elections, 380 F.2d 445, 448 (2d Cir. 1967) (Friendly, J.), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968).

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UNITED STATES of America v. Robert A. RICKS, Appellant. No. 72-1363. United States Court of Appeals, District of Columbia Circuit. March 19, 1973. As Amended March 19, 1973. Joseph D. Gelb, Washington, D. C. (appointed by this court), was on the brief for appellant. Harold H. Titus, Jr., U. S. Atty., John A. Terry, Brian W. Shaughnessy, and Paul L. Friedman, Asst. U. S. Attys., were on the brief for appellee. Before BAZELON, Chief Judge, and WRIGHT and MaeKINNON, Circuit Judges. PER CURIAM: Prior to the jury verdict in this criminal case one of the jurors was excused because of the death of her father and the trial, with the approval of the defendant and his counsel, proceeded to verdict. The alternate jurors had already been dismissed. Actually, the defendant and his counsel stipulated in open court to the continuance of the trial with the remaining 11 jurors. When the situation arose the following took place: THE COURT: What is your recommendation? MR. SHAUGHNESSY [the prosecutor] : Well, my suggestion is that we go forward with the rest. However, that must be favorable to the defendant. MR. MATONIS [defense counsel]: Let me discuss that with the defendant. My client has arrived at the decision that we should go ahead with the other 11 jurors. THE COURT: Very well. You understand that, Mr. Ricks, and you are willing to go forward with the jurors? THE DEFENDANT: Yes. (Jury entered the courtroom) 10:16 a. m. THE COURT: Ladies and Gentlemen, I am sorry about the delay, but it takes time to get all of the parties together. I do not know if you have been informed, but Juror No. 10, Mrs. Edna Davis, had a death in her family. Her father died, and for that reason she is obviously not here this morning. It has been agreed by both sides that you will go forward in your deliberations with 11. The same instructions remain in effect. Your verdict must be unanimous. You will at this time resume your deliberations. (Jury out at 10:18 a. m.) (At 10:57 a. m. the jury entered the courtroom with the verdict of guilty as to counts one, three and four.) (The jury was polled and all concurred in the verdict.) (Copeland Tr. 2-3.) Government br., p. 4. Fed.R.Crim.P. 23(b) provides: (b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12. The difficulty arises because the stipulation was not in writing. However, we see no resulting prejudice to defendant of which he can complain. He entered into the stipulation freely and voluntarily, after consulting his counsel. The stipulation of all the required parties, the Government, the defendant (his counsel) and the court, was entered into in open court, and appears on the trial record prepared by the reporter. If anything, an oral stipulation entered into, under such circumstances, carries more inherent protection of the defendant’s basic rights than a written stipulation executed by the defendant out of court and out of the presence of the judge, where no record is made of the arguments or circumstances which were advanced to bring it about. The formal requirement of a writing in Rule 23(b) is procedural only and not a constitutional requirement. Verdicts by 11 jurors are valid where, as here, there is an intelligent, knowing and express waiver by the defendant in open court, with the consent of both counsel and with the approval of the trial judge. Williams v. United States, 332 F.2d 36, 39 (7th Cir. 1964), cert. denied, 379 U.S. 976, 85 S.Ct. 672, 13 L.Ed.2d 566 (1965); Rogers v. United States, 319 F.2d 5 (7th Cir. 1963), cert. denied, 375 U.S. 989, 84 S.Ct. 524, 11 L.Ed.2d 525 (1964); and Horne v. United States, 264 F.2d 40 (5th Cir.), cert. denied, 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549 (1959) all involved a stipulation at the start of trial to waive up to two jurors if necessary. In Williams, there appears to have been no subsequent stipulation when the jury was reduced to 11 although the defendant was held to have consented since he was present at a prior oral stipulation even though he did not affirmatively acquiesce. Rogers involved an express oral stipulation in the record by the defendant. In Horne the attorneys for the parties entered into a subsequent stipulation when the vacancy occurred, and, while the defendant did not affirmatively acquiesce, he was held to be bound by the waiver because he was aware of the colloquy between the court and the attorneys and voiced no protest. Cf. United States v. McCurdy, 450 F.2d 282 (9th Cir. 1971) (waiver of a jury trial). United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir. 1971) held that it was necessary to personally address the defendant to secure his proper acquiescence to the waiver of a juror where the stipulation was entered into in open court and this was done here. The general principles applicable to waiver of a juror during trial are set forth in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). Appellant also contends that it was an abuse of discretion for the trial court to refuse to permit an investigator (Christensen) for defendant to refer to his notes in order to refresh his recollection so he could establish that it was physically impossiblé for him to be present at the scene of the crime. Appellant attempted to establish that he was at “Noone’s” 1.2 miles away from the Quality Carry-Out, the scene of the crime. Courts should be free in allowing expert witnesses to refresh their recollection from notes, records, sketches and the like. To do so makes for complete testimony as it goes in and does not leave loose tag ends to be filled in later in the trial when their relevance and meaning may not be as obvious. However, we do not see that appellant here was in any way prejudiced by the court’s ruling. The addresses of Noone’s and the Quality Carry-Out, and their locations with respect to each other, were established through other witnesses and by a plat of the area. There was also other evidence that the distance between the two places was in fact 1.2 miles (Tr. 84-85). Appellant thus did not suffer any prejudice. Affirmed.

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Jessie Mae WARREN, Appellant, v. Albert LOPATIN et al. No. 24710. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 12, 1972. Decided March 20, 1973. Marilyn Fisher, Washington, D. C., for appellant. Maribeth Halloran and Christine LeFlore, Washington, D. C., were on the brief for appellant. Leonard C. Collins, Washington, D. C., for appellee. Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges. PER CURIAM: This appeal challenges a judgment of the District Court denying an injunction sought to permanently restrain the sale of appellant’s home to satisfy the lien of a second deed of trust thereon. The deed of trust secures the payment of a negotiable promissory note in the original principal sum of $3,900 bearing interest at the rate of 6% per annum. The note is payable, as to both principal and interest, in 59 monthly installments of $39 each and a final installment at 60 months for the unpaid balance. Appellant has defaulted in timely payment of the installments, and the power of sale conferred by the deed of trust has been invoked. The District Court’s judgment if left standing will, of course, allow the sale to go forward. The note and deed of trust emanated from the second of two transactions by which appellant was to have received a loan of $1,000 from Northwest Mortgage Corporation. As the uncontradicted evidence demonstrated and the District Court found, appellant was duped into signing the papers calling for repayment of the much larger sum. Northwest subsequently negotiated the note to Howard Investment Corporation which, in turn, sold it to appellee. One of the contentions advanced on appeal is the claim that appellee has not established that he is a holder in due course and consequently, that he took the note subject to two defenses to payment. One defense is presented by appellant’s assertion that the note is usurious, and on that score the District Court found that in return for the $3,900 interest-bearing note, appellant received only $625. The other defense is erected by appellant’s allegations that her execution of the note and deed of trust was obtained by fraud. In that connection the District Court found, as to the first transaction, that “[t]he papers were placed rapidly in front of her for signature, one on top of the other so as to shield the contents from her view, and were snatched away after she affixed her signature so as to preclude her from reading them.” As we read the Court’s opinion, it was of the view that at the second transaction the treatment was not essentially different. The District Court held, however, that appellee was a holder in due course, and that for that reason neither of appellant’s defenses could prevail. Although the court found that the note was usurious, it ruled that the illegality could not be successfully urged against such a holder. And although the court characterized appellant as “a victim of a group of ‘fast operators,’ ” it further ruled that she had a reasonable opportunity to obtain knowledge of the terms of the note before signing it and, as a consequence, her fraud defense was unavailing against a holder in due course. So it was that the court’s conclusion that appellee occupied that status became critical. And so it is that, because in the present state of the record we are unable to satisfactorily review all facets of that determination, we must remand the record to the District Court for the development of additional information. The substantive and evidentiary prerequisites to holding in due course are specified by the Uniform Commercial Code. “A holder in due course,” the Code states, “is a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” Our instant concern, of course, stems from the lack-of-notice requirement. The Code further provides that "[a]fter it is shown that a defense exists,” as indeed appellant did show, “a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.” Two circumstances hamper our efforts to ascertain whether these standards have been met. The first is an apparent inconsistency in the District Court’s findings as to whether the note was overdue when appellee acquired it. The court stated that “[o]n August 10, 1966,” appellee “gave Howard Investment $3,080.98 for the note” and “ascertained that payments were current at the time of purchase. . .” The note stipulated, however, that installments were to be paid on the 9th of each month, and while it is clear that the installment due July 9, 1966, was paid on July 20, the record indicates that the installment due August 9 was not paid until August 12. The significance of these circumstances derives from the Code’s provision that a purchaser “has notice that an instrument is overdue if he has reason to know . that any part of the principal amount is overdue. . . .” One of the objectives of our remand is a determination as to exactly when appellee became holder of the note and the payment status of the note at that time. Our second difficulty stems from the fact, evidenced by numerous references in the record, that appellee purchased the note on the recommendation of his accountant. The District Court found that there was nothing irregular in the purchase transaction that should have aroused appellee’s own suspicions, but the probe into notice cannot end at that point. Additional questions are whether the relationship between appellee and his accountant was such that appellee was chargeable with notice of facts within the knowledge of the accountant, and whether the accountant had any information which if possessed by appellee himself would have impaired his status as a holder in due course. The record shows that appellant had previously purchased another note on the accountant’s advise. It indicates, too, that the accountant may have serviced the accounts of Howard Investment Corporation, appellee’s vendor, and llene Investment Company, Howard’s collection agent. That the accountant had some acquaintance with the note is evident from his recommendation that appellee buy it. Appellee cannot discharge his burden of establishing that he is a holder in due course without a satisfactory explanation of these circumstances. And should it develop that, as a result of their relationship, notice to the accountant is imputable to appellee, we are unable to perceive how the disclosure of the accountant’s knowledge can be satisfactorily made without calling him as a witness in the proceeding. The record in this case is remanded to the District Court to enable the inquiries and determinations we have identified, and any related matters which may come to its attention. We reserve, in the meantime, our decision on the issues presented on appeal. So ordered. . Appellant also sought, and was denied, cancellation of the deed of trust and the note which it secured. . The District Court first issued a temporary restraining order, and later a preliminary injunction, to maintain the status quo pending decision as to a permanent injunction. After denying the latter, the court enjoined foreclosure of the deed of trust pending this appeal on condition, however, that appellant keep current the indebtedness secured by the first deed of trust. . The first transaction netted $436 in cash for appellant and her note and deed of trust in the amount of $1,590 for Northwest. Appellant claims that she was given no opportunity to read the papers before signing. See text infra following note 8. When she protested to Northwest and was told that she did not receive more money because her note was not large enough, she indicated that she was willing to sign a note for as much as $2,300 to get an additional $360 which she needed. The second transaction followed, and it led to cancellation of the original papers, execution of the note and deed of trust in suit, and $189 more for appellant. When, two weeks later appellant learned of the size of her new indebtedness, Northwest’s telephone had been disconnected. . See text infra following note 9. . Northwest and its principal officer were made parties to appellant’s suit but process could not be served on either. . The balance then due was $3,851.23. Appellee paid $3,080.98 for the note. . See note 3, supra. . See note 3, supra. . The opinion is unpublished. . Northwest Mortgage Corporation obviously was not a holder in due course, and the District Court made no finding as to whether Howard Investment Corporation was. Therefore, it was necessary for appellee to demonstrate that he himself was a holder in due course since the record does not establish that he held through one. . Appellant urges additional grounds in support of her position that appellee is not a holder in due course. We reserve our ruling on all contentions until after completion of the remand. . D.C.Code § 28:1-101 et seq. (1967). . Uniform Commercial Code § 3-302(1), D.C.Code § 28:3-302(1) (1967). . Uniform Commercial Code § 3-307(3), D.C.Code § 28:3-307(3) (1967). . Uniform Commercial Code § 3-304(3), D.C.Code § 28:3-304(3) (1967). . But see discussion in text following note 14. . See Uniform Commercial Code § 1-103, D.C.Code § 28:1-103 (1967); Bowen v. Mount Vernon Sav. Bank, 70 App.D.C. 273, 274-277, 105 F.2d 796, 797-798 (1939).

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FARRELL LINES, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and the United States of America, Respondents. No. 72-1644. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 31, 1973. Decided March 23, 1973. Edward Aptaker, Washington, D. C., with whom Edward J. Sheppard, IV, Washington, D. C., was on the brief, for petitioner. John Robert Ewers, Atty., Federal Maritime Commission, with whom James L. Pimper, General Counsel, Edward G. Gruis, Deputy General Counsel, Federal Maritime Commission, and Irwin A. Seibel, Atty., Department of Justice, were on the brief, for respondents. Before LEVENTHAL and ROBB, Circuit Judges, and OLIVER GASCH, United States District Judge for the United States District Court for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a) (1970). PER CURIAM: Petitioner Farrell Lines challenges an order of the Federal Maritime Commission, approving Agreement No. 9944. Agreement No. 9944 is a Joint Service Agreement filed with the Commission by Refrigerated Express Lines (REL) and Maritime Fruit Carriers Co. (MFC). REL and MFC are both members of the Australia/U.S. Atlantic and Gulf Conference. Farrell Lines is also a member. Under the Agreement REL and MFC remain separate corporate entities but are in effect united in one commercial entity, sharing all profits and losses, and coordinating their shipping schedules. The argument of Farrell Lines focuses on Section 3 of the Agreement which permits REL and MFC to retain their individual voting rights within the Conference. Farrell Lines argues that this provision, giving the REL-MFC combination two votes, is unjustly discriminatory as between the combination and the other members of the Conference, each of which has one vote. If this contention is valid the Commission is required by 46 U.S.C. § 814 (1970) to withhold approval of the Agreement. We affirm the decision of the Commission but remand for modification of its final order. The Conference is presently composed of six members. Three of the members, Atlanttrafik, REL, and MFC operate conventional and palletized ships. The remaining three members, Farrell Lines, Pacific America Container Express Line (PACE), and Columbus Line, now or in the near future will employ only containerships as cargo vessels. Within the six-member Conference a unanimous vote is required to amend any provision of the Conference Agreement, while a three-quarters vote is necessary in all other matters. Farrell Lines contends that Section 3 of the Agreement is inherently discriminatory because it gives two out of six votes, amounting to a veto power, to the commercial entity composed of REL and MFC. Although the reason why such an entity should have more than one vote is not immediately apparent to' us, we note that Commissioner Morse in his concurring opinion cites several instances in which the Commission has approved joint service agreements without restricting the number of votes allocated to the members of the joint services. Moreover, the Commission found no evidence of danger that in this case the grant of two votes to the REL-MFC entity would result in harmful discrimination. The Commission in its Report (J.A. 50) explained further: Conference voting mechanisms are at best delicate things, presumably arrived at after due deliberation of alternatives. By and large the various procedures, and they cover a wide range, work well when considered in the light of the large number and variety of agreements existing in our foreign commerce. These considerations, when taken with the continuing change in carrier relationships, trade conditions and economic and competitive circumstances, makes us on the one hand cautious in the interference with existing voting procedures absent a showing of need; and on the other, makes it extremely difficult to formulate hard and fast rules for the governance of future voting procedures. (Federal Maritime Commission Report, Docket No. 71-80, page 6 mimeographed copy, Served May 8, 1972.) We think that in light of the Commission’s experience and specialized knowledge in the field of conference voting rights the challenged approval was within the limits of its discretion; at least we cannot say that the Commission has acted arbitrarily or unreasonably in the exercise of its judgment. Certainly “[i]t is part of the genius of the administrative process that its flexibility permits adoption of approaches subject to expeditious adjustment in the light of experience.” American Airlines v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (1966); cf. Airline Pilots Ass’n v. CAB, 154 U.S.App.D.C. -, at -, 475 F.2d 900, at 904 (decided January 4, 1973). The Commission concluded that the Agreement might become “ * * * unfair as between carriers only in a particular and given circumstance * * * the circumstance is the impact [of] voting status on conference operations.” (J.A. 50). Counsel for the Commission informed us at oral argument that any complaint of unfairness resulting in the future from the impact of voting status would require the filing of a new petition and the opening of a new docket. We believe, however, that such a procedure may not be adequate to assure that there will be “expeditious adjustment” for the protection of the members of the Conference if experience reveals that the Agreement is working unfairness. We think the Commission should retain jurisdiction over the matter so that it may act expeditiously to modify or terminate the Agreement if unfairness in its operation appears. We remand the case to the Commission with instructions to modify its order accordingly; otherwise the order is affirmed. It is so ordered. . Conventional ships are ships which carry cargo which is separately packed and stowed in the hold of the ship. Palletized ships are ships which carry cargo which is separately packed and then arranged on a pallet before loading into the vessel. Conventional and palletized ships are the traditional methods of handling cargo. . Containerships are vessels in which the cargo is carried preloaded in containers usually 8' x 8' x 40' or 8' x 8' x 20'. Instead of the traditional cargo hold arrangement the containership hold is fitted with container guides into which the preloaded containers are fitted,

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Caselaw Access Project

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UNITED STATES of America, Plaintiff-Appellee, v. Elmer Paul PITMAN, Defendant-Appellant. No. 72-1387. United States Court of Appeals, Ninth Circuit. Feb. 22, 1973. As Amended on Denial of Rehearing May 2, 1973, Rehearing and Rehearing En Banc Denied May 17, 1973. Ron Bain (argued), Los Angeles, Cal., for defendant-appellant. Joseph Golant, Asst. U. S. Atty. (argued), Richard J. Trattner, Eric A. Nobles, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before CHAMBERS, BROWNING and WALLACE, Circuit Judges. WALLACE, Circuit Judge: After a five-day trial, the jury found Pitman guilty of one count of theft from an interstate shipment of freight. 18 U.S.C. § 659. Pitman raises many questions on appeal, some of which require no answer and none of which require reversal. Pitman was a truck driver for a company which picked up shipments of cartons from the distribution center of Avon Products, Inc., in Monrovia, California, for transfer and delivery. On November 10, 1970, Pitman signed a bill of lading which indicated that he had received a shipment of 65 cartons consigned to Andrews’ Trucking Service in Hilo, Hawaii. That shipment included two cartons addressed to Mrs. K. Sakamoto of Laupahoehoe, Hawaii. ' When the shipment was delivered to Continental Airlines at the Los Angeles airport, four cartons were missing. Mrs. Sakamoto ultimately received only one of her two cartons. Pitman was convicted on the count which charged him with.the theft of Mrs. Sakamoto’s missing carton. Pitman challenges the sufficiency of the evidence to sustain his conviction. In addition to the facts already stated, an F.B.I. agent related that Pit-man admitted his participation with Laard Bell, another company driver, in a scheme to steal cartons from the Avon shipments. He was involved in this plan for about one year and stated that he stole goods on two occasions during November of 1970, the last of which occurred on November 9th or 10th. Taken in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence was clearly sufficient to sustain the verdict. Pitman also argues that his confession was inadmissible because it was obtained in violation of his constitutional rights and because it was not sufficiently corroborated. The record indicates that the F.B.I. agents gave Pitman a full explanation of his constitutional rights before the questioning began. There is ample evidence of the voluntariness of his confession. As Pitman never specifically admitted the crime involved here to the F.B.I. agent, it is questionable whether this is a confession which required corroboration. To the extent that Pitman admitted other instances of theft, those admissions were evidence of a common plan or scheme, were not elements vital to this case, and hence did not require corroboration. See Smith v. United States, 348 U.S. 147, 155, 75 S.Ct. 194, 99 L.Ed. 192 (1954). To the extent that the jury may have believed that Pitman admitted this specific crime, there was sufficient corroboration to show that his admissions were trustworthy. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954). The cartons were reported missing soon after they were in Pitman’s exclusive control. Additionally, Pitman complains of several evidentiary rulings. First he argues that the trial court erred in admitting the government’s Exhibit 3-D. When an Avon sales representative, such as Mrs. Sakamoto, reports a lost order valued in excess of $25, Avon’s Pasadena office prepares a lost order tracer. Exhibit 3-D was such a report that one of Mrs. Sakamoto’s cartons had not reached her. The tracer also bears the phrase “reported short.” This notation was entered by a clerk at the Monrovia office whose job involved the tracing of the lost orders. Andrews’ Trucking Service in Hilo had reported the shortage to her. Pitman contends that these recorded reports from Mrs. Sakamoto and Andrews’ Trucking Service, though memorialized by Avon, are double hearsay and inadmissible despite the first step hearsay exception afforded for business records. 28 U.S.C. § 1732. However, the second step of hearsay is also admissible when the entry is “. . . made by an authorized person, to record information known to him or supplied by another authorized person.” Standard Oil Company of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); see also LaPorte v. United States, 300 F.2d 878, 882 (9th Cir. 1962); Olender v. United States, 210 F.2d 795, 801 (9th Cir. 1954); United States v. Grayson, 166 F.2d 863, 869 (2d Cir. 1948). Consequently the admissibility of the lost order tracer prepared at the Pasadena office from Mrs. Sakamoto’s report depends upon whether she was an authorized person within Avon’s business. The resolution of this inquiry turns upon the uniqueness of Avon’s operations. Avon manufactures and distributes its products to its own independent sales representatives. The sales representative, as Mrs. Sakamoto, is essentially a retail outlet for Avon's products. Mrs. Sakamoto places her orders for cosmetics or toilet goods with Avon’s Pasadena office, and the goods are shipped to her from the Monrovia plant. Upon receipt, as a representative of Avon only, she sells and delivers them to her customers. Thus a sales representative is an integral part of the Avon organization, and consequently Mrs. Sakamoto is not an outsider but rather an authorized person within the meaning of Standard Oil. Therefore, the lost order tracer embodying her report that one of her cartons was missing was admissible under § 1732. The notation “reported short” was a result of the report of Andrews’ Trucking to Avon. However, it is unnecessary to decide whether that company was also an authorized agent. Since this notation was on the same form as the other, at worst, it was cumulative of the admissible evidence and the record reflects no prejudice to Pitman. See Bailey v. United States, 282 F.2d 421, 426 (9th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961). Pitman’s second asserted evidentiary error involved the admission of certain rebuttal evidence. During cross-examination, the prosecutor asked Pitman whether he had told the F.B.I. agents that, on at least five occasions, he had aided a man named Bob in carton thefts from Avon. There was no objection, and Pitman denied that he had made the statement. After the defense rested, the government called an F.B.I. agent in rebuttal. Over objection, the agent testified that Pitman had admitted to him his participation with Bob in the thefts. The trial judge then instructed the jury that the evidence had been admitted for impeachment purposes only. Pitman contends that the admission of this evidence was error because it constituted an attempt to impeach him on a collateral matter. Pit-man is incorrect. The proper test of collateralness is: “Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?” 3A Wigmore, Evidence § 1003, at 961 (Chadbourn rev. 1970). In this case, the fact shown was Pitman’s admission of participation in other thefts at the Avon plant. Independent of the impeachment, this evidence would have been admissible if relevant and not against public policy. Character evidence to prove conduct in conformity with it is always relevant but ordinarily excluded. However, evidence of prior similar criminal acts may be admissible to prove motive, common plan, scheme, or conspiracy. United States v. Jones, 425 F.2d 1048, 1051 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970); United States v. Jiminez-Robles, 415 F.2d 308, 310 (9th Cir. 1969). In this case, Pitman was charged with the theft of a carton of Avon products delivered to his truck at the Monrovia plant. He admitted to the F.B.I. agent using his truck to assist Bob in a series of thefts from the same plant. The similarity is sufficient, and the evidence could have been admitted during the case-in-ehief. Consequently it was not collateral. We note that the trial judge gave an instruction limiting the use of this evidence to impeachment. Additionally, because this was evidence of prior similar acts, Pitman might have requested a limiting instruction concerning the probative use of the evidence. However, he did not, and thus the only question in this regard is whether the failure to so instruct was plain error. Fed.R.Crim.P. 52(b). We hold that it was not. See DeCarlo v. United States, 422 F.2d 237, 239 (9th Cir. 1970); United States v. Johnson, 415 F.2d 653, 655 (9th Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 588, 24 L.Ed.2d 511 (1970). Affirmed. . Appellant stresses the fact that the intermediate consignee, Andrews’, indicated by invoice that the entire shipment had been received in Hilo. The jury could reasonably resolve the inconsistency between the reported shortages at Los Angeles and Laupahoehoe and the Hilo invoice in favor of the government. Apparently it chose to do so. . The question asked in rebuttal was not proper for impeachment. Instead of asking the F.B.I. agent the leading question of whether Pitman had said to him substantially what Pitman earlier denied, the question was “Will you tell us what he told you with regard to this dock worker named Bob?”, which produced a narrative account far exceeding the limited question asked Pitman. However, that error was not preserved because the defense objected only to the question as being collateral. . See Attorney General v. Hitchcock, 1 Exch. 91, 99 (1847); Smallfield v. Home Ins. Co., 244 F.2d 337, 341 (9th Cir. 1957); Shanahan v. Southern Pac. Co., 188 F.2d 564, 568 (9th Cir. 1951); Dillard v. United States, 141 F. 303, 310 (9th Cir. 1905). . On direct, F.B.I. Agent Williams testified that Pitman had admitted systematic thefts from Avon over a one-year period and particular thefts at a Union Pacific yard and an Eneo weighing station. The defense also made no request for an instruction limiting the use of this evidence.

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Anna BARRERA et al., Appellants, v. Hubert WHEELER et al., Appellees. No. 72-1440. United States Court of Appeals, Eighth Circuit. Submitted Jan. 9, 1973. Decided March 16, 1973. Rehearing and Rehearing En Banc Denied April 11, 1973. Thomas M. Sullivan, Kansas City, Mo., and Louis C. DeFeo, Jr., Jefferson City, Mo., for appellants. Leo Pfeffer, New York City, for appellees. Before LAY, HEANEY and STEPHENSON, Circuit Judges. . It has recently been projected that with the raising of the income ceiling there are now over 20 million children qualified under Title I. See note 12 infra. LAY, Circuit Judge. We are presented on this appeal with significant questions relating to the lawful programming and proper allocation of funds to educationally deprived school children, both public and private, under Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 241a-241m, 242-244 (1972). The plaintiffs, suing individually and on behalf of their minor children, are parents of educationally deprived children who attend non-public schools in the State of Missouri. This class suit was commenced on April 6, 1970, in the United States District Court for the Western District of Missouri against the State Commissioner of Education and the eight members of the Missouri Board . of Education. The plaintiffs claim that Title I funds are being arbitrarily denied to non-public school children in Missouri. In seeking injunctive relief plaintiffs assert violations of the First and Fourteenth Amendments and a denial of their civil rights under 42 U.S.C. § 1983. Plaintiffs originally prayed for an injunction restraining defendants from continued violations of the Act as well as for an accounting of misapplied funds totalling over $13 million received and expended from 1966 through 1969. The trial court initially dismissed plaintiffs’ action because of their alleged failure to exhaust administrative remedies and because it believed the federal court should abstain from exercising jurisdiction since the case involved unsettled questions of state law. This court held these findings to be erroneous and reversed and remanded the case to the district court for trial. Barrera v. Wheeler, 441 F.2d 795 (8 Cir. 1971). Upon remand of the case plaintiffs filed an application for preliminary injunction on October 12, 1971. In a pretrial order on January 18, 1972, the trial court ordered a separate trial as to issuance of the injunction and limited the issues as follows: 1. Whether Title I, ESEA, and the criteria established thereunder by the United States Commissioner of Education, requires that educational benefits provided by Title I be made available to educationally deprived children attending private schools on a basis that is equitable in quality, scope and opportunity, to those available to educationally deprived children attending public schools and that there must be an equitable sharing of educational resources provided by Title I so that the amount expended for each Title I project as to an educationally deprived child attending a private school be as nearly equal as possible to the amount so expended as to each educationally deprived child attending a public school; 2. Whether the defendants may be excused from complying with the requirements of Title I, ESEA, and the criteria established thereunder by the United States Commissioner of Education, relating to the participation of educationally deprived children attending private schools, by reliance upon any interpretation of Missouri state constitutional provisions, statutes, regulations or state court decisions; and 3. Whether it is lawful to make public personnel, who are employed to implement Title I projects, available on private school premises during regular school hours in order to provide special services to educationally deprived children attending private schools. Upon trial of those issues the district court, in an unpublished opinion, denied injunctive relief and held that whether Missouri state law “prohibits the use of any money” for teachers to be employed in private schools was not necessary to be decided in the case. The court concluded that although there undoubtedly has been inequitable expenditures of Title I funds between educationally deprived children in public and non-public schools in some local school districts, such inequity could be rectified by private school authorities requesting their “equitable share of dollar aid” for private school pupils to attend after-school and summer school instructional programs. We conclude that the district court’s holding does not properly meet plaintiffs’ lawful challenge and fails to properly interpret Title I in conformity with the Act’s intended purpose. We reverse and remand with directions to grant certain equitable relief. TITLE I AND ITS REGULATIONS In 1965 Congress recognized that there were over five million children living in families whose income was less than $2,000 a year. The adverse poverty of these children was found to lead directly to educational neglect resulting oftentimes in human frustration, delinquency and crime. Congress further realized that the impact of poverty and financial hardship was not confined solely to public school children. Consequently, when Title I was drafted Congress expressly required the inclusion of nonpublic school children by conditioning any grant upon the proviso that: “[T]o the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provisions for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . . .” 20 U.S.C. § 241e(a)(2) (1972). The Act made it the strict responsibility of the local educational agency to plan and administer programs that would meet the particularized needs of all educationally disadvantaged children. Thus, the undisputed purpose of Title I was to benefit the educationally deprived child whether attending a public or a non-public school. Upon passage of the Act the United States Commissioner of Education provided by detailed regulation that educationally deprived children in private schools be afforded “genuine opportunities” to participate in Title I programs “comparable” to the programs available in public schools. In March, 1968, the Commissioner set out revised criteria for the approval of Title I applications based upon the law and the existing regulations which stated: “The applicant’s assessment of needs of children at various grade and age levels must include the children in the eligible public school attendance areas who are enrolled in private schools. This assessment is to be carried out in consultation with private school authorities and to provide the basis for (a) determining the special services in which private school children will have genuine opportunities to participate, and (b) selecting the private school children for whom such services are to be provided. “The needs of private school children in the eligible areas may require different services and activities. Those services and activities, however, must be comparable in quality, scope, and opportunity for participation to those provided for public school children with needs of equally high priority. ‘Comparability’ of services should be attained in terms of the numbers of educationally deprived children in the project area in both public and private schools and related to their specific needs, which in turn should produce an equitable sharing of Title I resources by both groups of children.” Commission of Education, Title I Program Guide No. 44, 4.5 (1968) . (Emphasis ours.) We think it clear that the Act and the regulations require a program for educationally deprived non-public school children that is comparable in quality, scope and opportunity, which may or may not necessarily be equal in dollar expenditures to that provided in the public schools. Although the district court originally phrased the issue in terms of “quality, scope and opportunity,” it nevertheless based its opinion on an “equitable” funds standard. We, therefore, find the district court’s ruling to be erroneous in holding that the use of Title I funds by the Missouri Board of Education meets proper standards and find that plaintiffs are entitled to equitable relief. TITLE I IN MISSOURI In the Kansas City, Missouri, school district where the plaintiffs reside, approximately 11,000 elementary and secondary students are eligible for Title I programs. Because of the limited funding and the wide disbursement of children, only about 7,000 public school pupils were enrolled in Title I programs. The number of educationally disadvantaged children in the five principal private schools in Kansas City was estimated at 355 (4.72 per cent of the 7,000 public school pupils receiving aid). These figures for the non-public schools are only estimates because (1) the income and the personal records of private school parents were not readily available to the public schools; (2) the non-public schools were not centrally organized and had to be dealt with separately; and (3) the public and non-public school officials notoriously failed to cooperate among themselves. Almost the entire Title I program in Kansas City is devoted to remedial reading taught in the public schools during the regular school day for disadvantaged public school children only. Outside of equipment and materials provided to the private schools, the one program available under public school auspices for educationally disadvantaged non-public school children was a summer school remedial reading class. In the summer of 1971 approximately 112 private school children and 2,500 public school children participated. With this experience both the public school and private school officials admitted at trial that summer school was a poor substitute for regular day school classes. The Kansas City public schools have set a $250 per pupil guideline for Title I assistance which under present funding would allow for approximately 8,050 participants. The largest share of the Title I appropriations (approximately 65 per cent) is spent on teachers and teacher aids. About twenty teachers and 130 to 150 teacher aids are presently employed in eighteen elementary and four secondary schools in Kansas City. On several occasions in recent years the non-public schools have requested teachers and teacher aids to come to the private school and teach special remedial classes during part of the regular school day. All such requests have been denied by the public school officials, and the private schools have not, as yet, requested any other assistance except equipment and materials. As a consequence the disparity in Kansas City between expenditures for private and public school children in Title I has been $50 as compared to $275. Recently the public school officials have given the non-public school children their “equitable” share of funds all in monies for equipment and materials. The practice in Missouri as a whole in prior years has been to give comparable equipment, materials and supplies to eligible private school children, but to exclude any sharing whatsoever of personnel services. Most Title I public school programs in Missouri involve remedial reading, speech therapy and special mathematics classes, thus the largest proportion of the cost of these projects involves salaries for teachers and teacher aids. After the first two years of Title I, expenditures in Missouri for instructional personnel have run from 65 per cent to 70 per cent of the total grant. The remaining funds are used for equipment and materials, health and counseling services, transportation, and plant maintenance. One difficulty with providing only equipment and materials is that even minimal sharing of expenses for equipment and materials soon reaches a saturation point; in fact, the state guidelines permit only 15 per cent of any appropriation to be spent on equipment and instructional materials. The result of this plan for the deprived private school child has been to create a disparity in expenditures in many school districts ranging from approximately $10 to $85 approved for the educationally disadvantaged private school child to approximately $210 to $275 allocated for the deprived public school child. From the facts presented the trial court itself recognized that Missouri’s “interpretation of Title I has resulted in an undoubtedly inequitable expenditure of Title I funds between educationally deprived children in public and nonpublic schools in some local school districts in the state.” A few school districts in Missouri have attempted to remedy this disparity by providing, in addition to the projects conducted during regular school hours for deprived public school children, Title I programs in the public schools which are open to all educationally deprived children after regular school hours and in the summer. The opinion held by most educators was that these programs were not nearly as successful as the programs conducted during the regular school hours for public school children. The evaluation specialist of the Kansas City School District, Edmund Downey, and the principal of a parochial school in Kansas City, Sister Agnes Marie Hagen, testified that in their opinion, even with these attempts at giving assistance, disadvantaged non-public school children in Kansas City were not receiving comparable educational services under Title I. COMPARABILITY There are practical as well as legal considerations when assessing the qualitative scope of a “comparable” Title I program for deprived private school children. For example, in Kansas City the estimated 355 non-public school students who qualify for aid under Title I are scattered throughout five elementary and secondary schools. Obviously the same type of remedial help cannot be programmed for an extremely small number of needy children located in a private school as can be instituted in a public school where a large number of children may be reached. Furthermore, there are many Title I programs which can be utilized in public schools which would not be constitutionally permissible on private school premises. For example, using Title I funds'to reduce the general pupil-teacher ratio is permissible in a public school within a low-income area but constitutionally impermissible in a similarly situated private school. However, this concern misses the Congressional mark since Title I programming contemplates for the private pupil only “special educational services and arrangements ... in which such children can participate.” Thus, eamparability in size, scope and opportunity cannot necessarily be measured in terms of total similarity. It is only in the area of “special . . . services” where the program need be comparable, provided it is determined by the local educational agency that the needs of the children are similar. Furthermore, it is inaccurate to attempt to equate Title I programs on a “fair-sharing” basis which requires an equivalent pro-rata distribution of funds among public and private school students. Fair-sharing of funds is not the intent of Title 1. When appraising what is equitable and comparable, the dollar amount allocated can serve only as an indicia of compliance or noncompliance. In fact, recent federal guidelines allow a greater amount of Title I funds to be spent on school areas with higher concentrations of children from low-income families in order to obtain the maximum effect. The grant of Title I funds is based solely upon the “need . . . determined” of the individual child. Consequently some children may require speech therapy or special instruction in the English language whereas others may demonstrate no particular need at all. This need factor may vary between educationally disadvantaged public school children as well as between deprived public and private school children. The analysis of whether the program within the private school is comparable to the public school program lends itself more to the definition of what is not comparable rather than what is. It is not a comparable program where the need for remedial services of the educationally deprived private school pupil is at least equal to that of the educationally deprived public school student and the only service provided to the private school child is the furnishing of equipment. It is not a comparable program to provide only after-hour and summer remedial instruction on neutral sites which are open to the needy private school child while offering the same services during regular school hours for deprived public school pupils, especially when the partial expense for transportation must be borne by the private school child who comes from a low-income family. Of equal or greater significance is the fact that educational authorities believe such programs do not provide equivalent benefits nor do they successfully reach a significant number of the eligible students. Once the need of all qualified students is determined, the state or local educational agency must then show some reasonable justification, within the defined purposes of the regulations and the Act, for denying comparable services to eligible private school pupils. No showing has been made here. APPLICABILITY OF STATE LAW UNDER TITLE I The gross justification presented by the defendants for the dissimilarity of programs under Title I is that Missouri state law does not allow any shared or dual-time programs whereby the nonpublic school student can be brought into the public school during regular school hours to receive specialized instruction. Furthermore, the defendants argue that Missouri constitutional law, as well as the Constitution of the United States, prohibit the use of public teachers on private school premises. The defendants urge additionally that Title I does not contemplate the assignment of Title I teachers to non-public schools during the regular school hours. It is, therefore, contended that the only means by which non-public school students can receive teacher services under Title I is through the operation of some after-hour and summer instructional training. The trial court agreed with the defendants’ contention that the Act does not permit the assignment of public school teachers to non-public schools. Presumably the court's conclusion was drawn from the Senate House Reports which declare that the Act does not authorize funds for the payment of private school teachers. See S.Rep.No.146, 89th Cong., 1st Sess. 11 (1965); H.R.Rep. No.143, 89th Cong., 1st Sess. 7 (1965). However, plaintiffs make no claim that Title I funds should be paid to private school teachers nor do they argue that public school teachers should be assigned to non-public schools for the teaching of general secular classes. They readily concede that such an application of Title I funds would be a violation of the First Amendment. See generally Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Americans United for Separation of Church and State v. Oakey, 339 F.Supp. 545 (D.Vt.1972); cf. Wolman v. Essex, 342 F.Supp. 399 (S.D.Ohio 1972), aff’d, 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972); Johnson v. Sanders, 319 F.Supp. 421 (D.Conn.1970), aff’d, 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). And, of course, Title I must be read as comporting with constitutional requirements. See generally Communications Ass’n v. Douds, 339 U.S. 382, 407, 70 S.Ct. 674, 94 L.Ed. 925 (1950); United States v. C.I.O., 335 U.S. 106, 120-121, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948); cf. Singer Sewing Machine Company v. Brickell, 233 U.S. 304, 313, 34 S.Ct. 493, 58 L.Ed. 974 (1914); Port Construction Co. v. Government of the Virgin Islands, 359 F.2d 663 (3 Cir. 1966). The district court overlooks, however, that the Senate Report does consider the use of public school teachers in the private school for restricted purposes: “It is anticipated, however, that public school teachers will be made available to other than public school facilities only to provide specialized services which contribute particularly to meeting the special educational needs of educationally deprived children (such as therapeutic, remedial or welfare services) and only where such specialized services are not normally provided by the nonpublic school.” S. Rep.No.146, 89th Cong., 1st Sess. 12 (1965), U.S.Code Cong. & Admin. News, p. 1457. The Senate and House debates also demonstrate that this limited use of public school teachers for specialized services was foreseen and intended by the managers of the Bill. 111 Cong.Rec. 5746-5748, 5758, 5979, 7309 (1965). Therefore, we find the district court’s interpretation of Title I as involving a broad proscription of public teacher services in the private schools to be in error. We come then to defendants’ contention that this use of public school teachers in private schools is in violation of Missouri state law. In Special District v. Wheeler, 408 S.W.2d 60 (1966) (Judges Finch and Hyde dissenting on the dual-time holding), the Missouri Supreme Court specifically banned dual-time as a means of carrying out joint instructional programs for public and non-public school children. The court held that the Missouri compulsory attendance law requires each child to remain in his regularly assigned school for a minimum of six hours. In the Wheeler case the Missouri Supreme Court was also faced with the practice of public school teachers providing speech therapy for non-public school children on the private school premises. The Missouri court found this practice violated the Missouri Constitution by using public school funds for the education of private school pupils in derogation of the constitutional requirement that public funds “belonging to or donated to any state fund for public school purposes” be used for “establishing and maintaining free public schools, and for no other uses or purposes whatsoever.” Mo.Const. art. IX, § 5. Thus, dual enrollment is presently unlawful in Missouri by statutory interpretation, and the use of “public monies” for sending public teachers into private schools for specialized instruction has been forbidden by state constitutional provisions. After the Wheeler decision the Missouri State Board of Education promulgated two regulations relating to programs to be administered by local agencies under Title I. They read as follows : (a) “. . . . Therefore, shared time or dual enrollment between public and nonpublic schools would not be in conformity with state law. Programs operated in the public school for all children after regular school hours, on Saturday, and during the summer after close of the regular school term would be in conformity with state law.” (b) “Special educational services and arrangements, including broadened instructional offerings made available to children in private schools, shall be provided at public facilities. Public school personnel shall not be made available in private facilities. This does not prevent the inclusion in a project of special educational arrangements to provide educational radio and television to students at private schools.” The state board has interpreted the proscription of public monies in the Missouri Constitution under the Wheeler decision and has thus concluded that Title I funds are also state public funds to be similarly proscribed. As a result of the board’s regulations the local school districts have denied requests of non-public schools for the services of public school teachers in providing remedial training to their educationally disadvantaged children. Although dual enrollment has been precluded under Missouri law, except for the state board’s regulations, the crucial question of whether the Missouri Constitution prohibits the use of all funds, regardless of the source, for sending public school teachers, into the private schools for specialized programs has not been decided. The Missouri Attorney General for one has publicly disagreed with the State Board of Education’s interpretation of the law. Plaintiffs discount the applicability of state law by asserting that since Title I is a federal act and since there exists a conflict between federal and state law, the supremacy requirements dictate that federal law controls, citing Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); Brown & Bartlett v. United States, 330 F.2d 692 (6 Cir. 1964); Matcovich v. Anglim, 134 F.2d 834 (9 Cir. 1943). This approach, however, substantially ignores the legislative history of Title I which establishes that state policy and law shall govern the administration of these programs. Moreover, Congress has emphatically declared in the act that federal control of programming, instruction and curriculum was prohibited, and the Commissioner of Education has continually recognized that the grants under Title I must accommodate state law. Although state law is to be accommodated, the issue of whether Title I funds are state monies or federal funds must necessarily be decided by federal law. Cf. United States v. 93.970 Acres, 360 U.S. 328, 332-333, 79 S.Ct. 1193, 3 L.Ed.2d 1275 (1959), and cases cited therein; Enochs v. Smith, 359 F.2d 924, 926 (5 Cir. 1966). Directly involved here is the interpretation of the funding process under a federal act. The Act itself makes it readily apparent that Title I appropriations are a federal grant made in trust to local school agencies within a state for the direct benefit of the educationally disadvantaged child. 20 U.S.C. §§ 241e, 241f, 241g (1972). The funds are not to be commingled with other “public funds” (45 C.F.R. § 116.24), and they are not to supplement funds that are already used for educational purposes in the state. 20 U.S.C. §§ 241c(e), 241g(c) (1972). See also 111 Cong.Rec. 5734, 7299 (1965) (remarks of Representative Perkins and Senator Morse). The only control the state board has over such funds is to channel them to the local agencies and to review the programs of the local educational agencies to make certain the programs are consistent with the Act and the Commissioner’s regulations. A state cannot pass a law or interpret its own laws to say that a Title I grant is to be considered state funds or public funds for the maintenance of free schools. To do so would be to violate the spirit and the letter of Title I. It seems clear that Title I, as involved herein, does not provide any state aid or any school aid to the state — it is an act to provide educational services to those who qualify under the Act as educationally disadvantaged children. This reasoning is not in conflict with the proposition that state law and policy must be accommodated under the administration of Title I. A state could conceivably pass a law that would prohibit the use of any Title I funds in a private school. Assuming such a law could overcome equal protection arguments, the net effect would be that the state could not comply with the Title I requirement that comparable services be administered to educationally disadvantaged non-public school children. Under those circumstances, the state would not be entitled to a Title I grant and would have to make the “political” decision of whether to repeal the law or deprive all its educationally disadvantaged children of the economic benefits of the Act. Cf. Rosado v. Wyman, 397 U.S. 397, 420-423, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). We conclude that although the administration of Title I must accommodate state law, Title I funds are federal funds with which state and local educational agencies cannot lawfully provide services for eligible public school children and at the same time deny comparable programs to eligible private school children by simply commingling such funds with proscribed state “public funds.” More apropos to our discussion here is the provision within the Missouri Constitution which reads: “Money or property may' also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.” Mo.Const., art. Ill, § 38(a). (Emphasis ours.) Thus, we find that when the need of educationally disadvantaged children requires it, Title I authorizes special teaching services, as contemplated within the Act and regulations, to be furnished by the public agency on private as well as public school premises. In other words, we think it clear that the Act demands that if such special services are furnished public school children, then comparable programs, if needed, must be provided the disadvantaged private school child. FEDERAL CONSTITUTIONAL PROBLEM This then brings us to the defendants’ final contention. They urge — all else failing — that public teacher service on private school premises would be unconstitutional under the First Amendment. The defendants rely on Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which held the direct subsidization of private school teachers in Pennsylvania and Rhode Island unconstitutional. Perhaps more closely related to this objection are Wolman v. Essex, 342 F.Supp. 399 (S.D.Ohio 1972), aff’d, 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972); Americans United for Separation of Church & State v. Oakey, 339 F.Supp. 545 (D.Vt.1972); and Johnson v. Sanders, 319 F.Supp. 421 (D.Conn.1970), aff’d, 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). Although Oakey and Sanders would seemingly prohibit the use of public school teachers on private premises to teach general secular subjects, they are not directly controlling as to the suggested teacher service programs under Title I. As we have indicated. Title I contemplates public teacher services on private premises only for “specialized services which contribute particularly to meeting the special educational needs of educationally deprived children (such as therapeutic, remedial or welfare services) and only where such specialized services are not normally provided by the nonpublic school.” Although we find these cases not directly controlling, we determine that it would be improper for us to pass on the constitutionality of an abstract program of remedial teaching services which is not properly before us. In doing so, we appreciate the constitutional question remains, but as a reviewing court, we must refrain from passing upon important constitutional questions on an abstract or hypothetical basis. Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 174 (1969); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461-462, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945); Housing Authority of the City of Omaha v. U. S. Housing Authority, 468 F.2d 1, 10 (8 Cir. 1972), cert. denied 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973). This is what we would be doing if we decided this issue now. We further observe that no particular program, curriculum or service is mandatory under the Act. S.Rep. No. 146, 89th Cong., 1st Sess. 11 (1965); 111 Cong.Rec. 7298 (1965) (remarks by Senator Morse). A local educational agency may request Title I funds for a variety of uses, and none of these specific remedial programs are now before us. For now we can only assume that the United States Commissioner of Education will approve funds for only those local educational agency programs which comport with Title I and the Constitution of the United States. When approval is given or withheld on a specific plan, only then should a court survey the precise program as falling within or without First Amendment boundaries. In conclusion, we find that plaintiffs are entitled to equitable relief in requiring the defendants to comply with Title I through allocation of funds to educationally disadvantaged non-public students. The fact that local agencies have failed to request funds for non-public school children or that private schools have not stated their needs is not justification for denial of an equitable and comparable program for eligible private school children. If the state is to participate in Title I programs, the state has the responsibility to seek out the disadvantaged child and discover his needs. 45 C.F.R. § 116.19(b) (1972). The record here demonstrates that the basic problem in administering Title I in Missouri has been the tenor of non-cooperation by both public and non-public officials. Title I is premised and can work only upon a firm foundation of cooperation by both public and non-public officials. The regulations require that the local educational agency determine the need of the educationally deprived children enrolled in the private school, and this is to be done by “consultation with persons knowledgeable of the needs of these private school children.” 45 C. F.R, § 116.19(b) (1972). Implementation of this procedure is the primary responsibility of the state and local officials. The record before us is barren of any evidence that non-public school officials in Missouri have been active consultants in Title I planning or evaluation. This flagrantly violates the Act for the net result of this unauthorized conduct is to neglect the only intended beneficiary of the Act — the disadvantaged child. The case is remanded to the district court with directions to enjoin the defendants from further violation of Title I of ESEA, and it is further ordered that the court retain continuing jurisdiction of the litigation for the purpose of requiring, within reasonable time limits, the imposition and application of guidelines which will comport with Title I and its regulations. Such guidelines must provide the lawful means and machinery for effectively assuring educationally disadvantaged non-public school children in Missouri participation in a meaningful program as contemplated within the Act which is comparable in size, scope and opportunity to that provided eligible public school children. Such guidelines shall be incorporated into an appropriate injunctive decree by the district court. Reversed and remanded. APPENDIX A COMMUNITY CASE STUDY OF NON-PUBLIC SCHOOL CHILDREN AND TITLE I IN PITTSBURGH, PENNSYLVANIA “Pittsburgh is a heavily industrialized city of 650,000 persons. Figures provided by the school system show 122,000 children in the city, 76,000 enrolled in public schools (62%) and 46,000 in nonpublic schools (38%). Of these, 17,500 live in Title I project areas; 13,000 are public school children (74%) and 4,500 are private school children (26%). There are no private schools, other than Catholic schools, in the city with children eligible for Title I funds. “Title I expenditures for City D have been as follows: “A partial listing of programs for the 1966-67 school year are as follows: Planning and Evaluation in Pittsburgh “Even before Title I allocations were announced for the first year of the program’s operation, public school officials were meeting with Catholic school leaders to plan joint programs. The leaders of two systems were not strangers to one another; Pittsburgh has had a long history of shared-time programs. For years parochial school students had traveled to nearby public schools to participate in home economics classes and courses in vocational education. The plan agreed upon for Title I programs was based on a mutual understanding of the needs of disadvantaged children in the two school systems. “Title I project areas were selected on a school-by-school basis in the public system using census and AFDC information. Once an individual public school was selected children in the parochial school in the same neighborhood also qualified, so long as Catholic officials verified the assumption that disadvantaged children attended the school in numbers roughly equivalent to the companion public school. According to public school officials, this system was used because the nonpublic school leaders knew they would be responsible for their decision and would behave accordingly. At the same time, public school officials themselves had more than a passing understanding of the composition of Catholic school populations in Pittsburgh. “Once the project areas were agreed upon, programs were established with services provided equally to the children in the paired public and parochial schools. Approximately 30 percent of the disadvantaged students in Pittsburgh were enrolled in parochial schools and about 30 percent of the Title I funds were expended on these students. In practical terms this has meant that some remedial teachers spend part of their day in the nonpublic school and part in the public school. New programs mix students from the two systems. “In the Communication Skills program, for example, where intensive reading preparation is given, half of the teachers spend half of their time in parochial schools. Thus 25 percent of the total program takes place with nonpublie children. This program is concentrated in 11 public schools, but provides services to children in 30 Catholic schools. In other words, 75 percent of the teachers and equipment are located in a few public schools while 25 percent serve children in numerous parochial schools. This arrangement was pressed by Catholic school officials; those public officials in charge of the program feel that students benefit most from a concentration of services. The U. S. Office of Education, in its guidelines, is explicit in urging such concentration. “Certain programs, as seen in the listing above, serve only students in public schools, while others serve both in varying proportions. Funds for reducing class size, for example, are not expended for children in parochial schools. Some substitution takes place, however, so that more than 30 percent of the participants in some programs are nonpublic school children. “According to both Catholic and public schoolmen, evaluation is an on-going process. The deputy superintendent of the Diocese schools and the associate director of compensatory education for the Pittsburgh school system, call one another whenever necessary to discuss Title I programs. Decisions on the retention or expansion for the various components of Title I are discussed at regular joint meetings, occasionally with the public school superintendent in attendance. In one example of what transpires at such gatherings, it was recently proposed by the public school administration that a program involving mobile speech clinics be ended. Parochial officials saw this as undesirable for their children since it would have ended speech therapy in their schools. A compromise finally was reached where one laboratory would be kept to serve nonpublic pupils. “In part, this joint evaluation is encouraged by a State Department of Education regulation requiring the signature of nonpublic officials on the state evaluation form. This is to insure that consultation with private school leaders has, in fact, taken place. This is a recent regulation, however, and active cooperation was commonplace in Pittsburgh before its enactment. “Current planning in Pittsburgh includes the establishment of a position within the public school’s office of compensatory education to represent the nonpublic schools on a half-time basis. Such a liaison would assist in planning and evaluation and would assure full participation wherever possible. Funds do not presently provide for such an individual, however, and it appears that this plan will not be activated in the immediate future because of the curtailment of Title I funds. Discussion “Both public and nonpublic school officials take pride in the harmonious relationship between the two systems. A long history of such cooperation is present, enhanced by a state constitution which has long permitted shared-time programs. Title I is being administered in keeping with this spirit to the satisfaction of all the participants involved. “Programs in the 1967-68 school year, for which evaluations are not ready at the time of this writing, showed that nonpublic participation was occurring at approximately 30 percent, though probably at a slightly reduced level (one estimate was 27.3% total allocation). Individual program descriptions for 1967-68 demonstrated that disadvantaged nonpublic school children have been considered in the planning of each Title I program. “There is less inter-mingling of public and nonpublic school children students in Title I programs than might be considered desirable by some observers, including some of the original sponsors of Title I legislation. In part this is the result of the convenience and the economy in shifting teaching personnel from school to school, rather than students. - Distance is sometimes a factor, as walking is not always possible. Also, there are a number of problems associated with moving a large body of students through crowded urban neighborhoods. Such an effort, however, would lead to a sharing of programs between Pittsburgh public schools, many with large nonwhite populations, and Catholic schools, which tend to be filled with mostly white students. “The nature of the Catholic school organization fosters cooperation. The Catholic Schools Office is highly centralized and has full support of the Bishop of Pittsburgh. The Schools Office has authority to speak for all parochial schools in the City and the Diocese. Thus, the public school officials have only one person with whom they must communicate. This is a tremendous advantage and has contributed greatly to the public/nonpublic cooperation. It would be much more difficult to establish such rapport in cities with autonomous Catholic schools. “On the whole, the situation in Pittsburgh seems to follow closely the letter and spirit of Title I with regard to the provision of services to disadvantaged nonpublic school children. Nonpublic school officials contribute to both planning and evaluation. Aid is given to nonpublic school children but the nature of that aid is such that careful control seems to be exercised by the public school officials. At the same time, because participation in program formulation is invited and because of frequent intercommunication, the non-public officials are in a position to both assist in, and observe, the operation of Title I. Such a situation would seem to provide a sound basis for informed judgment on the part of public officials with whom responsibility for Title I programs ultimately rests. The real benefactor would seem to be the disadvantaged child in Pittsburgh who is receiving aid regardless of the school he attends, as is the intent of Title I.” STEPHENSON, Circuit Judge (dissenting) . I respectfully dissent. Notwithstanding the view expressed in the majority opinion, Title I of the Elementary and Secondary School Act of 1965 clearly only permits and does not mandate the assignment of public school teachers to private schools during regular school hours. That no such congressional purpose ever prevailed is evidenced by the Act’s legislative history. The bill’s floor manager in the House initially expressed the view that a public school teacher could not be assigned to a private school under the provisions of Title I. Following lengthy debate a compromise was carefully reached by which “The decision about the best arrangement for providing special educational assistance under Title I is left to the public education agency of the school district, under the Constitution and laws of the State.” Ill Cong.Rec. 5979 (1965). Since the Act is only permissive with respect to school teacher assignments, the Missouri State Board of Education, bound by its state constitution and court decisions, could properly determine not to approve school district plans providing for the assignment of public school teachers to private schools during regular school hours. I therefore find myself in complete agreement with Judge Collinson’s conclusion that: “Title I clearly does not mandate the assignment of teachers paid by Title I funds to nonpublic schools. The legislative history of the Act demonstrates that such an intention was completely disavowed by every proponent of the bill.” I would therefore affirm the trial court’s denial of injunctive relief. If, as the majority holds, Title I mandates the assignment of public school teachers to private schools, I fail to see how the constitutional issue presented can be avoided. I share in the District Judge’s grave concern that Title I, under such circumstances, could not withstand the constitutional challenge. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Americans United for Separation of Church and State v. Oakey, 339 F.Supp. 545 (D.Vt.1972) and Johnson v. Sanders, 319 F.Supp. 421 (D.Conn.1970), aff’d 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). The “entanglements” fostered by Title I, as construed by the majority, appear quite indistinguishable from the excessive entanglements proscribed by Lemon. See generally, 22 Rutgers L. Rev., supra. I join in the majority’s concern with respect to the failure of the parties to negotiate a lawful program pursuant to the Act. Unfortunately, the victims of this lack of cooperation are the intended beneficiaries of Title I, the educationally deprived children. . The declared purpose of Title I is “to provide financial assistance ... to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means . . . which contribute particularly to meeting the special educational needs of educationally deprived children.” 20 U.S.C. § 241a (1972). . The trial court further found-: “Title I clearly does not mandate the assignment of teachers paid by Title I funds to nonpublic schools. The legislative history of the Act demonstrates that such an intention was completely disavowed by every proponent of the bill. It is also clear that students in nonpublic schools can receive their equitable mathematical share of the funds available in after-school or summer school programs. In small school districts the furnishing of visual aids and mobile equipment could very easily furnish the equitable share of dollar aid. “There is no evidence in this case that the local school boards have refused to consult with nonpublic school authorities in preparing their applications for Title I funds. Similarly, there is no evidence that any applications for Title I funds on an equitable basis for nonpublic school students have been denied at the local or state level except those requesting salaried teachers in the nonpublic school.” . The present statute, 20 U.S.C. § 241e, reads in part: “(a) A local educational agency may receive a grant under this part for any fiscal year only upon application therefor approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) — “(1) that payments under this part will be used for programs and projects (including the acquisition of equipment, and, where necessary, the construction of school facilities and plans made or to be made for such programs, projects, and facilities) (A) which are designed to meet the special educational needs of educationally deprived children in school attendance areas having high concentrations of children from low-income families and (B) which are of sufficient size, scope, and quality to give reasonable promise of substantial progress toward meeting those needs . . . . ” The procedure for determining the funds payable to a local school district includes both public and private school children and is presently calculated according to the following formula: a/2 x b = Dollars payable to local school district a = Average expenditure per pupil in the state b = Number of children age 5-17 coming from families with annual incomes of less than $3,000 ($4,000 for fiscal year ending June 30, 1973). See 20 U.S.C. § 241c (1972) ; H.R.Rep. No. 143, 89th Cong., 1st Sess. 3 (1965). . As both the Senate and House Reports state, the Act anticipates “broadened instructional offerings under publicly sponsored auspices which will be available to elementary and secondary school students who are not enrolled in public schools.” S.Rep. No. 146, 89th Cong., 1st Sess. 12 (1965) U.S.Code Cong. & Admin.News, p. 1457. See also H.R.Rep. No. 143, 89th Cong., 1st Sess. 7 (1965). This “child benefit theory” was, therefore, one of the basic premises supporting the enactment of Title I. See generally III Cong.Rec. 5743, 5756-5758, 7309 (1965) (remarks of Representatives Perkins and Carey and Senator Morse). Similarly Title II of the ESEA provides all school children with text books and other instructional services, and materials. Other provisions of the Act, Titles III, IV and V, provide direct aid to public school authorities for model programs, for research and for grants designed to strengthen the state departments of education. . Section 116.19 of the regulations states in part: “(a) Each local education agency shall provide special educational services designed to meet the special educational needs of educationally deprived children residing in its district who are enrolled in private schools. Such educationally deprived children shall be provided genuine opportunities to participate therein consistent with the number of such educationally deprived children and the nature and extent of their educational deprivation. The special educational services shall be provided through such arrangements as dual enrollment, educational radio and television, and mobile educational services and equipment. “(b) The needs of educationally deprived children enrolled in private schbols, the number of such children who will participate in the program and the types of special educational services to be provided for them, shall be determined, after consultation with' persons knowledgeable of the needs of these private school children, on a basis comparable to that used in providing for the participation in the program by educationally deprived children enrolled in public schools. “(c) The opportunities for participation by educationally deprived children in private schools in the program of a local educational agency under Title I of the Act shall be provided through projects of the local educational agency which furnish special educational services that meet the special educational needs of such educationally deprived children rather than the needs of the student body at large or of children in a specified grade. “(d) Any project to be carried out in public facilities and involving a joint participation of children enrolled in private schools and children enrolled in public schools shall include such provisions ás are necessary to avoid classes which are separated by school enrollment or religious affiliation of the children. “(e) Public school personnel may be made available on other than public school facilities only to the extent necessary to provide special services (such as therapeutic, remedial, or welfare services, broadened health services, school breakfasts for poor children, and guidance and counseling services) for those educationally deprived children for whose needs such special services were designed and only when such services are not normally provided by the private school. The application for a project including such special services shall provide assurance that the applicant will maintain administrative direction and control over those services. Provisions for special educational services for educationally deprived children enrolled in private schools shall not include the paying of salaries for teachers or other employees of private schools, except for services performed outside their regular hours of duty and under public supervision and control, nor shall they include the using of equipment other than mobile or portable equipment on private school premises or the constructing of private school facilities.” 45 O.E.R. § 116.19 (1972). . This guideline is presumably based in part on Section 116.18(a) of the regulations which reads: “(a) Each application by a State or local educational agency for a grant (other than one for a planning project) must propose projects of sufficient size, scope and quality as to give reasonable promise of substantial progress toward meeting the needs of educationally deprived children for whom the projects are intended.” 45 C.F.R. § 116.18(a) (1972). See also 20 U.S.C. § 241e(a) (1) (1972) ; 45 C.F.R. § 116.19 (1972). . Title I programming within Missouri school districts flagrantly breaches the state commissioner’s own statement of policy as revised in March of 1971 which reads in part (emphasis their own) : “The following procedure should be used in determining the private school participation in Title I activities: “1. Determine the special educational needs of all educationally deprived children residing in eligible Title I attendance areas in the public school district. At least one objective measurement must be used in making this determination. Subjective measurements may also be used. “2. Determine the most pressing special educational needs of all educationally deprived children residing in eligible Title I attendance areas in the school districts. . “3. Develop a program that will meet the most pressing special educational needs of all educationally deprived children residing in the school district. This is the responsibility of the local public school district after consultation with persons knowledgeable of the needs of the private school pupils. The same level of educational deprivation should be used for determining eligible private school children as is used for determining eligible public school children. “4. Determine the extent of pupil participation in the Title I, ESEA, program that Title I, ESEA, funds will allow. Private school pupils are entitled to receive the same consideration as public school pupils. This does not mean that private school pupils will necessarily engage in the same activities as public school pupils. Title I Federal Regulations and Missouri State Law restrict the activities for which Title I funds may be expended. “5. Services for private school pupils participating in the Title I program must be comparable in quality and scope to those provided public school pupils participating in the program if the nature and extent of educational deprivation and the special educational needs are the same. “9. Title I, ESEA, funds must be used to supplement and not supplant private school funds. “11. Projects conducted in private schools must be of sufficient size, scope and quality. “12. The average cost per pupil enrolled in a private school and participating in a Title I, ESEA, program and the average cost per pupil enrolled in a public school and participating in a Title I, ESEA, program will be used as a guide in making State Department of Education approval. If the variance is greater than 10 per cent (more or less) justification will be requested before making approval.” Missouri Department of Education, Policy No. 2, Participation of Private School Children in Title I Activities (1971). The variance in average cost per pupil for public and private Title I recipients in Missouri far exceeds the state’s own 10 per cent guidelines. . The Missouri State Coordinator of the Elementary and Secondary Education Act referred in his .testimony to a letter Missouri received from the United States Commissioner of Education informing the state that the St. Louis, Kansas City and Cape Girardeau programs did not comply with the regulations regarding the participation of private school children in Title I projects. . 20 U.S.C. § 241e(a)(2) (1972) (Emphasis ours). See the remarks of Representatives Carey and Perkins, the manager of the House Bill, during House debates where they emphasize the importance of the word “special “Mr. GOODELL . . . . If the public school officials with Federal money wish to put a public school teacher in a private school to teach any subject, I would like to have a clear legislative history ns to whether it is permitted in this bill. “Mr. CAREY. If the gentleman phrases his question ‘any subject,’ the answer would be ‘No,’ because that would include all subjects. “Mr. GOODELL. What subjects then would be permitted? “Mr. CAREY. ‘Special’ is the key word. The gentleman knows that the word ‘special’ is in the bill. These are special instructional services. Those that are special are not general. . . . What is special would be determined by pedagogy. “Mr. GOODELL. ... I would like to ask the gentleman from Kentucky if that is his answer, just as a matter of getting the legislative history. “Mr. PERKINS. The gentleman has answered the question very clearly. “Mr. PERKINS. My answer is no as to providing any teaching services to a private institution. The key here is the extension of special educational services to deprived children under public auspices and arranged for, supervised and controlled by, public authority.” Ill Cong.Rec. 5747-5748 (1965). . In 1969, the National Advisory Council on the Education of Disadvantaged Children, which reports to the President and Congress each year on the progress of Title I, found: “[S]ome of the nonpublic school officials interviewed, unhappy at the relatively low level of participation by disadvantaged pupils enrolled in their schools, spoke repeatedly of not receiving their ‘fair share’ of the city’s Title I funds; occasionally they mentioned a ‘fair share’ percentage coinciding with the percentage of nonpublie school children in the city. Of course, the law intends no such ‘sharing’ or division of funds. Further, the number of disadvantaged nonpublic school children was not proportionate to the number of disadvantaged public school children in any city in the present study. The phrase ‘fair share’ as used above may be convenient shorthand, but such usage is inconsistent with the intent of the law.” National Advisory Council on the Education of Disadvantaged Children, Annual Report to the President and the Congress 38 (1969). . As the National Advisory Council on the Education of Disadvantaged Children stated in its letter to the President and the Congress on March 31, 1972: “The Council notes that title I is now serving 7.5 million disadvantaged children, 1.5 million fewer than in 1969. This decrease is due to the concentration guideline, which directs Local Education Agencies (LEA’s) to spend more on fewer children for maximum impact. “The most recent study which records the number of children living in school attendance areas with high concentrations of children from low-income families (the determining factor of eligibility for title I service) states that 20 million children are living in these attendance areas. “This would suggest that approximately two-thirds of the children needing the extra services of compensatory education are not receiving title I services. The Council asks that you carefully consider this fact, and that neither the Executive nor the Legislative Branch of the Federal Government view with complacency the need to serve additional disadvantaged children.” National Advisory Council on the Education of Disadvantaged Children, Annual Report to the President and the Congress iii (1972). . The record discloses that Our Lady of the Americas school, a parochial school in Kansas City, has a student body that is 98 per cent Mexican-American with approximately 175 students eligible for Title I. These children are confronted with a language and cultural problem which must be overcome before they can ever be expected to understand and accomplish the prescribed studies for each grade. A program designed to meet the needs of these eligible non-public school students might necessarily require a different focus of attention resulting in less or even greater expenditures. . Disparate allocations of funds may arise because the concentration of eligible children is frequently confined to certain geographic areas. Furthermore, the needs of qualified students may differ because of nationality or cultural backgrounds or because the local school district already has provided effective remedial aid to needy children. Sometimes disparity in allocation may arise where the local agency has failed to request sufficient funds or the private or írablic school has failed adequately to evaluate or report the eligible children and their needs. . The late Professor Calm wrote that justice is best defined by considering what injustice is. Calm, Confronting Injustice 10 (1966). . The Missouri Constitution prevents the use of state funds for busing non-public school children, at least to the extent they are transported to and from the private school. See McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 (1953). This objection cannot apply to children transported under Title I funds for instructional training. See discussion, infra at 1351-1353. . Compare State ex rel. School District v. Nebraska State Board of Education, 188 Neb. 1, 195 N.W.2d 161 (1972), cert. denied, 409 U.S. 921, 93 S.Ct. 220, 34 L.Ed.2d 182 (1972) (see opinions of Justices Douglas and Brennan in denial of certiorari.) . In the states where dual enrollment programs have been conducted, the United States Commissioner of Education has found that teacher services are provided under Title I in a comparable and equitable manner. Title I specifically offers this method as one of the alternatives for complying with the Act, 20 U.S.C. § 241e(a) (2), and as the Commissioner has pointed out, this is one of the most feasible ways to achieve compliance. See generally Ea Noue, Church-State Problems in New Jersey: The Implementation of Title I (ESEA) in Sixty Cities, 22 Rutgers L.Rev. 219, 252 (1968). . See also Mo.Const. art. I, § 7; art. IX, § 8, Y.A.M.S. . In an opinion written in January, 1970, the Missouri Attorney General stated: “[F]ederal funds, not state funds or State Public School Fund moneys, will pay the teachers for services rendered in making certain services under the Title I Program available on the premises of a private school. The essential character of these funds is not changed from federal to state funds by the mere fact that the Missouri Legislature ‘appropriates’ them to the State Board of Education. The appropriation comes neither from ‘General Revenue’ (see for instance § 2.060, House Bill No. 2, Seventy-fifth General Assembly) nor from the ‘State School Moneys Fund’ (see for instance § 2.200, House Bill No. 2, Seventy-fifth General Assembly). These funds are appropriated on. an open end basis from ‘Federal Funds.’ “We do not believe that an apioropriation of this type converts federal aid into state aid, thereby making it subject to the Missouri constitutional provisions referred to above. “It is the opinion of this office that the Elementary and Secondary Education Act of 1965 provides that, under certain circumstances and to the extent necessary, public school personnel, paid with federal funds pursuant to this program, may be made available on the premises of private schools to provide certain special services to eligible children and that Missouri law would not prevent public school personnel, paid with federal funds, from providing these services on the premises of a private school.” Op.Atty.Gen. No. 26, 7-9 (1970). See also In Re Proposal C, 384 Mich. 390, 185 N.W.2d 9, 22-24 (1971). . 111 Cong.Rec. 5743-5744, 5746, 5757-5758, 5979, 7623 (1965). See also Hearings on S. 370 Before the Subcomm. on Education of the Senate Comm, on Labor & Public Welfare, 89th Cong., 1st Sess., pt. 1, at 516, 518 (1965). . Section 604 of the ESEA, Pub.L. No. 89-10, 79 Stat. 27, 57 (April 11, 1965), states: “Nothing contained in this Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system.” See 20 U.S.C. § 242(a). . The Commissioner of Education’s Handbook for State and Local School Officials sets forth the following discourse: “State Constitutions and Statutes “Many State departments of education found severe restrictions with respect to the kind of services that their respective State constitutions and statutes allowed them to provide to private school students, especially when those private schools were owned and operated by religious groups. “The following list illustrates the kind of prohibitions encountered' when State constitutions and laws are applied to Title I. The list is not exhaustive. * Dual enrollment may not be allowed. * Public school personnel may not perform services on private school premises. * Equipment may not be loaned for use on private school premises. * Books may not be loaned for use on private school premises. * Transportation may not be provided to private school students. Sometimes such prohibitions exist singly in a given State. Often, the prohibitions exist in combination. “When ESEA was passed in 1965, each State submitted an assurance to the U. S. Office of Education in which the State department of education stated its intention to comply with Title I and its regulations, and the State attorney general declared that the State board of education had the authority, under State law, to perform the duties and functions of Title I as required by the Federal law and its regulations. While State constitutions, laws, and their interpretations limit the options available to provide services to private school students, this fact, in itself, does not relieve the State educational agency of its responsibility to approve only those Title I applications which meet the requirements set forth in the Federal law and regulations. “A number of school officials realized that they could not submit the required assurance because of the restrictions applying to private school students which were operative in their States. The impasse was successfully resolved in one case by a State attorney general’s opinion which held that State restrictions were not applicable to 100 percent federally financed programs. [New York] “Other States have proposed legislation which would allow the SEA to administer Title I according to the Federal requirements. Still others have applied the restrictions of the State to Title I and have relied upon the initiative of school administrators to develop a program that would meet the Federal requirements.” HEW, Office of Education, Title I ESEA Participation of Private School Children, A Handbook for State and Local School Officials pt. Ill, at 19-20 (1971) [hereinafter cited as Office of Education Handbook]. . Title I of the Higher Education Facilities Act of 1963, 20 U.S.C. §§ 711-721 (1964 ed. & Supp. V), does provide direct aid for construction of buildings and facilities at church-related colleges. This section has been held constitutional. Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). . Cf. In Re Proposal C, 384 Mich. 390, 185 N.W.2d 9, at 27-30. . It would seem axiomatic that programming in the use of Title I funds must comply with the Act and be consistent with the Commissioner’s regulations. The statute makes this clear. See 20 U.S.C. §§ 241e, f (1972). We emphasize that if state law prevents a state or local agency from compliance with Title I, then Title I expenditures cannot be manipulated to comply with state law. This would clearly be a case of the tail wagging the dog. Yet this is in essence what the state educational agency proposes and has been doing. The remedy provided for a state that will not or cannot under its own law allocate federal funds in compliance with the Act and the regulations is to have those funds withheld by the United . States Commissioner of Education. See 20 U.S.C. § 241j (1972) ; 45 C.F.R. § 116.52 (1972). The 1972 National Advisory Council on the Education of Disadvantaged Children has specifically recommended that the law be enforced against Missouri: “In order to receive title I funds, the State Attorney General must sign an assurance to the U.S. Commissioner of Education stating that all title I regulations will be observed, even if they conflict with State law. Yet with respect to three States — Missouri, Nebraska, and Oklahoma — the Office of Education is aware of noncompliance with the regulations, section 116.19, on service to children enrolled in non-public schools, and no enforcement action has been initiated. “The Council recommends that any State which is not in compliance with section 116.19 he informed of the Commissioner’s intention to enforce the law hy the end of fiscal year 1912.” National Advisory Council on the Education of Disadvantaged Children, Annual Report to the President and the Congress 29 (1972). (Emphasis theirs.) . S.Rep.No.146, 89th Cong., 1st Sess. 12 (1965). See also 111 Cong.Rec. 5747-5749, 5758, 5979 (1965); 45 C.F.R. § 116.19(a), (e) (1972). The Commissioner’s Handbook for State and Local School Officials recognizes this when it observes: “Most of the restrictions or prohibitions which apply to services for private school children refer to the manner in which the services are delivered. The restrictions or prohibitions are: 1. The services provided with Title I funds must meet the needs of educationally deprived children and not the needs of the private school. 2. In any project where private school students participate along with public school students in public facilities, the classes may not be separated according to school or religious affiliation. 3. Public school personnel may perform services on private premises only to the extent necessary to provide special services for the educationally deprived for whose needs the services were designed. 4. The services which may be provided are limited to special services [citing the regulations in Section 116(e), “such as ‘therapeutic, remedial, or welfare services, broadened health services, school breakfasts for poor children, and guidance and counseling services.’ The list is meant to be illustrative and not exhaustive of the possibilities.”] normally not available in the private school. (A service is special if it responds to an identified, special need of the child.) 5. The services provided with Title I funds must always remain under the administrative direction and control of a public agency. These services may not be administered by the private school. 6. Title I funds may not be used to pay the salaries of private school employees. 12. No Title I funds may be used for religious worship or instruction. 13. Work-study assignments may not be made in such a way as to enhance the value of private premises or supplement activities normally financed by the private school. 14. Teacher aids performing services on private premises, as well as those in public schools, must be involved directly in a Title I activity. 15. Title I funds may not be used to contract with a private school to administer a Title I activity.” Office of Education Handbook, supra note 23, at 12-14. . See 111 Cong.Rec. 7298-7299 (1965) (remarks of Senator Morse), for an extensive list of possible Title I activities. . Many factors would be important: what is the precise program offered; in what manner is the remedial program to be offered ; does the program fully contemplate the restrictions set forth by the United States Commissioner (see note 27 supra) ; where and when is the program to be offered; what equipment and materials are used; who administers and supervises it; and. who benefits from it. These factors must be compiled before applying the tripartite analysis in Lemon of whether the program (1) has a secular purpose; (2) possesses a principal or primary effect which neither advances nor inhibits religion ; and (3) avoids “ ‘an excessive government entanglement with religion.’ ” Lemon v. Kurtzman, 403 U.S. at 612-613, 91 S.Ct. at 2111. . The National Advisory Council on the Education of Disadvantaged Children has recommended in the past certain steps which undoubtedly would help implement an effective program for non-public school children. Among its recommendations have been: “[That the states designate] in their departments of education, a liaison officer betwen public and nonpublic school officials, overseeing the participation of nonpublic school children at the local level. Such an individual would remain in close contact with the official serving that function in the Office of Education in Washington. Similarly, we recommend to local public and nonpublic school officials that they designate an individual with sufficient time and resources to act as a liaison 'on Title I participation. “[That] the Office of Education and the states . . . continue to urge the involvement of nonpublic school officials in the planning and evaluation of Title I at the local level. This effort could be given emphasis by providing space on planning and evaluation forms not only for the signature of nonpublic school officials but also for their comments on various aspects of the Title I program. Similarly, the comments of public school officials on the problems they have encountered in encouraging nonpublic participation should be invited. “[TJhat the Office of Education and the states review the means of identifying eligible children and particularly of establishing target areas. “[And that where] services to children justify it, there should be an increase in shared time programs, joining public and nonpublic school children in common learning experiences. Such mingling is a positive intent of Title I. Yet few localities include shared time in Title I planning. It should be encouraged by disseminating reports of successful programs which incorporate shared time.” National Advisory Council on the Education of Disadvantaged Children, Annual Report to the President and the Congress 42-43 (1969). The National Council singled out the Title I program in Pittsburgh, Pennsylvania, as a model program of success. We have set out the report on the operation of this plan in the Appendix. . The Missouri Department of Education regulations as currently phrased will provide a sound basis for supplementation if, and only if, procedural machinery is provided to carry them out. See note 8 supra. . Although we do not pass on the merits of plaintiffs’ claim for accounting and damages, the granting of equitable relief herewith should not be construed as determining plaintiffs’ damage claim. Plaintiffs must overcome other legal barriers if they are to prevail in their prayer for damages. One of the most important of which is that Title I does not contemplate that private schools shall necessarily receive a pro rata share of Title I funds allocated to a state for its disadvantaged children. (See also note 14 supra.) We observe that the continuing litigation over this issue is not apt to be productive and can only result in further friction between the parties. Determination of the present legal conflict now can better lead to a beneficial and cooperative program for all children in Missouri intended to be beneficiaries under the Act. In any event, we direct that the injunctive relief granted herein shall be issued and be effective forthwith. National Advisory Council on the Education of Disadvantaged Children, Annual Report to the President and the Congress B-8 — B-ll (1969). . See 111 Cong.Rec. 5743-8 (1905) and G. LaNoue, “Church-State Problems in New Jersey: The Implementation of Title I (ESEA) in Sixty Cities,” 22 Rutgers L. Rev. 219, 234-235 (1968). . See also, Sen.R.No.146, 89th Cong., 1st Sess., 1965 U.S.Code Cong. & Admin.News, pp. 1456-1457.

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UNITED STATES of America, Plaintiff-Appellee, v. David Jefferies THOMPSON, Defendant-Appellant. No. 72-2690. United States Court of Appeals, Fifth Circuit. March 29, 1973. Francis P. Maher, Laredo, Tex., for defendant-appellant. Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee. Before COLEMAN, MORGAN and RONEY, Circuit Judges. RONEY, Circuit Judge: Defendant David Jefferies Thompson was charged with knowing possession of 50 pounds of marijuana with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). A motion to suppress the marijuana as the product of an illegal search was denied. By stipulation, the evidence on the motion to suppress was considered by the Court on the merits of the case. Defendant was found guilty. On appeal, Thompson contends that the motion to suppress should have been granted for one of three alternative reasons: first, the designation by the Bureau of Customs of a border patrol officer as a customs agent to clothe him with border search investigative power based on “mere suspicion” is unconstitutional, second, the search of defendant’s automobile was not justified as a border search, and no probable cause was presented otherwise to authorize a warrantless search, and third, defendant should have been given the Miranda warnings before he was required to open the trunk of his automobile for the officer. Finding that the marijuana was discovered during a valid border search and that defendant’s legal points are without merit, we affirm. I. Border Search Investigative Powers Thompson admits that Congress has granted customs agents broad authority to stop and search any person or vehicle suspected of carrying merchandise illegally imported into the United States. This authority has been interpreted by the Courts to permit a border search for contraband, without first procuring a search warrant, where there is a “mere suspicion” of possible illegal activity. See United States v. Wright, 5th Cir. 1973, 476 F.2d 1027, [No. 72-3137, February 27, 1973]; United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972). But, Thompson .argues, Congress has granted this authority only to the Secretary of the Treasury and his designated customs officials and has not authorized the delegation of such authority to other police groups by the Bureau of Customs. Only Congress is empowered by the Constitution to “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Article II, Section 2, Clause 2. Since there is no general federal police power, any exercise of such power by a federal agency must be specifically authorized by Congress. Any police power authorized by Congress cannot be constitutionally transferred from one agency to the other. Therefore, Thompson says, it is unconstitutional for the Bureau of Customs, a division of the United States Treasury Department, to delegate to the officers of the Border Patrol," a division of the United States Department of Justice, the power to conduct the kind of search that Congress has authorized to customs officials alone. Thompson misconceives the situation. The officers who made the search of his automobile, although primarily border patrol officers, were also designated as customs agents and could conduct a customs search as customs officers. There was no mere delegation of authority to border patrol officers, as such. A review of these two distinct offices, which may be held by a single person, will be helpful. Customs agents are officials of the Bureau of Customs, under the supervision of the Secretary of the Treasury. 19 U.S.C.A. § 6. Border patrol officers are employees of the Immigration and Naturalization Service, under the supervision of the United States Attorney General. 8 U.S.C.A. § 1103. The investigative powers of the two law enforcement organizations are dissimilar. Customs agents exercise broad statutory authority in border searches for merchandise concealed to avoid payment of duties. See 19 U.S.C.A. §§ 482, 1496, 1581(a), 1581(b); 19 C.F.R. §§ 23.1(d), 23.11. Border searches, absent search warrants or probable cause, have been uniformly upheld by the Courts as long as the customs agents have had a reasonable suspicion of violations of the customs laws. See United States v. Salinas, 439 F.2d 376 (5th Cir. 1971); United States v. Tsoi Kwan Sang, 416 F.2d 306 (5th Cir. 1969); Stassi v. United States, 410 F.2d 946 (5th Cir. 1969), vacated and remanded on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Morales v. United States, 378 F.2d 187 (5th Cir. 1967). This inconvenience to travelers is justified by the national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. See Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543. (1925). BorSerpatrol officers are authorized to search any vehicle in which they believe aliens are being brought into the United States. 8 U.S.C.A. § 1225. If the car can reasonably be stopped pursuant to an authorized border search, the border patrol officers are empowered to search the car for aliens. United States v. Wright, supra; United States v. DeLeon, 462 F.2d 170 (5th Cir. 1972); Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959). Border patrol officers do not have the authority, under the immigration laws, however, to search bags, containers, or compartments too small to conceal persons. See Roa-Rodriguez v. United States, 410 F.2d 1206 (5th Cir. 1969); Contreras v. United States, 291 F.2d 63 (9th Cir. 1961); see also United States v. Wright, supra; United States v. Bird, 456 F.2d 1023 (5th Cir. 1972). Immigration inspections by border patrol officers may be made at any point within 100 miles of the external boundary. 8 U.S.C.A. § 1357; 9 C.F.R. § 287.1. Although the nation’s borders are also expandable for searches by customs agents, see United States v. Hill, 430 F.2d 129 (5th Cir. 1970); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); Marsh v. United States, 344 F.2d 317 (5th Cir. 1965), the customs statutes and regulations do not prescribe precise geographic limitations. Customs searches, therefore, are subject only to the constitutional test of reasonableness. 19 U.S.C.A. § 482; see United States v. Wright, supra; United States v. Hill, supra. Searches in this undefined zone must be reasonable upon all of the facts, one consideration being the proximity of the search to an international border. See United States v. McDaniel, supra. When acting in this expanded border search area, the customs agents must have a “reasonable suspicion” that the customs laws are being violated. See United States v. McDaniel, supra. By a series of proper delegations, border patrol officers have been designated by the Treasury Secpetikry as customs agents. “[A]ny officer of- the Bureau of Customs of the Treasury Department . or any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law or designated by the Secretary of the Treasury to perform any duties of an officer of Customs Service . . . ” serves as a customs agent. 19 U.S.C.A. § 1401 (i). Under Treasury Dept. Order No. 165, Revised, 19 Fed.Reg. 7241 (T.D. 53654, 1954), empowering the Commissioner of Customs to act on behalf of the Treasury Secretary, the Commissioner delegated to special agents of the Bureau of Customs the authority to designate border patrol officers as “acting Customs Patrol officers,” without compensation. Customs Delegation Order No. 42, 36 Fed.Reg. 13410 (T.D. 71-181, 1971). By letter/order of the Assistant Commissioner of the Bureau of Customs, dated July 14, 1971, all special agents were required to designate all current border patrol officers and future appointees as acting customs patrol officers. This Court has often recognized that a border patrol officer may be validly authorized to act simultaneously as a customs agent. See United States v. Wright, supra; United States v. McDaniel, supra; United States v. Bird, supra; United States v. Maggard, 451 F.2d 502 (5th Cir. 1971). As Judge Goldberg said in McDaniel, It appears that Border Patrol agents wear two hats, one as an immigration officer and the other as a customs officer. The agents testified that they had planned to wear their immigration hats that night, but we find nothing in the statutes that would preclude them from Jater donning theii — customs-"hats during a proper border search. 463 F.2d at 134. Defendant has not presented any impediment to the appointment of one individual to two offices established by Congress. Although some state constitutions expressly prohibit such dual appointments, there is nothing in the United States Constitution which prevents it. Nor is there any statutory or inherent conflict between the two positions. Since the officers were authorized to conduct the broadest kind of border search, the question is whether the facts justified that minimum amount of reasonable suspicion necessary to support the border search of defendant’s automobile. II. Search of the Automobile In the morning darkness of April 26, 1972, border patrol officers Jose E. Garza and Harold A. Sandstede, who were also designated as special customs agents, were in Hebbronville, Texas, to observe traffic coming from the Mexican border some fifty-five miles away. Their mission was to detect aliens who had entered the country illegally. At approximately 1:30 A.M., defendants, in a car bearing Arkansas license plates, entered Hebbronville from the direction of the border town, Laredo, and turned north on Highway 16 to Freer. Since there are more direct routes to Freer from Laredo, the officers thought it unusual that an out-of-state car would travel this roundabout route. The officers were also aware that the Laredo-Hebbronville-Freer route was frequented by alien smugglers. There was testimony, however, that drivers might have taken a more circuitous route because the Laredo-to-Freer highway was under construction. The officers stopped the suspects’ vehicle about one mile north of Hebbronville. After ascertaining that Thompson and Sipes were United States citizens, the officers requested that Thompson, who was driving, open the trunk for immigration inspection. Thompson^plied that he could not do so because the lock was jammed. Sandstede told defendant that the back seat would then have to be removed so that the trunk area could be inspected. Asking whether the officers had a search warrant, Thompson was informed that they did not need one. When they told him that he would be detained until the trunk was opened, Thompson complied. When Sandstede stepped up close to the trunk to look for illegal aliens, he noticed a plastic bag and smelled marijuana. Inside the bag was marijuana in brick form. The suspects were placed under arrest and given Miranda warnings. The suspects, their vehicle, and the contraband were taken to the Hebbronville Border Patrol Station. After Miranda warnings were repeated, defendant stated, upon interrogation, that he had purchased the marijuana in Laredo, that most of the marijuana belonged to him, and that he was planning to sell it in Little Rock, Arkansas. Defendant contends that the search cannot be justified as a border search since it occurred so far from the border and that there was no probable cause otherwise to authorize a warrant-less search. We agree with the Government, however, that the search was justified. The area was within 100 miles of the border. As border patrol officers, Garza and Sandstede were authorized to stop and investigate vehicles for concealed aliens without the rigid requirement of probable cause. See 8 U.S.C.A. § 1357; 8 C.F.R. § 287.1; see also United States v. Wright, supra; United States v. DeLeon, supra; Ramirez v. United States, supra. Border officials need less cause to initiate a search than is required of law enforcement officials in other circumstances. See United States v. Maggard, supra; United States v. Johnson, 439 F.2d 885 (5th Cir. 1971); Marsh v. United States, supra. Once the automobile had been reasonably stopped for the purpose of an authorized border search, the officers were empowered to search the vehicle, including the trunk, for aliens. United States v. DeLeon, supra; Ramirez v. United States, supra. Under these authorities, we have no difficulty in holding that the stopping and initial search of the automobile was justified. The initial facts that justified the stopping of the car to search for illegal aliens might not have justified stopping the car to search for contraband. But once the defendants resisted inspection of the .trunk, the trunk was opened, and the officers smelled marijuana, there was, if not probable cause, at least the minimum grounds for reasonable suspicion necessary to empower the officers, in their capacity as customs agents, to search the plastic bag for contraband. See United States v. Wright, supra; United States v. McDaniel, supra; United States v. Johnson, supra. As border patrol officers, Garza and Sandstede could not have searched the bag because it obviously was too small to have contained aliens, the object of the border patrol search. The officers were entitled to assume their role as customs agents, however, once the search disclosed incriminating circumstances which indicated violations of the customs laws. See United States v. Bird, supra; United States v. Maggard, supra. III. Miranda Warnings Defendant’s argument that he should have been given the Miranda warnings when he was first detained by the border patrol officers is without merit. The search was legal, and defendant made no self-incriminating statements before he was given the Miranda warnings. These warnings have been held to be unnecessary in a routine customs search. United States v. De La Cruz, 420 F.2d 1093 (7th Cir. 1970). Moreover, Miranda and the Fifth Amendment apply only to testimonial self-incrimination and not to the production of incriminating physical evidence. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). We hold that the trial court properly denied defendant’s motion to suppress. Affirmed.

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Joseph F. CUTHRELL, Appellant, v. DIRECTOR, PATUXENT INSTITUTION, Appellee. No. 71-2068. United States Court of Appeals, Fourth Circuit. Argued Dec. 4, 1972. Decided April 6, 1973. Charles F. Morgan, Baltimore, Md. (Court-appointed counsel) (Michael Millemann, Baltimore, Md., on brief), for appellant. Harry A. E. Taylor and Donald R. Stutman, Asst. Attys. Gen. of Maryland (Francis B. Burch, Atty. Gen. of Maryland, and Edward F. Borgerding, Chief, Crim. Div., Asst. Atty. Gen. of Maryland, on brief), for appellee. Before HAYNSWORTH, Chief Judge, RUSSELL and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: The petitioner in this habeas proceeding is a Maryland prisoner who seeks to invalidate his guilty plea as involuntary because he was not advised, before his plea was accepted, that he might, as a result of his plea, be sent to Patuxent Institution for evaluation and treatment under procedures spelt out in the Maryland Defective Delinquent Act. The proceeding followed an unsuccessful appeal for post-conviction relief by the petitioner at the hands of the State Court. The District Court dismissed the proceeding as without merit and the petitioner has appealed. We affirm. The law is clear that a valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” Wade v. Coiner (4th Cir. 1972) 468 F.2d 1059, 1060. By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty, * * United States v. Sambro (1971) 147 U.S.App.D.C. 75, 454 F.2d 918, 920; United States v. Ready (4th Cir. 1972) 460 F.2d 1238, 1239; Johnson v. United States (9th Cir. 1972) 460 F.2d 1203, 1204; Tindall v. United States (5th Cir. 1972) 469 F.2d 92. The distinction between “direct” and “collateral” consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment. Thus, when a defendant is sentenced under a guilty plea to the crime of escape, it is not required that the Court advise the defendant, before accepting the plea, that he is subject to the loss of his “good time” credit, previously earned, since, while the loss will increase the period of his actual confinement, it is not “a definite, practical consequence of the plea” but is discretionary with the prison authorities under Section 4165, 18 U.S.C. Hutchison v. United States (10th Cir. 1971) 450 F.2d 930, 931. Similarly, the fact that the Court fails to advise the defendant that his plea, if accepted, makes him subject to deportation proceedings, a result said to be equivalent to the “loss of both property and life; or all that makes life worth living” (Ng Fung Ho v. White, 1922, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938) or to “a life sentence of banishment” (Jordan v. De George, 1951, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886 (dissenting opinion of Justice Jackson)), is deemed a collateral consequence and will not render the plea involuntary. United States v. Sambro, supra; United States v. Holton (7th Cir. 1956) 228 F.2d 827, 830, cert. den. 351 U.S. 963, 76 S.Ct. 1027, 100 L.Ed. 1484; United States v. Parrino (2d Cir. 1954) 212 F.2d 919, 921, cert. den. 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663; Joseph v. Esperdy (D.C.N.Y.1966) 267 F.Supp. 492, 494. On the other hand, when a defendant pleads guilty to an offense under which he is not eligible for parole, he should be made aware of that fact before the acceptance of his plea. Paige v. United States (4th Cir. 1971) 443 F.2d 781, 782-783. The reason for this conclusion is that the right to parole has become so engrafted on the criminal sentence that such right is “assumed by the average defendant” and is directly related in the defendant’s mind with the length of his sentence. Moody v. United States (8th Cir. 1972) 469 F.2d 705, 708. Applying the distinctions evidenced by the foregoing authorities, we are of the opinion that the fact that the acceptance of the petitioner’s plea of guilty to the crime of criminal assault placed him in a class, where he might, as a result of the judgment in an entirely separate civil proceeding, in which he would be afforded counsel and all due process rights, including the right to a jury trial, be committed to Patuxent Institution for treatment and not punishment was such a collateral consequence of his plea that the failure of the trial court to advise him of such possibility will not render his plea involuntary. Commitment to the Institution was not an automatic or immediate result of his plea. His plea simply made him a member of a class as a result of which he might be ordered to be evaluated by trained experts, and one, who, if the trained experts concluded, after examination, he was a defective delinquent, would be subject to a civil trial, before either a jury or the court as the defendant might choose, on the issue whether he was a defective delinquent. Commitment thus depended not directly on the defendant’s plea but on a subsequent, independent civil trial. It was a collateral consequence of his plea. We might add that this conclusion accords with the result reached by the Maryland Court of Special Appeals in Perry v. State of Maryland (1971) 11 Md.App. 302, 273 A.2d 635, 637, where the Court, after citing with approval Joseph v. Esperdy, supra, said: “That he (the petitioner-defendant) was not advised that he might be sent to Patuxent Institution for an evaluation as a possible defective delinquent did not make acceptance of the plea constitutionally impermissible.” The petitioner urges, however, that when a defendant, by his plea, becomes a member of the class subject to evaluation under the Act, commitment follows, for all practical purposes, automatically. The statistics set forth in the annual reports of the Patuxent Institution refute such contention. While these statistics do not show the percentage of the eligible class who were ordered to be evaluated, they do reveal that a third of those ordered evaluated are not recommended for commitment, and, of those recommended, one-fifth prevail on a jury trial. Moreover, while the commitment is indeterminate, its continuance is subject to periodic rights of re-trial and reevaluation. Nor is the purpose of the commitment punishment; rather, it represents, as this Court said in Tippett v. Maryland, supra, 436 F.2d at 1157, “an enlightened and progressive experiment aimed at rehabilitating persons whose anti-social activities are occasioned, at least in part, by mental disorders”. In short, commitment to Patuxent Institution is not imposed in the nature of punishment; it results from a civil, not a criminal proceeding; it does not definitely or immediately or automatically result from a guilty plea by one who, by his plea, makes himself eligible for evaluation and commitment. Failure to advise the petitioner of such possible collateral consequences of his plea accordingly did not render his plea involuntary. The judgment of the District Court is, therefore, Affirmed. . For a detailed statement of the Maryland Defective Delinquent Act, see Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1155-1156, cert. dismissed Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791. . See, also, Butler v. Burke (7th Cir. 1966) 360 F.2d 118, 123-124, cert. den. 385 U.S. 835, 87 S.Ct. 79, 17 L.Ed.2d 69, in which the Court refused to invalidate a guilty plea because of the failure of the trial court to advise the defendant of Ms possible commitment, as a result of his plea, under the Wisconsin Sexual Deviates Act.

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UNITED STATES of America, Plaintiff-Appellee, v. Lonnie BANKS and Alexander Hepburn, Defendants-Appellants. No. 72-3135. United States Court of Appeals, Fifth Circuit. April 4, 1973. Brenda Abrams, Miami, Fla. (Court appointed under Act), Phillip Carlton, Jr., Miami, Fla., for defendants-appellants. Robert W. Rust, U. S. Atty., Lawrance B. Craig, III, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before RIVES, GOLDBERG and MORGAN, Circuit Judges. RIVES, Circuit Judge: Hepburn and Banks were charged in a three-count indictment with conspiring to knowingly and intentionally possess with intent to distribute quantities of heroin and conspiring to knowingly and intentionally distribute the heroin, all in violation of 21 U.S.C. § 846, and with the substantive offenses of possessing with intent to distribute and of actually distributing 18.8 grams of heroin in violation of 21 U.S.C. § 841. A jury returned separate verdicts as to each defendant finding him guilty as to each count of the indictment. On trial each of the defendants testified in his own behalf. Hepburn denied that he did the acts charged. Banks admitted that he sold a bag of heroin to a Government agent, but claimed that he was entrapped into committing the offenses. On appeal each of the defendants urges a single but an entirely different issue. We affirm. The district court refused to allow Hepburn to attempt impeachment of the testimony of Peter Gorin, the Government’s confidential informant, by calling witnesses to testify to specific sales of drugs by Gorin for which he had not been tried or convicted. As then Chief Judge Murrah noted in Foster v. United States, 10 Cir. 1960, 282 F.2d 222, 223, extrinsic testimony in respect to the character of a witness “tends to confuse the issues and promote unfair surprise and multifariousness.” It was clearly within the discretion of the district judge as “the governor of the trial” to exclude such testimony. 3A Wigmore on Evidence § 979 (Chadbourn rev. 1970). The defendant Banks urges that but for the solicitation of the Government informant, he would be innocent. The district judge properly submitted to the jury the question of whether Banks was entrapped, and placed upon the Government the burden of disproving entrapment beyond a reasonable doubt. In his instructions to the jury, the district judge correctly spelled out the principles of entrapment: “If then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant Banks was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant Banks is not a victim of entrapment. “On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant Banks had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the government, then it is your duty to acquit him.” (Tr. 374-75.) The testimony of Peter Gorin and of Agents Medina and Heyman furnished ample basis for the jury to believe beyond a reasonable doubt that the criminal design originated in Banks’ own mind and was not implanted by the Government or by Gorin. Banks recognizes as fatal to his entrapment defense, and attacks as simply “wrong,” the following statement in Groessel: “There is no entrapment, however, if the accused is ready and willing to commit the crime whenever the. opportunity might be afforded — even if by government agents or informers acting under their supervision. Eisenhardt v. United States, supra [5 Cir.], 406 F.2d [449] at 451. It is well settled that the fact that government agents merely furnished opportunities or facilities for committing the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.” United States v. Groessel, 5 Cir., 1971, 440 F.2d 602, 605. We reaffirm that statement, which we find to be eminently sound. The judgments of conviction are Affirmed. . Gorin’s testimony was corroborated in substantial part by the testimony of two agents of the Bureau of Narcotics and Dangerous Drugs. . The proposed new Federal Rules of Evidence, now under consideration by the Congress, provide that “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.” Rule 608(b). The Advisory Committee’s Note explains that provision as follows: “Subdivision (b). In conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is an issue in the case, the present rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility. There are, however, two exceptions: (1) specific instances are provable when they have been the subject of criminal conviction, and (2) specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness.” . See Pierce v. United States, 5 Cir. 1969, 414 F.2d 163, 168; United States v. Bigham, 5 Cir. 1970, 421 F.2d 1344, 1346; United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, 606; United States v. Harper, 5 Cir. 1971, 450 F.2d 1032, 1045; United States v. Patterson, 5 Cir. 1972, 470 F.2d 731; United States v. Rodriguez, 5 Cir. 1973, 473 F.2d 587; United States v. Jones, 5 Cir. 1973, 473 F.2d 293; compare United States v. Russell, 9 Cir. 1972, 459 F.2d 671, now pending in Supreme Court, 409 U.S. 911, 93 S.Ct. 226, 34 L.Ed.2d 172, see 41 L.W. 3484. See also 2 Wright Federal Practice and Procedure, Criminal § 403, pp. 70, 71, 72. . See authorities cited n. 3, supra.

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CHOTIN TRANSPORTATION, INC., Plaintiff-Appellant, Tenneco Chemical, Inc., Intervenor-Appellant, v. The M/V HUGH C. BLASKE, her engines, tackle, apparel, etc., in rem, and American Commercial Barge Line Company, in personam, Defendants-Appellees. AMERICAN COMMERCIAL LINES, INC., et al., Plaintiffs-Appellees, v. CHOTIN TRANSPORTATION, INC., in personam, et al., Defendants-Appellants. BUNGE CORPORATION, Plaintiff-Appellee, v. CHOTIN TRANSPORTATION, INC., the M/V PAT CHOTIN and the M/V JOEY CHOTIN, Defendants-Appellants. No. 72-3512 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 2, 1973. John Poitevant, John W. Sims, H. Barton Williams, New Orleans, La., for appellants. Robert B. Acomb, Jr., Francis Emmett, New Orleans, La., for appellees. 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: We affirm on the opinion of the District Court, reported at 356 F.Supp. 388 (E.D.La.1972).

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UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, and Chevron Oil Company et al., Additional Defendants-Appellants-Cross-Appellees, v. Leo BURAS, Jr., et al., Defendants (1-26)-Appellees-Cross-Appellants, v. Philibert BURAS et al., Intervenors-Appellants. No. 31115. United States Court of Appeals, Fifth Circuit. Dec. 26, 1972. Lawrence K. Benson, Charles D. Marshall, Wilson S. Shirley, Jr., Sidney C. Schoenberger, New Orleans, La., Luke A. Petrovich, Buras, La., Turner Hudson McBaine, Donald E. Peterson, San Francisco, Cal., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Shiro Kashiwa, Asst. Atty. Gen., Edmund D. Clark, John J. Cain, Attys., Dept, of Justice, Land Div., Washington, D. C., for appellants. Phillip A. Wittmann, New Orleans, La., E. Drew McKinnis, Baton Rouge, La., S. W. Plauche, Jr., Lake Charles, La., John H. Tucker, Jr., Shreveport, La., for appellees. Judge Wisdom did not participate in this cause. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion March 23, 1972, 5th Cir., 1972, 458 F.2d 346). Before TUTTLE, GEWIN and GOLDBERG, Circuit Judges. PER CURIAM: The Petition for Rehearing and motion to file supplementary petition for rehearing are hereby denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for rehearing En Banc is also denied. Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, GE-WIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RON-EY, Circuit Judges. JOHN R. BROWN, Chief Judge (dissenting) : With all due deference to the conscientious and scholarly approach of the panel to the intricate analysis of Louisiana land law required by this decision, I respectfully dissent from the Court’s denial of rehearing en banc. I do not begin to offer even a faint whisper of a suggestion of possible criticism of the panel’s decision on the merits of the competing claims. Indeed, it is that the merits are inescapably shrouded in ancient history, Louisiana practices in the administration of state land patent grants, and the intricacies of Louisiana law and procedure, that makes it imperative that these difficult questions be certified to the Supreme Court of Louisiana for a determination which will have both authoritativeness and finality. Since the panel acted without so much as mentioning either the strong showing for or the present statutory availability of such certification, the only way for this to be accomplished at this level is for us to grant rehearing en banc and then order such certification. Although I avoid the merits as such, they are important in my approach. To reach its decision that certain patents granted by the State of Louisiana in 1898 to Octave Barrois were invalid under the then applicable Louisiana law, the panel had to first leap the purposefully erected hurdle of Albritton v. Shaw, 1921, 148 La. 427, 87 So. 32 — a Louisiana Supreme Court opinion of long and unquestioned validity. To propel it over this formidable bulwark the panel had to reach a now severely attacked construction of a Louisiana evidentiary statute. Having surmounted the procedural obstacles in its course, the Court then had to proceed to explicate the now-ancient Louisiana land patent law and to delineate the scope of the Louisiana version of the cryptic doctrine of after-acquired title. Given the complicated and unique nature of these substantive and procedural questions of Louisiana land law, the panel’s decision could have been no more than a guess — albeit an educated one. I, for one, quickly concede my inability to accurately expound on the occult peculiarities of Louisiana land law, as witnessed by my self-confessing concurrence in the 1960 en banc opinion, Butler v. Bazemore, 5 Cir., 1962, 303 F.2d 188, overruling my earlier 1957 effort for the panel in Bazemore v. Whittington, 5 Cir., 1957, 245 F.2d 943. Of course I recognize that under Article III we do have the duty to decide even the most abstruse matters — even in diversity cases where there is no readily available means to secure authoritative state decisions except in the really important rare cases. But where there is a method and the case is vital to state interests, it is the part of judicial statesmanship to exploit such procedures fully. The true pith of this litigation concerns the legal allocation of one of Louisiana’s most treasured natural resources —her gas and oil. The State of Louisiana, not just private litigants, has repeatedly sounded the state policy of exploiting and preserving her oil and gas reserves, and she continues to do so. But oil and gas in Louisiana (and the oil-rich, off-shore reserves) is important not only to Louisiana. It is important to the United States, as witnessed by this very case and the important earlier one, Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267. With both protagonists being sovereigns of equal standing and asserting claims over these rich stakes on the basis of Louisiana domestic law, the demands of a healthy federalism make it more than ordinarily appropriate that the underlying questions of state law be resolved by the only Court which can give an authoritative answer — the Supreme Court of Louisiana. Indeed, the United States Supreme Court in the context of this struggle between sovereign giants has itself recognized the desirability of having Louisiana courts construe Louisiana law. Recognizing, as we must do here, that any federal construction of Louisiana law would be law only until an authoritative judgment by the Louisiana Supreme Court is rendered, the Court has expressed the following thoughts: The answers to these questions [of state law] are or may be relevant, Before attempting to answer them and to decide their relation to the issues in the case, we think it advisable to have an interpretation, if possible, of the state statute by the only court that can interpret the statute with finality, the Louisiana Supreme Court. Leiter Minerals, Inc. v. United States, supra, 352 U.S. at 229, 77 S.Ct. at 292, 1 L.Ed.2d at 267. And, putting its words into action, the Supreme Court in Leiter required the federal court to stay its hand pending resolution of the State law via a separate proceeding to be brought in state court under the Louisiana declaratory judgment statute. Louisiana’s claim to determine domestic legal principles bearing on the allocation and ownership of her oil and gas is no less a matter of great public policy than was the claim of the state of New Mexico to adjudicate cases and controversies involving her precious natural resource — water. See W. S. Ranch Co. v. Kaiser Steel Corporation, 10 Cir., 1967, 388 F.2d 257, 262-267 in which, as a dissenter on the petition for rehearing, I urged the Tenth Circuit, as I now do the Fifth, to give way to the courts of New Mexico. Following the reversal by the Supreme Court, 1968, 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835, the Supreme Court of New Mexico expressly rejected the Tenth Circuit’s determination, 388 F.2d 257, of the decisive question of local law. See Kaiser Steel Corporation v. W. S. Ranch Co., 1970, 81 N.M. 414, 467 P.2d 986. Fortunately for Louisiana, there is no longer a need to strain at parallel declaratory judgment proceedings as in Leiter or Kaiser Steel, supra. For Louisiana has recently adopted the now available, effective procedure which permits a federal appellate court to certify questions of state law to the Louisiana Supreme Court. Thus, the objective of an authoritative determination with finality can be attained with significantly reduced logistical problems. In these times when comity and abstention have become the by-line for Federal Judges, it is unfortunate that the Fifth Circuit adopts this head-in-the-sand rejection of the State’s effort to alleviate our Erie burden. Our wide experience with certification to the Florida Supreme Court has not only proved its utility in sparing this Court — and more importantly, the litigants — the risk of a wrong decision, but it has recently evoked a most favorable response from that tribunal. See National Education Association, Inc. v. Lee County Board of Public Construction, Fla.1972, 260 So. 2d 206. Believing that certification of the questions of state law in this case would foster the ends of federalism and contribute immeasurably to the correct interpretation of Louisiana law, I would grant rehearing en banc and certify the difficult questions of state law to the Louisiana Supreme Court. I therefore dissent to the failure of the Court to grant rehearing en banc. INGRAHAM,--'Circuit Judge, with whom CLARK, Circuit Judge, joins specially concurring: While I am in agreement with the panel opinion in United States v. Buras, 458 F.2d 346 (5 Cir., 1972), believe that it correctly analyzes and interprets the law on the subject, and voted against en banc review, I am in accord with Chief Judge Brown’s efforts to certify the questions of state law to the Louisiana Supreme Court if it is feasible to do so. . Although as note 9, infra, reflects, we have frequently used the Florida certification procedure with great success, the device is reserved for important cases involving Florida public policy. Literally hundreds of run-of-the-mill Florida diversify cases have routinely been handled by panels of the Court. Beleaguered as we are by an exponential docket increase, we have not allowed certification to become an escape or abdication. . In some ways, this same policy is reflected in our deference toward the views of the District Judge steeped as he is in local law, lore and legend. Judge Gewin recently recognized this: Judge Borah was a former Louisiana practitioner as was the district judge in this case before being appointed to a federal district judgeship in that state. Although we certainly do not base our decision in this case solely upon the expertise of other judges merely because complex questions of state law are involved, their personal acquaintance with the state law is a factor which weighs in favor of their conclusion as to state law. Such consideration is particularly appropriate where as here the state law is unclear and ambiguous. Tardan v. Chevron Oil Co., 5 Cir., 1972, 463 F.2d 651, 652 [1972]. This is especially significant here where the panel comprising no Louisiana trained Judges rejects the conclusions of Judge Christenberry, a long-time Louisiana practitioner and federal trial judge. . Its importance was recognized by the Supreme Court in FPG v. Louisiana Power and Light Co., 3972, 406 U.S. 621, 92 S.Ct. 1S27, 32 L.Ed.2d 369, by its quotation from the state’s amicus brief: “12. The conflict between producing and consuming States over state or federal regulatory authority is highlighted in the contrast between Louisiana's amicus brief in this case and the statement of the Chairman of the New York Public Service Commission in another case. Louisiana, a producing State, submits: “Historically, gas producing states have certain advantages over states which do not have their own gas supply. Their very proximity to the source of production attracts industries which use gas as the raw material without which their plants could not operate. The lower transporation costs of delivering gas to other industrial and commercial users within the state makes its use particularly attractive for such applications. It is not surprising, therefore, that producing states have a higher proportion of industrial-commercial consumption of total gas consumed and of firm gas than consuming states. Louisiana utilizes 84% of the total quantity of firm gas sold in the state for industrial and power plant generation purposes, in comparison to a national average of only 37%. “Louisiana’s economy is heavily dependent upon' the availability of a firm, reliable and uninterrupted supply of natural gas. State-wide investment by industrial category clearly reflects the predominance of jietroleum, refineries and chemicals which represented §465,-297,370 or 76% of a total industrial investment of §609,578,850 in 1970. Apart from these industries which use natural gas as process gas without which their plants cannot function, the state’s electric utilities are completely dependent upon natural gas as fuel for electric generators. “Thus, the economic welfare of the state bingos upon the continued delivery of the volumes of gas it received and used prior to United’s curtailment and upon the ability to draw upon greater volumes. Otherwise, its economy will be frozen at or below its present level. This is not true of other states in which natural gas plays a subsidiary rather than a dominant role in the overall economy of the state and in which the electrical utilities have alternate power sources such as coal, imported liquefied natural gas and inexpensive hydroelectric power.” Brief of State of Louisiana Amicus Curiae pp 2-3.” Id. at 633 n. 12, 92 S.Ct. at 1,335 n. 12, 32 L.Ed.2d at 331 n. 12. . The same information, data and policy were put forward in the state’s brief more recently in Louisiana v. FPC, 5 Cir., 1973, 476 F.2d 140 [No. 72-1220, argued September 27, 1972, Atlanta, Georgia], and emphasized by counsel’s oral argument to this Court: “We are here to discuss heat and power. Heat and power that is essential to the economic welfare of the State of Louisiana. We hope to do it with light. “Louisiana is the largest gas-exporting state in the federal union. It is the second largest gas-producing state in the nation. It delivers to other states that cannot supply their own gas supplies 48 percent of all natural gas exported by producing states to states that cannot meet their own needs. “Now plainly, we submit to Your Honors, Louisiana contributes more than its fair share to the national pool of natural gas. “Now Louisiana is a producing state. It did not choose to become a producing state. It did not choose to have a wasting asset as its major natural resource. It would prefer to have capital that it could invest and have come back with increases in earnings.” Transcript of Oral Argument at 45-46. . Of course an Erie-based judgment of this Court or on certiorari by the Supreme Court is authoritative in the sense that it determines the cause and constitutes res judicata or collateral estoppel as to the parties. But its stare deeisis effect is entirely within the control of the Supreme Court of Louisiana under its power to alter, modify or reverse its prior holdings on which the Brie-bound federal court has acted. And perhaps even more important, without changing its law it may, as have many of the Supreme Courts within this Circuit, reject the reading which the Fifth Circuit has given to the pertinent state law. See, e. g., Truck Ins. Exchange v. Seelbach, 1960, 161 Tex. 250, 339 S.W.2d 521, expressly rejecting National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936; Food Fair Stores, Inc. v. Trusell, Fla., 1961, 131 So.2d 730, expressly disapproving Pogue v. Great Atlantic & Pacific Tea Co., 5 Cir., 1957, 242 F.2d 575. I exposed this fact in my 1967 dissent in W. S. Ranch Co. v. Kaiser Steel Corporation, 10 Cir., 1967, 388 F.2d 257: “To me the sound approach continues to be the one reflected in the unreversed action of the Court in Delaney.7 And experience since that time continues to bear -out the strong note sounded by the concurring opinion 8 that real injustice is done to litigants and, worse, more damage is done to the states’ jurisprudence and its policies by a headstrong, resolute, inflexible determination on the part of a federal court to barge ahead in a sort of ascetic, misguided [Meredith v.] Winter Haven [, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9] impulse, than will likely result from the slight delay occasioned by invoking state adjudication of the controlling issues.9 For the simple fact is that more and more,lo more federal courts are being overruled by more state courts on local issues upon which such federal courts have undertaken to read the Erie signs in the quest of the Winter Haven grail. Texas, for example, continues on its path of independence in a number of instances it not the least of which was the Fifth Circuit’s Delaney prediction itself.12 But, this is not an infirmity of the Fifth Circuit alone.13 And the experience in Florida demonstrates that state court reversals of Federal appellate decisions occur both in appeals of state cases 14 and on Olay certification (see note 5 supra) to the Supreme Court of Florida, the latter with some spectacular results.15 7. United Services Life Ins. Co. v. Delaney, 5 Cir., 328 F.2d 483 (en banc), cert. denied, [Paul Revere Life Ins. Co. v. First Nat. Bank in Dallas,] 1964, 377 U.S. 935, 84 S.Ct. 1335, 12 L.Ed.2d 298, on motion for rehearing en banc, 5 Cir., 358 F.2d 714, cert. denied, 1966, 385 U.S. 846, 87 S.Ct. 39, 17 L.Ed.2d 77. 8. See United Services Life Ins. Co. v. Delaney, supra, 328 F.2d at 485 (concurring opinion). The Delaney abstention procedure and the justification for it sought to be articulated by the concurring opinion have come in for some spirited criticism. See Agata, Delaney, Diversity, and Delay: Abstention or Abdication?, 4 Houston L.Rev. 422 (1966) (Special Fifth Circuit Issue). 3- Subsequent Delaney judicial events in neither the Texas State Courts nor the Fifth Circuit (traced in note 5, Aetna Life Ins. Co. v. Barnes, 5 Cir., 1966, 361 F.2d 685, 687) prove that when employed with a little enlightened resourcefulness on on the part of either counsel, trial court, or appellate court the Delaney abstention is unworkable or administratively unsound. It is safe to say that no one on the Fifth Circuit, majority or dissenting, entertained for the briefest fraction of a possible division of a moment the idea that on recourse to the state courts after remand either counsel or the Texas courts would suppose that the single critical issue be excised for a sort of law-school academic inquiry in the declaratory judgment proceeding. 10. In the score sheet which follows (notes 11, 12, 13 and 14 infra), I do not repeat the cases documented in Delaney. 11. See, e. g., Felmont Oil Corp. v. Pan American Pet. Corp., Tex.Civ.App., 1960, 334 S.W.2d 449, error ref’d n. r. e., which expressly refuses to follow Sinclair Oil & Gas Co. v. Masterson, 5 Cir., 1959, 271 F.2d 310; see E. Brown, Law of Oil & Gas Leases, 1958: 1966 Cumulative Supplement, p. 293; Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84, 102 n. 57. 12. Prof. Agata points this out “Additionally and ironically, Judge Brown can now add Delaney to the list of wrong guesses. Concluding that ‘judicial statesmanship of the highest and proper order’ dictated permitting Texas courts to decide the legal issue, and noting that Texas ‘has a judicial system which will permit adjudication with dispatch and speed’ and ‘with its full arsenal of procedural devices * * * will enable the parties to have a prompt and completely sufficient determination,’ Judge Brown and his colleagues had again failed to anticipate the state court ruling. Texas refused to hear the case.” (Citing United Services Life Ins. Co. v. Delaney, Tex.Civ.App., 386 S.W.2d 648, aff’d., Tex., 1965, 396 S.W.2d 855). Agata, supra note 8, at 424. 13. See Yarrington v. Thornburg, Del., 1964, 205 A.2d 1, 11 A.L.R.3d 1110, rejecting Truitt v. Gaines, D.Del., 1961, 199 F.Supp. 143; Travelers Ins. Co. v. Auto-Owners (Mut.) Ins. Co., 1964, 1 Ohio App.2d 65, 203 N.E.2d 846, rejecting American Fid. & Cas. Co. v. Indemnity Ins. Co. of North America, 6 Cir., 1962, 308 F.2d 697; Kelly v. State Auto Ins. Ass’n, 6 Cir., 1961, 288 F.2d 734, and Travelers Ins. Co. v. Ohio Farmers Indem. Co., 6 Cir., 1958, 262 F.2d 132. 14. Weed v. Bilbrey, Fla.App., 2d Dist., 1967, 201 So.2d 771, rejecting outright Emerson v. Holloway Concrete Prods. Co., 5 Cir., 1960, 282 F.2d 271, cert. denied, 1961, 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372, and expressly adopting the dissent of Brown, J. in the Emerson case, 282 F.2d at 278. 15. See, e. g., Life Ins. Co. of Va. v. Shifflet, 5 Cir., 1966, 359 F.2d 501, upholding a jury verdict against the insurance company under the construction of the Florida Insurance Statutes on fraudulent misrepresentation. But then see, 5 Cir., 1967, 370 F.2d 555, granting a motion for rehearing and certifying the question to the Supreme Court of Florida, which in Life Ins. Co. of Va. v. Shifflet, Fla., 1967, 201 So.2d 715, reached a result opposite from the one reached in the original Fifth Circuit opinion. On receipt of the answer to the certified question, the Fifth Circuit vacated the earlier judgment and remanded the case to the district court. See 380 F.2d 375. And see especially Hopkins v. Lockheed Aircraft Corp., 5 Cir., 1966, 358 F.2d 347 in which the Court certified to the Supreme Court of Florida the controlling question of the dollar limitation on damages for wrongful death, a problem presenting fundamental and serious questions of state policy with only fragmentary case materials with which to work. The determination of the question was so difficult, not only for the Federal Court in the light of intervening developments in the law of conflicts but also for the Supreme Court of Florida, that it resulted actually in two opinions before the question was settled. See the opinion at 201 So.2d 743 holding that the situs state dollar limitation was contrary to Florida policy and the opinion at 201 So.2d 749 where, on rehearing, the Court reversed itself to validate the Illinois recovery limitation. No amount of prescience, including that thought by some to come from a Federal Commission, enables a non-Florida Judge authoritatively to determine Florida policy.” 388 F.2d 264-265 (original footnotes retained). Since Kaiser Steel the list has continued to grow. . With a like recognition of deference due a sovereign the Supreme Court of Louisiana proceeded to determine the case even though it was much concerned whether it was rendering what would, under its jurisprudence, be an impermissible advisory opinion. See Leiter Minerals v. California Co., 1961, 241 La. 915, 132 So.2d 845. . Act 84 of 1972, Louisiana Legislature. . See Leiter Minerals, supra; Kaiser Steel, supra; and the famed February Sextet: Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 1971, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 1971, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; Byrne v. Karalexis, 1971, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792. . It started with Clay v. Sun Ins. Office, Ltd., 1960, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170, on certification upon remand, Fla., 1961, 133 So.2d 735, on receipt of answers to certification, 5 Cir., 1963, 319 F.2d 505, reversed, 1964, 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229. Thereafter we have used it frequently. See, Gordon v. John Deere Company, 5 Cir., 1971, 451 F.2d 234, on certification, Fla., 1972, 264 So.2d 419 (1972), on receipt of answers to the certification, 5 Cir., 1972, 466 F.2d 1200 (1972); National Education Association, Inc. v. Lee County Board of Public Instruction, 5 Cir., 1971, 448 F.2d 451, on certification, Fla., 1972, 260 So.2d 206, on receipt of answers to certification, 5 Cir., 467 F.2d 447; Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276; Boyd v. Bowman, 5 Cir., 1971, 443 F.2d 848, on certification, Fla., 1971, 256 So.2d 1 (1971); A. R. Moyer, Inc. v. Graham, 5 Cir., 1971, 443 F.2d 434; Martinez v. Rodriquez, 5 Cir., 1968, 394 F.2d 156, on certification, Fla., 1968, 215 So.2d 305, on receipt of answers to certification, 5 Cir., 1969, 410 F.2d 729; Life Ins. Co. of Va. v. Shifflet, 5 Cir., 1967, 370 F.2d 555, on certification, Fla., 1967, 201 So.2d 715, on receipt of answers to certification, 5 Cir., 1967, 380 F.2d 375; Hopkins v. Lockheed Aircraft Corp., 5 Cir., 1966, 358 F.2d 347, on certification, Fla., 1967, 201 So.2d 743, on receipt of answers to certification, 5 Cir., 1968, 394 F.2d 656; Green v. American Tobacco Co., 5 Cir., 1962, 304 F.2d 70, on rehearing 304 F.2d 85, on certification, Fla., 1963, 154 So.2d 169, on receipt of answers to certification, 5 Cir., 1963, 325 F.2d 673, cert. denied, 1964, 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306, on appeal after retrial, 391 F.2d 97, rev’d on rehearing en banc, 1969, 409 F.2d 1166. . On numerous times, separate panels of our Court have expressed their yearning for a Florida-type certification procedure to resolve unsettled points of pure state law. E. g., Lee v. Great Northern Nekoosa Corp., 5 Cir., 465 F.2d 1132, n. 1 [1972]: We regret our inability to certify the questions to the Supreme Court of Alabama for its authoritative resolution as would be possible if the case involved Florida law. Section 25.031, Florida Statutes Annotated as implemented by Rule 4.61 of the Florida Appellate Rules, 32 F.S.A. See Clay v. Sun Insurance Office, [Ltd.], 1960, 363 U.S. 207, 212, 80 S.Ct. 1222, 4 L.Ed.2d 1170. Our efforts to do this in Texas were aborted by the Supreme Court of Texas because it concluded the partial declaratory proceeding would constitute an advisory opinion. See United Services Life Ins. Co. v. Delaney, 5 Cir., 1964, 328 F.2d 483 (en banc) (abstaining), dismissed, Tex., 1965, 396 S.W.2d 855, decided, 5 Cir., 1966, 358 F.2d 714. See, generally, Agata, Delaney, Diversity, and Delay: Abstention or Abdication?, 4 Hou.L.Rev. 422 (1966); Gowen and Izlar, Federal Court Abstention in Diversity of Citizenship Litigation, 43 Tex.L.Rev. 194 (1964); Comment, Abstention under Delaney: A Current Appraisal, 49 Tex. L.Rev. 247 (1971). In order to allow the State of Texas to construe her own law, we must, under the current view, dismiss the federal litigation. Barrett v. Atlantic Richfield Co., 5 Cir., 1971, 444 F. 2d 38.

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UNITED STATES FIDELITY & GUARANTY CO. et al. v. The UNITED STATES. No. 183-70. United States Court of Claims. March 16, 1973. Peter J. Gagne, Boston, Mass., for plaintiffs. Samuel H. Cohen, Boston, Mass., attorney of record for plaintiffs. Leslie H. Wiesenfelder, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant. Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges. ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND ON DEFENDANT’S MOTION TO DISMISS ALL PLAINTIFFS BUT THE SURETY BENNETT, Judge. Plaintiff USF&G was a Miller Act surety on contract No. NBy-58920 in which Premier Contractors, Inc., the prime contractor, had agreed to make modifications to building No. 36, Barracks and Mess, at the United States Naval Station, Boston, Massachusetts. The contract was awarded on February 10, 1965, on a bid of $255,204. The plaintiff executed a payment bond in' the amount of $127,602 and a performance bond in the amount of $255,204 on that same day. The prime contractor entered into performance of the contract and began to encounter financial difficulties soon thereafter. By the summer of 1965, several of the subcontractors had begun to complain verbally of nonpayment of bills by the prime. These complaints were soon formalized by the filing of notices of nonpayment with the surety. Thus, the surety knew at this point that the prime contractor was not properly paying the labor and material obligations being generated under the contract. By September 27, 1965, the Government had made six progress payments to the prime contractor, totaling $182,000. Just prior to the preparation of the seventh progress payment, the surety, on December 3, 1965, sent the contracting officer two telegrams notifying him that the prime had not made the proper payments to the laborers and suppliers and was, therefore, in default on the subject contract and demanding that the Government refrain from making any further progress payments to the prime contractor. On that same day, the Navy representative telephoned the agent of the surety and notified him that there was insufficient basis on which to warrant the stopping of further progress payments to the prime, and that the work on the site was progressing and was expected to be completed shortly. A telegram to this effect was sent to confirm the telephone conversation. Thereafter, on December 8, 1965, the seventh progress payment was made to the prime contractor for $29,000. On December 9, 1965, the Navy sent the surety a letter notifying it that the Government did not consider the prime to be in default on the contract, and that the nonpayment of bills was considered a matter between the surety and the prime. The surety responded on December 17, 1965, in a letter in which it reaffirmed its demand that no further payments be made to Premier and advising the contracting officer that it had notice of unpaid bills in excess of its liability on the payment bond, including three lawsuits filed by the subcontractors against Premier and the plaintiff-surety. Approximately 3 weeks later, on January 10, 1966, the Navy notified the prime contractor that it would make no further progress payments until it could be shown that the Government would not sustain liability to subcontractors. Premier was likewise informed that its progress was now considered unsatisfactory and unless this was remedied by January 17, 1966, the contract would be closed out by a deductive change order with new contracts to be let in order to finish the project. This action would serve effectively to terminate the contract. Premier responded to this letter by informing the Government that without further progress payments it would be unable to complete the contract. The surety likewise told the Navy that in the event of a default by the prime it would not complete the project, risking possible liability under its performance bond. Following the receipt of these letters, the Navy bn January 18, 1966, issued a change order deleting the work yet to be finished on the project, thereby reducing the total contract price by some $18,585. At the same time, the Navy entered into direct contracts with several of the subcontractors to finish the work on the project at a cost approximately the same as that saved by canceling the contract with Premier. Thus, the surety suffered no liability on the performance bond. On January 16, 1966, the plaintiff-surety filed a suit in interpleader in the District Coui’t of Massachusetts (Civ. Action No. 66-175-C) in which it deposited $127,602, the limit of its obligation under the payment bond. This amount was used to pay, on a pro rata basis, $165,090 in unpaid bills, plus interest. The difference was not paid by the surety and has not been paid by Premier. On January 3, 1967, the Internal Revenue Service (IRS) served the Navy with a notice of a levy of $7,946.78 for taxes owed by the contractor. This amount was paid by the Navy out of funds still unexpended under the contract. As the case comes before the court, it is in a somewhat unusual form. The original petition was filed by the plaintiff-surety joining all 23 subcontractor laborers and materialmen with unpaid claims as co-plaintiffs. In the petition, United States Fidelity & Guaranty Co. claimed that the $29,000 progress payment made December 8, 1965, by the Navy was improper since the surety had given the Navy adequate notice of the unpaid bills. Therefore, payment to the prime, despite this notice was urged as violation of the surety’s right of subrogation. The surety likewise contended that the payment to the IRS of the portion of the funds unexpended under the contract was improper since either the surety or the subcontractors had a prior right to those funds ahead of the IRS. The surety also claimed that there was approximately $25,000 left unexpended under the contract to which it or the subcontractors have a prior right. In its answer, the Government asserted that the amount unexpended under the contract was only $4,445.22 after the tax levy and liquidated damages were deducted. This contention has not been refuted by the plaintiffs and has apparently been accepted as true by them since that time. The Government’s initial response to this suit was the filing of a motion to dismiss all the plaintiffs but the surety for lack of standing to sue. This court subsequently suspended action on the motion until the surety’s claim was disposed of by the court. This issue must now be dealt with along with the merits of the various claims raised by the plaintiffs. The Government has also filed a contingent cross-claim against the third-party contractor (Premier), should it be found liable with respect to the making of the December 8, 1965 progress payment. The claims presented by the plaintiffs divide into three distinct issues. First, the court must decide if the $29,000 progress payment made over the surety’s protest was proper or a violation of the surety’s right of subrogation. Second, the court must consider the relative priorities between the plaintiffs and defendant with respect to the $7,946.78 paid by the Navy to the IRS to cover tax obligations owed by the prime contractor. Finally, the court must decide which of the parties has a prior right to the $4,445.22 still held by the defendant and unexpended under the contract. This issue really concerns the measure of the rights subcontractors have to assert an equitable claim against the United States, and is linked closely to the issue raised by the Government's motion to dismiss the subcontractors for not having standing to sue at all. This last issue will be dealt with first. The Government in its briefs and on oral argument has conceded that the $4,445 still unexpended under the subject contract is not its to keep. The United States clearly has no further interest under the contract. The buildings are complete and all the pertinent debts owed by the contractor to the Government in the way of taxes have been paid. In this position, the defendant is merely a stakeholder of the retained fund. The issue is, quite simply, to whom should the Government pay this fund? The fund would ordinarily be owed to the prime contractor had it paid all of its obligations to the subcontractors, but when the Government is in the position of a stakeholder, it is not free simply to pay the contractor when the surety has given adequate notice of other competing claims to the fund. Fireman’s Fund Ins. Co. v. United States, 421 F.2d 706, 190 Ct.Cl. 804 (1970); Home Indem. Co. v. United States, 376 F.2d 890, 180 Ct.Cl. 173 (1967); Newark Ins. Co. v. United States, 169 F.Supp. 955, 144 Ct.Cl. 655 (1959). The Government in this situation must ordinarily await a judicial determination or an agreement between the parties before it may safely pay a contested amount. Under the facts in this case, it is also quite clear that the surety has no claim of priority to the fund unexpended under this contract. Even though the surety was not required to make any payments on its performance bond, it did deposit the full value of its payment bond in the Massachusetts District Court. As it turned out, the payment bond was insufficient to cover all of the subcontractors’ claims, so there still remains $43,657.57 in debts incurred by the prime contractor which were not and have not been paid. In North Denver Bank v. United States, 432 F.2d 466, 193 Ct.Cl. 225 (1970), this court followed the rule laid down in American Sur. Co. v. Westinghouse Elec. Mfg. Co., 296 U.S. 133, 56 S.Ct. 9, 80 L.Ed. 105 (1935), in which it was held that the surety was 3’equired to show that it had fully paid the claims of the laborers and material-men arising out of the contract before it could share in the unexpended sums retained under the contract. See also, National Union Fire Ins. Co. v. United States, 304 F.2d 465, 157 Ct.Cl. 696 (1962). The North Denver Bank case with the rule it follows is clearly applicable to this sui-ety with respect to the $4,445 amount still in the Government’s hands. Until this surety undertakes to pay all of the outstanding claims owed by Premier, it will not be permitted to share in retainages still held by the Government. The more difficult issue concerns the rights of the laborers and materialmen. Clearly, they are entitled to this fund on the equities, but the troublesome issue is whether they actually have standing to sue for the amount in this court. It has long been the rule that “laborers and materialmen do not have enforceable rights against the United States for their compensation.” United States v. Munsey Trust Co., 332 U.S. 234, 241, 67 S.Ct. 1599, 1602, 91 L.Ed. 2022 (1947). As a result, laborers and materialmen do not acquire liens on the Government buildings or property to which they have contributed. In recognition of this fact, the Miller Act and its predecessors were passed in order to protect the laborers and suppliers in situations in which the prime contractor fails to meet his obligations. Continental Cas. Co. v. United States, 164 Ct.Cl. 160, 163 (1964). At the same time, the Court has recognized that the Government does owe the subcontractors an equitable obligation to see that they are paid, and to the extent the surety pays these subcontractors the Government is released from this equitable obligation. Henningsen v. United States Fidelity & Guar. Co., 208 U.S. 404, 410, 28 S.Ct. 389, 52 L.Ed. 547 (1908). In order to define precisely the rights of each of the parties in this case, two leading cases, United States v. Munsey Trust Co., supra, and Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962), which reaffirmed Henningsen, must be examined further. In Munsey the issue was whether the United States or a payment bond surety had superior right to retained funds held by the Government. The Comptroller General was asserting priority to collect excess reprocurement costs owed by the contractor ahead of the surety. In the process of holding for the Government, the Court based its opinion in part on the fact that laborers and materialmen had no assertible rights against the Government to which the surety could be subrogated. In Pearlman the contest again involved priority to the retained fund, but this time the parties were the contractor’s trustee in bankruptcy and a Miller Act surety. In holding for the surety, the Court followed Henningsen and said; We therefore hold * * * that the Government had a right to use the retained fund to pay laborers and materialmen; that the laborers and materialmen had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it. [371 U.S. at 141, 83 S.Ct. at 237] Thus, by subrogation the surety obtained superior rights to the retained funds. There is, however, a problem in reconciling Munsey and Pearlman with respect to their discussions of the measure of the rights of the laborers and materialmen, even though the cases stand side-by-side. It is a short step from Pearlman to infer that if the subcontractors have rights to which the surety may be subrogated, then the subcontractors should be able to assert their rights directly, which is in complete conflict with the language in Munsey, as recognized by Justice Clark’s concurring opinion in Pearlman. The dilemma may be resolved in a number of ways, but. the most apparent might be by noting that the Court in Pearlman stated that the surety was entitled to the benefit of all the rights of the laborers and materialmen whose claims it paid and those of the contractor whose debts it paid. The surety then is subrogated to the rights of the contractor who could sue the Government since it was in privity of contract with the United States. The surety is likewise subrogated to the rights of the laborers and materialmen who might have superior equitable rights to the retainage but no right to sue the defendant. If this interpretation of Pearlman is adopted then Munsey is in complete harmony with it and the Pearlman decision is of no aid to these subcontractors. This conclusion likewise follows our decision in Continental Cas. Co. v. United States, supra, in which we stated: -x- * -x- The United States had the right to use the money in its hands to pay laborers and materialmen (Pearlman v. Reliance Insurance Company, 371 U.S. 132 [83 S.Ct. 232, 9 L.Ed.2d 190] (1962); National Surety Corp. v. United States, 133 F.Supp. 381, 132 Ct.Cl. 724 (1955)), but the laborers and materialmen could not force it to do so. [Citing Munsey Trust.].” [164 Ct.Cl. at 162.] Closely linked to this view is the fact that in all the cases touching on this issue the rights of the various parties have been defined in situations in which the issue is one of priority between competing interests in the fund held by the Government. None have involved a plaintiff-subcontractor directly asserting a claim to money held by the Government. The subcontractors do possess equitable rights to the retained funds vis-á-vis other claimants to the money, but their rights cited by the courts in deciding, for example, that a surety who pays the subcontractors on a contract has priority via subrogation to the retained funds over an assignee of the prime contractor, do not necessarily include or imply a right in the subcontractor itself to sue the Government. The language that has been used by the courts in this respect is broad, but not so broad as to open a whole new area of litigation to parties that have consistently been found to have no standing to sue the United States. For this reason the court declines to grant the subcontractors’ standing to sue for the amount retained by the Government under the contract. The plaintiff-subcontractors contend that if they are not allowed to bring suit and the surety is likewise unable to claim the fund since it has not paid all of the contractor’s outstanding debts under this contract, then no one will be able to claim the money, which would permit the Government to retain both the benefits of the contract and the funds that were to be used to pay for them. This certainly looks like a windfall at the expense of the uncompensated subcontractors, but this is not necessarily the case. Had this contractor been declared bankrupt, his trustee would have a valid claim to the unexpended funds to which the subcontractors would then have a claim. There also appears to be nothing to prevent the Navy in this case from filing an action in inter-pleader by depositing the unexpended fund in a District Court. Since there has already been an adjudication on this matter in the District Court of Massachusetts in which it was found that the prime contractor (Premier) did in fact still owe the plaintiffs in this case $43,697.57, plus interest, the distribution pro rata of the unexpended contract fund would be little more than a formality, whether done by the District Court itself or by the Navy direct. There is still further reason for the court to find that the plaintiff-subcontractors do not have standing in this case. The claim of the subcontractors is a debt owed them by the prime contractor, not the defendant. The plaintiffs seek to make this court a means of collecting this debt thereby embroiling it in the controversy between those parties. The bar to allowing direct subcontractor suits against the Government is aimed at preventing precisely this type of problem, particularly where there are alternative means of getting the money from the Treasury to the plaintiffs. In an effort to dispose of this problem once and for all, this court recommends that the Navy simply pay the contesting laborers and materialmen according to the pro rata division employed by the Massachusetts District Court or file an action in interpleader in that or another appropriate court (28 U.S.C. §§ 1335, 1397, 2361; F.R.Civ.P. 22) in order to see to it that the Government does not retain possession of funds to which the subcontractors have an equitable claim. This court has recommended before that when the Government is a stakeholder it should resort to the interpleader procedure. Newark Ins. Co. v. United States, 169 F.Supp. 955, 957, 144 Ct.Cl. 655, 658 (1959). Plaintiffs’ cross-motion for partial summary judgment is denied as to this issue and defendant’s motion is granted. The second important issue raised by the plaintiff-surety questions the defendant’s right to collect a tax obligation of the prime contractor out of the unexpended funds under the contract ahead of the other creditors of the prime contractor, including itself and the subcontractors. This matter was most recently handled by the court in Aetna Ins. Co. v. United States, 456 F.2d 773, 197 Ct.Cl. 713 (1972), in which the rule originally expressed in United States v. Munsey Trust Co., supra, was followed. A surety that pays on a performance bond in order to complete the subject contract has priority over the United States to the retainages in its hands. A surety that pays on its payment bond, however, does not have priority when the United States is asserting a tax or other obligation owed by the prime contractor. Since the surety in this case paid only on its payment bond, it falls in the latter category, and must claim the retain-age subject to the tax claim of the United States. See, Trinity Universal Ins. Co. v. United States, 382 F.2d 317 (5th Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 873 (1968); Barrett v. United States, 367 F.2d 834, 177 Ct.Cl. 380 (1966). The plaintiffs’ attorney has also strongly urged that whereas the surety may not have priority to the retained contract fund ahead of the IRS, the subcontractors should have priority. This of course may be disposed of by finding that the subcontractors do not have standing to sue for this amount, but even if they did it would not appear to alter the result. The policy behind the decision in United States v. Munsey Trust Co., supra, which denied priority to a surety to retained contract funds in the face of a claim asserted by the Government, likewise applies to these subcontractors. The United States stands in the same position as any general creditor. “He is not compelled to lessen his own chance of recovering what is due him by setting up a fund undiminished by his claim, so that others may share it with him. In fact, he is the best secured of creditors; his security is his own justified refusal to pay what he owes until he is paid what is due him.” 332 U.S. at 240, 67 S.Ct. at 1602. Though the subcontractors may have an equitable right to the retained funds, their claim to it, like the surety’s, is subservient to the tax lien of the United States. For the reasons given, the defendant’s motion for summary judgment with respect to this issue is granted. The final issue to be discussed concerns the claim that the progress payment made by the Navy to Premier on December 8, 1965, over the surety’s protest was improper and a violation of the surety’s right of subrogation. The plaintiff cites numerous cases in which the payment of a contract sum over a surety’s protest has resulted in liability on the part of the Government. There is a critical difference however, which distinguishes those cases from the one presently at issue, and that is the fact that at the time this surety notified the contracting officer that the contractor was not paying his bills, the contract was still in operation with the project not yet complete. In the cases cited by the plaintiff, the work under the contract was complete and the issue centered on who should receive the final payment. In other words the Government in those cases was merely a stakeholder, its interest being satisfied once the project was completed. The case with which we are now concerned involves the Government’s receiving a notice to stop payments to a contractor who was still performing under the contract. The United States in this situation is primarily concerned with completion of performance under the contract and is far from being a simple stakeholder. It was this distinction which led the court in Argonaut Ins. Co. v. United States, 434 F.2d 1362, 193 Ct.Cl. 483 (1970), involving facts similar to those presented in this case, to reject the surety’s argument that onCe the surety notified the defendant of the contractor’s failure to meet its obligations the Government was under a legal obligation to stop making payments which were inconsistent with the surety’s rights. The court said: * * to hold the Government .liable to plaintiff under the circumstances in this case grants the payment bond surety economic control of both the decision to terminate and the completion of the contract. [434 F.2d at 1367, 193 Ct.Cl. at 492.] Thus, where the Government representative is notified of the contractor’s nonpayment of obligations during the performance of the contract, the representative is faced with the task of balancing the Government’s interests in proceeding with the contract, against possible harm to the surety. The court in Argonaut stated that: “During the performance of the contract, the Government has a duty to exercise its discretion responsibly and to consider the surety’s interest in conjunction with other problems encountered in the administration of the contract.” 434 F.2d at 1368, 193 Ct.Cl. at 495. The key question then becomes whether the Navy’s contracting officer did in fact responsibly exercise the discretion given him. In Argonaut the court found that there was no abuse of discretion on the part of the Government’s contracting officer. In so holding, the court noted several facts that seemed to indicate the contracting officer had exercised reasonable discretion in not terminating the performing contractor merely because the surety had notified it of some outstanding debts the contractor had not paid. Initially, the contracting officer noted, at the time termination was requested, the progress charts indicated that the contractor was progressing satisfactorily. In addition, the payment that was made over the surety’s objection was paid to an assignee of the contractor where it was put in trust to pay the obligations being generated under that contract. The money actually went to pay the laborers and materialmen. Finally, the court found that it would have cost more and taken longer for the Government to terminate the existing contractor and then substitute a new one. It was therefore clearly within the interests of the Government not to terminate the contractor, and since the money paid over the surety’s objection did go to pay the subcontractors, the surety was not appreciably injured when the payment was made. The facts in this case do not present as clear a basis on which to test a possible abuse of discretion. In fact, although the parties are both moving for some type of summary judgment, there seems to be a paucity of facts sufficient to measure the discretion exercised by the Navy’s contracting officer. For example, the plaintiff contends the Navy knew on December 3, 1965, when the surety voiced its objection to the payment, that the contractor had not paid over $100,000 in labor and material bills. The Navy denies they were told anything other than that this contractor had not paid “some” bills, which standing alone is not uncommon and no reason to terminate the whole contract which at that point was 85-95% completed. The truth of the matter on this point bears heavily on just what evidence the contracting officer had before him when he decided to make the progress payment now at issue. There is also considerable confusion as to the actual progress the contractor was making as of December 3. In the telegram sent by the Navy representative on that date to the surety, it was stated: “The work at the site is progressing and it is expected that the work will be completed shortly.” Nevertheless, by January 10, 1966, the Navy was sending a letter to the contractor stating that “[y]our daily progress is unsatisfactory” while referring to the expiration of a contract deadline which the contractor missed as far back as October of 1965. Clearly, the Navy was having difficulties with the contractor before the notification by the surety on December 3, which was not the case under the' Argonaut facts. However, even if the court would allow evidence to be received which clearly proved that the contracting officer abused his discretion in making the progress payment after being given notice by the surety of the contractor’s default in paying the subcontractors, we would be powerless under the authorities cited, supra, to require that the Government make a payment of $29,000 to the surety when it is clear that the surety has not paid these subcontractors in full. Accordingly, plaintiffs’ motion for summary judgment for the December 8, 1965 progress payment is denied and defendant’s cross-motion is granted. In consideration, however, of the general equitable obligation that the Government owes, under proper circumstances, to the subcontractors who are the laborers and materialmen, the court is willing to entertain a motion for rehearing and new trial (Rule 151) and relief from this judgment as to the progress payment (Rule 152) if within 60 days from entry of this judgment the surety shows to the court that it has paid the subcontractors in full. In that event, we will reopen the case and remand it to the Trial Division for the taking of proof on the issue of proper exercise of discretion by the contracting officer. CONCLUSION To recapitulate, defendant’s motion to dismiss all plaintiffs but the surety, United States Fidelity & Guaranty Co., is granted. Defendant’s motion for summary judgment is granted as to the $4,445.22 in net unexpended contract funds still held by it. Plaintiffs’ cross-motion for partial summary judgment is denied as to this issue. Defendant’s motion for summary judgment is granted as to its right to have collected a tax obligation of the prime contractor, Premier Contractors, Inc., in the sum of $7,946.78 out of unexpended contract funds. As to the plaintiffs’ motion for summary judgment on the claim to the December 8, 1965 progress payment of $29,000 made by defendant to the prime contractor, Premier, after notice from the surety, the said motion is denied and defendant’s cross-motion is granted. Plaintiffs are given 60 days from entry of judgment within which time to move the court pursuant to Rules 151 and 152 for rehearing, new trial, and relief from judgment, if it can be shown to the satisfaction of the court that the surety has paid all subcontractors in full. Defendant’s contingent cross-claim against the third-party prime contractor, Premier, is denied without prejudice. If the case is reopened under the circumstances outlined in the paragraph above defendant may renew its cross-claim if it desires to do so. NICHOLS, Judge (concurring): With respect to the disposition of the unexpended $4,445 balance and the defendant’s right to collect a tax obligation out of retained funds, ahead of other creditors, I agree with the court and join in its opinion. As to the $29,000 payment, T think no trial should be necessary if the surety pays all claims of labor and materialmen. This court in Argonaut Ins. Co. v. United States, 434 F.2d 1362, 193 Ct.Cl. 483 (1970) held that if asked to make a progress payment to a shaky contractor over a surety’s protest, the Government’s duty was to exercise discretion responsibly. The undisputed facts are that in paying out the $29,000, defendant denied it had any discretion. Its position was, so long as the work progressed, whether labor and materialmen were paid was not its concern. By implication, whether unpaid labor and materialmen were likely to continue working, was not its concern either. It is undisputed that not a cent of the $29,000 went to labor and materialmen, as defendant must have anticipated it would not. It seems futile to me to inquire whether defendant exercised its discretion responsibly when it did not purport to be exercising discretion at all. If I saw any lawful way to get the $29,000 directly into the hands of unpaid labor and materialmen, I would get it there now. The court is not offering the surety much of a deal: if it pays a much larger sum than $29,000 it gets a trial which may or may not obtain it $29,000 and no more. The court postulates that this surety, its officers and attorneys, are exceedingly fond of litigation or else attach large value to the establishment of a principle. If we held, as I think we should, that the $29,000 payment was on its face improper, we might entertain more optimism as to the money’s going the right place, for principle would not have such heavy odds running against it. DAVIS, Judge (dissenting in part): The only aspect of this ease in which I disagree with the court is as to the disposition of the $4,445.22 in net unexpended contract funds still held by the Government. Although of the view (which I join) that the subcontractors are entitled to that money, the majority sees no proper way in which this court can effectuate that conclusion. Agreeing that the subcontractors cannot on their own sue the United States directly, I would use the mechanism of our third-party practice, in the circumstances of this case, to give judgments to the various subcontractors in proper proportions. Our Rule 41(a)(1) provides : The court, on its own motion or on the motion of a party, may notify any person with legal capacity to sue and be sued and who appears to have an interest in the subject matter of any pending suit to appear as a party and assert his interest therein. To the extent of the residue of $4,445.-22, the subcontractors plainly “have an interest in the subject matter” of this suit, since they claim, and are found, to have the right to that money, and they wish it paid to them. As I understand the rule, the defendant could have moved that this notice be given them. Defendant has not done that — indeed, it has fought all along to keep the subcontractors entirely out of the case — but the court can do so on its own motion. The purpose of the third-party practice is to clear up in one litigation, so far as possible, monetary claims against the Government. Multiple or repetitious litigation is to be avoided where feasible. We can implement that purpose by treating the subcontractor plaintiffs, who are already here through their petition, as having been noticed in by the court under the rule, and as each having demanded his share of the $4,445.22. I would follow that route instead of dismissing them entirely from this case — a path which leaves them wholly dependent upon the future good-will of the defendant (either in paying out the money itself, or in bringing an interpleader suit, as the court recommends). . 40 U.S.C. §§ 270a-270e (1964). . Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1982); United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947); Henningsen v. United States Fidelity & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908); Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896); In re Dutcher Constr. Corp., 378 F.2d 866 (2d Cir. 1967); Barrett v. United States, 367 F.2d 834, 177 Ct.Cl. 380 (1966); National Sur. Corp. v. United States, 133 F.Supp. 381, 132 Ct.Cl. 724 cert. denied, 350 U.S. 902, 76 S.Ct. 181, 100 L.Ed. 793 (1955). . Firemen’s Fund Ins. Co. v. United States, 421 F.2d 706, 190 Ct.Cl. 804 (1970); Home Indem. Co. v. United states, 370 F.2d 890, 180 Ct.Cl. 173, (1967). . The surety has clearly indicated that it is unwilling to pay the remainder of the subcontractors’ claims (some $40,000) in order to obtain the $4,445.22, and there is no showing, and no reason to believe, that anyone else has a better claim to the residue than the subcontractors. . I do not read the rule as limited to persons who could, on their own, sue the United States directly in this court, so long as the noticed person appears to have an interest in the subject matter of the suit and is noticed in by the court on its own motion or at the behest of a proper party. . Cf. Bowser, Inc. v. United States, 420 F.2d 1057, 1063, 190 Ct.Cl. 441, 451 (1970) (Davis, J., concurring).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Application of Albert D. SUMMERS and John A. Wagoner. Patent Appeal No. 8890. United States Court of Customs and Patent Appeals. April 19, 1973. Fred S. Lockwood (Greist, Lockwood, Greenawalt & Dewey), Chicago, Ill., William H. Magidson, Columbus, Ohio, Howard J. Barnett, Milwaukee, Wis., attorneys of record, for appellants. S. Wm. Cochran, Washington, D. C., for Commissioner of Patents; Fred E. McKelvey, Washington, D. C., of counsel. Before MARKEY, Chief Judge and RICH, ALMOND, BALDWIN, and LANE, Judges. LANE, Judge. This is an appeal from the decision of the Board of Appeals, adhered to on reconsideration, sustaining the rejections of claims 1-15 of appellants’ application entitled “Lamination of Amylose to Cellulosie Substrate” as unpatentable under 35 U.S.C. § 103. We affirm. The claims are directed to a method of bonding a preformed amylose film to a cellulosic substrate, such as paper, by wetting either the amylose film or the substrate and laminating under pressure. The resulting laminate is useful as a packaging material. Claim 1 exemplifies the claims here on appeal and reads as follows: 1. The process of laminating a preformed amylose film to a cellulosic substrate which comprises bringing together a preformed amylose film and a cellulosic substrate in face to face relationship, the contacting surface of at least one of said articles having been wetted with water, and subjecting the resulting element to sufficient pressure of at least about 10 pounds per lineal inch to firmly bond said amylose film to said cellulosic substrate. The § 103 rejections before us are: (1) Claims 1, 2, 4 and 5 as obvious from Barger et al. (Barger) taken with Wurzburg et al. (Wurzburg); (2) Claims 6-9, 11 and 12 as obvious from Barger, Wurzburg and Strawinski; and (3) Claims 3, 10 and 13-15 as obvious from Barger, Wurzburg, Strawinski and Best et al. (Best). Wurzburg discloses resilient self-supporting starch films which may be heat-sealed or made adhesive by water-activation. The films find utility, inter alia, in the manufacture of laminates, such as with paper, for packaging material. Wurzburg defines the term “starch” as including “any amylaceous substance” and discloses that such amylaceous films are self-supporting and heat-sealable when compounded in admixture with 50 to 100% based on the weight of the starch of plasticizer (either sorbitol or a mixture of sorbitol and glycerine). Barger discloses self-supporting films made from amylosic material which is defined as “any mixture of film-forming solids which includes at least 50% by weight of pure amylose or amylose derivatives such as hydroxyethyl amylose, and amylose ethers, esters and anhydrides.” The composition extruded into film contains water and may also contain a plasticizer. The resultant film is described by Barger as “strong, flexible, transparent * * *, potentially water soluble and edible.” Barger also states that “[depending on the ingredients selected, the films can be made water soluble * * OPINION The board concluded that it would have been obvious to use the Barger amylosic film for the starch film of Wurzburg and prepare laminates by the claimed process in accordance with the Wurzburg teachings. Appellants strenuously assert that the Barger films, which are the same as appellants’ amylose films, are different from those contemplated by Wurzburg and contend that evidence of record supports that assertion. We do not necessarily disagree with appellants as to the scope of materials encompassed by Wurzburg’s definition of “starch” either in Wurzburg’s contemplation or in that of one skilled in the art reading Wurzburg’s patent specification. Our view is that even if the Barger films are outside the purview of Wurzburg’s definition, one of ordinary skill in the art having the Barger and Wurzburg teachings before him would have found them sufficient to suggest the use of the Barger films in the Wurzburg lamination method. See In re Lintner, 458 F.2d 1013, 59 CCPA-(1972). We have been offered nothing which convinces us to the contrary. Appellants also urge that there are differences between the Barger and Wurzburg films in actual and potential water solubility. Accepting the existence of such differences, we nevertheless find no teaching in the references which would suggest that the moistening of Barger's films to assist in the preparation of laminates with cellulosic substrates, in the manner disclosed by Wurzburg, would not aeually result in such laminates. Appellants rely upon affidavit evidence of record as demonstrating the need for the application of both moisture and pressure to produce firmly bonded laminates which include an amylosic layer. We agree with the board and solicitor that the application of sufficient pressure to insure bonding would have been obvious to one of ordinary skill in the art. Given the disclosure in Wurzburg of moistening to effect adhesion, we agree that the process defined in claims 1, 2, 4 and 5 would have been obvious from Barger and Wurzburg. The board correctly sustained rejection (1). Appellants argue the significance of various limitations in the remaining claims, and the solicitor has carefully explained the manner in which the references would apply under 35 U.S.C. § 103 to those claims. We have considered the various arguments presented, but we are in agreement with the Patent Office position. Once it has been determined that it would have been obvious to manufacture laminates by the method defined in claim 1, we think the prior art as applied clearly establishes the obviousness of the additional limitations imposed in the other claims. The board’s action in sustaining rejections (2) and (3) was also correct. For the reasons set forth herein, the decision of the Board of Appeals is affirmed. Affirmed. . Serial No. 520,047 filed January 12, 1966. . U. S. Patent No. 3,243,308 issued March 29, 1966, on an application filed October 23, 1963. . U. S. Patent No. 3,071,485 issued January 1, 1963. . U. S. Patent No. 2,867,560 issued January 6, 1959. . U. S. Patent No. 3,329,523 issued July 4, 1967, on an application filed June 29, 1964.

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Application of John Nicholson GARDNER. Patent Appeal No. 8923. United States Court of Customs and Patent Appeals. April 5, 1973. Rehearing Denied June 14, 1973. Alan D. Lourie, Philadelphia, Pa., of record, for appellant; William A. Smith, Jr., Washington, D. C., of counsel. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Jack E. Armore, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge. MARKEY, Chief Judge. This appeal is from the decision of the Board of Appeals, affirming the rejection under the first paragraph of 35 U.S.C. § 112 of claim 2 of appellant’s application, serial No. 679,670, filed November 1, 1967, for “Guanidinoalkylbenzodioxan Derivatives.” We reverse. THE INVENTION The application is directed to a class of guanidinoalkyl-l:4-benzodioxan compounds which are useful as antihypertensive agents. Claim 2 reads: 2. A compound selected from the group consisting of a base of the formula: and a nontoxic, pharmaceutically acceptable acid addition salt thereof, wherein Rr is a member of the group consisting of hydrogen, methyl, methoxy, chlorine and bromine. THE REJECTION The examiner’s rejection under 35 U. S.C. § 112 was couched in general terms, the claim being described as “too broad” in view of the lack of support in the specification for all the compounds encompassed by the substituent group Ri and the floating position thereof. Express mention was made in the Answer of the lack of a “showing that all of the compounds * * * would possess the asserted utility.” The board stated: We think the Examiner has made it clear, considering his various statements in context, that his rejection is based upon the requirements of the first paragraph of 35 U.S.C. 112 as to the “written description of the invention” and “the manner of - using it.” So interpreted, the rejection was sustained “for the reasons set forth in our decision in the parent case Serial No. 251,471 * * The fact that the present claim was considerably reduced in scope from the parent claims was not felt to render the prior reasons inapplicable. In this earlier opinion, made of record here, the basis for affirming the 112 rejection was applicant’s failure to establish that the substituents on the basic guanidinoalkyl-l:4-benzodioxan nucleus had no profound effect on the antihypertensive activity of the compounds. Certain disclosure in that specification was deemed adequate support for the examiner’s doubts as to the universal applicability of the asserted utility. OPINION We approach the rejection as structured by the board and argued by the solicitor. Accordingly, the issues lie in whether the separate but' related description and how-to-use requirements of the first paragraph of 35 U.S.C. § 112 have been satisfied. Claim 2 covers a total of 17 compounds and in fact delineates a subgenus of the broad class of guanidinoalkyl1:4-benzodioxan derivatives disclosed in the application. Only three of the five possible Ri substituents are specifically exemplified and substitution in these examples is always in the 7-position of the benzodioxan nucleus. As pointed out by the solicitor at oral hearing, no explicit language is found in the main body of the specification corresponding to the subgenus defined by the claim. But we see no need for either additional representative examples or more definite language to satisfy the description requirement. Claim 2, which apparently was an original claim, in itself constituted a description in the original disclosure equivalent in scope and identical in language to the total subject matter now being claimed. See In re Anderson, 471 F.2d 1237 (CCPA 1973). Nothing more is necessary for compliance with the description requirement of the first paragraph of 35 U.S.C. § 112. The major question centers around the sufficiency of the disclosure with respect to the how-to-use requirement. The primary contention of the Patent Office is that reasonable basis exists for doubting that all of the compounds encompassed by claim 2 have the asserted utility, i. e. antihypertensive activity. As in the parent case, appellant’s own disclosure is said to provide the basis for doubt. Adequate support for the Office’s assertions is an essential requirement for sustaining his rejection under In re Marzocchi, 439 F.2d 220, 58 CCPA 1069 (1971) and In re Cook, 439 F.2d 730, 58 CCPA 1049 (1971). If such support be sufficient, appellant’s failure to provide rebuttal evidence would require affirmance. In re Fouche, 439 F.2d 1237, 58 CCPA 1086 (1971). The case thus turns on the pertinent disclosures in the specification. The first statements concerning utility read: The generic group of compounds of this invention is characterized by having the basic guanidinoalkyl-l,4-benzodioxan nucleus which imparts anti-hypertensive activity to such compounds. The substituents on the basic structure may be any of those common to the art, such as those disclosed in U. S. Patent No. 2,979,511 without changing the qualitative hypotensive activity of these compounds. The compounds of this generic invention demonstrate antihypertensive activity by blockage of adrenergic nerve after intravenous administration of doses of 5-25 mg./kg. in the standard ehloralose anesthecized [sic] dog procedure * * * Further quantitative properties of this group of compounds will be elaborated on hereafter. The mentioned quantitative properties are set forth in this paragraph which has become the focal point of the rejection: The new l:4-benzodioxan derivatives of the invention have been found to exhibit varied pharmacological activity in the animal body. Thus compounds falling within the definition of Formula 1 have been found to exercise pharmacological actions on the peripheral nervous system, particularly on the sympathetic and parasympathetic nervous systems. For instance, some of the compounds such as 2-1'— guanidinoethyl-1:4-benzodioxan have very pronounced adrenergic nerve blocking activity, some such as 5:8-dimethyl - 2' - guanidinomethyl -1:4-benzodioxan have pronounced ganglion blocking activity and antihistaminic activity. All have these activities to a certain degree. That variations in the substitutents on the basic guanidinoalkyl-1:4-benzodioxan nucleus result in diverse pharmacological activities formed the basis for the Office’s position that these substituents may well be critical to the asserted antihypertensive activity. Statements that “some of the compounds have very pronounced adrenergic nerve blocking activity” and “some . have pronounced ganglion blocking activity and anithistaminic activity” were interpreted as indications that different substituents lead not just to quantitatively distinguishable effects but to qualitative differences. The fact that “all” are said to have “these activities to a certain degree” was not believed to require a conclusion of universal usefulness as antihypertensive agents, the possibility of zero effectiveness still existing. The rejection under consideration, as we have said, centers on the how-to-use requirement of § 112. It is not based on the utility requirement of § 101. But as this court pointed out in Fouche, absence of the asserted utility may properly lead to a rejection under either provision. Hence the only matter to be determined is the reasonableness of the Patent Office’s doubts. The standard to be applied, however, is just that — the absence of utility. As we said in Fouche, there is no requirement in § 112 that all of the claimed compounds have the same degree of utility. Some antihypertensive activity coupled with knowledge as to the employment of this activity is all that is necessary to satisfy the how-to-use requirement. Considering the utility disclosure as a whole, we can find no reasonable basis for concluding that the compounds encompassed by claim 2 would not have at least some antihypertensive activity. As pointed out by appellant, the present specification contains an augmented disclosure over the parent case. The positive statements at the beginning of the specification that variances in the substituents will not qualitatively affect the asserted activity cannot be ignored. Nor is the later disclosure of varied activities inconsistent with the existence of basic antihypertensive activity. Whether the additionally described ganglion blocking activity is merely another mechanism for achieving the antihypertensive effect, as argued by appellant, or is a distinct activity is immaterial. We think the only reasonable interpretation that can be given to the concluding sentence of the controversial paragraph is that all of the compounds possess each of the aforementioned activities, although in varying degrees. A zero level of antihypertensive effectiveness is neither realistic nor consistent with the rest of the disclosure, considering particularly the specific dosages described for the compounds in general at the beginning of the specification. The Patent Office having shown inadequate support for its doubts as to the asserted utility, the decision of the board must be reversed. Reversed. . A continuation-in-part of serial No. 251,471, filed January 15, 1968, now TJ.S. 3,360,529.

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GFI COMPUTER INDUSTRIES, INC., Plaintiff-Appellee, v. Errol D. FRY et al., Defendants-Appellants. No. 72-2269. United States Court of Appeals, Fifth Circuit. March 16, 1973. As Modified on Denial of Rehearing June 11, 1973. Jay M. Vogelson, Carl Generes, Dallas, Tex., for defendants-appellants. Ray Besing, Gerald P. Urbach, Dallas, Tex., for plaintiff-appellee. Carl Abramson, Dallas, Tex., for other interested parties. Before JONES, GODBOLD and INGRAHAM, Circuit Judges. GODBOLD, Circuit Judge: Appellant Fry was sued by GFI, a corporation of which he had been an officer and director. A default judgment on liability was entered against him by the court, and a jury then assessed damages of $471,803. We reverse and remand. Fry was a resident of Dallas, Texas, from the filing of suit in December 1970 until around April 1971, when he removed to Spanish Wells, a small island in the Bahamas some 1500 miles distant from Dallas, the situs of the lawsuit. The default judgment on liability was predicated upon Fry’s failure to comply with an order of court entered April 12, 1972, directing him, (1) to appear at the trial of the case in Dallas five days thereafter, (2) to remain for the balance of the trial or until excused by the court, (3) to submit himself as a witness in the case, and (4) to produce all documents previously requested by plaintiff in a request filed under Rule 34, Fed.R.Civ.P. The case must be reversed and remanded because the trial judge, who had just taken over the case from another judge, predicated the April 12 order upon an erroneous impression that defendant had failed to discharge the obligations placed upon him by the plaintiff’s discovery efforts. Plaintiff had pursued three routes to discover from Fry — the taking of his deposition under Rule 26, interrogatories under Rule 33, and a request for production of documents under Rule 34. On March 2, 1972, plaintiff filed notice that it would take Fry’s deposition on March 3, and that Fry produce documents at the time and place of taking; which was the offices of plaintiff’s counsel in Dallas. In fact the deposition was never taken, but the responsibility cannot be charged to Fry. Anticipating that Fry would object, plaintiff contemporaneously filed a motion to expedite the disposition of any objections. Fry promptly filed a request for a protective order, and on March 6 the judge originally handling the case granted a protective order requiring that the deposition be taken and the documents produced by Fry at his place of residence, Spanish Wells, Bahamas, with each party to bear his own expenses, and also ordered the deposition be given forthwith. After abortive negotiations in which plaintiff attempted to have the place of taking moved by agreement to a more convenient place, plaintiff elected to forego the expense and trouble of a deposition in the Bahamas and to employ interrogatories instead. Plaintiff served interrogatories on March 15, pursuant to Rule 33. Under that rule Fry was not required to answer until April 14, four days after trial of the case was scheduled to commence. No order was ever entered shortening the time for answer to less than 30 days, as permitted by Rule 33. On April 4 plaintiff moved that Fry be compelled to answer by April 6. The record does not disclose that the court ever acted on the motion; nevertheless, on April 6 Fry’s answers were filed. Meanwhile, on March 13, in spite of the earlier protective order requiring that production by Fry of his records should only take place in the Bahamas, plaintiff filed a Rule 34 request that Fry produce his records in Dallas on March 30 for inspection, examination and copying. Fry did not produce on March 30. The protective order previously granted in response to plaintiff’s Rule 26 discovery was not necessarily dispositive of whether Fry would be required to produce in Dallas under Rule 34, but it was at least persuasive authority that defendant was not required to bring his records 1500 miles to Dallas (and at a date before expiration of the time allowed him for filing objections). Obviously, his first objection would have been that the court already had judicially determined that he was protected against having to produce his records at any place except at his residence in the Bahamas, and that no change in circumstances had been shown other than plaintiff’s election to forego the expense and trouble of journeying to the Caribbean. Plaintiff’s remedy for incomplete or otherwise objectionable answers to interrogatories, and for failure to produce pursuant to a Rule 34 request, was to file a motion under Rule 37(a) for an order requiring defendant to answer and to produce documents for inspection. If such an order were issued and defendant failed to comply, the court could then invoke sanctions under Rule 37(b). On April 10, the date on which the trial was set, plaintiff had no viable Rule 37(a) motion before the court. As we have pointed out, plaintiff had filed a Rule 37(a) motion on April 4, asking that defendant’s time for answering interrogatories be shortened and that defendant be directed to file his answers on or before April 6. That motion is not shown by the record ever to have been acted upon, nevertheless defendant filed answers on April 6. The motion, directed to time of filing and not made the subject of an order requiring defendant to answer, could not serve to put defendant in default at a subsequent time based on alleged insufficiency of his answers as filed. When the case was called defendant did not appear. A jury was selected, impaneled and sworn, and court was recessed to April 12. On April 11 plaintiff filed a motion, overleaping 37(a) and asking instead for application of 37(b) sanctions. When court convened on April 12, after a colloquy with counsel and testimony from Fry’s counsel, the court referred to Fry’s “failure to comply with discovery,” and announced that Fry must “make himself available and be here with his documents” on April 17 or a default judgment would be entered against him. Later that day the court entered a formal order finding that Fry had wilfully refused to comply with discovery obligations with respect to both answers to interrogatories and production of documents, had wilfully evaded giving evidence, had failed to appear for trial, and was beyond the reach of process of the court. The order directed that default judgment be entered unless Fry complied with the four conditions set out above in the third paragraph of this opinion. Plaintiff began putting on its case, and testimony was taken on that day and the two days following. Fry did not appear on April 17, nor were his documents produced. His counsel moved the court to reconsider the April 12 order on the ground, inter alia, that no law or rule required a civil defendant to be present at trial. In response the court stated that absent default in discovery by Fry it could not require his presence, but that Fry was in default of his obligations on April 12, and the order that he appear and produce documents and testify in the ease was a concession permitting him to cure his default rather than a penalty. The court denied defendant’s motion, entered the default judgment on liability, the plaintiff then put on its evidence of damages, and the jury returned a verdict in the amount of $471,803. It is clear that there was a breakdown in discovery which the judge newly on the scene feared would jeopardize the trial. But the breakdown was not the fault of Fry alone. As we have pointed out, plaintiff had voluntarily abandoned the taking of Fry’s deposition and production of documents in the Bahamas when the court’s protective order was unsatisfactory to plaintiff, had secured no order shortening the time for answering interrogatories, had then sought to avoid the impact of the protective order by seeking production of documents in Dallas under a different rule, had failed to protect its position by pursuing a remedy until after the commencement of trial and at a time when defendant’s allowable time of 30 days had not expired, and then by proceeding directly for sanctions and not for an order requiring defendant to answer and to produce. Additionally, it must be noted that before the pretrial, held on February 12, Fry had availed himself of some discovery, but GFI of none. Around the time of pretrial both sides employed additional trial counsel. Though the trial date set at pretrial was less than 60 days away, plaintiff waited at least two weeks to February 28 (and possibly to March 2) to even begin to move on discovery. Plaintiff claims that there were extra-judicial agreements between counsel with which defendant did not comply. However, in material respects the testimony of counsel on this matter is in conflict. Additionally, the court made no finding regarding agreements of counsel or even indicated that he based his conclusions on failure to honor extra-judicial agreements. The impression conveyed by the record is that, during plaintiff’s last minute scramble to effectuate discovery, defendant’s counsel, in the normal and informal manner often employed by lawyers in like circumstances, made an effort to cooperate with plaintiff’s counsel rather than to stand on strict compliance with the rules, but that Fry was uncooperative, and even overbearing, with his own counsel. Short of enforceable agreements between counsel and authorized orders of the court compelling Fry to depart from the Rules, he was not in default for standing on the Rules or for taking a hardnosed position. He was not required to make smooth the pathway of an adversary who had waited until late in the day to discover — from a defendant residing 1500 miles away and in another country — matters which the adversary considered essential to its case. This Circuit permits the drastic sanction of dismissal or judgment by default only in extreme situations where there is a clear record of contumacious conduct. Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968). The April 12 order, issued under an erroneous view of the facts, should not be the predicate for the extreme sanction imposed in this instance. ' The order of April 12 was incorrect for a second reason as well. As appellant points out and as the trial judge recognized, the court had no power to force a civil defendant outside its subpoena jurisdiction to appear personally at the trial and there submit to examination, not to speak of remaining personally present throughout trial unless excused. The theory that the court was only benefitting Fry by ordering him to do what he could not otherwise be required to do, as a condition to avoiding a default judgment to be imposed for his earlier defaults, falls with the determination that the court’s basis for entering the order in the first instance was a misapprehension of the relative responsibilities of the parties for the breakdown in discovery. The case must be, and it is, reversed and remanded. . Apparently, earlier served on Fry’s counsel on February 28. . The request was for a default judgment, or that Fry be barred from defending against plaintiff's claim, or barred from introducing evidence, or that his pleadings be stricken. . Not all was recalcitrance from Fry’s side of tlie table. In February, and again in April, defendant entered into stipulations with plaintiff covering numerous facts and the authentication of nearly 200 documents. An argument can be constructed that Fry was in default on April 11 or 12. It goes as follows: that he had not properly answered the interrogatories, that by answering in less than 30 days he had waived his right to later file objections within the 30-day period, that the court treated the April 11 motion and the April 12 hearing as though under Rule 37(a), and that the April 12 order was an order requiring compliance by Fry but in a form different than giving additional answers to interrogatories. Even if the proceedings are so regarded, we are unable to say that the judge would have issued his order of April 12 on the sole basis of insufficient answers to interrogatories, because at all times he coupled the duty to answer them and the duty to produce documents, and with respect to the latter Fry was not in default on April 12. . Also to be noted is that on April 6, GFI filed a motion for continuance of the trial, on two grounds. One was that Fry had failed to answer interrogatories, and that the answers were highly material since it was “impractical to depose Fry in the Bahamas.” As previously pointed out Fry’s answers were filed that same day, April 6. The other ground was that plaintiff’s chief witness was ill, could not appear at trial, and plaintiff had not taken his deposition either. On April 10, when the case was called for trial, this motion for continuance was denied.

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UNITED STATES of America, Plaintiff-Appellee, v. Mansfield SAUNDERS, Defendant-Appellant. No. 72-2737. United States Court of Appeals, Fifth Circuit. April 2, 1973. J. V. Eskenazi, Federal Public Defender (court appointed) Miami, Fla., Richard M. Dunn, Miami, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge. THORNBERRY, Circuit Judge: Appellant was convicted below after a non-jury trial of possessing approximately eight grams of marijuana in violation of 21 U.S.C.A. § 844(a). On appeal he contends that the warrantless search which produced the marijuana was constitutionally invalid because it was not incident to a valid arrest. We affirm. On August 5, 1971, agents of the Bureau of Narcotics and Dangerous Drugs (BNDD) set out to arrest one Brinson pursuant to an arrest warrant. Guided by an informant’s tip, they located him at about noon near a sea-going boat, the RICKI, in Dania, Florida, in the company of Patricia Manchester and appellant Saunders. According to the informant, the three planned to depart that night on the RICKI for Jamaica. The agents kept Brinson, Manchester, and Saunders under surveillance for approximately ten hours, and during this period they decided that, in addition to executing the arrest warrant for Brinson, they would arrest Manchester and appellant Saunders as well for harboring or concealing a fugitive in violation of 18 U.S.C.A. § 1071. At about 10:30 p.m. they boarded the RICKI and made the arrests as planned. In the process of boarding the boat and securing the arrestees, they saw about four grams of apparent marijuana lying in plain view on the galley table and perceived the smell of marijuana smoke. The district court determining that, although the agents had originally intended to arrest Saunders for harboring or concealing only, they were aware of the marijuana on the galley table at the time, of the arrest. Immediately after the arrest, Saunders, Manchester, and Brinson were taken to the BNDD Regional Office, where search of appellant Saunders’. pockets produced the eight grams of marijuana which ultimately led to his conviction below. This search of Saunders’ person is the object of challenge. The Government contends on this appeal, as it did below, that the warrant-less search was valid because it was incident to a valid arrest. Saunders concedes that the search was “incident” to the arrest, United States v. Gonzalez-Perez, 5th Cir. 1970, 426 F.2d 1283, 1287, but contends the arrest was not a valid one because it was not based on probable cause. The district court held that although there was no probable cause to arrest Saunders for harboring or concealing, there was probable cause to arrest him for possessing the marijuana on the galley table, so that the arrest and the incident search were valid. We agree that the marijuana in plain view on the galley table supplied probable cause for the arrest. We need not, and do not, reach the question of probable cause to arrest for harboring or concealing. We note that appellant’s challenge to the validity of his arrest is quite limited in scope. He does not argue that BNDD agents were aboard the RICKI wrongfully or without justification when they saw the four grams of marijuana. Nor does he argue that the agents’ discovery of the marijuana on the boat was other than inadvertent or was in any way unlawful, cf. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-2042, 29 L.Ed.2d 564, or that the marijuana in the boat would not supply probable cause to arrest him for marijuana possession. Rather appellant presses upon us the view that since the agents in making the arrest relied on the harboring and concealing charge, an offense for which there was no probable cause, the arrest was ipso facto invalid, regardless of the agents’ awareness of the marijuana on the galley table and the marijuana smoke in the air and their belief that Saunders was committing the offense of unlawful marijuana possession. This view is too narrow. To the extent the argument rests on the premise that the BNDD agents were unaware of the marijuana, its foundation is completely undermined by the district court’s finding to the contrary. To the extent it focuses on the agents’ subjective reliance on the harboring or concealing charge, it is foreclosed by prior decisions of this court. When an officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the wrong offense vitiates the arrest. United States v. Bowers, 5th Cir. 1972, 458 F.2d 1045, United States v. Brookins, 5th Cir. 1971, 434 F.2d 41, cert. denied 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1972); see also Klingler v. United States, 8th Cir. 1969, 409 F.2d 299, cert. denied 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110. Since the BNDD agents had probable cause to arrest appellant for marijuana possession, the arrest and the incident search were valid, and the agents’ reliance on the harboring or concealing charge did not affect this result. Accordingly, the judgment of the district court is Affirmed. . The district court’s basis for this conclusion was: [Saunders] was not doing an awful lot of concealing if they were out on the dock and on the sundeck and to the grocery store and riding around in the car. That is not consistent witli the probable cause for harboring and concealing. . The district court summarized its findings and conclusions from the bench ns follows: I am going to deny your motion to suppress. I do want the record to show very clearly that 1 agree with your argument on the. harboring and concealment. I do not think probable cause existed when this defendant was arrested under a charge of harboring and concealing. I do believe, and my ruling is based on the fact that I think the agents had probable cause to arrest this defendant, Saunders, based upon the marijuana that was in clear, open view and the smoke that was filling the vessel or the cabin of the vessel where the people were, which at least one agent testified that to him it was obviously marijuana smoke, based on liis experience. Now, you put all that in the record, because if you are right, then obviously I am wrong in my ruling, and that is the basis of my ruling. I think the search thereafter was an appropriate and legal search in connection with a lawful arrest, but not for what lie was charged with insofar as the harboring and concealing. I will agree even further and state on the record that the evidence is very clear that the agents had predetermined that if he was there they wore going to arrest him and charge him with harboring and concealing. If that were all I had before me, I would grant your motion to suppress. However, I think factually it was a legal arrest and a legal search because of the marijuana that was there and was obviously being-used. . Appellant did not develop facts below relating to the boarding of the RICKI or the propriety of the agents’ execution of the arrest warrant, and he has not argued below or on appeal that the entry into the boat was wrongful. At oral argument counsel for appellant expressly declined to take this position. Accordingly, we do not consider the propriety of the agents’ presence in the boat under the principles announced in Miller v. United States, 1958, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed. 2d 1332, and Garza-Fuentes v. United States, 5th Cir. 1968, 400 F.2d 219.

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W. J. MILNER AND CO. OF FLORIDA, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 349, et al., Defendants-Appellees. No. 72-2120. United States Court of Appeals, Fifth Circuit. March 21, 1973. Albert E. Phillips, J. Alex Porter, Atlanta, Ga., Peter C. Jones, Miami, Fla., for plaintiff-appellant. Seymour Gopman, North Miami Beach, Fla., Kaplan, Dorsey, Sicking & Rodenberg, Joseph H. Kaplan, Miami, Fla., Thomas J. Pilacek, North Miami Beach, Fla., Robert A. Sugarman, Miami, Fla., for defendants-appellees. Before GEWIN, BELL and GODBOLD, Circuit Judges. GEWIN, Circuit Judge: In the district court, W. J. Milner and Company brought separate actions against three labor unions pursuant to § 303(b) of the Labor Management Relations Act, 29 U.S.C. § 187(b), seeking recovery for damages incurred by reason of their allegedly unlawful secondary boycott activities. There appears to be no dispute about the fact that the conduct of the unions was unlawful. After hearing oral argument, the court, D.C., 341 F.Supp. 151, granted the union’s motion for summary judgment and dismissed Milner’s claims with prejudice on the ground that Milner did not have a federal cause of action under § 303(b). We reverse. The pertinent facts in this case can be stated briefly. W. J. Milner and Company is engaged in the business of selling electrical supplies on a commission basis to distributors and wholesale outlets in the state of Florida. A substantial portion of Milner’s business is derived from a contractual arrangement under which it has the exclusive right in the peninsular Florida area to sell the building wire products manufactured by Southwire Company of Carrollton, Georgia. In its complaint, Milner alleged that during the three years prior to the instigation of this action, the defendant unions exerted unlawful secondary pressure against a number of South Florida electrical contractors seeking 'to persuade or induce them not to use South-wire’s building wire products on their job sites. As a result of these activities, damages were claimed by Milner for loss of commissions in the amount of $201,588.00. Milner contends that the district court’s denial of a right of recovery on the basis of United Mine Workers v. Osborne Mining Co., 279 F.2d 716 (6th Cir. 1960) was improper. This argument rests on legislative history and post-Osborne decisions construing § 303(b) which are said to recognize a broader concept of standing than that adopted in Osborne. Milner urges that standing should be extended to those persons whose business or property is so closely related to the product, which is the subject of the boycott activity, that it is reasonably foreseeable that such business or property will be injured thereby. The unions, on the other hand, assert that the Osborne decision is still viable; that it was approved by this circuit in Abbott v. Local Union No. 142, 429 F.2d 786 (5th Cir. 1970) and that it was properly held by the district court to be dispositive of the instant case. Rejecting Milner’s forseeability test as overbroad, they maintain that standing under § 303(b) has been consistently limited either to the actual objects of the secondary boycott or to persons whose interests are inseparably identified with those of the actual objects by virtue of a financial or controlling relationship. In order to resolve this issue, we must fathom some meaning from the broad wording of § 303(b) which confers a right of action upon persons injured in their business or property by reason of a secondary boycott. While not commanded by a literal reading of the statute, our analysis in this case proceeds upon the general premise, suggested in the legislative history and adopted by a number of courts, that Congress intended to create some limitation on standing to sue under § 303(b). Therefore, what we must decide in the instant case is where this limitation begins. Although neutral and primary employers have been granted standing to sue under § 303(b), the right to sue of third parties who are neither neutrals nor primaries has never been clearly articulated. The seminal case interpreting § 303 is United Brick & Clay Workers v. Deena Artware, 198 F.2d 637 (6th Cir. 1952), cert. denied, 344 U.S. 897, 73 S.Ct. 277, 97 L.Ed. 694. The relevance of that decision to the case at hand lies not in its recognition of a right of recovery under § 303 for primary as well as neutral employers, but rather in the court’s explanation of its holding. In flatly rejecting the union’s position that this section protected only innocent third party employers (neutrals), the court pointed out § 303’s broad language and suggested that if Congress had intended to limit recovery thereunder, it could easily have done so. Almost a decade later, the Sixth Circuit was presented with the issue not before the court in Deena Artware: whether a person who was neither' a primary nor a neutral employer could recover under § 303. In United Mine Workers v. Osborne Mining Company, 279 F.2d 716 (6th Cir.), cert. denied, 364 U.S. 881, 81 S.Ct. 169, 5 L.Ed.2d 103 (1960), this question was answered in the negative. There one of the plaintiffs, Love & Amos Coal Company, was a coal sales agency under contract with the primary employer in the labor dispute to sell its coal on a commission basis. Love & Amos claimed damages against the union for the commissions it would otherwise have received had the illegal secondary boycott activity not caused a reduction in the primary employer’s coal productivity. Although Love & Amos contended that some of the union’s illegal activities were directed at it and not solely at the primary employer, the court found that recovery was not sought on this theory. It observed that Love & Amos’ cause of action instead was based upon the destruction of the primary employer’s business and that the damages claimed to have been suffered arose solely from the contractual relationships with the primary employer. In denying Love & Amos’ standing to sue, the court held that the damages alleged were incidental and too remote for recovery under federal law. United Mine Workers v. Osborne Mining Co., 279 F.2d 716, at 729. After Osborne, several cases were decided recognizing a cause of action under § 303 in favor of third party plaintiffs who were neither the neutral nor primary objects of secondary boycott activity. In Gilchrist v. United Mine Workers, 290 F.2d 36 (6th Cir. 1961), the third party was a partnership which had been engaged in the mining and sale of coal for a number of years. It had a close relationship with the primary object of the secondary boycott, G. & R. Coal Company, a closed corporation whose principal officers, directors and shareholders were also members of the partnership. They were parties to a contract under which the partnership agreed to furnish certain coal mining land and mining equipment to the coal company. In return, the coal company agreed to stripmine the coal and load it for shipment and ultimate sale by the partnership. In determining that the partnership had standing to sue, under § 303, the court went to some lengths to distinguish Osborne. It found that the partnership had an integrated coal business in which the actual mining was delegated to an instrumentality (G. & R. Coal Company) controlled entirely by partnership members. This was thought to give the partnership the status of a principal and not an agent as was true of the third party in Osborne. The court further noted that the partnership’s physical property was damaged and that its coal business was disrupted and destroyed. The damages sustained thereby were deemed to be direct and not remote or incidental as in Osborne where the damage sought arose solely as a consequence of the destruction of the primary employer’s business. It was evident at this point that § 303’s broad language was not going to be carried to its literal limits to confer a cause of action upon all persons suffering damage as a result of secondary boycott activity. Yet, it was still somewhat unclear from Gilchrist which considerations were essential to its limitation of Osborne and a recognition of standing to sue: the integrated character of the partnership’s business enterprise or the directness of the physical injury to its property. An answer to this question was hinted in Wells v. International Union of Operating Engineers, Local 181, 303 F.2d 73 (6th Cir. 1962) where the employees of a primary employer were permitted to recover damages under § 303. Although the court failed to give adequate explanation for this conclusion, it is implied from the opinion that these employees were considered to be the object of the secondary boycott just as much as the primary employer was because they were the very individuals sought to be organized by the union. Thus, even though these employees received damages based on their contractual relationship with the primary employer, this decision in light of Gilchrist’s direct injury test did not come into conflict with the Osborne rationale. Pennsylvania Railroad Co. v. National Maritime Union, 206 F.Supp. 797 (E.D. Pa.1962) was another decision in the series of cases dealing with standing under § 303 to embrace the Gilchrist line of reasoning. The third party there, Pennsylvania Railroad, owned certain dockside ore unloading facilities which it leased to Tidewater Company, the neutral employer as far- as the secondary boycott activity was concerned. The railroad claimed damages against the union because the boycott resulted in the loss of certain payments in the nature of a commission it was entitled to receive under the agreement with Tidewater. The district court denied the union’s motion to dismiss. It held that Osborne was not controlling because the railroad owned the unloading facilities where the secondary activity took place. The union’s conduct, therefore, represented a direct interference with the railroad’s business and property. The court apparently did not consider it significant that the railroad and Tidewater Company were not part of an integrated business enterprise. The only Fifth Circuit case which has dealt with the issue now before this court is Abbott v. Local Union No. 142, 429 F.2d 786 (5th Cir. 1970) which recognized a cause of action under § 303 in favor of the organizer and manager of a corporation in his individual capacity. Comparing the case to Gilchrist because of its factual similarities, the court concluded that the plaintiff was in effect the alter ego of the corporation he formed and thus was entitled to recover damages suffered as a result of the secondary boycott activity. Once again the Osborne decision was limited to its own peculiar facts. From the preceding discussion, it is clear that a third party can recover damages under § 303 if he can establish the existence of some combination of the following circumstances: (1) an integrated business enterprise which includes the third party and either the primary or the neutral employer; (2) direct injury to the third party’s property; and (3) a principal-agent relationship between the third party and the primary employer. Even though we are unable to say that the instant case fits precisely within any of these circumstances, it does not follow that Milner is precluded from recovering damages against the unions under § 303. There are several reasons for our conclusion in this regard. First, in our opinion, the Gilchrist line of cases does not enumerate an exclusive set of circumstances under which a third party has a cause of action under § 303. Those circumstances were brought to light primarily to distinguish Osborne and to circumvent the vague remoteness of injury test which Osborne recognized as setting an outer limit on the right of third parties to recover. Second, even if Oáborne is conceded to be factually analogous to this case, we do not think that the Abbott decision has committed this circuit to the Osborne rationale. Indeed, from our reading of Abbott the most that can be said is that this circuit has approved the restrictions placed on Osborne by the Gilchrist case. Third, Milner’s right to recover under § 303 if it can prove the allegations of the complaint ultimately involves a policy determination. None of the decisions that we have discussed undertook a specific analysis of this issue in light of the purposes and policies of the Labor Management Relations Act. The deficiencies of Osborne and the Gilchrist line of cases in this connection makes them less persuasive than they might have been. In determining whether Milner has a right to recover under § 303 the fundamental question in our estimation is whether such a result if followed in all similar situations would threaten or undermine legitimate union interests. While we would readily agree that so-called unlimited liability under § 303 might produce financial disaster for unions and inhibit the exercise of the right to strike, we do not think that recognizing a right to recover in favor of Milner if supported by adequate proof raises the specter of such dire possibilities. Though the unions’ boycott in this case was intended ultimately to bring pressure to bear only upon Southwire, Milner was directly in its line of fire. Milner, in effect, was the sales arm of Southwire in the peninsular Florida area. In that market, the financial fortunes of the two companies were closely intertwined. From the union’s point of view, in order to be effective against Southwire, Milner would have to be hindered or prevented from selling Southwire’s products to its South Florida customers. In our opinion, these consequences were reasonably foreseeable by the unions. Indeed, from what we can discern from the record, the unions had a full appreciation of the economic real-ties of the Milner-Southwire relationship. Their strategy appears to have been predicated entirely on the assumption that a decline in Milner’s sales would eventually be felt by the primary object of the boycott, Southwire. The unions apparently accomplished what they set out to do. The damage suffered by Milner was the substantial equivalent of the result which would have been produced if Milner had been the primary object of the union’s secondary activity. In light of these circumstances, which must be assessed on a case by case basis, it is our conclusion that on the precise facts alleged in this case the district court erred in dismissing Milner’s claim for failure to state a federal cause of action. We do not make the slightest intimation or suggestion as to how the ease should be decided on the merits; we only hold that under the allegations of the complaint a dismissal was inappropriate. The plaintiff should be given an opportunity to prove its allegations and to fully develop all pertinent facts alleged in the complaint. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957); Equity Capital Co. v. Sponder, 414 F.2d 317 (5th Cir. 1969). The determination of these issues is the normal function of the district court. Accordingly, we reverse the judgment below and remand the case for further proceedings not inconsistent with this opinion. Reversed and remanded. GODBOLD, Circuit Judge (specially concurring): I concur in the result. The courts have recognized that the phrase in § 303(b), “whoever shall be injured in his business or property, cannot refer to injury in a “cause in fact” sense, else, as was pointed out on the floor of Congress, the section might give a cause of action to millions of persons for the same union activity. Recognizing that some rational limiting standard was intended by Congress, the courts have sought to articulate such a standard. Osborne, Gilchrist and Pennsylvania R.R. have expressed a standard consisting of analysis of the existence of a nexus or relationship between the plaintiff and the primary object of the secondary boycott, in the form of contractual or business arrangements and of physical congruence of facilities. The nexus was present in Gilchrist and sufficiently alleged in Pennsylvania R.R., but not present in Osborne. The relationship or nexus test is not entirely satisfactory as a rational limitation on “whoever.” And at least some voices in Congress view with a jaundiced eye the efforts of the courts to prescribe a workable limitation. The method of analysis of the Sixth Circuit cases and of Pennsylvania R.R. is not binding upon us, and I have no objection to attempting to spell out for this circuit a standard more satisfactory than the “relationship” standard. The difficulty is that I am unable to understand what standard is being proposed. The majority opinion mentions “line of fire,” foreseeability of consequences, and threatening or undermining legitimate union interests. Because I am unable to perceive with assurance what is the test of § 303(b) liability proposed in the majority opinion I must, and do, concur only in the result. . The three unions are Locals 323, 349 and 728 of International Brotherhood of Electrical Workers. . 29 U.S.C. § 187(b) provides: Whoever shall be injured in his business or property by reason or (sic) any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost for the suit. . During the three years prior to this suit, the proportion of Milner’s sales attributable to Southwire products was 74%, 79% and 81% respectively. . Although the defendants moved for summary judgment on the basis that the plaintiff was not entitled to recover any damage, the court found it unnecessary to rule on such motion and concluded : [T]hc Court finds that this plaintiff does not have a federal cause of action under the statutory sections which he has plead and further consideration of the defendants’ Motion for Summary Judgment is not necessary. Thereupon the court entered a final judgment dismissing the plaintiff’s actions with prejudice. 1. 93 Cong.Rec. 4872-3 (1947) (remarks of Senator Morse). 2. U. M. W. v. Osborne Mining Co., 279 F.2d 716 (6th Cir. 1960). 3. Gilchrist v. U. M. W., 290 F.2d 36 (6th Cir. 1961). 4. Pennsylvania R. R. Co. v. National Maritime Union, 206 F.Supp. 741 (E.D.Va. 1961). . At times the cases have discussed whether plaintiff’s damages were too remote or incidental. E. g., Osborne, 279 F.2d at 729. This is a statement of an ultimate conclusion, the reason for which is that the precise relationship or nexus between the relevant parties, which the Osborne court had explored earlier in its opinion, id. at 727-728, is too far attenuated. . See 1959 U.S.Code Cong. & Adm.News pp. 2382-2383. . Abbott v. Local Union No. 142, 429 F.2d 786 (5th Cir. 1970) decided by this circuit, is a unique case of little assistance in o nr ¡iroblem. The nexus or relationship between the prime contractor (Abbott, Inc.) and the subcontractor (Moore), operating at the same construction site, was such that the union did not contest on appeal the corporation’s cause of action for damages but only the calculation of damages. It did, however, contest the rig-lit of tiie president, manager and alter ego of the corporation to damages suffered by him individually. The discussion of Osborne and Gilchrist did not concern the relationship between the neutral (Abbott, Inc.) and the primary employer (Moore) but the question of whether Abbott individually had such a close relationship to the corporation — in effect, he was the corporation, or stood in its shoes — that lie was within the ambit of the relationship between Abbott, Inc. and the subcontractor. . Foreseeability may define far too wide a scope of exposure to liability. Presumably a union would never engage in an illegal secondary boycott for no reason at all but only with the expectation that impact will occur. Thus it would be unusual for damage to occur in a cause in fact sense and yet not be reasonably foreseeable. Additionally, a foreseeability standard seems to me much broader than the “direct line of fire.” While I am not certain of what is meant by the latter, I am inclined to think it is a much narrower gauge than the former. . A union might be subjected to a claim for $1,000 damages for illegal secondary activity, which it might survive, but could it be subjected to a claim by another person similarly situated for $1,000,000 damages, which might destroy the union or render it impotent to pursue its legitimate objectives? Or do dollars have any relevance?

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Caselaw Access Project

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In re Noble James BARRET et al. Appeal of Louis Herbert HOLLINGSWORTH and Claude Lee Simpkins. No. 72-1111. United States Court of Appeals, Seventh Circuit. Argued Feb. 26, 1973. Decided April 3, 1973. Gerald G. Fuchs, Evansville, Ind., for appellants. Stanley B. Miller, U. S. Atty., Richard L. Darst, Asst. U. S. Atty., Indianapolis, Ind., for appellee. Before CASTLE, Senior Circuit Judge, and KILEY and PELL, Circuit Judges. PER CURIAM. Appellants Louis Herbert Hollingsworth and Claude Lee Simpkins appeal from the denial of their petitions for the return of $5133 which FBI agents allegedly seized from each of them during a raid on a gambling house in Evansville, Indiana, where they worked. FBI agents raided the establishment on August 9, 1969 and seized gambling devices and the money they found on the gambling tables, at a cashier’s window, and in the house safe. After appellants invoked the fifth amendment at grand jury hearings, the government gave them the following grant of immunity pursuant to 18 U.S.C. § 2514: None of the respondents shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court, Federal or State; .... Testifying under this immunity, appellants told about the operations of the gambling house at a trial which led to the convictions of Charles Lee, Jr. and Ray Metcalf, who allegedly operated the house. On March 9, 1970, appellants petitioned for the return of their share of the money which the FBI agents seized during the raid. After an evidentiary hearing, the district court found that appellants had not proven their ownership of the money they claimed, and that any attempt to prove ownership would result in reliance upon an illegal gambling contract which the court could not enforce. Accordingly, the court denied the petitions. On this appeal Hollingsworth and Simpkins argue that any withholding of their money amounts to a forfeiture which the language of the grant of immunity to them clearly forbids. They deny that an illegal gambling agreement is involved, and contend that they are merely trying to get their money back from the government. Unless the appellants can prove that they had a legal title or right to the money they claim on this appeal, no question arises whether the government has caused a de facto forfeiture of it. The record does not contain sufficient evidence that the money claimed by the appellants was actually “theirs.” The record clearly indicates that appellants did not have possession of the money at the time the FBI agents raided the gambling establishment. Nor had steps been take to identify the money as belonging to the appellants. Appellant Hollingsworth testified that, at the time of the raid, his and Simpkins’ share of the money was or should have been in the possession of the house, and that most of their money was usually kept in the house safe with other money. Although Hollingsworth claimed that he and Simpkins turned in their money with instructions that their shares be kept separate and identifiable, the evidence indicates that no such segregation was effected. Hollingsworth also admitted that he and Simpkins did not have access to the safe. In the absence of any presumtive evidence of ownership or title to the two shares of $5133 which the appellants claim, a court must rely upon other evidence upon which the appellants seek to prove their right to the money. The appellants argue that their right to the money which was in the possession of the house arises from an oral contract among themselves and Ray Metcalf whereby each would realize a third of the proceeds of the blackjack game. Hollingsworth testified that the bankroll of the game had grown to about $15,-400, and that accordingly his and Simpkins’ shares amounted to $5133 each. But the public policy of Indiana against gambling prevents this court from accepting such an argument as a basis for dividing the commingled money. Indiana has declared that the title to money or property won at the gambling table never vests in the winner. Ervin v. State, ex rel. Walley, 150 Ind. 332, 336, 48 N.E. 249, 250 (1897). Therefore, regardless of their contract, appellants never gained title to any of the blackjack winnings and they cannot rely on any title to the money in this action. Indiana public policy also forbids any recognition of a contract for the division of gambling proceeds. Auman v. Fabiano, 132 F.Supp. 353 (N.D.Ind.1955), see also, Dorrell v. Clark, 90 Mont. 585, 4 P.2d 712 (1931). The fact that the federal government holds the money that is owed to the victorious party under the contract does not alter the policy against using the courts to further an illegal enterprise. We conclude that appellants never actually gained title to the money won at the blackjack table which was commingled with other money belonging to the house, and that even if they had some title, a court will not enforce an illegal contract as a means of separating out the one-third shares claimed by the appellants. Plaintiffs have not suffered any de facto forfeiture of their money because they never had title to it originally. As the district court correctly observed: “Immunity does not vest in the witness rights which he did not possess prior to the grant of immunity.” The judgment of the district court is affirmed. Affirmed. . “The presumption of the law is, that the party in possession of personal property is the owner of the same; and so, also, as men usually own the personal property they possess, proof of possession is presumptive proof of ownership.” Wiseman v. Lynn, 39 Ind. 250, 259 (1872). . Appellants attempted at oral argument to establish that the $15,400 or so purportedly found in an envelope in the safe seized during the raid was blackjack money, of which one-third belonged to each appellant. Unfortunately, Hollingsworth’s testimony at the evidentiary hearing does not sustain such an argument, for his recollections about the existence of an envelope and the exact monetary amount of its contents were vague, and inconsistent. Even if the envelope contained the exact amount of the blackjack winnings, reference to some agreement for the division of the money would be necessary, for the envelope bore no instructions concerning whoso money was enclosed. . See Ind.Code § 35-25-2-2 (1971) which allows a loser of a gambling transaction to sue to recover his money, and Ind.Code § 35-25-2-4 (1971) which allows a prose-outing attorney to recover the money for the family of the loser or for the public schools if the loser does not seek recovery. . We are also cognizant of Indiana decisions allowing a person who lias turned over money to a stakeholder to recover this money before it has been wagered or delivered to a winner. See, e. g., Frybarger v. Simpson, 11 Ind. 59, 61 (1858). Appellants did not attempt to collect at least their original contribution to the blackjack game on this theory, and did not submit evidence sufficient to support recovery under the thesis that the house was a stakeholder. See Kearney v. Webb, 278 Ill. 17, 115 N.E. 844 (1917). . As appellants admitted at oral argument, the negotiations leading to the grant of immunity did not determine the disposition of the appellants’ share of the blackjack money. Counsel representing appellants would have done well to attempt to avoid the implications of earlier decisions which iiad held that forfeiture occurs at the time the property is used illegally, especially since the grant of immunity protected against only future forfeitures. United States v. Stowell, 133 U.S. 1, 16-17, 10 S.Ct. 244, 33 L.Ed. 555 (1889). . This decision merely leaves the parties involved in the situation in which they have placed themselves. Auman v. Fabiano, supra, 132 F.Supp. at 353. It will still be incumbent upon the government to bring forfeiture proceedings against the money seized at the gambling establishment within the statute of limitations and to return this money if the forfeiture action fails pursuant to the holding of United States v. United States Coin and Currency, 401 U.S. 715, 722 n. 10, 91 S.Ct. 1041, 28 L.Ed .2d 434 (1971), and if Indiana authorities attempt no action to obtain the money under the law of their state.

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Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. NATIONAL HOTEL COMPANY and Menger Hotel, jointly and severally, Defendants-Appellees. No. 71-3634. United States Court of Appeals, Fifth Circuit. March 22, 1973. Richard F. Schubert, Sol. of Labor, Bessie Margolin, U. S. Dept, of Labor, Washington, D. C., M. J. Parmenter, Regional Sol., Truett E. Bean, Atty., U. S. Dept, of Labor, Dallas, Tex., Carin Ann Clauss, Jacob I. Karro, Atty., U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellant. Louis J. Dibrell, Galveston, Tex., for def endants-appellees. Charles W. Merritt, Wendell Davis, Jr., New York City, Albert L. McDermott, Washington, D. C., amicus curiae for American Hotel and Motel Assn. Before GEWIN, BELL and GODBOLD, Circuit Judges. GEWIN, Circuit Judge: The Secretary of Labor brought this suit under the minimum wage provisions of the Fair Labor Standards Act (FLSA) to restrain the National Hotel Company in its capacity as owner and operator of the Menger Hotel (hereinafter Menger Hotel) from continuing to withhold compensation allegedly due its tipped employees. In the face of an administrative determination to the contrary the district court decided that at all times the defendant had paid its tipped employees enough to satisfy the minimum wage requirements of the FLSA and accordingly dismissed the Secretary’s suit. We reverse, not because we necessarily agree with the administrative conclusion ultimately rejected by the district court, but because in arriving at its decision the district court did not employ the correct standard for reviewing the administrative determination before it. § 3(m) of the FLSA authorizes employers to take a partial credit against the minimum wage they are required to pay for amounts presumably received in tips by their tipped employees. The amount of the credit depends on the amount of tips actually received by the employees, but in no event can it exceed 50 percent of the applicable minimum wage. The statute leaves the initial determination as to the amount of tips being received to the employer but permits an employee who feels he is being shortchanged to seek a redetermination by the Secretary of Labor. Once the employee establishes to the satisfaction of the Secretary that the amount he is actually earning in tips is less than the amount the employer is taking credit for, then the employer is liable to the employee for the difference, and only this lesser amount may be added to the cash wages being paid the employee to determine whether the employer is meeting the minimum wage requirements of the FLSA. Relying upon § 3(m), the Menger Hotel paid its tipped employees only 50 percent of the applicable minimum wage during the period in question; apparently it was confident that the remaining 50 percent of the wages to which these employees were legally entitled would be received in tips. After an investigation of the hotel’s payroll records convinced his representative that the tip wage credits being taken by the hotel were unjustified, the Secretary brought this suit to force compliance. Before the case came to trial, the district court in accordance with the provisions of § 3(m) and the regulations adopted thereunder remanded the case to the Secretary for an administrative hearing and determination on the question of how much the hotel’s tipped employees were actually pocketing in tips. Pursuant to the remand order, a hearing examiner appointed by the Administrator of the Wage and Hour Division of the Department of Labor conducted a full adversary hearing to determine the amount of tips received by the hotel’s employees which could be credited against the minimum wages due them under the FLSA. At the hearing both parties were permitted to present whatever evidence and argument they could muster, and the American Hotel and Motel Association was allowed to appear as an interested party and file a brief in support of the defendant. In support of its position the Secretary offered the testimony of a large number of the hotel’s tipped employees. With one exception each of these witnesses testified that at regular intervals he had made a daily record, on forms supplied by the hotel, of the amount received in tips that day and that at the end of each month in which a record was kept the total amount earned in tips that month was reported to the hotel. Each witness swore that these records and reports accurately reflected the amount of tips received. The payroll records of the hotel showed no tip receipts other than the amounts reported by its employees, and these amounts were insufficient, when added to the cash wages paid by the hotel, to equal the minimum wage required by the FLSA. The hotel willingly admitted that it paid its tipped employees no more than 50 percent of the applicable minimum wage in spite of the fact that their monthly reports plainly indicated that they were not receiving enough in tips to justify the tip wage credit being taken. In defense the hotel took the position that self-interest, engendered by the manifold advantages to be derived from understating tip income, rendered tipped employees incapable of reporting their tips honestly and that in recognition of this fact the hotel properly disregarded the purportedly unreliable reports turned in by its employees in deciding how much to pay them. To illustrate the alleged incredibility of these reports the hotel introduced exhibits showing what percentage of his gross sales the tips reported by each employee equalled and, by comparison, what percentage of sales the tip credits taken by the hotel equalled. It cited tax cases and a Department of Labor survey to support its theory that while the employees’ tip reports were inordinately low as a percentage of sales, the tips it had credited them with earning represented a reasonable percentage of sales and were comparable to what employees in similarly situated hotels were receiving. In addition it produced written statements, signed by the employees at the hotel’s request and disavowed by them at the hearing, in which they admitted that they had not understood the necessity of reporting tip income accurately and that they had in fact earned as much in tips as the hotels had taken in tip credits. In this fashion the hotel urged the hearing examiner to find as fact that the presumption that its tipped employees were earning at least 50 percent of the requisite minimum wage in tips was justified and to ignore their reports to the contrary. Upon this record the hearing examiner found that the amount of tips reported monthly by each of the hotel’s employees was in fact the amount he received and that the hotel could take credit for no more than this amount in computing the cash wages it was required to pay its tipped employees under § 3(m). The hearing examiner’s findings were adopted by the Administrator of the Wage and Hour Division of the Labor Department and certified by him to the district court. On cross-motions for summary judgment the district court reviewed the entire record as developed before the hearing examiner, drawing its own conclusions as to what evidence was entitled to great weight and what testimony was credible. In effect the standard of review applied, though not articulated, by the district court was that if the preponderance of the evidence supports a conclusion contrary to that reached by the administrative body in question, then the administrative determination must be ignored. Guided by this standard of review, the trial court decided that at all times the defendant’s employees did receive tips in amounts sufficient, when added to the cash wages paid them by the defendant, to satisfy the minimum wage requirements of the FLSA. On this basis the Secretary’s suit was dismissed. Although the standards by which the judiciary reviews administrative fact determinations vary, ranging all the way from absolute unreviewability to complete substitution of judicial judgment, the one courts most often articulate and apply is the substantial evidence rule. Congress expressly adopted the substantial evidence rule as the standard best delimiting the boundaries of judicial review of administrative action when it enacted § 10(e) of the Administrative Procedure Act which authorizes reviewing courts to “hold unlawful and set aside agency action, findings, and conclusions found to be (E) unsupported by substantial evidence . . . .” This standard of judicial review was not manufactured out of thin air, and its widespread acceptance is not accidental. It was conceived by reviewing courts in response to their need to free themselves from the time-consuming, frequently exasperating task of weighing the evidence, a task for which reviewing courts are particulary unsuited because in performing it they are confined to the cold record and have no opportunity to test the credibility of the witnesses by personal observation. Under this standard the reviewing court refrains from substituting its own judgment as to the correct resolution of factual questions for that of the administrative agency. Instead the agency’s factual determination is accepted unless there is no substantial evidence in the record as a whole to support it. Thus when properly applied, the substantial evidence rule enables the judiciary to give due respect to the expertise and experience of the administrative tribunal without abdicating its responsibility to rectify administrative indulgence in caprice, whim or fancy. The meaning of the substantial evidence formula is admirably captured in the words of Chief Justice Húghes: “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Substantial evidence is enough evidence 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. It is something less than the preponderance of the evidence, then, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. In short, under the substantial evidence rule administrative findings are reviewed in the same manner as courts review jury verdicts. In this case the district court chose to remand the critical question of how much in tips was actually being received to the Secretary of Labor for an administrative determination. But once the administrative findings were returned, the district court proceeded to ignore them and instead conducted its own de novo review of the entire record. In this respect it erred. We hold that tip wage determinations of the kind made in this case by the Secretary of Labor should be reviewed under the substantial evidence formula. § 3(m) itself specifies that, once the question is rased, the initial determination as to whether tip credits being taken by an employer are deserved is to be made by the Secretary. We seriously doubt that in committing this task to the Secretary Congress intended for him to be restricted to the role of an examiner who merely hears the evidence and reaches a conclusion that remains tentative until it is either approved or rejected by a court. If such were the case, any esoteric knowledge of tipping customs the Secretary might have gained from his experience in overseeing the application of § 3(m) would be wasted. Furthermore the credibility determination made by the examiner who actually sees and hears the witnesses would be needlessly downgraded, and in cases such as these where the dispute centers upon how much was being earned in tips, the credibility of the complaining employees will often decide the outcome. For these reasons we conclude that a § 3(m) determination by the Secretary of Labor should be accepted unless there is no substantial evidence in the record as a whole to support it. While we do not decide the issue of whether there is substantial evidence in this record to support the conclusion reached by the Secretary, we are inclined to believe that a review of his findings under the substantial evidence standard will very likely result in a different conclusion from that reached under the standard of review initially employed by the district court. In any event, because the district court did not apply the correct standard of review, its judgment is vacated, and the case is remanded to it for further proceedings not inconsistent with this opinion. Vacated and remanded. . 29 U.S.C. § 201 e.t seq. (1964 ed.). . 29.U.S.C. § 203(m) provides in pertinent part as follows : » “In determining the wage of a tipped employee, the amount paid such employee by his employer shall be deemed to be increased on” account of tips by an amount determined by the employer, but not by an amount in excess of 50 per centum of the applicable minimum wage rate, except that in the case of an employee who (either himself or acting through his representative) shows to the satisfaction of the Secretary that the actual amount of tips received by him was less than the amount determined by the employer as the amount by which the wage paid him was deemed to be increased under this sentence, the amount paid such employee by his employer shall be deemed to have been increased by such lesser amount.” . 29 C.F.R. § 531.7 (1972). Because this suit was initiated in the district court by the Secretary of Labor, the district court had a choice of either holding its own evidentiary hearing to determine what tips were being received or remanding the case to the Secretary for an administrative determination of the question. Either course of action is proper. In this case it was Judge Guinn who made the decision to remand while Judge Wood received the findings certified by the Secretary, reviewed them, and rendered the final judgment now before us on appeal. . These written statements wore initially prepared sometime after the hotel was investigated by the Labor Department officials. The affected employees were then summoned individually to meet with hotel officials and received the impression that they had to sign the statements in order to retain their jobs. At the hearing all employees testified that they had not understood the import of the statements and that the statements were inaccurate. . For those months in which some of the employees had failed to compile tip reports, the hearing examiner concluded that they had nevertheless received in tips an amount equal to that averaged in comparable months during which tip reports had been compiled. . As an alternative basis for its decision the district court held that in paying its tipped employees no more than 50 percent of the applicable minimum wage the defendant had properly relied upon an administrative regulation promulgated under § 3(m) by the Department of Labor and so had established a “good faith” defense to any suit brought under the FLSA. § 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 259, immunizes employees from suits brought under the FLSA if the act complained of was done in good faith in reliance upon an administrative regulation adopted by the Administrator of the Wage and Hour Division of the Department of Labor. This ruling is plainly erroneous because the regulation in question, 29 C.F.R. § 531.59 (1972), clearly advises the employer that he can take credit only for the amount of tips actually received by the employee and that he is liable to the employee for the difference between the amount of tips he has taken credit for and the amount of tips actually received. . See 4 Davis, Administrative Law Treatise, § 29.01, p. 114 (1958). . 5 U.S.C. § 706(2) (E) (1964 ed.). . Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Watson v. Gulf Stevedore Corporation, 400 F. 2d 649, 651 (5th Cir. 1968). . Id. . Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). . NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939). . Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L. Ed.2d 131 (1966). . Watson v. Gulf Stevedore Corporation, 400 F.2d 649, 652 (5th Cir. 1968).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Marvin FARMER, Petitioner-Appellant, v. E. B. CALDWELL, Warden, Georgia State Prison, Reidsville, Georgia, Respondent-Appellee. No. 72-2250. United States Court of Appeals, Fifth Circuit. March 23, 1973. Samuel M. Davis, Asst. Professor of Law, University of Georgia, Athens, Ga., Court-appointed for petitioner-appellant. Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee. Before ALDRICH, SIMPSON and CLARK, Circuit Judges. Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation. SIMPSON, Circuit Judge: Marvin Farmer appeals from the district court’s decision denying habeas corpus relief under Title 28 U.S.C. Section 2254. We affirm. The petitioner-appellant is a Georgia State Prison system inmate. He was arrested on May 25, 1969 and indicted for rape, burglary and assault with intent to murder. On July 24, 1969 he entered a plea of guilty to each of the three offenses charged and thereupon was sentenced to three consecutive terms of imprisonment of three years each for a total custodial sentence of nine years. Farmer was represented by court-appointed counsel when he tendered his guilty pleas. Nevertheless, he later filed habeas corpus proceedings in the state court pursuant to Georgia’s post-conviction relief statute, Ga.Code Ann. Section 50-127 (1971 Supp.), alleging (1) that the assistance of such counsel was ineffective, (2) that his pleas of guilty were coerced and involuntary, and (3) that the consecutive sentences imposed were invalid because they were based on a single course of conduct instead of three separate acts. An evidentiary hearing was held at which petitioner-appellant appeared without the assistance of counsel and was his only witness. He stated that he had no other evidence to offer. The only evidence the respondent introduced was copies of the accusations and judgments under which Farmer was convicted. The state habeas court denied relief. Specifically, the court found (1) that the record did not support the allegation of ineffective assistance of counsel because petitioner-appellant accepted counsel, made no protest of the appointment, had in fact been represented by a proper and competent attorney, and failed to carry the burden of proof by offering any evidence to substantiate his contention to the contrary; (2) that from petitioner-appellant’s own testimony the pleas of guilty were voluntary because calculated on a serious thought and consideration on the part of petitioner of the possible consequences of a death sentence or a sentence to life imprisonment following a guilty verdict as opposed to nine years imprisonment as a result of his guilty pleas; and (3) that the three consecutive sentences were validly imposed because they charged three separate criminal acts, even though they may have arisen at the same time from the same course of conduct. The Supreme Court of Georgia affirmed. Farmer v. Smith, 1971, 228 Ga. 310, 185 S.E.2d 384. Farmer thereupon filed his habeas petition in the district court below. The district court denied relief without conducting a further evidentiary hearing, relying instead solely on the transcript of the state habeas evidentiary hearing and the findings and order thereon of the state judge, together with the rather sparse record of the original convictions from the trial court, consisting of the bench notes made on a form filled out by the trial judge relative to the guilty plea proceedings. The district judge concluded that appellant had neither alleged nor established by convincing evidence that the factual determinations by the state court were erroneous in any respect, although the habeas judge gave Farmer every opportunity to make such proof. Moreover, the district judge found independently on the state record that appellant had in fact with full knowledge of his legal rights and with the assistance of counsel, purposely pled guilty to avoid the vagaries of trial and possibility of more harsh consequences. On appeal, petitioner-appellant urges first, that the district court erred by neglecting to hold a full evidentiary hearing on the issues raised in his petition for writ of habeas corpus because (1) the merits of the factual dispute surrounding the guilty pleas were not resolved at the state hearing and (2) the fact-finding procedure employed by the state court was inadequate to afford a full and fair hearing; and, second, his guilty pleas were neither voluntary nor entered with the knowledge or the understanding of their consequences. If there is merit to either of petitioner-appellant’s contentions as to the adequacy of the state habeas proceedings an evidentiary hearing was required of the federal habeas court, Townsend v. Sain, 1963, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, 786; Title 28 U.S.C. Section 2254. If his guilty pleas were not voluntarily and understandingly entered we would be constrained to direct that the writ be granted with directions that he be permitted by Georgia courts to plead anew to the charges. Boykin v. Alabama, 1969, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-280, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 8 L.Ed. 1461. The federal habeas court may rely on the record in the state court in lieu of an independent hearing if the state court proceedings were full and fair. Townsend v. Sain, supra; Dillard v. Smith, 5 Cir. 1970, 430 F.2d 1294; Chisholm v. Wainwright, 5 Cir. 1970, 427 F.2d 1138; Ryan v. Wainwright, 5 Cir. 1970, 424 F.2d 198; Walker v. Wainwright, 5 Cir. 1969, 409 F.2d 1311. Furthermore, the state court’s findings are presumed to be correct, Title 28 U. S.C. Section 2254(d), and if the state court did not make express findings of fact, the district court may determine whether the state court impliedly found material facts. And if the state court failed to articulate the constitutional standards applied, the district court may presume that the state court applied correct criteria in the absence of evidence that an incorrect standard was applied. Townsend v. Sain, supra; Dempsey v. Wainwright, 5 Cir. 1973, 471 F.2d 604. The district court reviewed the transcript of the state habeas evidentiary hearing, including the uncontradicted assertion by appellant that his pleas of guilty were coerced by the three months he spent in jail awaiting trial without visitors or a conference with his attorney, and his testimony as to the threats and abusive treatment he was subjected to by his jailers as part of an effort to induce those pleas. Determinations of the credibility of testimony rest with the trier of facts, who is not bound to accept testimony even where it is not contradicted. Hawk v. Olson, 1945, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61; Lujan v. United States, 5 Cir. 1970, 431 F.2d 871, 872. Here both the state habeas and the federal district court below rejected that portion of petitioner-appellant’s testimony, electing instead to credit and accept as the actual motivation for the guilty pleas his testimony that he wanted to avoid the possibility of a punishment of death or life imprisonment if convicted by pleading guilty and hoping for a “light” sentence: (Questions by the court) Question: But that was the reason you decided to enter your plea of guilty to . Answer: [Petitioner] To help myself. Question: ... to get a lesser sentence than you might . Answer: Yes, sir. Question: . . . would have gotten if you had gone before the Jury? Answer: Yes, sir. Since this finding is nowhere contradicted by the record and is not otherwise shown to be clearly erroneous, we find no error in the district court’s conclusion that these pleas were made understanding^ and voluntarily to avoid the possibility of a death sentence. Dempsey, supra; Lujan, supra. This motivation would not vitiate the pleas of guilty. North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Jenkins v. Beto, 5 Cir. 1971, 442 F.2d 655, 656. Appellant argues, however, that his pleas were void because tendered without the effective assistance of counsel. It is only to the issues of voluntariness and understanding that inquiry may be made of the role of counsel in an attempt to impeach a plea of guilty, Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075, 1078, and we perceive no error in the lower court’s conclusion that the petitioner failed to meet his burden of showing his counsel was, in fact, ineffective. O’Neal v. Smith, 5 Cir. 1970, 431 F.2d 646, 647-648. The record contained in the contemporaneously made notes of the sentencing judge, the gist of the colloquy between the defendant and his court-appointed counsel and the court, and indicates that defense counsel did have a “satisfactory consultation” with the defendant. James v. Smith, 5 Cir. 1972, 465 F.2d 379 [1972], Given the motivation behind the pleas and the complete absence of proof as to the ineffectiveness of counsel we find that the record before the court below was sufficiently complete to conclude that petitioner-appellant’s pleas were not only voluntarily but also knowingly and intelligently made. Affirmed. . At the time of Farmer's guilty pleas the maximum penalty for rape was death, Ga. Code Ann. § 26-2001; for burglary it was 20 years imprisonment, Ga.Code Ann. § 26-1601; and for assault with intent to murder the maximum was 10 years imprisonment, Ga.Code Ann. § 26-1302. . Title 28 U.S.C. Section 2254(d) provides in pertinent part: (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or-an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, * * * . The time elapsing between arrest and arraignment was actually only two months, May 25 to July 24, 1969. The record shows that the indictment was returned, counsel was appointed and the arraignment and guilty pleas all took place July 24. The record is not entirely clear as to whether sentencing occurred that day or the following day, July 25. . TYe set out here in full the form filleil out by the state trial judge, Judge Harold R. Banks. The form, consisting mainly of questions to the defendant and his counsel was mimeographed with blanks left to fill in the answers. Judge Banks recorded the answers by hand, as indicated in italics : THE STATE CASE No.: 7-10,173 VS. Criminal Division Marvin Farmer CLAYTON SUPERIOR COURT The defendant Marvin Farmer was arraigned in open court this date and his (appointed) counsel Robert Montgomery was present when the following questions were asked and the indicated answers given : 1. AVhat is your name? Marvin Farmer 2. You are charged with the offense of Rape, Burglary, Assault ivith Intent to Murder. Has your attorney discussed this offense as stated in the indictment with you? Yea. 3. Do you understand the nature of the charge against you? Yes. 4. Can you read and write? Yea. 5. How far did you proceed in school? 10th. 6. Do you understand you have the right to plead either “Guilty” or “Not Guilty”? Yea. 7. Do you understand that if you plead “Not Guilty” you will be entitled to a trial hy jury, but in the event you plead “Guilty”, this court will impose such sentence as it feels satisfactory under the law? Yes. Death, Life, 1-20 years -Rape, 1-20, Burglary, 2 — 10 Assault with inlenf to Murder. 8. Do you understand that the penalty for conviction of this offense is from - to--years imprisonment in the penitentiary? Yes. 9. Do you wish to enter a plea at. this time? Yes. 10. How do you plead, Guilty or Not Guilty? Guilty. 11. Has anyone promised you a lesser sentence or easier treatment or threatened you in any way into making a guilty plea? No. 12. Mr. Montgomery as attorney for the defendant, have you had a satisfactory consultation with the defendant and explained to him his statutory and constitutional rights? Yes, I have. 13. Mr. Montgomery, after consulting with the defendant and examining the indictment, do you know of any reason that should net to prevent the defendant from entering a plea of “guilty” or this court from accepting such plea? No. I do not. 14. Let the defendant enter his plea and I will have a presentence investigation made before sentence is imposed. The above questions were asked and the answers indicated given this 25 day of July, 1969. Harold R. Banks Judge, Superior Court Clayton Judicial Circuit I was present in open court and heard the above questions asked and the answers given as stated above. II. Eugene Broten Solicitor-General Clayton Judicial Circuit Sworn to and subscribed before me this day. of July, 19G.9. William II. Ison Clerk, Clayton Superior Court Notary Public

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Milton ROBBINS a/k/a Mickey Robbins, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 72-1630. United States Court of Appeals, Tenth Circuit. Argued and Submitted Jan. 12, 1973. Decided March 30, 1973. Lorenzo E. Tapia, Albuquerque, N. M., for defendant-appellant. Victor R. Ortega, U. S. Atty. (Ruth C. Streeter, Asst. U. S. Atty., on brief), for plaintiff-appellee. Before HILL and HOLLOWAY, Circuit Judges, and TEMPLAR, District Judge. TEMPLAR, District Judge. Appellant Milton Robbins was found guilty by a jury on Count I of a two-count indictment of having possession of a firearm consisting of a homemade incendiary bomb, alleged to be a destructive device, and not registered to him in the National Firearms Registration and Transfer Record, in violation of Title 26 U.S.C. §§ 5861(d) and 5871. He was also found guilty on Count II which charged him with possessing this same firearm which was not identified by a serial number as required by Section 5842 of Title 26, United States Code, in violation of Title 26 U.S.C. §§ 5861 (i) and 5871. Following his conviction, a sentence of five years was imposed on Count I, followed by a suspended sentence on Count II for five years consecutive to the sentence imposed on Count I. In his appeal Robbins complains that improper and prejudicial instructions were given, over objection, by the trial court, that his motion for a mistrial was denied when the prosecutor made comments in the jury argument inferring that defendant had not taken the stand and testified, and that the indictment was defective because the specific sections and subsections of the statute under which he was prosecuted were not cited. Appellant insists that because the indictment fails to indicate any section or subsection of a statute in which is stated that knowledge that possession of a firearm not having a serial number and not registered is a violation of law, the indictment does not state an offense since it fails to require the element of scienter or intent to constitute a crime. He further contends that the Magistrate’s refusal at his preliminary hearing to allow him to examine prior written statements of the prosecution’s witnesses constitutes reversible error, that the statute under which defendant is charged violates the self-incrimination clause of the 5th Amendment, or in the alternative violates the equal protection clause, and lastly defendant claims the indictment is defective because he is charged with the same offense in each of the two counts and is thereby subjected to double jeopardy. We have carefully considered the various claims of error asserted by the defendant and after a review of the record and consideration of the briefs submitted are convinced that the conviction of appellant on the two counts charged must be affirmed. Briefly summarized, it appears that evidence offered by the prosecution disclosed that Robbins was the manager of the Jack & Queens Nightclub at Albuquerque, New Mexico, that he engaged two men to construct homemade bombs that could be used for the purpose of putting competitive nightclubs in the area out of business. One of the men so employed by appellant informed the police of the activity; a search warrant was issued for a search of his office quarters in the Jack & Queens Club. Pursuant to the search of appellant’s office, there was found a cylindrical canister with a metal top and bottom and a straw filled with gunpowder placed across the top. Alongside the canister was a glass jar containing black powder. An explosive expert from the F.B.I. Laboratory examined the items so found, conducted experiments, and at the trial expressed his expert opinion that the device would ignite certain types of combustible materials that were in contact or immediately adjacent to the device. The prosecution was required to establish as an essential element of the case that the firearm in question had not been registered and to-establish this fact introduced a certificate of the custodian of the National Firearms Register and Transfer Record stating in effect that he had made a diligent search and had found no record of any firearms being registered to Robbins. The instruction of the trial court explained to the jury that the certificate was competent evidence to show that the item introduced in evidence was not registered to the appellant but that it was up to the jury to determine what evidence to accept and what weight they might give to any evidence presented in the case. The certificate was sufficient evidence from which the jury could find and determine, as it did, that the firearm in question had not been registered as required by the statute. Proof was established by the method authorized in F.R. Cr.P., Rule 27, adopting the provisions of F.R.Civ.P., Rule 44. The evidence was sufficient to sustain the jury’s finding. United States v. Cowley, 452 F.2d 243 (10 Cir. 1971), and see Vol. 1, Devitt & Blackmar, Federal Jury Practice & Instructions, § 34.05, p. 472. The instruction given was a correct statement. There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to the jury by the trial court. It is charged by appellant that m his closing argument to the jury the United States Attorney made an improper comment upon appellant’s failure to take the stand and testify in his own defense. This Court has upheld the privilege of a defendant to excereise his constitutional privilege not to testify where the prosecution’s statement in that regard was direct and prejudicial. Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to take the stand and testify. United States v. Lepiscopo, 458 F.2d 977 (10 Cir. 1972), particularly when it is not made to appear that no other testimony was available to contradict the evidence. Here, the comment of the prosecuting attorney came in response to defense counsel's argument in which he in effect asserted that the only evidence in the case was the testimony of one Barbour, an unbelievable associate of the appellant, who had testified for the Government (Tr. 418). It appears that the evidence referred to by the prosecutor was a tape recording of a conversation to which police officers were listening. In such a circumstance, any of the officers could have been called to dispute the correctness of the recording. We have examined the indictment, Count I of which appellant contends is defective. This count charges in language of the statute, 26 U.S.C. § 5861(d), with the citation of the penalty provision found in 26 U.S.C. § 5871 added, that appellant did “knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968.” Appellant complains that the failure to include any reference to the section of the statute which defines a firearm or says that a destructive device is a firearm and the absence of any statement that a homemade incendiary bomb has to be registered, fails to sufficiently apprise the accused of what he must be prepared to meet. This contention is without merit. Count I of the indictment- charged possession by appellant of a destructive device, a homemade incendiary bomb, a firearm, which had not been registered to him, and in Count II, he was charged with possessing such destructive device which was not identified by a serial number as required by the applicable statute. Rule 7(c), F.R.Cr.P., has put an end to “the rules of technical and formalized pleading.” Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240. Imperfections of form that are not prejudicial are disregarded and common sense prevails over technicalities. The sufficiency of indictments must be determined on the basis of practical rather than technical considerations and the validity of attacks on them must be considered from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting. Count I of the indictment, in plain, concise and definite language, alleged the essential facts constituting an offense under the statute. Under provisions of 26 U.S.C. § 5861(d), possession of a prohibited firearm not registered to a person was made unlawful. The firearm which was allegedly possessed by appellant was referred to as a “destructive device being more particularly described as one homemade incendiary bomb.” This is a sufficient allegation to fairly notify a defendant of the charge against him. His complaint that the indictment failed to make any reference to 26 U.S.C. § 5845(a)(8) and (f), which is the definition section of the Gun Control Act, is without merit as is his contention that some reference should be made to the section of the statute, 26 U.S.C. § 5841, which requires the registration of firearms. The rule relied upon by appellant defeats his right to relief. The stated violation in Count I is alleged to be 26 U. S.C. § 5861(d). The penalty section 5871 is added. Such is ample compliance with F.R.Cr.P. 7(c). The rule does not require the detailed recital in the indictment of each section of the Act describing the firearm a defendant is charged with possessing. In any event, the omission thereof has not misled the appellant here to his prejudice because the indictment otherwise fully apprises him of the charge. No prejudice appearing, such an omission furnishes no ground for reversal of a conviction. Worthy v. United States, 328 F.2d 386 (5 Cir. 1964). What has been said of appellant’s complaints as to Count I applies with equal force to his contentions relative to Count II. As to Count II, appellant asserts additionally that this count is fatally defective because it fails to state the subsection of the statute which requires that a destructive device be identified in such a manner as the secretary may prescribe. Again, we must hold that the allegations of Count II are sufficient. The offense charged was violation of 26 U.S.C. § 5861 (i), which makes unlawful the possession of a firearm which has not been identified by a serial number as required by 26 U.S.C. § 5842. The offense charged was not that defendant had failed to have an identification mark placed on the firearm, the offense charged was that defendant had possession of a destructive device which was not identified by a serial number. Had Count II been designed to charge failure of defendant to have the incendiary bomb marked with a serial number,, a different question would be presented, but such is not the case. The charge clearly furnished the accused with a description of the charge against him, under section 5861 (i), as enabled him to prepare his defense and was sufficient to avail him of his conviction or acquittal for protection against a further prosecution for the same cause. This is all that the law requires. The indictment is not vague or indefinite. Complaint is made that though the indictment charged defendant with “knowingly” committing the offenses described, there was no citation of the section or sections of the statute which states that knowledge of possession is a required element of the violation charged. As noted above the omission of a citation cannot be made the basis of a reversal of a conviction where the omission did not mislead the defendant to his prejudice. (Rule 7(c).) No prejudice has been shown and none appears. Furthermore, the Act requires no specific intent or knowledge that the incendiary bomb was unregistered or unidentified by a serial number. The absence of such a requirement does not violate due process requirements under the Act which is essentially designed as a regulatory statute in the area of public safety. There is no defect in the statute. Though the indictment charged that the defendant acted knowingly, it is only necessary to prove so much of an indictment as establishes that there has been a violation of the statute involved. Here, the evidence was sufficient. The assertion of defendant that the statutes under which the defendant is charged are unconstitutional because they do not provide for intent as an essential element of the crimes defined in the statute cannot be sustained in view of the Supreme Court’s pronouncement in Freed, supra. Appellant argues at length that his constitutional rights were violated when, at a preliminary hearing before the Magistrate and prior to the return of an indictment, he was denied the right to obtain and inspect certain statements given by prosecution witnesses for cross-examination and impeachment purposes. Appellant argues that since a preliminary hearing has been held to be a critical stage of criminal process requiring assistance of counsel, it follows that no limitation may be placed on the right of defendant’s counsel to fully cross-examine a witness and require the production of any statement the witness may have made or adopted. The Court is bound to follow the requirements of the Jencks Act. The language of that statute is clear. The Act provides, in effect, that after a witness called by the Government has testified on direct examination, the Court shall on the defendant’s motion, order the United States to produce any statement of the witness in possession of the United States which relates to the subject matter as to which the witness has testified. The statute carefully used the words, “The Court.” A committing magistrate is not, “The Court.” The word “Court” used in the Act must be construed to mean what it says. The Act further provides that the statement or report shall not be disclosed or inspected until the witness has testified on direct examination “in the trial” of the case. A preliminary hearing can scarcely be characterized as a trial. A trial takes place only before the Court. No right of defendant was violated. There is no constitutional right to a preliminary hearing before a magistrate and the return of an indictment eliminates the need for a preliminary examination. Again, it should be observed that a preliminary hearing is not designed for the purpose of affording discovery for an accused. We decline to follow decisions of the District of Columbia Circuits which, it is contended, have held to the contrary. Appellant complains that the statute under which he is charged in the indictment is unconstitutional in that it violates the self-incrimination clause of the 5th Amendment and it follows that because he cannot register the device, he is denied equal protection of the law. This Court has determined that the self-incrimination claim is without merit. Likewise, is the claim that the Act denies equal protection of the law. This contention has been considered and found unpersuasive. No person is required to take possession of an unregistered firearm, whether he is the maker, a finder, or a receiver. The Act makes it equally unlawful for any person to receive or possess a firearm which is not registered to him, 26 U.S.C. § 5861(d), or to possess a destructive device which is not identified by a serial number. 26 U.S.C. § 5861 (i). Appellant insists that the indictment is defective because it, in effect, charges him twice with the same offense and that he was tried on the two counts and convicted with identical evidence thus exposing him to double jeopardy. The well-settled rule is, that for the double jeopardy provision to apply, the offense charged and tried in the first count and the offense charged in the second count must be identical in law and fact. The test for determining whether the offenses charged are identical is whether the facts alleged in one, if offered in support of the other, would sustain a conviction. Where one count requires proof of a fact which the other count does not, the separate offenses charged are not identical, even though the charges arise out of the same acts. Here, Count I charged possession of an unregistered firearm; Count II charged possession of a firearm not identified by a serial number. To convict defendant under Count I, no proof of lack of identification by serial number was needed but Count II did require such proof and it was established by the evidence. Defendant’s claim of double jeopardy must be rejected. Affirmed. . The instruction given read : “Now, tile Government has introduced into evidence a Certificate of the custodian of the National Firearms Register and Transfer Record, to the effect that he has made a diligent search and has found no record of any firearms or destructive device being registered to the defendant. Such a certificate is competent evidence that the item — items introduced in this case were not registered to the defendant. However, it is up to you to determine what evidence you will accept, and what weight you may give to any evidence presented to you in this case.” . The comment made was : Now, Ladies and Gentlemen, I want to read to you the one piece of evidence in this case that cannot be refuted. It is corroboration of everything Mr. Barbour says, and that is the tape recording of Mr. Robbin’s telephone conversation with Barbour when Barbour and the police were on the other end of the line. . Specifically, the indictment charged : “COUNT I “On or about the 16th day of March, 1972, at Albuquerque, in the State and District of New Mexico, the defendant, MILTON ROBBINS, aka Mickey Robbins, did knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968. In violation of Title 26 U.S.C. 5861(d) and 5871). “COUNT II “On or about the 16th day of March, 1972, at Albuquerque, in the State and District of New Mexico, the defendant, MILTON ROBBINS, aka Mickey Robbins, knowingly possessed a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which was not identified by a serial number, required by Section 5842, Title 26, U.S.C. In violation of Title 26, U.S.C. 5861 (i) and 5871.” . 26 U.S.C. § 5842(c), reacts: “Identification of destructive device.— Any firearm classified as a destructive device shall be identified in such manner as the Secretary or his delegate may by regulations prescribe.” . United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588; James v. United States, 416 F.2d 467, 472, (5 Cir.), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87. . United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356. . United States v. Archer, 455 F.2d 193 (10 Cir. 1972). . Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. . 18 U.S.C. $ 3500. . Gibson v. Halleck, 254 F.Supp. 159 (D.C.D.C.); United States v. Covello, 410 F.2d 536 (2 Cir. 1969); United States v. Montos, 421 F.2d 215 (5 Cir. 1970). . Sciortino v. Zampano, 385 F.2d 132 (2 Cir. 1967). . Jaben v. United States, 381 U.S. 214, 220, 85 S.Ct. 1365, 14 L.Ed.2d 345. . United States v. Conway, 415 F.2d 158 (3 Cir. 1969). . United States v. Cowley, 452 F.2d 243 (10 Cir. 1971); Sanders v. United States, 441 F.2d 412 (10 Cir. 1971). . United States v. Johnson, 441 F.2d 1134 (5 Cir. 1971). . Milentz v. United States, 446 F.2d 111 (8 Cir. 1971). . Bell v. Kansas, 452 F.2d 783 (10 Cir. 1971). . Bartlett v. United States, 166 F.2d 928 (10 Cir. 1948). . Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954). . Goldsmith v. Cheney, 447 F.2d 624 (10 Cir. 1971).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Alfred Lee SIMMONS, Appellant. No. 72-2174. United States Court of Appeals, Ninth Circuit. March 12, 1973. Michael D. Nasatir, of Nasatir, Sherman & Hirseh, Beverly Hills, Cal., for appellant. William D. Keller, U. S. Atty., Eric A. Nobles, John K. Cameron, Jr., Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before MERRILL and CHOY, Circuit Judges and ENRIGHT, District Judge. The Honorable William E. Enright, United States District Judge for the Southern District of California, sitting by designation. ENRIGHT, District Judge: The appellant, Alfred Lee Simmons, was found guilty after jury trial for a knowing failure to report for induction into the armed forces of the United States. On this appeal, he raises four principal issues as grounds for reversal. He argues: (a) that he was denied due process when, after the originally assigned judge took ill, in apparent contravention of the applicable Local Rules, his case was specifically assigned to the trial judge rather than being reassigned through the criminal calendar or to a new judge selected at random; (b) that his selective service file was improperly introduced into evidence and thereby led to subsequent prejudice; (c) that the trial judge erred in his instructions to the jury; (d) that the evidence was insufficient to establish the offense. THE FACTS The Government introduced Simmons’ Selective Service file into evidence over objection and rested. The file showed that on June 7, 1966, Simmons was classified 1-A and a notice of classification was mailed to him. Subsequently, he was reclassified 1-Y, because he was on active probation at that time. Later, he was again classified 1-A. Eventually, the Local Board mailed to appellant an order to report; his failure so to do resulted in his conviction. After introduction of the file into evidence, the trial judge permitted the Assistant United States Attorney during his case in chief to point out and comment upon portions of the file, again over objection. A motion for acquittal at the conclusion of the government’s case was denied. In his case, Simmons relied upon the testimony of his mother, Ms. Dorothy Jean Simmons. Ms. Simmons testified that she picked up letters from her home over the noon recess during the day of the trial. She did not know what documents these letters contained but the envelopes contained indications that they were from the Selective Service. The seven envelopes which she had brought were numbered A through G for identification by the defense. All the exhibits were and had remained sealed. In open court, Ms. Simmons opened Exhibit A and found the letter ordering appellant to report. She further testified that she did not know what date she had received Exhibit A, but estimated about one year prior. She explained that she had in 1970 or 1971 forwarded a quantity of mail to the appellant and was surprised that she still had the exhibits in her possession. Finally, she testified that her son had not lived at home since reaching 17 years of age but maintained her home as a mailing address. The Court instructed the jury pursuant to Selective Service regulations, and the defense objected. THE ISSUES A. The Selection of the Trial Judge After the original assigned judge took ill, appellant’s case was specifically assigned to the trial court. Appellant contends that he had an absolute right to a random selection of a judge and that the process followed by the court in this instance was in violation of Rule 2(f) of the Local Rules of the Central District of California, and General Order No. 104(H). Arguing that these rules were promulgated to ensure fairness and to remove any suspicion of unethical conduct, appellant would have us conclude that the failure of the judicial system to follow its own regulations when dealing with criminal defendants is a denial of due process. For this contention, appellant would have us rely upon Briggs v. United States, 397 F.2d 370 (9th Cir. 1968). Briggs concerned the failure of armed forces personnel to comply strictly with an Army Regulation requiring a physical inspection at induction. But, even assuming that noncompliance with Army Regulations is apposite with noncompliance with court rules, this Circuit has subsequently held that noncomplianee per se is not the determinant but rather prejudice to the defendant. United States v. Jenson, 450 F.2d 1258, 1261 (9th Cir. 1971). We are not convinced that in this particular circumstance, the assignment of the trial court prejudiced the defendant as a matter of law. Further, we cannot be unmindful that Local Rules are promulgated by District Courts primarily to promote the efficiency of the court, and that the court has a large measure of discretion in applying them. Lance, Inc. v. Dewco Services, Inc., 422 F.2d 778, 784 (9th Cir. 1970). On the record before us, we cannot determine that the Central District of California abused that discretion. B. Introduction and Comment upon the File At trial, defense counsel objected to the introduction of appellant’s Selective Service file on grounds of hearsay. It cannot be doubted that a properly authenticated selective service file may be received into evidence in this Circuit as an exception to the hearsay rule. E. g., United States v. Grans, 472 F.2d 597 (9th Cir. 1972). The appellant also asserts that comments concerning the file by the Assistant United States Attorney permitted by the trial judge over defense objections were prejudicial. Specifically, the Government explained that appellant had been classified 1-Y because he had been on active probation for committing a criminal offense. We agree with appellant that such explanation was irrelevant to his guilt or innocence on the charge of failing to report for induction. Appellant then argues that such admission is prejudicial since a defendant’s criminal record cannot be brought before the jury unless the defendant takes the stand or he places his character in issue — and then only felony convictions can be introduced to impeach. We tend to agree with appellant’s position, but since the improper instruction requires reversal, we need not decide whether such erroneous comment was indeed prejudicial in this particular instance. C. Instruction As to Notice The Government requested the court to instruct the jury pursuant to 32 C.F.R. § 1641.3, which provides: It shall be the duty of each registrant to keep his local board advised at all times of the address where mail, will reach him. The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him, of the contents of the communication, whether he actually received it or not. (Emphasis added.) Responding to the defense objection that the quoted instruction is violative of due process, the trial judge stated: The answer to that is that on the basis of the facts, uncontroverted facts given here that as a matter of law the notice was duly given, that is what I propose to instruct the jury. (Emphasis added.) The Third Circuit has considered this same issue. The court there concluded that: The regulation in effect creates an “irrebuttable or conclusive presumption” that mail sent is received. Such a presumption would make irrelevant any evidence the defendant-appellant did offer or might have offered to prove he did not receive the forms. Even if we were not dealing with the regulation that involved the critical issue of notice, the regulation cannot stand. We believe the regulation to be unconstitutional as violative of the due process clause of the Fifth Amendment insofar as it purports to establish such an irrebuttable presumption. United States v. Bowen, 414 F.2d 1268, 1273 (3d Cir. 1969) (footnote omitted.) The Bowen court also wrote: Having determined that it was improper for the lower court to cite in its charge to the Selective Service mail regulation, 32 C.R.F. § 1641.3, in any way that clearly made it seem to be an irrebuttable presumption, we are compelled to reverse the conviction because of the possibility that this portion of the charge may have been at the root of the jury’s verdict. Id. at 1277. Similarly, the reasoning of District Judge Motley is compelling: The government’s interpretation of the regulation must be rejected out of hand. It would be truly shocking if such an “irrebuttable presumption” concerned with a simple evidentiary matter, could be constructed to send a man to jail. The government cited neither cases, .nor administrative rulings, to support such a draconian reading of 32 C.F.R. § 1641.3. United States v. Smith, 308 F.Supp. 1262, 1263 (S.D.N.Y.1969). The impact of the regulation and the instruction given, in effect, bootstraps mailing into receipt and receipt into notice. We, therefore, agree with the appellant that the instruction as given was violative of due process and the conviction obtained from the jury so charged must be reversed, especially here where evidence indicated that notice was never received by the appellant and in fact the envelope was first opened in open court. D. Insufficiency of the Evidence Finally, appellant asserts that the evidence as presented in this case would be insufficient to sustain the conviction. With this we disagree. While 32 C.F.R. § 1641.3 is void if construed as a “conclusive” presumption, we hold that it may properly be applied to create a rebuttable presumption. Given the circumstances of the introduction of the letters, that is, their alleged unknown whereabouts for a year’s time only to be discovered within the lunch hour of the day of trial, it is entirely possible that the triers of fact may have inferred that despite their never having been delivered to the appellant, appellant knew, or had reason to believe, that he had been ordered to report. In conclusion, because of the erroneous instruction, we reverse. . (f) Transfer in Cases of Prolonged Illness or Unavoidable Absence — In order to prevent excessive delay in the disposition of causes in the court, this court may, in the event of prolonged illness, disability, or other unavoidable absence of any judge, transfer from the calendar of such absent judge any case or cases pending on the calendar of such unavoidably-absent judge, whenever the court may deem such action necessary in the interest of expediting the business of the court. A transfer of a civil case shall be accomplished by the drawing of a judge’s name by the clerk by the same method used to assign civil cases. The transfer of a criminal case shall be accomplished by referring it to the judge in charge of the criminal calendar for the drawing of a judge’s name from the cards used to assign criminal cases. No transfer shall be made pursuant to this Rule except when some judge of the court shall be absent for a period of thirty days or more solely because of illness, disability, or other cause beyond the control of such absent judge. . H. Procedure When Assignment Cards of Absent Judges Are Drawn — When a judge is absent from the District, ill, or on vacation for more than two successive Mondays, he may instruct the Arraignment Calendar Magistrate that no cases are to be assigned to him during the period of his absence, or that defendants in cases assigned to him are to be instructed to appear before him on a certain date for entering a plea and setting for trial, or that only cases in which the defendants are on bond shall be assigned to him, and other appropriate instructions. The Arraignment Calendar Magistrate shall follow the instructions as closely as reasonably possible. When an assignment card of an absent judge is drawn and the absent judge has instructed that no case be assigned to him in the circumstances, the card will be put aside and held until the return of the absent judge. An appropriate notation shall be made on the card, including the date upon which it was drawn, the number on the calendar and the case number. When the absent judge returns, a notation shall be made on the card that it has been returned to the wheel on a certain date, the card shall again be placed in the wheel in a sealed envelope as before. . In liis brief, appellant first urges an objection based upon an alleged lack of authentication. While the new Federal Rules of Evidence shall not take effect per se until July 1, 1973, we nevertheless prefer to look toward the rules for guidance in determining the question raised. It would seem that a certified selective service file would be a prime example of self-authentication. Rule of Evidence 902(4), 56 F.R.D. 183, 337. . The matter was discussed in depth prior to argument outside the presence of the jury: Mr. Nasatir: Just to avoid any problems, to get it all out in the open, just so that I know what my duties are, will I be allowed to argue [that notice wasl duly given or not? The Court: The answer to that is that on the basis of the facts, uncontroverted facts given here that as a matter of law the notice was duly given, that is what I propose to instruct the jury. Mr. Nasatir: I am just trying to get it clear, your Honor, so I will not further anger this Court. Will I be precluded then from arguing that as a defense? The Court: I just told you, Mr. Nasatir, that I propose [to] instruct the jury that based upon the uncontradicted evidence in the record that as a matter of law I am going to instruct the jury that the notice was duly given.

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Caselaw Access Project

2024-08-24T03:29:51.129235

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UNITED STATES of America ex rel. Carlos ORTIZ, #59524, Petitioner-Appellant, v. Harold FRITZ, Superintendent of Auburn Correctional Facility, Auburn, New York, Respondent-Appellee. No. 374, Docket 72-1973. United States Court of Appeals, - Second Circuit. Argued Jan. 18, 1973. Decided March 26, 1973. Julia Pamela Heit, New York City (William E. Hellerstein and Robert Kasanof, New York City, of counsel), for petitioner-appellant. Brenda Soloff, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee. Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges. OAKES, Circuit Judge: This appeal from the denial of a habeas corpus petition raises a serious question as to the applicability of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in the case of “interlocking” confessions of codefendants. Only because we consider ourselves bound by United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U. S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970), and its progeny in this circuit, do we affirm. The original conviction was for murder in the first degree in the New York state courts. Appellant, Carlos Ortiz, his brother Alfredo and one Doel Valencia each had confessed to the October, 1964, killing of Alexander Helmer, a resident of the Bronx, in the course of robbing him. The confessions were held voluntary following a Huntley hearing. While there apparently is a pending habeas case relating to the voluntariness of Alfredo’s confession, no claim is advanced here that any of the three were involuntary, much less appellant’s. The only basis for the convictions was the confessions, since there was no evidence independent of the confessions having a connection to the appellant. That is to say, there were no witnesses to the slaying, and there was no scientific evidence that would have connected appellant or his codefendants to the scene of the crime. True, two Bazooka bubble gum wrappers were found in the deceased’s apartment, but it was only through appellant’s own confession, in which he stated that he left Bazooka wrappers at the scene, that they were tied to him. Bruton, it will be recalled, held that the sixth amendment confrontation rights of the defendant Bruton, who had made no admissions or confessions, had been violated by the admission of a confession of his codefendant, Evans, who did not take the stand, even though the trial court — following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957)—had charged the jury that the codefendant’s confession should be disregarded in determining Bruton’s guilt or innocence. Catanzaro held that because Catanzaro had himself confessed and his confession interlocked with and supported his codefendant’s confession, “no such ‘devastating’ risk attends the lack of confrontation as was thought to be involved in Bruton.” 404 F.2d at 300. There is some question here whether the appellant's confession did “interlock,” or in the words of Judge Lasker below was “substantially identical,” with the others. Each confession involved appellant, his brother Alfredo, the third defendant, Valencia, and one “Negrito” who is said by appellant and Valencia to have done the actual stabbing of the victim. Appellant’s and Valencia’s confessions each told of the stabbing after the victim put up some resistance. All three confessions said that Alfredo Ortiz was posted as lookout, and in none of them is it claimed that he saw the actual stabbing. Appellant claims that the confessions do not interlock: first, because Alfredo’s confession in no way covered the slaying itself; second, because the confessions placed the crime at substantially different times. Although the three confessions do not all cover the same facts, they do interlock and are consistent as regards the slaying. As to the time of commission, there is a considerable discrepancy. Appellant’s and his brother’s confessions fixed the crime at noon, while Valencia’s confession set it at 9:00 p. m. This means that one or more of the confessions is false or erroneous. But we do not think it takes away from the “interlocking” aspect of the confessions. As to motive, plot and execution of the crime they are essentially the same. Appellant’s principal argument is that Bruton applies here because Catanzaro and progeny are really applications of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Harrington held that admission of co-defendants’ confessions after Bruton was harmless constitutional error because a statement by Harrington placed him at the scene of the crime, and other incriminating evidence was so “overwhelming . . . that this violation of Bruton was harmless beyond a reasonable doubt. . . .” 395 U.S. at 254, 89 S.Ct. at 1728. Appellant argues here that because there was no such other evidence — though on this score the Bazooka bubble gum wrappers do constitute independent evidence, albeit based on Ortiz’s own confession — the Bruton violation was certainly not “harmless beyond a reasonable doubt.” We would have to say that while the gum wrappers were perhaps not “overwhelming,” they were substantial, and they do corroborate his own statement as to his presence at the scene. We are not unmindful, moreover, of Mr. Justice White’s dissenting comment in Bruton (which did not involve the defendant’s own confession) that “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” 391 U.S. at 139, 88 S.Ct. at 1630. Since the voluntariness of the confessions has not been argued, it would seem that here, as in Harrington, the constitutional error would be harmless. The teaching of Catanzaro et al. is, however, that Bruton is inapplicable where co-confessions “interlock.” Existence of independent evidence linking the defendant to the scene and the crime —though there were some in Catanzaro, not alluded to except in the statement of facts — is not a factor under Catanzaro. The Catanzaro rationale is that the “ ‘devastating’ risk” that a jury will not be able to disregard the codefendant’s confession is not present when the defendant’s own confession is in evidence. 404 F.2d at 300. This rationale does not seem to go, however, to the second underpinning of Bruton, viz., that the credibility of a co-defendant’s confession is “inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully ...” 391 U.S. at 136, 88 S.Ct. at 1628. The element of unreliability, as the Court said, is “intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.” Id. Despite the defendant’s own confession, the jury may still look to the incriminating statements of a codefendant, or to the cumulative impact of those statements coupled with the defendant’s own statements, to find the defendant’s guilt— despite the “placebo” of curative instructions. Cf. People v. Jackson, 22 N.Y.2d 446, 293 N.Y.S.2d 265, 239 N.E. 2d 869 (1968) (separate trials ordered for three codefendants, all of whom had confessed). And while no issue of voluntariness has here been raised, the fact is that if in the separate habeas case now pending, Alfredo’s confession is held to have been made involuntarily, inadmissible evidence will have been used to convict his brother, the appellant here. Thus, we are somewhat uncomfortable with the implications of Catanzaro. Yet it is now the law of this circuit. It was followed in United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969), and in United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972), although Sloan rested on the alternative ground of harmless error. If it is to be overruled, it will have to be by the Supreme Court, absent the requisite en banc vote which — through prior circulation of this opinion — has not ensued. Here we emphasize that there is no issue of voluntariness of any of the co-defendants’ confessions. Nor is there any content of the codefendants’ confessions that implicates appellant any more in the commission of the crime than does his own confession — in fact, of the three, his own is the most significant. We therefore affirm the judgment below. . United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972); United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969); United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). See also Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971). While these cases, as well as appellant’s, were tried before Bruton, Bruton is to be applied retroactively, both ns to state and federal prosecutions. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). . Supreme Court, Bronx County (Lyman, J.), aff'd, People v. Ortiz, 30 A.D.2d 510, 294 N.Y.S.2d 625 (1st Dep’t 1968), aff’d, 25 N.Y.2d 863, 303 N.Y.S.2d 879, 250 N.E.2d 872 (1969), cert. denied, 397 U.S. 1011, 90 S.Ct. 1242, 25 L.Ed.2d 425 (1970). It should be noted that Chief Judge Fuld and Judge Burke of the Court of Appeals concurred solely because they considered themselves bound by People v. McNeil, 24 N.Y.2d 550, 301 N.Y.S.2d 503, 249 N.E.2d 383 (1969), which in turn relied heavily on Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . A disinterested witness had testified that she saw the victim alive between 7:00 p. m. and 7:30 p. m. . Mr. Justice White's comment was male in discussing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the purport of which was that the trial judge must not permit the jury to hear the defendant’s own confession until there lias been at least a trial court finding of voluntariness after a hearing out of the presence of the jury. . The Tenth Circuit has said that it is a “legal nicety” whether the case is “without” Bruton (per Catanzaro), or “within” it but with only harmless error (per Harrington). Metropolis v. Turner, supra, 437 F.2d at 208-209. This circuit has relied on both Catanzaro and Harrington in United States ex rel. Dukes v. Wallack, 414 F.2d 246, 247 (2d Cir. 1969). . Bruton does not quite speak of a “devastating risk” as such, but rather speaks of “risk” in saying, Nevertheless, ns was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. 391 U.S. at 135, 88 S.Ct. at 1627. The Court then goes on to refer to the incriminations in the codefendant’s confession being “devastating” to the defendant. 391 U.S. at 136, 88 S.Ct. 1620. . See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956), aff’d, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).

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UNITED STATES of America, Plaintiff-Appellee, v. John STANFORD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joe Louis BECTON, Defendant-Appellant. Nos. 72-1758, 72-1759. United States Court of Appeals, Sixth Circuit. Argued Feb. 8, 1973. Decided March 30, 1973. Robert W. Andrews (Court appointed), Memphis, Tenn., on brief, for appellant Stanford. J. Harold Ellis (Court appointed), Memphis, Tenn., on brief, for appellant Becton. Johnnie L. Johnson, Jr., Asst. U. S. Atty., Memphis, Tenn., for appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief. Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges. PER CURIAM. Appellants were convicted on all counts of a four-count indictment: Count 1 charged them with possession and control of unregistered distilling apparatus in violation of 26 U.S.C. § 5601(a)(1); Count 2 charged willful and unlawful making of fermented mash, in violation of 26 U.S.C.A. § 5601(a)(7); Count 3, the unlawful production of spiritous liquors in violation of 26 U.S.C. § 5681 (c); and Count 4, the unlawful possession of property intended for use in the production of spiritous liquors, in violation of 26 U.S.C. § 5686(a). The two appeals were separately filed and briefed but were argued together and have been consolidated in this opinion. On February 18, 1971, Police Detective Childers received information from an informant that a whiskey still was being operated in the north section of Memphis, Tennessee. Accompanying the informant to the still site, Detective Childers found that the still was located in an open field which was filled with junk cars, garbage and trash. The cooker, covered with garbage and debris, was concealed in a hole in which a fire had been burning. Concealed beneath the trash and garbage was a cave about three feet high and four feet wide. Inside the cave was a large pot made of two 55-gallon drums welded together, eight barrels, some plywood, a tarpaulin and some boxes. No signs were posted around the area designating it as a distillery that was registered with the United States Treasury Department. It was estimated that the still had been in operation for approximately two months. Having located the still, a surveillance of the still site was begun on February 18, 1971. On the evening of February 23 it was determined that the still was in operation and the officers took their various positions in connection with the surveillance. Some of them remained in automobiles on Levee Road, which ran alongside the dump, and two agents concealed themselves in the dump about 25 yards from the still. At approximately 7:00 or 7:30 p. m. Appellants Stanford and Becton were seen walking eastwardly on Levee Road. They left the road ánd walked through the dump, stopping approximately 60 yards from the position of the two agents and approximately 85 yards from the still. They crouched down, got up, walked back onto Levee Road and began walking along the road. The agent in charge of the operation ordered by radio the other officers in the vicinity to stop them and the officers stationed in automobiles stopped and arrested Appellants. The officers testified that both smelled of wood-smoke, Stanford’s right pant leg was wet from the knee down and he had mash residue on his trousers, and both had mud on their shoes. Becton made a statement to the effect that he had been arrested for liquor violations before “but not for a little toy like that little thing down there.” After the arrest, the still was observed by the agents and found to be in operation. A plaster cast of a footprint located about twenty paces from the still site was found to match Stanford’s boot. Also, soil samples taken from the area around the still site were found to match soil taken from both Appellants’ boots. Stanford’s motion to suppress, based on a lack of probable cause for his arrest, was denied by the District Court. Appellants attack the validity of their arrests and the seizure of their clothing and contend that the District Court improperly denied their motions of acquittal because the evidence was insufficient to sustain their conviction. Because we find that the evidence was insufficient to sustain the convictions we find it unnecessary to consider the validity of the arrests. In considering whether the evidence is insufficient to support a judgment of conviction, an appellate court will reverse the judgment only if it is not supported by substantial and competent evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), rehearing denied, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222. “In making such a determination the Court must take that view of the evidence with inferences reasonably and justifiably to be drawn therefrom most favorable to the Government, without weighing the evidence or determining the credibility of the witnesses.” United States v. Conti, 339 F.2d 10, 13 (6th Cir. 1964). Having carefully reviewed the evidence in the light most favorable to the Government, we do not find that it is sufficient to sustain Appellants’ convictions. Neither Appellant was seen closer than 75 to 85 yards from the still. Neither had been seen in the area during the five previous days of surveillance. While evidence of footprints and soil samples was introduced, there was no evidence from which could be inferred Appellants’ presence at the still during its operation. Presence at the still site, without more, is not sufficient to support a conviction for illegal possession and control of distilling apparatus. United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). In both Romano and Bozza the defendant was seen at the site of the still, inside a private building. Here, Appellants were seen in a field used as a public dump, some 85 yards away from the still. The statutes relating to the operation of an illegal still require proof of the specific offense charged. As the Supreme Court said in Bozza v. United States, supra: “The Internal Revenue statutes have broken down the various steps and phases of a continuous illicit distilling business and made each of them a separate offense. Thus, these statutes have clearly carved out the conduct of making mash as a separate offense, thereby distinguishing it from the other offenses involving other steps and phases of the distilling business. Consequently, testimony to prove this separate offense of making mash must point directly to conduct within the narrow margins which the statute alone defines. One who neither engages in the conduct specifically prohibited, nor aids and abets it, does not violate the section which prohibits it.” 330 U.S. at 163, 67 S.Ct. at 647. Appellants were charged with the specific acts of possession, making and fermenting of mash, and working in an illegal distillery. The evidence does not sustain the commission of any of these specific offenses by the Appellants. The Government failed to show that Appellants committed an act specifically proscribed by the statutes under which they were charged. Their convictions must be reversed. Accordingly, the judgment of the District Court denying Appellants’ motions for acquittal is reversed. . Section 5601 (a) (1) provides that any person who “has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179(a) . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. . . .” . Section 5601(a)(7) provides that any person who “except as otherwise provided in this chapter, makes or ferments mash, wort, or wash, fit for distillation or for the production of distilled spirits, in any building or on any premises other than the designated premises of a distilled spirits plant lawfully qualified to produce distilled spirits, or removes, without authorization by the Secretary or his delegate, any mash, wort, or wash, so made or fermented, from the designated premises of such lawfully qualified plant before being distilled . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. }> . Section 5681(c) provides that “[e]very person who works in any distillery, or in any rectifying, distilled spirits bottling, or wholesale liquor establishment, on which no sign required by section 5115(a) or section 5180(a) is placed or kept, and every person who knowingly receives at, or carries or conveys any distilled spirits to or from any such distillery, or to or from any such rectifying, distilled spirits bottling, or wholesale liquor establishment, or who knowingly carries or delivers any grain, molasses, or other raw material to any distillery on which said sign is not placed and kept, shall forfeit all vehicles, aircraft, or vessels used in carrying or conveying such property and shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.” . Section 5686(a) provides that “[i]t shall be unlawful to have or possess any liquor or property intended for use in violating any provision of this chapter or regulations issued pursuant thereto, or which has been so used, and every person so having or possessing or using such liquor or property, shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.” . The United States, in its brief, has summarized the evidence in the following manner: “The record shows that Detective Childers received information on February 18, 1971, that a whiskey still was being operated east of Thomas Street, north of Levee Road, on the south side of the Wolf River, in Memphis, Tennessee. A surveillance was set up on that date at the still site at 7:00 p. m. on February 28, 1971. The defendant and Joe Louis Becton were seen approaching the still site from Levee Road. The defendant and Joe Louis Becton dropped down in the tall grass upon noticing that the whiskey still was under surveillance. “The Defendant and Joe Louis Becton were fifty yards from the point where Special Agents Robert W. St. John and Jerry W. Robinson were positioned near the whiskey still. The Defendant and Joe Louis Becton then changed their direction and headed south toward Levee Road where they were arrested. “Detective Childers testified that as he approached the Defendant John Stanford he noticed his right pants leg was wet from the knee down and he smelled the unmistakable odor of wood smoke on the Defendant John Stanford and Joe Louis Becton. 1-Ie further testified that he saw mash on the front of John Stanford’s clothing. “The whiskey still was observed that night and was found to be in operation and a fire was underneath the still cooking pot. There was a washtub with several gallons of whiskey in it. The smoke pipe that had been placed inside the cave was taken out and it was in the outside of the cave and smoke was protruding out of the stack. The tops liad been taken off the barrels and they were open. There was a drip bucket underneath tire thumper coil and the drip bucket was almost full of whiskey. “A plaster of paris cast was taken of the footprints of the Defendant John Stanford twenty paces from the whiskey still. “The soil sample taken from the boots of the Defendant John Stanford was the same that was found in the bootprints of the Defendant John Stanford twenty paces from the still site. The soil removed from Defendant John Stanford’s pants leg was the samo soil that was taken from his bootprint at the still site. The soil taken from inside the cave was the same soil that was taken from John Stanford’s boots. “The defendant’s pants contained mash residue. “The soil removed from the shoes of Joe Louis Becton was the same soil as that from the cooker inside the cave.”

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LEXINGTON INSURANCE COMPANY, Plaintiff, Appellant, v. ABARCA WAREHOUSES CORPORATION et al., Defendants, Appellees. No. 72-1054. United States Court of Appeals, First Circuit. Heard Feb. 6, 1972. Decided April 2, 1973. Jose L. Novas-Dueno, San Juan, P. R., with whom Hartzell, Ydrach, Mellado, Santiago, Perez & Novas, San Juan, P. R., were on brief, for appellant. Eli B. Arroyo, San Juan, P. R., and Rieckehoff, Calderon, Vargas & Arroyo, San Juan, P. R., on brief for appellees. Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges. McENTEE, Circuit Judge. In this diversity suit Lexington Insurance Company seeks recovery from a contractor, Abarca Warehouses Corporation, and its insurer, Great American Insurance Company, for a sum Lexington paid its insureds, Puerto Rico Industrial Development Corporation (Pridco) and Hilton Hotels International, as indemnity for damages resulting from a fire which occurred on their property allegedly as the result of the negligence of an Abarca employee. The underlying facts may be summarized as follows. In April 1965 Lexington issued an all-risk policy to Pridco and Hilton covering any loss which they might incur from their ownership and operation of the Caribe Hilton Hotel. Approximately one year later Hilton entered into a contract with Abarca in which the latter agreed to install a large force-draft cooling tower on the hotel premises. The fire in question broke out in the construction area on March 13, 1967. As a result of this incident, Hilton sustained losses in the amount of $34,277.10 and, on June 7, 1968, pursuant to the terms of its policy, Lexington paid Hilton this amount. Thereafter, on January 14, 1971, some four years after the fire, Lexington initiated this action against Abarca and Great American. The defendants moved to dismiss the complaint on the ground that the cause of action sounded in tort and was thus barred by the one-year statute of limitations applicable to such actions. Lexington countered that the appropriate limitations period was fifteen years, the period applicable to suits in contract. It contended that its right to recover was based upon the failure of Abarca to perform its contract with Hilton in a safe and workmanlike manner. The district court, 337 F.Supp. 902, granted defendants’ motion to dismiss and this appeal followed. For the reasons set forth below, we affirm. The primary issue before us is whether the trial court was correct in concluding, as a matter of Puerto Rican law, that Lexington’s complaint sounded in tort rather than in contract. In considering this question we note at the outset the fundamental doctrinal distinction between these two types of action. As Dean Prosser states: “The fundamental difference between tort and contract lies in the nature of the interests protected. Tort actions are created to protect the interest in freedom from various kinds of harm. The duties of conduct which give rise to them are imposed by the law, and are based primarily upon social policy, and not necessarily upon the will or intention of the parties. . Contract actions are created to protect the interest in having promises performed. Contract obligations are imposed because of conduct of parties manifesting consent, and are' owed only to the specific individuals named in the contract. Even as to these individuals, the damages recoverable for a breach of the contract duty are limited to those reasonably within the contemplation of the defendant when the contract was made, while in a tort action a much broader measure of damages is applied.” [Footnotes omitted.] W. Prosser, Law of Torts, § 93 at 634 (3d Ed. 1964). Mindful of these distinctions, we feel that it is very unlikely that the fire losses which occurred in the instant case were within the contemplation of Hilton and Abarca when they executed their agreement. It is of course clear that Abarca would be liable for breach of contract if it had failed to erect the tower or if its performance of this obligation were in some manner deficient. In the absence of a provision in the agreement which would indicate that the parties intended to allocate liability for damages which might arise as the result of negligent conduct during the course of construction, however, Hilton and its subrogee Lexington are left to traditional tort remedies, not with an action in contract, to recoup these losses. Cf. Bickford v. Richards, 154 Mass. 163, 27 N.E. 1014 (1891). In addition, in Puerto Rico it is well settled that when one party to a contract is injured through the fault or negligence of the other party, the aggrieved individual’s right of recovery ordinarily lies in tort in spite of the pre-existing contractual relationship. As we have recently observed in an analogous context: “Although ordinarily the one year tort limitation does not apply to contract actions, Ruis et al. v. Mercado & Sons, 38 P.R.R. 525 (1928), in Puerto Rico there is a well recognized exception to this general rule where the damages arise out of the commission of a tort. Buso v. Martinez, 18 P.R.R. 994 (1912). In that case, as in the instant one, the damage was caused through fault or negligence although it arose by reason of contract. The Supreme Court upheld the action of the trial court in sustaining defendant’s demurrer on the ground that the damages claimed arose through the fault or negligence referred to in § 1803 of the Civil Code (now § 5141), and therefore the action was prescribed by the one year statute.” Fraticelli v. St. Paul Fire and Marine Insurance Co., 375 F.2d 186, 188-189 (1st Cir. 1967). Finally, in this case we consider the tort-contract question solely in order to determine the appropriate statute of limitations. Under this circumstance, the fact that limitation periods applicable to negligence actions are ordinarily shorter in duration than those applicable to suits upon written contracts because the former actions are usually based upon evidence of a more ephemeral nature becomes relevant. Mindful of the potential unfairness in permitting “the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,” Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944), we would find it very difficult to justify the application of a fifteen year statute of limitations to Lexington’s claim. Given the Buso v. Martinez, 18 P.R.R. 994 (1912), line of authority and the fact that Lexington’s cause of action was based upon losses caused by the alleged negligence of one of Abarca’s employees, we find that the district court did not err in concluding that this cause sounded in tort rather than in contract and was thus barred by the applicable one-year statute of limitations. Affirmed. . 31 L.P.R.A. § 5298 provides in pertinent part that: “The following prescribe in one year: “1. . . . “2. Actions to- demand civil liability . . for obligations arising from the fault or negligence mentioned in section 5141 of this title, from the time the aggrieved person had knowledge thereof.” . 31 L.P.R.A. § 5294 reads as follows: “A mortgage action prescribes after twenty years, and those which are personal and for which no special term of prescription is fixed, after fifteen years.” This provision has been held to apply to actions for breach of contract. See, e. g., Saavedra v. Central Coloso, Inc., 85 P.R. R. 404 (1962); Segarra v. Vivaldi, 55 P.R.R. 153, 155-156 (1939). . Although the agreement between Hilton and Abarca is not in the record and thus is not before us, Lexington has not alleged that a provision of this sort was included in the contract. . The cases on which Lexington relies are distinguishable from the ease at bar and from Buso v. Martinez, 18 P.R.R. 994 (1912). In Quinones v. Municipality of Ponce, 92 P.R.R. 571 (1965), Camacho v. Catholic Church, 72 P.R.R. 332 (1951), and Maldonado v. Municipality of Ponce, 39 P.R.R. 226 (1929), the conduct complained of, the desecration of burial plots previously sold to the plaintiffs, constituted not only a tort but also a breach of the defendants’ continuing contractual obligation to preserve and care for the graves. Similarly, in Arroyo v. Caldas, 68 P.R.R. 639 (1948), plaintiff’s suit for personal injuries was based primarily on the defendant landlord’s breach of his continuing statutory duty to perform all necessary repairs on the leased premises. .see 31 L.P.R.A. § 4051, rather than on his negligence in permitting a dangerous condition to remain unremedied in the leasehold.

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UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. COOPERATIVE GRAIN AND SUPPLY CO. et al., Defendants-Appellees, Cross-Appellants. Nos. 71-1651 to 71-1653, 71-1666 to 71-1668. United States Court of Appeals, Eighth Circuit. Submitted Nov. 13, 1972. Decided March 15, 1973. Robert C. Guenzel, Lincoln, Neb., for Cooperative Grain & Supply Co. Ronald R. Glancz, Atty., Appellate Section, U. S. Dept, of Justice, Washington, D. C., for the United States. Before GIBSON and LAY, Circuit Judges, and DURFEE, United States Court of Claims Judge. United States Court of Claims Judge sitting by designation. GIBSON, Circuit Judge. This consolidated appeal is from a series of civil actions for damages and statutory penalties under the first and second grounds of the False Claims Act, 31 U.S.C. § 231, and the Agricultural Act of 1949, 7 U.S.C. § 1425. The gravamen of the Government’s complaint is that the defendants submitted false claims to the Government and obtained price support payments and other public funds that they should not have received. The defendants are Cooperative Grain and Supply Company, a grain elevator located in Roseland, Nebraska; John Klein, Cooperative’s manager, who was head of the elevator’s daily operations from January 1960 until January 1966; Jerome E. Heuertz, Cooperative’s bookkeeper from November 1961 until January 1966 and its manager from January 1966 through July 15, 1967; and 27 grain producers (farmers) in the vicinity of Roseland, Nebraska, who had obtained price support payments from the Government. The District Court, in its unpublished opinion, generally found that the grain producers, due to the submission of false but not fraudulent claims, were liable for the price support payment plus certain warehouse charges and interest. The District Court did not hold the producers liable for double damages or the statutory $2,000 forfeiture under the False Claims Act, since the producers did not have what the District Court deemed to be the requisite specific intent to defraud the Government under the False Claims Act. Cooperative and John Klein, who were held to have the specific intent to defraud, were found liable for double damages with respect to each of the grain producers’ individual transactions and a $2,000 forfeiture for each transaction. Jerome E. Heuertz, an employee of Cooperative, was exonerated of all liability. Cooperative, Klein, and the producers were held jointly and severally liable for the single damages. The District Court exonerated one producer, Arthur H. Schiffrens, on the doctrine of de minimis. We affirm the District Court with respect to the exoneration of Heuertz and Schiffrens, and also affirm the liability of Cooperative and Klein with certain “damage” modifications to be discussed. We reverse with respect to the individual producers and hold them liable under the False Claims Act. The District Court perceived the central legal issue of this case as whether a specific intent to defraud the Government is necessary under the False Claims Act. We think the central question is whether the defendants’ conduct in submitting the false claims constituted the necessary knowledge under the Act in order to affix liability. I. THE FACTUAL BACKGROUND The Agricultural Act of 1949, 7 U.S.C. § 1421 et seq., directs the Secretary of Agriculture, through the Commodity Credit Cooperation (hereinafter CCC), to provide price support for certain agricultural commodities, for example corn and wheat. The purpose of the price support is to help producers of commodities achieve a certain parity of income with the cost of producing the commodities on which price support is made available. The parity price of any commodity is a dollar amount, computed under a statutory formula, which will give the commodity the same purchasing power in terms of goods and services bought by farmers that the commodity had in a specified base period. If a producer chooses to place any of the commodities that he will grow under price support, he must first get a determination from certain local county committees and eventually the local CCC concerning the number of acres and amount of grain eligible for price support. Eligible grain usually is grain that will be grown or has been grown by the producer-farmer. However, if a person has a “beneficial interest” in a commodity, for example a beneficiary of a trust whose res is land that produces grain, that person is considered a producer and can receive price support. Price support payments are made through warehouse-stored loans, farm-stored loans, and purchase agreements. A producer may decide to participate under any number, or none, of these programs, even after the CCC has determined that a certain amount of a producer’s commodity is eligible for price support. Of the 27 defendant-producers, 20 obtained solely warehouse-stored loans, three chose only farm-stored loans, one used a purchase agreement alone, two had both warehouse-stored and farm-stored loans, and one received price support under all three programs. To obtain price support under a warehouse-stored loan, the producer first delivered his produced (“farm-grown”) grain to a grain elevator, which in this ease was Cooperative. The elevator had to have entered previously into the Uniform Grain Storage Agreements with the CCC. Cooperative signed these agreements on July 1, 1960, and July 1, 1966. According to the agreements, Klein as Cooperative’s manager and chief of daily operations, received the producer’s grain, determined the grain’s grade (for example, Grade No. 1 Corn, the highest grade) and quantity, and issued a negotiable warehouse receipt to the producer. This receipt listed how the grain was delivered, i.e. truck or rail. Cooperative stored the grain for the Government until the CCC ordered delivery. The Government paid for the storing, receiving, and load-out charges connected with warehousing and pledging the grain. Each negotiable warehouse receipt was intended to represent grain of the producer’s own production. The producer then took or mailed this negotiable warehouse receipt to the local CCC office in Adams County, Nebraska, pledged the receipt as security for a loan, signed a Producer’s Note and Loan Agreement, and received a loan from the CCC. That agreement, in part, read: “For the purpose of obtaining the loan evidenced by the producers note, the producer, with full knowledge of the provisions (printed on the reverse side hereof) of section 15(a) of the Commodity Credit Corporation Charter Act, by signing the note agrees to the terms and conditions contained in section 8, on the reverse side hereof, and further represents and warrants to and agrees with all holders of the note as follows: “(a) That the pledged commodity was produced by or for him as landowner, landlord, tenant, or sharecropper on a farm located in the county and state specified above, that both he and the pledged commodity are eligible for a loan under the provisions of the Program Bulletin and that the loan shall be subject to all the provisions of such Program Bulletin.” The producer then could pay off the loan during a certain period of time and thus redeem the pledged grain, which he might do if the market price of the grain exceeded the loan price. Otherwise, the CCC would “take over” the grain. These transactions are handled through the use of negotiable warehouse receipts issued on the produced grain. A producer could decide, in addition to the other program or exclusively, to participate in a farm-stored loan. With this program, the producer signed a similar Producer’s Note and Supplemental Loan Agreement, with the similar clauses concerning production that were quoted above in relation to the warehouse-stored loan. The producer then would store the grain directly on his farm after a CCC representative had physically inspected the grain and recorded the quantity, quality, and grade of the grain. The representative would post a notice on the side of the producer’s grain storage building, which notified all persons that the grain “under seal” was pledged as security to the CCC. The farmer received payments each year from the Government, known as “reseal payments,” for the storage costs of the grain and could renew the storage agreement each year with the CCC. At the time that the grain was put under seal, the CCC made a loan to the producer taking a chattel mortgage on the stored grain. The loan, as with the warehouse-stored loan, represented payment •for the commodity at the price support rate. Shortly before the grain was due to be delivered to the CCC, a Commodity Delivery Notice was sent to each producer, which required the producer to certify that “no commodity has been added to or substituted for the commodity as described in the chattel mortgage.” If the farmer-producer chose to deliver his grain to the CCC instead of paying off the loan, he would remove the grain from under seal and truck it to Cooperative. The defendant-producers received price support through purchase agreements. The producer, under this method, would deliver his grain to Cooperative, receive a negotiable warehouse receipt (the same receipt as with the warehouse-stored loan), take this receipt to the CCC, sign a Purchase Agreement Settlement containing representations that the delivered grain was produced by him, and receive payment from the CCC at the price support rate. Of course, the producer would utilize this method only if the price support payment for his commodity was higher than the present market value. The gist of the Government’s false claim action is that the individual producers delivered grain under these programs and received illegal price support and other payments. A short background history of Cooperative’s business illustrates the method used in circumventing the Government’s farm program of price support. In 1961, Klein was the manager of Cooperative’s Roseland elevator. At that time, Cooperative was storing grain owned by Cooperative, individual producers, and the CCC. There also was stored grain that was pledged to the CCC. In the first part of 1961, at the same time the membership of Cooperative was steadily growing, a new annex was added to the Roseland elevator. Within 30 days after the annex was filled with grain for the first time, several of the bins began to overheat due to difficulties with an automatic “hot spot” detector. The grain in those bins in the new annex, particularly the corn, was susceptible to cracking when overheated. Cracked grain lowered the grade and the value of the commodity. Cooperative had an obligation to the CCC and individual producers to maintain the grain at the same quality and grade as it was when it was delivered. Klein, as required by the signed agreements with CCC, notified the CCC of the cracked grain, and the CCC eventually lowered the grade of about 300,000 bushels of Cooperative’s grain from No. 2 to No. 3 or 4. Also, during June 1961, the CCC ordered Cooperative to ship out 142,000 bushels of sample grade corn, a very low grade of corn, and suspended all government payments to Cooperative until it complied. Klein testified that he asked the CCC whether Cooperative could buy the grain. The CCC notified Klein that this was possible, and, according to Klein, Cooperative bought the grain and “sold it to — well all of it went to truckers around Denver, Colorado.” From January 1962 through March 1962, the CCC received from Cooperative about 73,500 bushels of grain, which was lower in “grade” than had been originally placed under storage. Beginning around December 12, 1961, and through about July 29, 1963, Klein began advising the defendant-producers that they could buy the grain to be placed under price support from Cooperative, rather than delivering produced grain to Cooperative. For example, of the grain that John Horton, one of the defendant-producers, placed under price support, 86 per cent was actually produced by him and 14 per cent was purchased from Cooperative. Klein testified that he knew that the grain had to be produced by the farmers before it could be eligible for price support. The producers, for the most part, testified that they relied on Klein, who told them that purchased grain could be substituted for produced grain so long as each producer did not put more grain under price support than had been certified for him for that year. The producers testified that they did not read the government regulations or the loan contracts that informed them of the requirement that eligible grain had to be produced grain. They said that the local CCC office handled the loan applications very quickly and the regulations were not openly available to them. The producers did not testify that they attempted in any manner to ascertain whether Klein’s advice of purchasing grain was possible under the price support program. However, each specifically said that he never obtained price support in any one year on a quantity of grain greater than the CCC certified “eligible grain” amount. The producer-defendants testified that they used a portion of their own produced grain for feed and purchased grain to fulfill their delivery requirements to CCC. They further said that they purchased grain from Cooperative rather than deliver their produced grain because of the saving in trucking expense and time from the farm to the elevator. Most of the producers lived within two miles of the Cooperative. II. THE LEGAL ISSUES A. Is a specific intent to defraud the Government necessary under the False Claims Act or is knowingly filing a false or fictitious claim sufficient grounds for actionable liability? A number of cases have touched on the general question of intent under the False Claims Act, 31 U.S.C. § 231, but this case clearly focuses on this specific issue. Although the defendant-appellees’ brief in this case is not entirely clear, the thrust of their argument is that the producers did not understand the government regulations on delivering only produced grain and, therefore, claim that they could not have had the requisite specific intent to defraud the Government. We view this lack of understanding as a lack of actual knowledge, and our task is to determine whether the defendants’ conduct shows or constitutes “knowledge” or a knowing violation of the False Claims Act. The District Court held that the defendant-producers submitted their false claims with “carelessness and foolishness in the extreme,” but that they did not, therefore, have the requisite specific intent to defraud the Government. Neither the District Court, nor have other court decisions, actually defined what is meant by a “specific intent to defraud the government”; but the District Court held Cooperative and Klein possessed this intent and the individual producers did not, the latter thus avoiding liability under the False Claims Act. Put in a broad context, this case presents an increasingly important and commonly-faced problem, namely how must a citizen act in applying, for government payments and be free from possible liabilities under the False Claims Act? Obviously a party seeking public funds must bear a great measure of responsibility in advising the Government of the true and accurate, factual basis of the claim. Eligibility for payments must be established by the recipient. Therefore, what kind of duty is there to learn about government regulations or be informed under the False Claims Act? As the federal budget and payments to citizens grow even larger, so do these questions. Obviously a citizen cannot digest all the manifold regulations, nor can the Government adequately and individually inform each citizen about every regulation, but there is a corresponding duty to inform and be informed. Certain basic conditions must be made clear and must be observed if the law is to fulfill its intended purpose. The Government discharges its legal duty to inform by publishing the regulations in the Federal Register. It also informs interested applicants by pamphlet forms and in addition pinpoints attention to basic conditions in the contract forms. The applicant for public funds has a duty to read the regulations or be otherwise informed of the basic requirements of eligibility. Many courts have required the existence of a specific intent to defraud the Government under the False Claims Act. Underlying the result of these decisions is an understandable concern for the careless claimant. For example, in United States v. Mead, 426 F.2d 118, 121 (9th Cir. 1970), the leading case on requiring specific intent, the Ninth Circuit said: “We cannot believe that the Congress intended to catch the hapless with the. heavy penalties which may be imposed under the False Claims Act.” In Mead the contractor-farmer was characterized as “clumsy rather than venal.” The requirement of a specific intent to defraud can be seen, at least in part, as the establishment of a standard that exonerates the clumsy rather than venal claimant. But even in Mead the court found the evidence sufficient to support a false claim, but not to require such a finding. We think a better approach would be to analyze these cases according to the issue of “knowing.” The submission to the Government of a claim known to be false in a material aspect should be covered by the Act. The question here then would be whether the defendants’ “clumsiness” or “carelessness and foolishness in the extreme” constitute conduct that the court can deem to create sufficient knowledge or awareness under the False Claims Act to be civilly actionable. The Sixth Circuit has held that the “gravamen” of an action under the False Claims Act is an “intentional fraud and misrepresentation.” United States v. Ueber, 299 F.2d 310, 314 (6th Cir. 1962). That view is supported by the following cases holding that a specific intent to defraud the Government is necessary under the Act: United States v. Mead, supra; United States v. Sawin, 243 F.Supp. 744, 745-746 (S.D.Iowa 1965); United States v. Goldberg, 158 F.Supp. 544, 548 (E.D.Pa.1958); United States v. Park Motors, 107 F.Supp. 168, 175-176 (E.D.Tenn.1952); United States v. Priola, 272 F.2d 589, 593-594 (5th Cir. 1959). Priola requires “guilty knowledge” of a plan to cheat the Government which appears to be actually criminal knowledge or mens rea. The Government here contends that a specific intent to defraud the Government is not necessary under the Act and points out that only the third and fifth clauses of the Act require the element of fraud. Therefore, the specific intent to deffaud the Government, as an absolute rather than alternative element, is not applicable to the remaining clauses of the Act. The Government specifically argues that “knowing such a claim to be false, fictitious, or fraudulent” creates alternative grounds of liability, that the disjunctive “or” means that fraud is only one theory of recovery, and that a person could knowingly file a false claim without fraudulently intending to “cheat the government.” This argument has judicial support. In Fleming v. United States, 336 F.2d 475, 479 (10th Cir. 1964), the Tenth Circuit held: “Only the third and fifth of such eventualities contains the element of fraud or intent to defraud as an absolute, rather than an alternative element. Had Congress intended to incorporate fraud or intent to defraud into each portion of the Act, it is unlikely that it would have done so expressly in two portions and not in the remaining portions.” Other courts agree that a specific intent to defraud need not be proven; the knowing submission of a false claim is sufficient. Acme Process Equipment v. United States, 347 F.2d 509, 527 n. 26, 171 Ct.Cl. 324 (1965), rev’d on other ground, 385 U.S. 138, 87 S.Ct. 350, 17 L.Ed.2d 249 (1966), rehearing denied, 385 U.S. 1032, 87 S.Ct. 738, 17 L.Ed.2d 680 (1967); United States v. Fox Lake State Bank, 225 F.Supp. 723, 724-725 (N.D.Ill.1963); United States v. Fox Lake State Bank, 240 F.Supp. 720 (N. D.Ill.1965), rev’d on other grounds, 366 F.2d 962 (7th Cir. 1966); United States v. Eagle Beef Cloth Co., 235 F.Supp. 491, 492 (E.D.N.Y.1964); United States v. Toepleman, 141 F.Supp. 677, 682-684 (E.D.N.C.1956), rev’d in part on other grounds sub nom, United States v. McNinch, 242 F.2d 359 (4th Cir. 1957), United States v. McNinch, 356 U.S. 595, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958). Although we agree with the conclusion that a specific intent is not necessary under the first and second grounds of the False Claims Act, we do not accept the statutory argument of the Government on its face. First, we think that there is arguable support for the Ninth Circuit’s following statement: “[T]he government’s position rests upon a shaky foundation of semantic distinctions. The juxtaposition of the three adjectives ‘false, fictitious, or fraudulent’ probably resulted from a draftmen’s desire to encompass the varying ways in which fraud is defined.” United States v. Mead, supra at 122-123. However, on the whole, the Ninth Circuit’s view is untenable to us for several reasons. First, the title of the Act itself is “Liability of persons making false claims.” Second, delving behind the language of the Act itself provides no definite support for requiring a specific intent to defraud. What cannot be disputed is that the Act does contain the disjunctive “or,” which, by normal statutory construction, means the alternative. Third, no definite legislative history supports the requirement of a specific intent. The District Court in this case said that legislative history was the “most persuasive” reason to require the specific intent. The District Court quoted the following legislative history: “Your committee took other and further testimony at Chicago, Indianapolis, and Cincinnati in regard to the purchase of horses and mules, all leading to the same result — the government being shamefully defrauded.” Reports of Committee, 2d Sess. 37th Cong., Vol. 2, 1861-62. “MR. HOWARD. I hope the Senate will take up the bill No. 467, . It is a bill to prevent and punish frauds upon the government of the United States; and I am very anxious to have it acted upon. * -X- * * * * “MR. HOWARD. I will simply say to the Senate that this bill has been prepared at the urgent solicitation of the officers who are connected with the administration of the War Department and Treasury Department. The country, as we know, has been full of complaints respecting the frauds and corruptions practiced in obtaining pay from the government during the present war; and it is said, and earnestly urged upon our attention, that further legislation is pressingly necessary to prevent this great evil; and I suppose there can be no doubt that these complaints are, in the main, well founded. From the attention I have been able to give the subject, I am satisfied that more stringent provisions are required for the purpose of punishing and preventing these frauds; and with a view to apply a more speedy and vigorous remedy in cases of this kind the present bill has been prepared.” Congressional Globe, 37th Cong. 3d Sess. 952; also quoted in United States v. McNinch, 356 U.S. at n. 9, 599-600, 78 S.Ct. 950. There has been similar language in Supreme Court cases that have referred to the Act as penalizing fraudulent claims. For example, the Court has said: “Clause 2 [of the False Claims Act] includes those who do the forbidden acts for the purpose of ‘aiding to obtain’ payment of fraudulent claims.” United States ex rel. Marcus v. Hess, 317 U.S. 537, 544, 63 S.Ct. 379, 384, 87 L.Ed. 443 (1942) (Mr. Justice Black for the majority court) (emphasis added). “This is a qui tarn action under R.S. § 3490 [a forerunner of 31 U.S.C. § 231] to recover a ‘forfeiture’ and ‘double the amount of damages which the United States may have sustained’ by reason of the same acts of fraud ■ for which the respondents were previously indicted under § 37 of the Criminal Code, 18 U.S.C. § 88.” Hess, supra at 553, 63 S.Ct. at 388 (Mr. Justice Frankfurter concurring) (emphasis added). “That Act [the False Claims Act] was originally passed in 1863 after disclosure of widespread fraud against the Government during the War Between the States.” Rainwater v. United States, 356 U.S. 590, 592, 78 S.Ct. 946, 948, 2 L.Ed.2d 996 (1958). “At the same time it is equally clear that the False Claims Act was not designed to reach every kind of fraud practiced on the Government.” McNinch, supra at 599, 78 S.Ct. at 953. (Mr. Justice Black for the majority court) (emphasis added). “The statute, R.S. §§ 3490, 5438, 31 U.S.C. § 231, covers anyone who fraudulently ‘makes or causes to be made, or presents or causes to be presented, for payment or approval . any claim’ against the United States .... But when fraudulent, it represents an effort to ‘cheat the United States.’ ” McNinch, supra at 602, 78 S.Ct. at 954 (Mr. Justice Douglas, concurring in part and dissenting in part) (emphasis added). The legislative history cited by the District Court does not necessarily indicate that “fraud” was being used in the legal sense, which is so important to the determination of this case. Even courts struggle with the exact legal definition of fraud. But, assuming that the legislative history indicates an awareness of the difference between a false and fraudulent claim, that history does not indicate a statutory construction that the Act covers only fraudulent claims. In addition, the above Supreme Court language is not dispositive on these facts. That Court was not faced with this exact issue of specific intent, and general references to fraud or fraudulent claims should not be construed as a binding characterization of the whole Act. However, the most persuasive reason for not requiring a specific intent to defraud the Government is that Act is simply couched in broader terms. The Act is remedial and in plain language covers the submission of a claim known to be false. The area of disagreement is what can be considered “knowing” under the statute. The courts and the parties and the District Court in this case have framed the issue under the “specific intent to defraud” category. But that categorization does not aid analysis in this case. The real issue is what does it mean “to know” in order to impose liability. When a person knowingly files a false claim, we would agree that his purpose most likely would be “to cheat” the Government by “lining his pockets.” What does it mean to say “knowing such claim to be false?” Does a hapless claimant have the requisite knowledge? If a person is careless and foolish in the extreme does he have knowledge according to the Act? To analyze this issue in relation to the broader concept of intent does not pinpoint the narrower issue of knowledge or a knowing act. The issue is further complicated because knowledge and intent are overlapping concepts and often proved by the same evidence. Knowledge is part of the larger concept of intent. Further, knowledge, or scienter in legal terminology, is both a part of the mens rea of criminal intent and the intent to deceive in a common law tortious misrepresentation. R. Perkins, Criminal Law 771-779 (2d Ed. 1969); Wm. Prosser, Torts 715-716 (2d Ed. 1964). Although knowledge and intent are overlapping concepts, the specific element of intent, which is distinct from knowledge, is the specific will to act, an element of deliberateness or wilfulness or in other words, not inadvertent or accidental. Wigmore, Evidence, § 242 at 39 (3d Ed. 1940). The specific will to act of intent is divided into two basic categories, the volitional action itself and the “ill will.” The volitional action refers to the action, not accidental, of presenting a claim to the Government. “Ill will” refers to the person’s state of mind, in this case, desiring to “cheat” the Government. According to the False Claims Act, the volitional action of intent is encompassed in the words, e. g. “present,” “cause to be presented,” and “makes, uses or causes to be made.” 31 U.S.C. § 231. Of course, the “ill will” part of intent is not encompassed in any part of the Act except the word “fraudulent.” Intent, therefore, includes the elements of the volitional action of presenting the claim to the Government, the ill will towards the Government, and the knowledge of the action itself. Although we think that “ill will” may be inferred if the volitional action of presenting the claim and the element of knowledge of falsity (both express requirements for all grounds of liability under the Act) are proved by the Government (Fleming v. United States, 336 F.2d at 479), we do not require that an “ill will” or a specific intent are necessary elements for actionable liability under the Act. The real issue is whether the claimants knew they were submitting false claims. To answer this issue of “knowledge,” it is necessary to determine what “knowing” means under the False Claims Act. First of all, the False Claims Act, a civil statute according to the Code itself, has its counterpart in the criminal code. “Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or im- • prisoned not more than five years or both.” 18 U.S.C. § 287. “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years or both.” 18 U.S.C. § 1001. In defining “knowing” under 18 U.S.C. § 287, the criminal statute, the rules of “scienter” for the criminal mens rea should apply. See Perkins, supra, at 771-779, for a discussion of scienter. Since this case is brought as a civil action and since the discussion below concludes that the False Claims Act is civil in nature, there is no need to express a view on whether “extreme carelessness” could constitute a necessary “knowing” for a criminal conviction. It should be noted, however, that a “guilty avoidance of knowledge” and a “bona fide belief resulting from negligence” can form generally the requisite criminal scienter. However, these are rare cases, and usually actual guilty knowledge is required for scienter. Perkins, supra at 775, 779. A necessary question now is whether “knowing” under the False Claims Act, 31 U.S.C. § 231, should be defined according to the criminal sense, which would usually hold negligence not to be the necessary scienter, or its common accepted meaning in everyday usage in civil and business operations. Some courts have perceived the False Claims Act as basically penal in nature, because of the requirement of a $2,000 forfeiture and double damages. See, e. g., United States v. Schmidt, 204 F. Supp. 540, 543 (E.D.Wisc.1962). An old Eighth Circuit case held that the False Claims Act, though civil on its face, is actually a criminal statute. United States v. Shapleigh, 54 F. 126 (8th Cir. 1893). But, we think that “knowing” under the False Claims Act is "knowing” in a civil sense and not the guilty knowledge of the criminal mens rea. The Supreme Court has repeatedly held that the False Claims Act is remedial, not penal in nature, and is therefore a civil statute. In United States ex rel. Marcus v. Hess, supra at 550, 63 S.Ct. at 387, the Court said: “Quite aside from its interest as preserver of the peace, the government when spending its money has the same interest in protecting itself from fraudulent practices as it has in protecting any citizen frorn^ frauds which may be practiced upon him.” Later Supreme Court cases have consistently held the False Claims Act to be a civil statute. That question is no longer open. Rex Trailer Co. v. United States, 350 U.S. 148, 152-154, 76 S. Ct. 219, 100 L.Ed. 149 (1956); Roller v. United States, 359 U.S. 309, 79 S.Ct. 755, 3 L.Ed.2d 828 (1959) (per curiam); United States v. Hougham, 364 U.S. 310, 313, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960). Since the False Claims Act is civil in nature, the definition of “knowing” should be the definition as applied in the civil action of misrepresentation. Prosser classifies misrepresentation into “the three familiar tort classifications of intent, negligence, and strict responsibility.” Prosser, supra at 713-714. Since we have decided that a false claim, not only a fraudulent claim, is actionable under the Act, a negligent misrepresentation can constitute the necessary “knowledge.” Prosser says that: “[A] representation made with a honest belief in its truth may still be negligent, because of lack of reasonable care in ascertaining the facts. . . . ” Prosser, supra at 719. The individual producers here are a full step beyond negligent misrepresentation as they were extremely careless in substituting purchased grain for what was represented to be grain produced by them. The whole trust of the Price Support Payments Act is to aid producers of grain not purchasers. B. Did the defendants’ conduct constitute the necessary “knowledge” under the False Claims Act? In this case, most of defendant-producers relied entirely on Klein, according to their testimony. Several of the producers were or had been officers of Cooperative. No producer indicated that he attempted in any way even to ask the local CCC office about the advisability of purchasing grain from Cooperative. Government regulations required that a producer must have had a beneficial interest in a commodity in order to receive price support on that commodity. The regulations specifically provided that if a producer had any doubt as to whether his interest in the commodity met the eligibility requirements, he “should make available to the county committee all pertinent information, prior to filing an application which will permit a determination to be made by CCC as to his eligibility for price support.” 23 Fed.Reg. § 421.3138(d) (1) (1958). Several producers even testified that they knew that only produced grain could be placed under price support program. The defendants’ conduct, as the District Court held, was extremely careless and foolish. That conduct is not only negligent but approaches fraud, an intentional misrepresentation. The intent to deceive of a fraudulent misrepresentation may include a reckless disregard for the truth or falsity of a belief. Cooper v. Schlesinger, 111 U.S. 148, 155, 4 S.Ct. 360, 28 L.Ed. 382 (1883); Prosser, supra at 715-716. The extreme carelessness in this case amounted to “knowing.” In seeking public funds there is certainly an obligation on the applicant to make correct representations. This case would have been much different if the defendants at least had attempted to ask the CCC whether “purchased grain” would have been eligible for price support. However, it is incredible that the producers did not know that purchased grain was not eligible for price support. Another factor worthy of consideration is that only a relatively few farmer-producers attempted to bilk the Government by substituting purchased grain. A tolerant attitude towards this practice could well evade and defeat the entire price support program. The whole program is based on fair and correct disclosure of basic facts. III. DAMAGES A. In General'. The damages to be assessed in this case require, by the number of the parties involved alone, complex compilations. The case is reversed and remanded to the District Court to make findings and assess damages consistent with this decision. We think the following comments will aid the District Court in assessing damages. The Government generally contends that it is entitled to recover damages under the False Claims Act, the provisions of the producers’ contracts and government regulations, and the common law doctrine of payment by mistake. Since the Government requests the same damages under the first two theories, the following discussion constructs a measure of damages allowable under the False Claims Act that is based on a claim submitted under the contracts and regulations involved in this case. In order to provide a compilation from the hundreds of pages of data, we choose the following representative loans and the damages to be assessed. B. The Warehouse-stored Loan. The Government requests that Cooperative, John Klein, and each of the producers who obtained warehouse-stored loans should be jointly and severally liable under single damages for the total amount of the loan, receiving charges, and storage charges, less the market value of the grain at maturity. The Government also requests double damages of the previous amount under the False Claims Act. 31 U.S.C. § 231, supra. It is unclear exactly how many $2,000 forfeitures, under the same statute, that the Government requests against each individual producer. At one point, it asks for a $2,000 forfeiture for each false document signed by each producer, no matter how many false documents are involved in one entire loan transaction. With this concept we cannot agree. John Horton, who purchased 14 per cent of his corn from Cooperative on which he received price support payments, presents a typical example for a warehouse-stored loan. The Government computed Horton’s single damages as follows: $2,108.70 Total loan due at maturity 149.30 Plus storage charges on 100% of Horton's corn 73.92 Plus receiving charges on 100% of the corn 2,331.92 1,661.02 Minus the market value of 100% of the corn (Including the 14% purchased _ from Cooperative) $ 670.90 Total Single Damages. The District Court allowed the single damages of $670.90 against Horton, the individual producer, plus interest. Against Cooperative and Klein, who were held to have the specific intent to defraud the Government, the District Court assessed, in relation to Horton’s claim, $1,341.80 double damages (which is $670.90 single damages doubled), a single forfeiture of $2,000, plus interest from the time of the loan payment until the date of judgment. Further, the District Court held that Horton, Cooperative, and Klein were jointly and severally liable for the amount of the single damages, the $670.90 assessed individually against Horton. We think that the following computation should be made to arrive at the liability of the individual producer for a warehouse-stored loan. Again,John Horton may be used as a representative example. $2,108.70 Total loan due at maturity 1,661.02 Minus the market value of the 100% _ corn delivered 447.68 10.35 Plus "receiving charges" on purchased corn (14%) 20.90 Plus "storage charges" on purchased _ corn (14%) 478.93 Total single damages X 2 957.86 Total Double Damages 2,000.00 Plus forfeiture once for each entire _ transaction $2,957.86 Total Damages against John Horton, not Including Interest. In addition, interest should be assessed against the $478.93 from the date of the loan payment to the date of judgment and doubled, since interest can properly be recovered as “damage” under the False Claims Act. The damages against Cooperative and Klein are the same as Horton’s liability. Therefore, each individual producer, Cooperative, and Klein are jointly and severally liable for the double damage figure, plus one forfeiture per each entire loan made, and the interest as described above. An explanation of the above computations is necessary. The parties and the District Court agree that, for John Horton of course, $447.68 is the proper starting point to determine the producer’s liability. We agree with this determination and proceed with our other computations according to the rationale expressed in United States v. Woodbury, 359 F.2d 370, 379 (9th Cir. 1966), which held that “[T]he measure of the government’s damages would be the amount that it paid out by reason of the false statements over and above what it would have paid if the claims had been truthful.” First, subtracting the $1,661.02 (the market value on the date of delivery of the entire 100 per cent delivered corn) from the $2,108.70 (the loan amount actually received by the producer, which is also the amount which a producer would have received on an entirely truthful claim) aids in achieving the Woodbury goal. The $447.68 remaining after the above subtraction represents damages of government payments for price support on the entire 100 per cent of Horton’s corn, even though 86 per cent of Horton’s corn actually had been properly produced and delivered by him. The price support on the entire loan should be returned to the Government for several reasons. First, a provision in the Producer’s Note and Supplemental Loan Agreement, which is also contained in a government regulation, specifically calls for this result. That regulation clear-1 y calls for the $447.68 figure, the “amount of the loan” less the “market value of the commodity on the date of delivery or removal.” The Government next requests that the $73.92 receiving charges for 100 per cent of Horton’s corn and $149.-30 storage charges for 100 per cent of Horton’s corn should be allowed. The District Court allowed these amounts in computing the single damages of the individual producer. We hold that the Government cannot support a claim for these warehouse charges against 100 per cent of the producer’s commodity. The Government should only receive damages for warehouse charges paid on the purchased grain, which we computed as $10.35 for receiving charges and $20.90 for storage charges. The Government only cites regulation § 421.117(a), supra, and no case support, for the position that warehouse charges are recoverable against 100 per cent of the producer’s commodity. It argues that the receiving and storage charges are “additional payments” under .§ 421.117(a) and that “had the false representations not been made” the Government would not have made any warehouse payments (or for that matter any payments at all). The Government’s position is extreme. The Woodbury test reasonably sets the measure of damages at the amount paid due to the false claim minus the amount paid had the claim been truthful. The Government should have to pay the storage and receiving charges on the 86 per cent delivered corn that had been produced by Horton. For the same reason that the Government allows the producer’s claim for the market value of the delivered commodity, the Government should allow the payments for warehouse charges for the properly delivered and produced grain, and not request further monetary sanctions by way of disallowing proper charges. The Act provides ample congressional sanctions of double damages plus a $2,000 forfeiture. Also, the Government cannot successfully argue that the language of § 421.-117(a) expressly provides for damages for the entire warehouse charges. The Government relies on the phrase “for any additional amounts paid to the producer on the commodity” in § 421.-117(a) to support their claim for all warehouse charges. “Commodity” is a key word in that phrase and could easily refer to the previous phrase in that regulation in which “commodity” refers only to the portion unlawfully delivered. Also, in the same paragraph of the same regulation, a further measure of damages states that a producer’s personal liability is for all “charges and. costs that CCC would not have incurred had it not been for the producer’s fraudulent representations or unlawful disposition. . ” The reasonable interpretation of this clause would be the Woodbury test itself. Of course, the Government contends that it would not have dealt with a “fraudulent” producer at all, and therefore, any payments made to such a producer would have been payments that would not have been made. This reasoning ignores fundamental principles in computing damages. The Government should be allowed to recover only the damages that it has actually suffered after having entered into a transaction, plus the statutory penalties. No one wants to deal with a “fraudulent” party to a contract. However, the Government has contracted with the producers, has received the benefit of the properly produced and delivei'ed corn, and has received the benefit of the waz’ehouse charges on the 86 per cent pz-oduced corn (in Hoz'ton’s example) . Second, it must be z-emembered that the double damages and the forfeiture allowed under the False Claims Act are further sanctions that aid in making the Government “whole.” Third, this holding on the warehouse charges still broadly protects “the funds and property of the Government from fraudulent claims. . . . ” Rainwater v. United States, 356 U.S. at 592, 78 S.Ct. at 948. The single damages, therefore, for John Horton, total $478.93. The double damages are $957.86, which are assessed pursuant to the express requirements of the False Claims Act, 31 U.S.C. § 231. In addition, that same statute requires a $2,000 forfeiture against Horton for the entire loan transaction. United States ex rel. Marcus v. Hess, 317 U.S. at 552, 63 S.Ct. 379; Acme Equipment Co. v. United States, 347 F.2d at 527; United States v. National Wholesalers, 236 F.2d 944, 950-51 (9th Cir. 1956); United States v. Grannis, 172 F.2d 507, 515-16 (4th Cir. 1949); United States v. Rohleder, 157 F.2d 126, 130-31 (3d Cir. 1946). If Horton had applied for two separate loans, he could be held liable for two forfeitures. One loan cannot support more than one forfeiture merely because several false representations were made in different documents submitted to the Government. Further, the damages of $2,957.86 are the joint and several liability of John Horton, as the individual producer, Cooperative, and Klein. Since Horton through his extreme carelessness, Klein through his actual knowledge, and Cooperative as the principal of Klein caused the payment of the false claim, each party is jointly and severally liable for the entire $2,957.86, no matter which party received certain payments from the Government. United States ex rel. Marcus v. Hess, 317 U.S. at 544-45, 63 S.Ct. 379; United States v. Veneziale, 268 F.2d 504, 505 (3d Cir. 1959). C. The Farm-Stored Loan. Farm-stored loans present different data for damage compilations. Albert Trausch will be used as representative. On January 30, 1961, Trausch obtained a farm-stored loan on 7,216 bushels of his 1960 corn. The proceeds of this loan were $7,288.16. From 1961-1965, Trausch received storage payments of $4,160, known as reseal payments, from the Government for storing what the Government believed to be 7,216 bushels of corn on Trausch’s farm. During the spring of 1961, Trausch discovered that 450 to 475 bushels of his corn were “all wet” and spoiled due to moisture from a leaky metal roof. During the spring of 1961, Trausch removed this “wet” corn from his storage facility. Trausch eventually received reseal payments on the 7,216 bushels of corn from 1961-1965, even though about 450 to 475 bushels of that corn were not “under seal” since the spring of 1961. On August 5, 1965, Trausch was ordered by the CCC to deliver this farm-stored corn to Cooperative. On August 17, 1965, Trausch delivered 6,957.14 bushels of this farm-stored corn to Cooperative and added to that amount 471.43 bushels of corn, which were purchased from Cooperative. Therefore, Trausch overdelivered 212.57 bushels of corn on this farm-stored loan. The Government requested the following damages against Albert Trausch: $11,883.42 Total Loan Amount (including $435.42 overdelivery settlement and $4,160 reseal payments) 8,227.14 Minus the market value of the loan _ at delivery 3,656.28 315.71 Plus receiving charges on 100% of the corn 591.03 Plus storage charges on 100% of the corn 55.17 Plus load-out charges on 100% of corn 4,618.19 Total Single Damages x 2 Times 2 for Double Damages 9,236.38 Total Double Damages 2,000.00 Forfeiture under 31 U.S.C. § 231 $11,236.38 Total Damages, but not including interest. Against Cooperative and Klein, the Government requested the following damages with respect to the Albert Trausch farm-stored loan: $ 435.42 Overdelivery settlement 315.71 Plus receiving charges on 100% of the corn 591.03 Plus storage charges on 100% of the corn 55.71 Plus load-out charges on 100% of the corn 1,397.87 Total Single Damages X 2 Times 2 for Double Damages 2,795.74 Total Double Damages 2,000,00 Forfeiture under 31 U.S.C. § 231 $4,795.74 Total Damages, but not including interest. Because of factual determinations necessary at the District Court level, we cannot make an exact computation of the damages for a farm-stored loan, as we have done with a warehouse-stored loan. However, the following rationale will aid in the determination of damages. In computing the damages against the producer under this farm-stored loan, the inclusion of damages for overdelivery is proper. Since neither party has argued in their briefs how this settlement was reached, we leave this determination to the District Court. Although the District Court did not allow the recovery of reseal payments for single damages against the producers, we hold that the reseal payments are “additional amounts paid to the producer" under the government regulation quoted above, § 421.117(a), and are recoverable under the False Claims Act. Again, the Government requests the return of all reseal payments paid, for example, to Trausch, from 1961 through 1965. Trausch had approximately 6,741 bushels of corn properly under seal from 1961 through 1965, and the entire 7,216 bushels of corn properly stored before the spoilage. Trausch purchased 471.43 bushels of corn (or as the parties stipulated, about 5 per cent of the total corn delivered) to replace the 450 to 475 bushels of corn that spoiled during the spring of 1961. For the same rationale discussed above in relation to the warehouse-stored loan and warehouse charges, we think that the Woodbury test requires that the measure of damages should be the difference in the amount of reseal payments that would have been made if the true amount of grain under farm-storage was reported and the amount actually paid. The quantity of grain and the time which the grain was under seal are important factors in determining the proper damages for reseal payments under the False Claims Act. For example, say a producer put 1000 bushels of wheat under storage for two years, and the Government paid the producer $30 in reseal payments for the first year. Also assume that on July 1 of the second year 100 bushels of the corn spoiled and were removed by the producer. The Government should pay the producer $30 for the reseal payments in the first year. For the second year, the Government owes the producer $15 storage payments for the first six months and $13.-50 for the second six months. Similarly, under the Woodbury analysis, the damages for the amount of receiving, storage, and load-out charges for the farm-stored loan should be assessed, as we have done with the warehouse-stored loan, against the illegally purchased grain alone and the entire charges prorated accordingly. Since Trausch actually delivered about 95 per cent of his own produced grain, no damages for these warehouse charges against this 95 per cent of the properly produced and delivered grain should be allowed. Again, double damages against all of the above items are appropriate, and one forfeiture should be allowed per each entire farm-stored loan. The following comments apply to Cooperative and Klein’s liability in relation to a farm-stored loan. The Government has not requested damages, and properly so, against Cooperative and Klein for the reseal payments. In no way, can Cooperative and Klein be said to cause the payment of these claims. 31 U.S.C. § 231. The producers dealt with the Government directly for storage payments for the grain on their farms. Again, the receiving, storage, and load-out charges against Cooperative and Klein in relation to the farm-stored loan should be assessed as damages only against the illegally purchased grain. In Trausch’s case, the damages should be assessed only against the 5 per cent purchased grain. Double damages and one $2,000 forfeiture pursuant to the False Claims Act are again recoverable. Interest should also be assessed. The joint and several liability for the farm-stored loan is chargeable against Trausch, Klein and Cooperative, except the damage computed against Klein and Cooperative should not include the damages for reseal payments. D. Other Damage Issues. Two producers obtained price support through purchase agreements. One, Arthur H. Sehiffrens, purchased grain equal to two per cent of his total delivery to Cooperative. The District Court held that such a purchase was de minim-is and exonerated Sehiffrens of all liability. We are not inclined to disturb this holding in regard to Sehiffrens. William J. Hefnider, another producer, obtained a farm-stored loan, a warehouse-stored loan, and price support through a purchase agreement. With regard to the purchase agreement, the Government claims the same damages as under the warehouse-stored loans. No other special computations, as with the reseal payments for the farm-stored loan, are present. Therefore, computation of damages for Hefnider’s purchase agreement can follow our holdings in relation to the warehouse-stored loan. The case is affirmed in part, reversed in part, and remanded to the District Court to assess damages consistent with this opinion. . Section 231 in part reads: “Any person not in the military or naval forces of the United States, or in tlie militia called into or actually employed in the service of the United States, [1] who shall make or cause to be made, or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or [2] who, . . . used, any false bill . . . knowing the same to contain any fraudulent or fictitious statement or entry, or [3] who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, fll or who, having charge ... of any money . . . used ... in the military or naval service, who, with intent to defraud the United States or willfully to conceal such money . . . delivers or causes to be delivered, to any other person having authority to receive the same, any amount of such money less than that for which he received a certificate or took a receipt, and [5] every person authorized to make or deliver any certificate . . . certifying the receipt of arms ... so used . . . who makes or delivers the same to any other person without a full knowledge of the truth of the facts stated therein, and witli intent to defraud the United States, . . . shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing sucli act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit.” (numbering inserted). . John Klein also received price supports as a producer. . The Honorable Warren Urbom, District Court of Nebraska. . There are three Klein defendants in this case. Hereinafter, “Klein” shall refer to John Klein, Cooperative’s manager. . 23 Fed.Reg. 5141, § 421.3138(d)(1) (1958). The quotes in this opinion to the Federal Register are quotes to regulations that were available to the producers at the local CCC office in Adams County, Nebraska. The producers usually appeared in person at this office to apply for the price support. Often these regulations were contained in documents signed by the producers, and this opinion will designate those instances. . 23 Fed.Reg. 5141, § 421.3137 (1958). . Cooperative, as its name implies, existed for the benefit of its owners, which evidently were mostly farmers of the area. Dividends were paid from the profits, which came mainly from payments for storage. Several of the defendants were, at one time or another during the alleged claims of this suit officers of Cooperative. Cooperative grew from 200 members in 1956 to 600 in 1965. . The parties stipulated to the percentages of purchased grain placed under the price support program. The percentages ranged from 2 per cent (the Schiffrens purchase agreement, the de minimis .transaction) to 100 per cent. Of the 30 warehouse-stored loans, for example, 19 contained more than 50 per cent purchased grain. . The District Court specifically held : “From a full consideration of the evidence presented I find as a fact that none of the individual producers, except John W. Klein, intended to defraud the United States. In each instance the producer thought that he was entitled to receive the benefits which lie received from purchased grain. He was mistaken in that belief and the mistake, arose from a reliance on John W. Klein, the manager of the warehouse, from the producer’s failure to read the particular documents which he had in his possession and signed, and from a failure to read or ask of the ASCS personnel an interpretation of the government regulations, and the documents. These failures amount to carelessness and foolishness in the extreme, but they do not constitute intent to defraud.” (emphasis added). . The Supreme Court held in United States v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387 (1942), that “proceedings [under the False Claims Act] are remedial and impose a civil sanction.” . Of course, John Klein, who was a producer and the manager of Cooperative had the requisite knowledge, and our de- % cisión affirms the District Court’s assessment of liability against Klein and Cooperative. Most of the defendants testified that they, relied entirely on Klein’s advice, while others admitted knowledge of noncompliance with the requirements of the Price Support Act. Glen Christensen testified the “transaction” was of his own doing. Richard Klein, who delivered grain with his father Matt Klein, said that it was “liis idea” to purchase the grain from Cooperative. It is unclear whether William J. Hefnider and Ray A. Consbruck acted on their own or according to John Klein’s advice. Our holding does not require a decision on this point. . The Government urges that the doctrine of payment by mistake allows recovery of erroneous payments. Since we allow greater damages under the other theories than possible under the payment-by-mistake doctrine, we offer no opinion on the availability of this theory under the present facts. . That provision reads: “(a) The making of any fraudulent representation by a producer in the loan documents or in obtaining the loans, or the unlawful disposition of any portion of the commodity by him shall render the producer subject to criminal prosecution under Federal Law and shall render him personally liable for the amount of the loan, for any additional amounts paid to the producer on the commodity, and for any resulting expense incurred by CCC' together with interest on such amounts. Any such loan shall become payable upon demand. If a producer has made any. such fraudulent representation or unlawful disposition, the amount of his personal liability shall be the amount of the loan, charges, and all costs that CCC would not have incurred had it not been for the producer’s fraudulent representation, or unlawful disposition, together with interest on such amounts, less the market value of the commodity on the date of delivery or removal, as determined by CCC in the case of farm-storage loans or the market value of the commodity as of the close of the market on the final date for repayment, as determined by CCC, in the case of warehouse-storage loans.” General Provisions 1961 and Subsequent Crop Price Support Programs for Grains and Related Commodities, § 421.117(a); also contained in 26 Fed.Reg. 2108 (1961), which is a regulation promulgated by the Secretary of Agriculture pursuant to 7 U.S.C. § 1428. This regulation in nearly identical language has been included in all the years’ regulations in questions and in all of the pertinent documents under the warehouse-stored loans, farm-stored loans, and purchase agreements.

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Lionel BRADFORD, PetitionerAppellee, v. Perry JOHNSON, Warden of the State Prison of Southern Michigan, Respondent-Appellant. No. 72-1905. United States Court of Appeals, Sixth Circuit. Argued Feb. 8, 1973. Decided March 28, 1973. Stewart H. Freeman, Asst. Sol. Gen., for respondent-appellant; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief. David R. Hood, Detroit, Mich., Court-appointed, for petitioner-appellee. Before EDWARDS and McCREE, Circuit Judges, and YOUNG, District Judge. The Honorable Don J. Young, U. S. District Judge for the Northern District of Ohio,, sitting by designation. PER CURIAM. This appeal from the granting of a writ of habeas corpus presents the question whether a person convicted by a state’s knowing use of coerced testimony obtained by torture, threats and abuse of a witness is in custody in violation of his Constitutional right to due process of law. We answer this question in the affirmative and affirm the judgment of the District Court for the reasons stated in its opinion reported at 354 F.Supp. 1331. Affirmed.

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UNITED STATES of America, Appellee, v. Edward MAPP, a/k/a Sonny Woods, Defendant-Appellant. No. 611, Docket 72-2414. United States Court of Appeals, Second Circuit. Argued Feb. 28, 1973. Decided March 28, 1973. Joel A. Brenner (Diller & Schmukler, New York City), for appellant. Barbara Ann Rowan, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., Richard J. Davis, Asst. U. S. Atty. for S. D. N. Y., on the brief), for appellee. Before KAUFMAN, ANDERSON and MANSFIELD, Circuit Judges. KAUFMAN, Circuit Judge: We are called upon today to consider certain important questions of Fourth Amendment law. After a trial by jury, Edward Mapp, also known as Sonny Woods, was convicted on three counts of violating federal narcotics laws, 21 U.S. C. §§ 841(a)(1), 841(b)(1)(A) and 846. Count 1 of a five count indictment charged Mapp, Alan Simmons, Linda Walters, Robert Clark and Robert Davis with conspiracy to distribute, and possess with intent to distribute heroin (the “conspiracy” count). Count 2 charged Mapp and Simmons with the sale of 14.82 grams of heroin on May 25, 1972 (the “sale” count). Count 4 charged Mapp, Walters and Clark with possession of approximately two kilograms of heroin on June 21, 1972 (the “possession” count). Mapp was sen-fenced to seven years imprisonment, to be followed by three years special parole, on each count, sentences to run concurrently. The search and seizure here involved were conducted in the absence of a search warrant. Prior to trial, the district judge held a hearing on the defendants’ motions to suppress two kilograms of heroin seized from the defendant Walters’s apartment on June 21, by the Joint Task Force agents who made the arrests in this case. The district judge denied the motion to suppress and the evidence was admitted at trial against the defendants, including appellant Mapp. The only issue on this appeal, brought by Mapp alone, is whether the search and seizure here involved was consistent with the Fourth Amendment and, if not, whether Mapp’s conviction on all three counts must be reversed. We conclude that the search violated the Fourth Amendment and that the evidence seized during the search should have been suppressed. But, for the reasons discussed below, we reverse only as to the “possession” and “conspiracy” counts and remand for resentencing. Mapp’s conviction on the “sale” count is affirmed. I. Inasmuch as the sufficiency of the government’s proof at trial is not challenged in these proceedings, we need not catalogue all the evidence which may have led the jury to conclude that the appellant was guilty of the crimes charged. It is sufficient to indicate at this stage that a skillful investigation by the New York Joint Task Force, involving intensive surveillance and the use of an undercover agent, disclosed that Edward Mapp was heavily engaged in the sale of narcotics in New York City. The facts, as narrated by Patrolman John Crowe of the Task Force at the suppression hearing, follow. On May 17, 1972, Detective Octavio Pons, a New York City Police Officer acting as an undercover agent for the New York Joint Task Force, purchased heroin from Alan Simmons. Late in the evening, on May 24, Pons and Simmons met again, and drove to Sterling's Den Lounge, a bar in the Bronx. Unaware that he and Pons were being observed by Patrolman Crowe, Simmons entered the bar and emerged shortly thereafter with the appellant, Edward Mapp. After a few moments, Mapp instructed Pons to follow him. Mapp drove his own vehicle to the vicinity of 1925 Monterrey Avenue, arriving there, followed by Pons and Simmons, at approximately 12:15 A.M. on the morning of May 25. Simmons asked Pons for $1300, which Pons handed to him. Simmons counted the money and gave it to Mapp, who then entered the apartment building at 1925 Monterrey Avenue. Simmons then told Pons that Mapp had “taught him everything he knew about the narcotics business” and that Mapp was Simmons’s “connection.” Approximately fifteen minutes later, Mapp emerged from the building, walked to Pons’s car, threw two envelopes into Simmons’s lap, and departed. Simmons gave Pons one of the envelopes, which Pons and Patrolman Crowe field-tested later in the day. The officers’ test indicated that the envelope contained heroin, an evaluation subsequently confirmed by laboratory analysis. Surveillance was continued on Mapp by Task Force agents on at least eight occasions between May 25 and June 21. Although the investigation revealed that Mapp did not live at the Monterrey Avenue address, he was frequently observed entering the building between the hours of 9:30 P.M. and 1:30 A.M., often after making a tour of neighborhood bars in the Bronx where he had met with Simmons. Generally, Mapp arrived at 1925 Monterrey Avenue alone, and emerged between five and fifteen minutes later. On at least one occasion, however, Mapp was accompanied by an unidentified man; both entered the apartment building and remained there for a brief period of time.- The unidentified individual exited first, “returned to his auto, sat down behind the driver’s wheel . . . bent forward and then sat back straight and drove off,” conduct which could be construed to indicate that the unidentified male may have placed something under his seat. Shortly after midnight on the morning of June 21, 1972, appellant left a bar in the Bronx and drove to 1925 Monterrey Avenue. Mapp, who was carrying a brown paper bag, approximately the size of a shopping bag, was followed into the building by Investigator John Herritage. He saw Mapp greet Mrs. Linda Walters in the hallway of the building and accompany her to the doorway of apartment 1-F. Mapp then asked her, “Where’s the gangster,” and she replied, “He’ll be here shortly.” Mapp and Mrs. Walters entered apartment 1-F and locked the door from the inside. Investigator Herritage relayed this information to Crowe, who was in the street at the time conducting surveillance. Approximately ten minutes later, at 1:10 A.M., Mapp emerged from the building, empty-handed. He entered his automobile, and drove one block, when he was stopped by Task Force agents and arrested. At approximately 2:00 A.M., Crowe, Herritage, agents of the Bureau of Narcotics and Dangerous Drugs and uniformed New York City policemen, six in all, entered 1925 Monterrey Avenue and knocked on the door of apartment 1-F. From the rear of the apartment a male voice inquired who was at the door and one of the patrolmen shouted that it was the police. The peephole was opened from inside and then closed. The officers heard “rapid footsteps to the rear of the apartment and then sounds of several footsteps from the rear of the apartment.” After waiting for one or two minutes the officers broke down the door. Robert Clark, who was standing near the doorway, was immediately arrested. Crowe, with his gun drawn, entered the bedroom, observed Linda Walters in her nightclothes, and said, “You are under arrest and we want the package that Sonny brought in earlier.” Mrs. Walters pointed to a bedroom closet. A subsequent search of the closet revealed a brown paper bag containing two kilograms of heroin. II. Mapp does not question the validity of his arrest on June 21, nor of the admission against him of the heroin sold and delivered by him to Detective Pons on May 25. His argument, rather, is leveled against the search of Linda Walters’s apartment on June 21 and the admission at trial of evidence seized, as he urges, in violation of the Fourth Amendment. He contends also that the two kilograms of heroin taken from Mrs. Walters’s apartment and admitted for purposes of the “possession” and “conspiracy” counts, had a “spill-over” effect on the “sale” count. Mapp argues, therefore, that if the evidence was inadmissible on the “possession” and “eonspiracy” counts, his conviction on all three counts should be reversed. Concisely stated the appellant’s position is that the Task Force agents did not have probable cause to arrest the occupants of apartment 1-F; that even if there was probable cause to arrest, the agents were required to secure a warrant before effecting a nighttime arrest in a dwelling; that even if the warrant-less entry was otherwise legal, it became unlawful as a result of the failure of the officers to announce both their identity and purpose prior to entry; and, finally, that even if the initial entry and arrest were valid, the subsequent search was unlawful because conducted without a search warrant. We shall consider these arguments in order, after a preliminary inquiry into the problem of standing. A. Standing The government did not challenge Mapp’s standing to raise the Fourth Amendment issue at the suppression hearing, nor did it do so in its brief on appeal. Indeed, at oral argument, when the issue was first raised by the Court, the government conceded that under traditional principles of standing Mapp properly had asserted the Fourth Amendment claim. Nevertheless, we believe a brief comment on this rather complex question is appropriate at this time and may be of some aid to district judges. The Assistant United States Attorney frankly acknowledged that Mapp was the target of the search in this case. There is language in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L. Ed.2d 697 (1960) which at least suggests that the “target” of a search is a “person aggrieved,” Rule 41(e), F.R.Cr. P., and therefore has standing to challenge the constitutionality of that search. In Jones, Justice Frankfurter, writing for the Court, said: In order to qualify as a “person aggrieved by unlawful search and seizure” one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. 362 U.S. at 261, 80 S.Ct. at 731 (emphasis supplied). The passage was cited approvingly in Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); see also, 18 U. S.C. § 2510(11), defining a “person aggrieved” by an unauthorized wiretap as “a person who was a party to any intercepted wire oral communication or a person against whom the interception was directed.” But in view of Mr. Justice Fortas’s separate opinion, concurring in part and dissenting in part, in Alderman, see 394 U.S. 165, 200, 89 S. Ct. 961, the “target of the search” doctrine must still be regarded as an open question. In any event, we need not rely on that principle to grant Mapp standing in this case. Jones proposed two alternative and independent standing rationales, reaffirmed in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and nowhere since undermined. The petitioner in Jones was charged with having purchased, sold, dispensed and distributed narcotics, and, in a second count, with having facilitated the concealment and sale of narcotics. “Possession was the basis of the Government’s case against petitioner.” 362 U.S. at 258, 80 S.Ct. at 730. Narcotics were seized from an apartment belonging to a friend of Jones, which Jones was using at the time. The Court concluded that petitioner had standing to assert violations of the Fourth Amendment because he was legitimately on the premises when the apartment was searched. But more significantly, the Court ruled that, in any event, when illicit possession is the core element of the government’s case, a defendant has standing to raise the Fourth Amendment claim without making the “preliminary showing of an interest in the premises searched or the property seized which ordinarily is required when standing is challenged.” Id. at 263, 80 S.Ct. at 732. The Court’s statement in Jones applies with full force to this case: [T]o hold that petitioner’s failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner’s conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. Id. at 263-264, 80 S.Ct. at 732. The Supreme Court concluded, as we do here, that “[t]he possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e).” Id. at 264, 80 S.Ct. at 732. We hold to this view in light of the Court’s statement in Simmons, supra, that, “When, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence.” 390 U. S. at 390, 88 S.Ct. at 974. Nothing announced in Alderman, supra, in any manner weakens the vitality of the Jones rule upon which we rely, see Combs v. United States, 408 U.S. 224, 227 n. 4, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972). Since we have refused the government’s request, on recent occasions, to abandon or modify the standing principles articulated in Jones with respect to “possession” offenses, see United States v. Price, 447 F.2d 23 (2 Cir.) cert. denied 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971); United States v. Pastore, 456 F.2d 99 (2 Cir. 1972), we see no reason to reconsider the question. Compare United States v. Gargiso, 456 F.2d 584, 586, n. 3 (2 Cir. 1972) (appellant charged with possession of goods found during search has standing), with United States v. Sacco, 436 F.2d 780, 784 (2 Cir.) cert. denied 404 U.S. 834, 92 S.Ct. 116, 30 L.Ed.2d 64 (1971) (indictment did not charge possession, nor would proof of possession have been sufficient to support the charge.) We, therefore, conclude that since possession was “an essential element of the offense [s],” Simmons v. United States, supra, 390 U.S. at 390, 88 S.Ct. at 974, with which Mapp was charged, he falls within the category of persons given standing for Fourth Amendment purposes under United States v. Jones, supra. B. Probable Cause Since one theory upon which the government relies to justify the warrantless search of Mrs. Walters’s apartment is that the search was conducted incident to her arrest, the legality of that arrest is necessarily called into question. We conclude that there was ample probable cause to arrest. Mapp had been linked to the sale of narcotics as early as May 25, when Detective Pons purchased heroin from Simmons and Mapp. Simmons informed Pons at that time that Mapp was his “connection.” After Pons gave Mapp $1300 for the heroin, Mapp went into the apartment building at 1925 Monterrey Avenue, emerged shortly thereafter, and delivered two envelopes containing heroin to Detective Pons. On numerous occasions between May 25 and June 21, the date of arrest, Mapp was seen entering the building at 1925 Monterrey Avenue at odd hours of the evening, and early morning, always for brief periods of time. It was more than reasonable for the officers to believe that Mapp was using an apartment in the building as a heroin stash; all that was left for experienced officers to determine was the precise number of the apartment. At approximately 1:00 A.M. on June 21, 1972, Mapp entered 1925 Monterrey Avenue carrying a brown paper bag, and was met in the hallway by Mrs. Walters. As we have indicated, Mapp said, “Where’s the gangster,” and Mrs. Walters replied, “He’ll be here shortly.” Investigator Herritage had astutely followed Mapp into the building and observed him and Mrs. Walters entering apartment 1-F. Mapp left the apartment at approximately 1:10 A.M. without the package. Under the circumstances, the officers could justifiably have believed that Mapp had left heroin in the apartment and that the occupant or occupants were assisting Mapp in his criminal activities. All the information then available to the Task Force agents gave them more than ample probable cause to arrest. C. The Warrantless Arrest Although, as a general rule, officers may arrest without a warrant upon probable cause to believe that a felony has been or is being committed see e. g., 18 U.S.C. § 3052, it remains “a grave constitutional question . . . whether the forceful nighttime, entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.” Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). The doubts expressed by Justice Harlan in Jones have not been resolved, and the question remains open, particularly after the Court’s recent decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), id. at 480, 91 S.Ct. 2022 (Opinion of Stewart), id. at 492, 91 S.Ct. 2022 (Harlan concurrence). At least one court has concluded that nighttime entry into a dwelling place for the purpose of arrest may not be made without an arrest warrant, absent exigent circumstances justifying a warrantless entry, Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 391 (1970) (en banc). Indeed, the instant case may in certain respects, present a stronger argument than Dorman for vindicating the Fourth Amendment’s safeguard of privacy by requiring a warrant for a nighttime arrest in a dwelling. In Dorman, the Court explicitly found that the police did not intend, at the time of entry, to search for property. 435 F.2d at 391. Here, however, there is more than a suggestion that at least one purpose of the warrant-less entry was to search the apartment for “the package that Sonny brought in earlier.” And it is, of course, axiomatic that a home may not be searched without a warrant, notwithstanding probable cause, except in the most “jealously and carefully drawn” situations. Jones v. United States, 357 U.S. 493, 499, 78 S. Ct. 1253, 2 L.Ed.2d 1514 (1958). Nevertheless, the circumstances of this case permit us to leave resolution of this question for another day, as other panels of this Court have done. See Williams v. United States, 463 F.2d 1183, 1185 (2 Cir. 1972); United States v. Gaines, 460 F.2d 176, 178 (2 Cir. 1972), on remand from the Supreme Court, 404 U.S. 878, 92 S.Ct. 223, 30 L. Ed.2d 159 (1971); United States v. Titus, 445 F.2d 577, 578 (2 Cir.), cert. denied 404 U.S. 957, 92 S.Ct. 323, 30 L. Ed.2d 274 (1971). For here, there were sufficient reasons why an arrest warrant could not have been sought without running the risk of seriously jeopardizing the Task Force investigation. Mapp, who had just been arrested, was entitled to make one telephone call, a call he might have placed to Mrs. Walters, warning her of the imminent danger of arrest. Furthermore, the conversation between Mapp and Walters in the hallway of 1925 Monterrey Avenue indicated that the arrival of a man (“the gangster”) was expected very shortly. There was a danger, if the agents had been required to secure a warrant, that narcotics would be delivered to the awaited visitor, and the evidence lost. It was also possible that Mapp planned to return to Mrs. Walters’s apartment within a few hours; his failure to return, as a result of the arrest, might have alerted Mrs. Walters to possible danger, resulting in the destruction of evidence. We conclude, therefore, that the exigent circumstances of this case justified the warrantless nighttime entry and arrest. United States v. Titus, supra, 445 F.2d at 578-579. United States v. Davis, 461 F.2d 1026, 1029-1032 (3 Cir. 1972); Dorman v. United States, supra. D. Failure to Announce Purpose Mapp argues that even assuming arguendo that there was probable cause and the arrest without a warrant was valid, the forcible entry, accompanied by a breaking down of the door to Mrs. Walters’s apartment, was not preceded by the proper announcement. 18 U.S.C. § 3109 provides that an “officer may break open any outer or inner door or window of a house ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.” At least since Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the same standard has been applied to arrests made without warrant, on the basis of probable cause, see also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). As we indicated in our en bane decision in United States v. Manning, 448 F.2d 992, 997 (2 Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 125, 30 L.Ed.2d 69 (1971), the common law rule codified in § 3109 has, over the years, been modified by judicial decision. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), a case involving unannounced nighttime entry by law enforcement officials, even Mr. Justice Brennan, the dissenter from the Court’s conclusion that the entry in question did not violate the Fourth Amendment, conceded that an unannounced nighttime entry was constitutionally permissible in certain instances: Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers’ authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door) are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted. Id., at 47, 83 S.Ct., at 1636. The merger of this Fourth Amendment rule and the statutory standard announced in § 3109 was completed in Sabbath v. United States, 391 U.S. 585, 591, n. 8, 88 S.Ct. 1755, 1759, 20 L.Ed.2d 828, when the Court noted that “[e]xceptions to any possible constitutional rule relating to announcement and entry have been recognized, see Ker v. California, supra, [374 U.S.] at 47, [83 S.Ct. at 1636] (opinion of Brennan, J.), and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law, of which the statute is a codification.” This view was noted and adopted in our en banc decision in United States v. Manning, supra, 448 F.2d at 1002. In the instant case, the officers announced their identity but did not state their purpose. We conclude, however, that the facts here fall within the third exception to the rule articulated by Mr. Justice Brennan in Ker, supra. After knocking and announcing their identity, the officers waited one or two minutes’ for the door to open. They heard rapid footsteps in the rear of the apartment. Under the circumstances, the officers could reasonably have believed that persons within the apartment were effecting the destruction of evidence. Accordingly, the forcible entry, after announcement of identity but without announcement of purpose, was justified. E. The Arrest and Search We have succeeded in tracing the steps of the Task Force agents into the Walters apartment and have concluded that, at least until that point, the officers had acted wholly within the command of the Fourth Amendment. We briefly recapitulate the subsequent events. Upon breaking down the door to apartment 1-F the officers encountered Robert Clark and immediately placed him under arrest. Patrolman Crowe, upon entering the bedroom, came upon Mrs. Walters in nightclothes and robe. He said to her, with his gun in hand, “You are under arrest and we want the package that Sonny brought in earlier.” Mrs. Walters pointed to a closet located in the bedroom. Crowe opened the closet door, saw a brown paper bag with a light manila envelope protruding from the side. There were three such envelopes which Crowe turned over to the custodian of evidence. Only then did Crowe inform Mrs. Walters of her Miranda rights. Investigator Herritage entered the bedroom, looked in the closet and found a fourth manila envelope in the closet. Subsequent chemical analysis indicated that the envelopes contained two kilograms of heroin. It is conceded that the search here in question was conducted without the authorization of a warrant. But, “the most basic constitutional rule in that [Fourth Amendment] area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘The burden is on those seeking exemption to show the need for it.’ ” Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S. Ct. at 2032 (citations omitted). The Fourth Amendment was designed to protect individual privacy and at the same time accommodate the legitimate needs of law enforcement. But “[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Finally, nothing in the Fourth Amendment remotely implies that officers who, for the purpose of arrest, have intruded, albeit lawfully, upon the privacy of an individual without an arrest warrant, may further invade that privacy by searching without a warrant, otherwise required by the Fourth Amendment, in derogation of law, see Coolidge v. New Hampshire, supra, 403 U.S. at 480, 91 S.Ct. 2022 (opinion of Stewart); Chimel v. California, 395 U. S. 752, 766, n. 12, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969). Absent a warrant, the government assumes the burden of persuasion that at least one of the narrow exceptions to the Fourth Amendment warrant requirement applies to this case. The Government does not here suggest that a warrant was not needed because the officers were engaged in “hot pursuit,” Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967); nor does it attempt to justify the warrant-less search under the “plain view” doctrine, Coolidge v. New Hampshire, supra. Moreover, the record does not disclose a fact pattern similar to the emergency situation which justified the warrantless intrusion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); nor, of course, does this case demand application of the special rules pertaining to searches of automobiles, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We are left, then, with only two possible theories under which the warrantless search involved here may be upheld: that the search was legal because voluntarily consented to by Mrs. Walters, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); or that the search was valid because incident to a lawful arrest within the meaning of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969). 1. Consent Although each case must turn on its own facts, see e. g. United States v. Gaines, 441 F.2d 1122, 1123 (2 Cir. 1971), the overarching principles which govern the. law of consent are clear. Consent to a search, and the waiver of Fourth Amendment rights which it implies, must be “freely and voluntarily given,” Bumper v. North Carolina, supra, 391 U.S. at 548, 88 S.Ct. 1788. The'government bears the burden of proving waiver, a burden which is discharged only upon a showing of clear and convincing evidence, United States v. Marotta, 326 F.Supp. 377, 380 (S.D. N.Y.1971), affirmed in open court, 456 F.2d 1336 (2 Cir. 1972); United States v. Lewis, 274 F.Supp. 184, 187 (S.D.N. Y.1967; Judge Mansfield); Sherrick v. Eyman, 389 F.2d 648, 651 (9 Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L. Ed.2d 144 (1968). Waiver of a constitutionally protected interest and “acquiescence in the loss of fundamental rights” cannot be presumed, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), nor may it be lightly inferred, United States v. Gaines, 441 F.2d 1122, 1123 (2 Cir. 1971). An individual must have knowledge of the existence of a right before he is deemed to have waived it, see Bustamonte v. Schneckloth, 448 F.2d 699, 700 (9 Cir. 1971), cert. granted 405 U.S. 953, 92 S.Ct. 1168, 31 L.Ed.2d 230 (1972) for “[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, supra. Finally, it is fundamental that “[w]here there is coercion there cannot be consent.” Bumper v. North Carolina, supra, 391 U.S. at 550, 88 S.Ct. at 1792. At the threshold, one question requires consideration. We have noted that no warnings of any kind were given by the Task Force agents to Mrs. Walters before she allegedly consented to the search of her bedroom closet despite the fact that she had already been placed under arrest. There have been, at the very least, hints or suggestions in the legal literature that a variant of the Miranda warnings, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), required in the context of waiver of Fifth and Sixth Amendment rights, should be required when law enforcement agents seek a waiver of Fourth Amendment rights, see United States v. Nikrasch, 367 F.2d 740 (7 Cir. 1966); Note, Colum.L.Rev. 130 (1967). We have declined to embrace such a rule in the past, stating that “[t]o fulfill the purpose of the fourth amendment — controlling police conduct — it is unnecessary to adopt a rule that a search is per se invalid unless it is preceded by warnings as to fourth amendment rights. The courts are competent to determine whether valid consent has been given absent such warnings,” United States ex rel. Combs v. LaVallee, 417 F.2d 523, 525 (2 Cir. 1969), cert. denied 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970); United States v. Marotta, supra. We decline to do so again today. Other courts are in agreement, taking the view that failure to advise a person of the right to withhold consent is simply one factor to be considered in the balance, see e. g., Rosenthall v. Henderson, 389 F.2d 514, 516 (6 Cir. 1968). Turning, however, to the circumstances of this case, and applying the general legal waiver principles discussed above, we cannot agree that there was here consent, “unequivocal, specific and intelligently given,” United States v. Smith, 308 F.2d 657, 663 (2 Cir. 1962), cert. den. 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963), which amounted to a knowing and voluntary waiver of constitutionally protected rights. Instead, this case presents an instance of submission to official authority under circumstances pregnant with coercion. The Task Force agents entered Mrs. Walters’s apartment at approximately two o’clock in the morning, after breaking down the door. Patrolman Crowe testified that he entered the apartment with his gun unholstered and that the gun was in his hand at the time he arrested Mrs. Walters. Mrs. Walters was dressed in a housecoat, with nightclothes on underneath it. Crowe stated that she looked “alarmed” when he entered the room. There were, according to the testimony, five or six officers in the apartment at the time Mrs. Walters “consented” to the search. Under these extraordinary circumstances — a gun in hand, a breaking down of the door, an arrest, the hour (2:00 A.M.), the place (her bedroom)— the officers’ failure to warn Mrs. Walters, after placing her under arrest, of her right to remain silent or to withhold consent to a search, takes on special significance. Although we do not hold that whenever a defendant has been taken into custody, law enforcement officials must warn the accused of his right to withhold consent to a search, we are also not required to ignore the observations made in Miranda concerning the relationship between custody, coercion and consent. Miranda noted that “the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will . . . . ” 384 U.S. at 467, 86 S.Ct. at 1624. And by “custodial interrogation,” the Court meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612. Mrs. Walters was undeniably in custody when Patrolman Crowe entered her bedroom, with gun in hand, and announced to her that she was under arrest. Then, without advising her of her rights, and without taking even minimal Steps to establish an atmosphere of relative calm somewhat more conducive to the making of a knowing and intelligent decision, he stated, “We want the package that Sonny left earlier.” Although the district judge, in ruling on the motion to suppress, believed the latter expression amounted only to a statement, and not a question, and that Mrs. Walters’s response constituted a voluntary act of consent to the search, we cannot accept this view of the facts. We conclude that the statement here in question was an outright demand — without ifs, ands or buts — and the voluntariness of the “consent” that followed must be measured in light of that demand. “[A]rrest carries its own aura of coercion [and] the burden upon the government to show voluntary consent is ‘particularly heavy.’ ” Gorman v. United States, 380 F.2d 158, 163 (1 Cir. 1967). Simply stated, that burden was not carried here. Considering the totality of the circumstances, we are of the view that the agents here involved were required to take at least some minimal action designed to purge the situation of its coercive pressures. Patrolman Crowe’s demand, made, as noted, with gun in hand, could very reasonably have been understood by Mrs. Walters to mean that the officers intended to search the apartment whether they had permission to do so or not. Indeed, subsequent to the search of the closet, the officers did in fact search the entire apartment, even though, as officer Crowe conceded, he did not have Mrs. Walters’s consent to conduct such a search. We conclude, even after considering the evidence in the light most favorable to the government, that it has not been shown, by clear and convincing evidence, that Mrs. Walters “consented” to the search and seizure. Her conduct was nothing more than the mere acquiescence in and submission to lawful authority which was condemned in Bump er. 391 U.S. at 549, 88 S.Ct. 1788; United States v. Marotta, supra, 326 F. Supp. at 381. Accordingly, we cannot say that, in response to an official demand, her act of pointing to the closet was a “voluntary” waiver in the constitutional sense. 2. Search Incident to Arrest Inasmuch as the search in this ease cannot be justified on the consent principle relied upon by the district judge, the government advances the alternative argument on appeal that the search was justified because it was incident to a lawful arrest. The history of this doctrine has been inconsistent, to say the least, and its oscillations have been frequently charted see, e. g., Chimel v. California, supra, 395 U.S. 755-765, 89 S.Ct. 2034. We must, however, apply the Court’s latest pronouncement, and we find it in Chimel. There the Court held: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. Chimel v. California, supra, 395 U.S. at 762-763, 89 S.Ct. at 2040. Apart from the above noted exceptions, there can be “no constitutional justification, in the absence of a search warrant, for extending the search. . . . ” Id. at 768, 89 S.Ct. at 2043. At the outset we dispose of the notion that Chimel’s “immediate control” test permits law enforcement agents to search the entire room in which an arrest takes place, without regard to whether, in the literal sense, the area searched was one “into which an arrestee might reach in order to grab a weapon or evidentiary items. . . .” Although the search in Chimel extended throughout the three-bedroom house, including the attic, garage, and small workshop, id. at 754, 89 S.Ct. 2034, the Court explicitly declined to distinguish between full-house searches and limited single-room searches, stating: It would be possible, of course, to draw a line between Rabinowitz [United States v. Rabinowitz, 339 U. S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950)] and Harris [Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947)] on the one hand, and this case on the other. For Rabinowitz involved a single room, and Harris a four-room apartment, while in the case before us an entire house was searched. But such a distinction would be highly artificial. No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other. Id. at 766, 89 S.Ct. at 2041. If any doubt should linger after that passage, additional language in Chimel, directly applicable to this case, instructs that “[t]here is no . . justification for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” Id. at 763, 89 S.Ct. at 2040 (emphasis supplied). The record in this case reveals that the closet in which the heroin packages were found was closed at the time of search. Thus, the only justification for the search, absent a warrant, is that the closet was within the area of Mrs. Walters’s “immediate control,” within the meaning of Chimel. Officer Crowe testified, however, that he was standing between Mrs. Walters and the closet at the time he asked her for the package which Mapp had left earlier. At the time the demand was made, there were five or six officers in the one bedroom apartment, certainly more than sufficient manpower to prevent Mrs. Walters from reaching the closet. Unless Mrs. Walters were either an acrobat or a Houdini, see Hall, Kamisar, La Fave and Israel, Modern Criminal Procedure, 1972 Supplement 66, we cannot conceive how the closet could have fallen within the area of her immediate control. To say that the closet was an area into which she was able to reach, despite the fact that an armed officer stood between her and it, would, in effect, be to hold that a search of all the enclosed places in Mrs. Walters’s bedroom would have been consistent with the Fourth Amendment — a result explicitly foreclosed by Chimel. Accordingly, we cannot say, based on the objective facts in the record, that the closet was within Mrs. Walters’s area of immediate control within the meaning of Chimel. Nor did the officers here involved point to any articulable reasons leading them to believe that Mrs. Walters was an especially dangerous person against whom extraordinary protective measures may have been required, or that the search was actually an attempt to secure an area which the officers, in good faith, subjectively believed was within Mrs. Walters’s area of immediate control. Such a contention would have been inconsistent, to say the least, with the fact that the officers did not even attempt to search Mrs. Walters or the area that was objectively within her immediate control when they arrested her. Moreover, as we have indicated, after finding the package which Mapp had left in the apartment, the officers proceeded to search the entire apartment for other evidence. Thus, absent even the barest hint that these Task Force agents sought to narrow the search within the command of Chimel, we have no occasion to determine whether a good faith effort by law enforcement officials to limit the scope and intensity of a search incident to a lawful arrest would have had a bearing on the reasonableness of that search under Chimel. Cf. United States v. Hsu, 424 F.2d 1286, 1288 (2 Cir. 1970), cert. denied 402 U.S. 982, 91 S.Ct. 1643, 29L.Ed.2d 148 (1971). III. Having concluded that the warrantless search of Mrs. Walters’s apartment violated the Fourth Amendment, we hold that the evidence seized during the course of that search should have been suppressed at trial. Mapp urges that the admission into evidence of the two kilograms of heroin tainted his conviction on all three counts of the indictment in which he was named. We disagree. Although we are compelled to reverse his conviction for possession of heroin (Count 4), and his conviction for conspiracy, which charged possession of the two kilograms of heroin as an overt act (Count 1), we conclude that with respect to the conviction for sale of heroin on May 25 (Count 2), introduction of the heroin seized from Mrs. Walters’s apartment on June 21 was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). There is abundant evidence in the record of Mapp’s guilt on this count, including Detective Pons’s account of the sale and delivery by Mapp, corroborated by Officer Crowe’s surveillance, and the evidence of the 14.-82 grams of heroin itself. Neither interests protected by the Fourth Amendment, nor the defendant’s right to a fair trial in accordance with due process, would be advanced by reversing the “sale” conviction. But, since it might be argued that Mapp’s seven year sentence on the “sale” count may have been influenced by his conviction on the “possession” and “conspiracy” counts held invalid today, reconsideration of sentence may be appropriate, United States v. Hines, 256 F.2d 561 (2 Cir. 1958) cf. 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). And although we have held that the Exclusionary Rule does not apply to the sentencing process, United States v. Schipani, 435 F.2d 26 (2 Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L. Ed.2d 334 (1971), we note that each case must be decided on its own facts, cf. Verdugo v. United States, 402 F.2d 599, 610-613 (9 Cir. 1968), cert. denied sub nom. Turner v. United States, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970) and we leave this judgment to the discretion of the trial judge. Nor does our remand for resentencing on the “sale” count imply any views on our part as to whether the sentence should be modified because of our reversal of the possession and conspiracy counts. We leave the matter of sentence solely to the district judge’s discretion. . The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, ancl particularly describing the place to be searched and the persons or things to be seized. . Mapp was not named in Count 3, which charged Alan Simmons and Robert Davis with the sale of approximately 3.41 grams of heroin. Count 5, which charged Mapp, Walters and Clark with possession of cocaine was dismissed before trial on the government’s motion. . Alan Simmons pleaded guilty and was sentenced to four years imprisonment to be followed by three years special parole. Robert Davis, named in Counts 1 and 3, fled the jurisdiction and has not been brought to trial. The case against Robert Clark was severed and will not be prosecuted, according to the government. The conspiracy charge (Count 1) against Linda Walters was dismissed at the close of the government’s case, and the jury failed to reach a verdict in her case on the possession count (Count 4). She was retried on October 30, 1972, before the Court, and convicted. She was sentenced to a term of probation. . Mapp’s residence vas 3406 Ely Avenue in the Bronx. . As previously indicated, Mapp was also known as Sonny Woods. . After the Court denied the defendant’s motion to suppress, Mapp moved for severance of the “sale” count. The motion was denied. . Rule 41(e), F.R.Cr.P., provides in pertinent part: (e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. . . . The thrust of Mr. Justice Fortas’s separate opinion, 394 U.S. at pages 206-209, 89 S.Ct. at pages 981-986, is that Jones “requires that we include within the category of those who may object to the introduction of illegal evidence ‘one against whom the search was directed.’ Such a person is surely ‘the victim of an invasion of privacy’ and a ‘person aggrieved,’ even though it is not his property that was searched or seized.” 394 U.S. 208-209, 89 S.Ct. at page 985 (footnotes omitted). Our reading of the Court’s opinion indicates the Court did not adopt Justice Fortas’s view. Thus, it appears that this language in Jones must be read ns a suggestion, not a conclusion. . Combs raised the question whether the petitioner had standing under Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The Court, in remanding for amplification of the record, confirmed that Jones remains operative law. At 408 U.S. 227 n. 4, 92 S.Ct. at 2286, the Court said: The Court in Mancusi relied upon Jones v. United States [362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 supra], as having done away with “the requirement that to establish standing one must show legal possession or ownership of the searched premises.” 392 U.S., at 369 [88 S.Ct., at 2124], In Jones, the Court held that the petitioner then before it had standing and enunciated two rules as alternative grounds for its decision. First, the Jones Court ruled that the “possession on the basis of which [an accused] is to be . . . convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e),” Fed. Rule Crim.Proc.; second, the Court ruled that “anyone legitimately on the premises where a search occurs” has standing to challenge the legality of that search. 362 U.S., at 264, 267 [80 S.Ct., at 734]. The Government has urged that we take the opportunity, said to be presented by the instant ease, to re-examine the first alternative holding of Jones. Even assuming we were disposed to do so, the Court of Appeals did not, in the opinion it filed in this ease, deal with the question whether the nature of the charge against petitioner brought his case within the coverage of the first aspect of the Jones holding, and we decline to reach or consider issues not yet passed on by that court. . Patrolman Crowe had, prior to June 21, obtained a search warrant for apartment H, at 1925 Monterrey Avenue, believing it to be the suspect apartment. Subsequent investigation disclosed that there was no such apartment. . 21 U.S.C. § 879, enacted in 1970, authorizes forcible official entry into a dwelling, during the day or night, to search for narcotics, but only if the entry is pursuant to a warrant. Since no such warrant was secured in this case, the statute is inapplicable. . The case was argued before the Supreme Court on October 10, 1972. One of the issues considered was whether the government must substantiate verbal consent to search an automobile by a demonstration that the consent was given with knowledge that it could be withheld. 41 U.S. L.W. 3237 (1972). . In Gorman, supra, the Court held that consent was voluntarily given when the accused, who had been arrested, agreed to a search after being asked whether he would object. The Court noted, however, that the accused had twice been warned that he need not answer any questions. See also, United States v. Hsu, 424 E.2d 1286 (2 Cir. 1970) cert. denied, 402 U.S. 982, 91 S.Ct. 1643, 29 L.Ed.2d 148 (1971). . United States v. Gaines, 441 F.2d 1122 (2 Cir.), cert. granted, judgment vacated and remanded, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971), on remand, 460 F.2d 176 (1972), is not to the contrary. There too, police, four in number, entered a dwelling in the early hours of the morning after breaking down the apartment door. One of the officers identified himself to Gaines, and informed him of a complaint against him, for passing counterfeit bills. A second officer identified himself to Gaines and asked Gaines for identification. Gaines pointed to a jacket resting on a coat rack approximately ten feet away, clearly visible from where he was standing, and said, “It is in my jacket.” The officer reached into a pocket and discovered two counterfeit bills that were admitted in evidence at Gaines’s trial. The Court, concluding that “each case must stand or fall on its own special facts,” 441 F.2d at 1123, held that Gaines had consented to the search of his jacket. The facts in Gaines diverge in critical aspects from those in the instant case. In Gaines, there had been no announcement of arrest prior to the request for identification. Gaines may have believed, therefore, that his arrest and a full-scale search might have been forestalled by directing the officers to his jacket. The officers identified themselves to Gaines and there was not the slightest suggestion that any one of them held a gun in hand at the time the request for consent was made. These distinctions indicate compelling differences in the cases. . We have not been cited to any cases in this Circuit, nor has our own research disclosed any, that run counter to our decision. Since Chimel was not made retroactive, see Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed. 2d 388 (1971), few cases have reached this Court which have required application of the more exacting standard than that which applied under Harris and Rabinowitz. United States v. Manarite, 448 F.2d 583, 593 (2 Cir. 1971) did apply the Chimel test to a search incident to a lawful arrest, and upheld the search there in question. The circumstances of Manarite, however, are markedly different from those involved here. In Manarite, an appeal from convictions for conspiracy to transport obscene material in interstate commerce for purposes of sale, certain pieces of incriminating evidence were recovered from a bar within six inches of where the arrestee was standing at the time they were seized. Inasmuch as Chimel explicitly authorizes a searcli of closed drawers in front of the arrestee, 395 U.S. at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Court properly concluded that this seizure was incident to a lawful arrest. Other evidentiary matters were, found on top of the bar, and were properly seized because in “plain view.” Additional material was found “in closets to which the agents went at the request of [the arrestee] to get for her a dress and raincoat.” 448 F.2d at 593. This seizure, obviously, was not justified under Chimel's “immediate control" test, but under a combined theory of consent — to go into the closet — and “plain view.” Finally, other evidence was seized from an end table near which several unidentified persons were standing. The Court justified the search on the ground that “[t]he F.B.I. agents were justified in assuming that these persons might be accomplices of those arrested and hence might attempt to destroy evidence or procure a weapon on behalf of appellants.” Ibid. This theory is, of course, consistent with Chimel, and with our understanding of it, but is wholly inapplicable to the facts in this case where no unidentified, suspected accomplices were found standing in Mrs. AYalters’s room or near her bedroom closet. Nor does United States v. Titus, 445 F.2d 577 (2 Cir.) cert. denied, 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971), compel a contrary result. Although the appellant in that case contended that certain seizures violated Chimel because not incident to arrest, the seizures were upheld on the ground that “Everything the agents took was in their ‘plain view’ while they were where they had a right to be; there was no general rummaging of the apartment.” 445 F.2d at 579. The facts in Titus were as follows: The apartment was dark; Titus was found, nude and in a crouched position, with a sawed off shotgun leveled at the agents. On command he lowered the gun, which the agents seized. One of the agents backed him against a wall and directed another to bring clothing. In the course of doing this the latter agent noticed and seized two army fatigue jackets of the type that had been described ns having been worn by the robbers. Agent AVelch, making his way back into the kitchen through which he had entered and now lighted, found on the floor a considerable quantity of money, including some with straps bearing the name of the bank and some with straps bearing the name of one of the victimized tellers. This was seized. It was conceded that the agents had a right to seize the shotgun from Titus's person. The Court justified the seizure of the fatigue jackets on the ground that the agents were under a duty to find clothing for Titus rather than bring him nude to the stationhouse. When one agent went to get Titus’s clothing, he happened upon the jackets. That fact pattern clearly complied with the directive announced by the plurality opinion in Coolidge v. New Hampshire, supra, that the discovery of evidence in plain view must be “inadvertent.” Id. 403 U.S. at 465 n. 24 and 466, 91 S.Ct. 2022. It cannot be said, in connection with the present case, that the officers were lawfully “present” in the closet inasmuch as they expressed no interest in securing proper clothing for Mrs. AValters’s impending trip to the stationhouse, nor did she request them to do so. Moreover, inasmuch as the purpose of the entry into the closet, as announced by officer Crowe, was to find the package Mapp had left earlier, discovery of the package was not “inadvertent” within the meaning of Coolidge. AVe note, further, that since it is likely that persons will not normally be attired in street clothes when they are arrested during the early hours of the morning, a general rule which permitted officers to proceed, on their own initiative, without prior request from the arrestee, to closed clothes closets to select suitable dress for the arrestee, thereby triggering application of the “plain view” doctrine with respect to material in the closet, would seriously undermine the limiting principle of Ghimel in a manner we doubt was intended. Finally, both United States v. Pino, 431 F.2d 1043 (2 Cir. 1970), and United States v. Hsu, supra, though intimating that even post-Ohimel standards might have justified the searches there involved, were actually decided under pre-Ohimel standards, and do not control the decision here. We find the Court’s opinion in United States v. Marotta, 326 F.Supp. 377 (S.D.N.Y.1971), affirmed in open court, 456 F.2d 1336 (2 Cir. 1972), a case raising-consent and Ghimel problems in the context of a post-arrest search made without prior warnings, particularly instructive. In that ease the Court granted a motion to suppress, finding the warrant-less search not justifiable under Bumper or Ghimel.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Robert B. RHOADS, Jr., and Jane Drake Rhoads, his wife, et al., Plaintiffs-Appellants, v. VIRGINIA-FLORIDA CORPORATION et al., Defendants-Appellees. No. 72-1130. United States Court of Appeals, Fifth Circuit. March 8, 1973. Rehearing Denied May 29, 1973. Richard F. Ralph, Miami, Fla., for plaintiffs-appellants. Daniel Neal Heller, Miami, Fla., Mark Silverstein, Miami Beach, Fla., Knight, Underwood, Peters, Hoeveler & Pickle, William M. Hoeveler, Miami, Fla., for defendants-appellees. Before GODBOLD, DYER and CLARK, Circuit Judges. GODBOLD, Circuit Judge: This case concerns erosion damage to the Florida residential beach-front property of plaintiffs, caused or substantially contributed to by the construction of a seawall for a beach-front high rise apartment complex. The property faces the Atlantic Ocean in the Golden Beach area of South Florida, at or near the intersection of the beach with the Dade-Broward county line. Defendants are the corporate lessee, builder, mortgage assignee and indenture trustees of the apartment complex. Plaintiffs are the owners of residential lots lying successively to the south of the apartment complex, the lot of the most northerly plaintiff being adjacent to the south boundary of the apartment property. Plaintiffs brought this diversity suit for an injunction, damages and an order requiring removal of the seawall. Following a nonjury trial the District Judge found that defendants were entitled to judgment although the seawall substantially contributed to the erosion of plaintiffs’ properties. His premise was that the defendants were not liable if they had built the wall on property owned by them, that is, landward (west) of the mean high water mark (MHWM), which is the boundary between the privately owned apartment property and the state sovereignty soil seaward thereof. He found that the wall was built landward (west) of the MHWM, and, accordingly, denied relief to plaintiffs. The central issue at the trial was the location of the seawall vis-a-vis the MHWM. The case must be reversed because the finding that it was located landward of the MHWM was based in part upon the content of three drawings which could not be utilized by the court for that factual determination because they had not been verified. The three documents are defendants' exhibits 38, 40 and 49 (D.38, D.40 and D.49). D.38 and 40 purport to be surveys of the apartment complex property by Maurice E. Berry, a registered surveyor, the former drawing purporting to show along the beach side of the property the actual location of the MHWM, the latter purporting to show along the beach side a proposed location for a seawall. D.49 is labeled as a tentative layout drawing (dated 1953) of a proposed city bulkhead line, made by a named firm of engineers and surveyors and containing a line labeled as mean high water mark. 1. Use of the drawings as evidence D.38, 40 and 49 were offered into evidence without any stated limitation on the purposes for which offered. Plaintiffs had acknowledged their authenticity but pointed out that authentication only identified the documents as having been prepared by the purported authors. Plaintiffs repeatedly objected to admission on the ground that there had been no testimony by the authors or by persons participating in the preparation of the surveys concerning what the drawings purported to show. Plaintiffs urged that without such testimony the documents were meaningless, and that they were entitled to cross-examine the authors. The court admitted the drawings without any stated limitation on their use and without any testimony from their authors, and, as we have said, utilized their content in its dispositive finding that the seawall was located landward of the MHWM. The error was critical because plaintiffs introduced without objection P.31, the McGill survey, made by a state-employed surveyor for an agency of the State of Florida, which located the MHWM considerably landward of the locations which the court believed were shown by D.38, 40 and 49. Since Rule 43(a) Fed.R.Civ.P. requires evidence to be admitted in a diversity case if admissible under federal statutes, federal equity practice, or state statutes, rules or common law, we necessarily have engaged in a search of the authorities much broader in scope than the nominal assistance afforded us by the parties. As urged by plaintiffs at the trial, authentication of the documents merely established their authorship, the proof of some human’s “personal connection with a corporal object.” 7 Wigmore, On Evidence § 2129, at 564 (3d ed. 1940). See also McCormick, Evidence § 218, at 543 (2d ed. 1972). Before the documents could be admitted for “testimonial use,” that is, where the documents themselves would “testify” as direct evidence on a material disputed issue of fact, they were required to be verified. “ [W] henever such a document is offered as proving a thing to be as therein represented, then it is offered testimonially, and it must be associated with á testifier.” 3 Wigmore, On Evidence § 790, at 218 (Chadbourn ed. 1970). Verification required at the minimum a showing by the testimony of some competent witness that the lines of the drawings were correct representations of the actual physical characteristics of the land and objects which they purported to show. Adams v. State, 28 Fla. 511, 10 So. 106 (1891); Florida Southern Ry. Co. v. Parsons, 33 Fla. 631, 15 So. 338 (1894); Patterson v. State, 128 Fla. 539, 175 So. 730, 731 (1937); Turner v. U. S., 66 F. 280 (5th Cir. 1895); 3 Wigmore, On Evidence § 793 (Chadbourn ed. 1970). See also Johnston v. Jones, 1 Black 209, 66 U.S. 209, 17 L.Ed. 117 (1862). The significance of verification is demonstrated by what we do not know in this case. There was not even generalized testimony that the drawings accurately depict the property or the description and locations of monuments presumably used as starting points, and there is no evidence of the competency of the surveyor or of the manner in which the drawings were prepared. There is no evidence that lines, calls and monuments portrayed on the drawings were based on or tied in to, or derived from, an official survey or the oldest private survey. We do not know that on-the-ground measurements were made, and, if they were, when made and by whom and whether accurately done, and whether measured data was correctly transferred onto the drawings. Generally, when a survey is to be used as direct evidence the author appears, establishes his competency, and testifies to the accuracy and the manner of his work. Playa de Flor Land & Improvement Co. v. U. S., 70 F.Supp. 281 (D.C.Z.), decree modified and affirmed, 160 F.2d 131 (5th Cir. 1947). Neither Berry, the author of D.38 and 40, nor the unidentified author of D.49, appeared and testified. One who participated in the survey and can attest to its accuracy may be able to verify it if the author is acknowledged to have been competent. See, e. g. Id. at 304. No participant in the work underlying D.38, 40 or 49 so testified. We set out in a footnote some of the cases in which there have been efforts at verification, but the efforts have been held insufficient in degree to make maps or drawings admissible as documents which themselves “testify.” It is possible, through exceptions to the hearsay rule, for a survey to receive requisite verification without in-eourt appearance by a person whose testimony would verify it. None of the exceptions have been shown in the trial court or in this court to be applicable to D.38, 40, and 49. Defendants’ drawings were made by private persons acting in a private capacity and thus were not within the official written statements exception to the hearsay rule. Two of the three documents bore what purported to be a certificate of Berry, as a registered Florida land surveyor. We have found no basis for concluding — and defendants have referred us to none — that the certificates themselves gave to the documents an official character or otherwise verified their contents. The certification itself lacked the necessary verification to be admissible as a hearsay exception. Without statutory authorization it could not provide verification for the document on which it appeared. Defendants have not claimed that the three drawings were admissible under federal or state business record statutes, 28 U.S.C. § 1732, Fla.Stat.Ann. § 92.36, and in our opinion they were not admissible under either. Since D.38, 40 and 49 were not admissible for testimonial purposes, that is to “testify” themselves concerning the location of the seawall vis-a-vis the MHWM, the allowable range of discretion permitted the trial court under Rule 43(a), Fed.R.Civ.P., did not permit it to admit them and then employ them for a testimonial — and, in this instance, dispositive —purpose. The defendants seek the sanctuary of authorities allowing the use of documents to explain and illustrate the testimony of witnesses who refer to them. Authenticated documents can be employed in such a limited and ancillary manner, e. g., Florida Southern Ry. Co. v. Parsons, supra; Turner v. U. S., supra; 13 Fla.Jur., Evidence § 340. However, as the Supreme Court of Alabama explained in Crocker v. Lee, 261 Ala. 439, 74 So.2d 429 (1954): The use of a map, drawing or plat for purposes of illustration must be distinguished from its admission in evidence. In the latter case the instrument possesses within itself evidential characteristics tending to establish a particular fact. In the former case the testimony of the witness is the evidence and the map or diagram is merely an aid to its understanding (citations omitted). 74 So.2d at 435. In the case before us the three drawings were not offered, admitted or utilized for the limited and ancillary purpose of explaining oral testimony of witnesses who referred to them. The defendants rely also upon a conclusion of law and finding of fact entered by the court to this effect: if a purchaser desires to acquire property by deed or long-term lease for a specific project, causes a survey to be made by a registered surveyor and acquires the property in reliance thereon, and proceeds with reasonable dispatch to erect improvements on the property, then he “has a right to rely upon his property line as established and existing by the said survey.” For reasons already discussed, this theory would fail at the threshold since the purported survey on the basis of which defendants purchased was not admissible without verification. But we discuss the theory because it may arise again on retrial. The court cited no authority in support of its proposition. The defendants refer us to one case, Wildeboer v. Hack, 97 So.2d 29 (Fla.App.1957), but it concerns an official government survey, which, under Florida law, “creates” boundaries and does not merely “ascertain” or “designate” them, and is, therefore, conclusive in a boundary dispute. Mexico Beach Corp. v. St. Joe Paper Co., 97 So. 2d 708, 709 (Fla.App.1957); Bishop v. Johnson, 100 So.2d 817, 819 (Fla.App. 1958). If the trial court’s statement is construed to mean that a purchaser who acquires real property in reliance upon a private survey may, without adverse legal consequences, improve and construct within the boundaries as reflected by the survey, regardless of whether the surveyor has correctly located the boundaries, we have no hesitation in saying it is erroneous. Adjoining landowners, including the sovereign who holds land for all, may not be deprived of title or dominion over their property in that manner. 2. Finding No. 4 It is necessary that we comment upon the District Court’s Finding No. 4, that whether the Berry survey [D.38] or the McGill survey is used to locate the MHWM “makes no difference at all in the damages caused to the plaintiff and to other residents of Golden Beach, nor in the destruction of the land of the State of Florida lost from the Golden Beach Area.” We are unsure what this means. It may refer to cause in fact, that is, that the wall, without regard to whether it is located by the one document or by the other, was the actual cause of the damage. Such a finding would be a reaffirmation of what the court already had found orally and would not be clearly erroneous. Secondly, the court may have meant substantially the obverse of the foregoing, that is, that regardless of the location of the wall it was not the actual cause of the damage. Based on the overwhelming evidence and also for reasons stated above, this construction would be clearly erroneous. Another possible interpretation is that although the wall was the actual cause it was not the proximate cause of plaintiffs’ damage. As Florida recognizes, the wrongful act of a tort feasor may be a proximate cause and liability may attach even though the act’s causal contribution to the resulting injury is commingled with natural forces which, because foreseeable, are not efficient intervening causes. See, e. g., Town of De Funiak Springs v. Perdue, 69 Fla. 326, 68 So. 234 (1915); Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 So. 732 (1908). Given actual causation, a finding in this ease of lack of proximate cause would be clearly erroneous. Finally, the court may have intended to say that both the McGill survey and D.38 showed that the wall was built “legally”, in the sense of landward of the MHWM. Such a finding could not stand. Neither the McGill survey nor D.38 purports to show the wall but only the MHWM. If D.40, which purports to show the wall as constructed (but was, of course, not properly before the court), is superimposed upon McGill’s survey, the wall falls seaward of the MHWM as shown on the McGill survey, not landward. Thus, given any of the possible meanings which appear to us, the “it makes no difference” finding is not inconsistent with our conclusion that the case must be reversed. 3. The District Court should consider on remand the question of whether under Florida law a littoral landowner has an unqualified right to construct a seawall on his property (i. e., landward of the MHWM), and if there are qualifications, what they are and enter Conclusions of Law accordingly. In this instance the purpose of the wall was to improve defendants’ property, not to protect it from the “common enemy,” the sea. Katencamp v. Union Realty Co., 6 Cal.2d 765, 59 P.2d 473 (1963), holds that if a littoral landowner constructs a wall on his property to save his property from destruction by the sea, such use of his property is as a matter of law a reasonable use, and, therefore, is not actionable even if an adjoining landowner’s property is damaged by-the use; but if he builds the wall, though on his own land, to improve the property, then the use is not as a matter of law reasonable, and the court must analyze the facts to reach a conclusion on the issue of reasonableness. The rule in Massachusetts appears to be the contrary. Jubilee Yacht Club v. Gulf Refining, 245 Mass. 60, 140 N.E. 280 (1923), holds a littoral owner can construct seawalls on his property without limitation. We find no Florida cases on the matter, and the question is one for the Florida trial judge in the first instance. Reversed and remanded. . Since there was no objection, we need not decide whether this drawing was adequately verified. There was at least a partial verification by a witness who, though not the author, had participated in the on-the-ground measurements, and gave testimony concerning the survey. . See Monarch Ins. Co. of Ohio v. Spach, 281 F.2d 401, 409-410 (5th Cir. 1960); Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961); 5 Moore, Fed. Practice ¶ 43.02 [4], at 1317-20 (2d ed. 1971). . Not to be confused with the more limited use of documents to explain testimony of a human witness. . By “direct” evidence we do not refer to the direct/eircumstantial evidence distinction but to the difference between use of the subject matter shown by a document as evidence of a material disputed fact, and limited use of a document to explain the testimony of n witness. . These were private drawings. In Florida a private survey can be used ns direct evidence on a material issue if shown to be a resurvey tieing into or based on lines, calls and measurements previously established by the official United States government survey, if there is one, and if not, the oldest private survey under which property rights in the area were originally acquired. Miller v. White, 23 Fla. 301, 2 So. 614 (1887); Froscher v. Fuchs, 130 So.2d 300 (Fla.App.1961). . The mean high water level is a computed elevation figure relating to differences between tides and to the tide cycle. For a survey such as D.38, the MI1WM would first be computed and then graphically plotted upon a drawing displaying the varying elevations of the seashore terrain. The beginning point for the computation is a figure obtained from a United States government agency. The computation is no better than the beginning figure. The significance of verification in this respect is displayed by the fact that plaintiffs discovered that McGill appeared to have departed slightly from the governmental beginning figure, and plaintiffs then offered considerable evidence attempting to extrapolate the correct mean high water level (which, they claimed, was even further landward than McGill’s survey showed it to be). . Cooper v. State, 274 Ala. 683, 151 So.2d 399 (1963). In a proceeding where precision and strict accuracy were relevant to establish a boundary, an authenticating witness testified that the exhibit accurately depicited appellants’ property, but stated he did not personally survey the property, was not present when it was surveyed, and was not a land surveyor himself. This predicate was held insufficient. Stein v. Ashby, 24 Ala. 521 (1854), 9 A.L.R.2d 1044, 1083 (1950). There was some verification by testimony that the map was generally recognized as a correct representation of what it purported to show. This was held insufficient to make the map admissible to show important details although the surveyor was known and shown to have been competent. Banks v. Watrous, 134 Conn. 592, 59 A.2d 723 (1948), 4 A.L.R.2d 286 (1949). The testimony of the map’s author, a civil engineer, that rather than performing a physical survey he had drawn boundary lines on the map on the basis of plaintiff’s representations to him and of an aerial survey in the tax assessor’s office, was insufficient to permit admission of the map as direct evidence of plaintiff’s boundary, which was the dis-positive issue in an action for wrongful cutting of trees. See also Aronson v. McDonald, 248 F. 2d 507, 17 Alaska 395 (9th Cir. 1957); Maples v. Hoggard, 58 Ga. 315 (1877) ; Golden v. Rollins, 266 Ala. 640, 98 So. 2d 409 (1957). . Wigmore cites the examples of the map of an official surveyor and a map prepared in the regular course of business by a person now deceased. 3 Wigmore, On Evidence § 791, at 227 (Chadbourn ed. 1970). . See Fla.Stat.Ann. § 92.32 and 28 U.S.C. § 1733. Cf. Rule 803(8), Fed.Rules of Evidence, effective July 1, 1973. Courts and legislatures generally have distinguished between surveys prepared by officials, which are presumed to be more trustworthy, and surveys prepared by private surveyors. See Simmons v. Spratt, 20 Fla. 495, 499 (1884); 5 Wigmore, On Evidence § 165, at 656 (3rd ed. 1940); and 46 A.L.R.2d 1318, 1319, 1336, 1338 (1956). . We construe the Florida courts’ distinction between “create” and “ascertain or designate” to mean that in Florida an official government survey conclusively establishes boundaries and does not merely provide evidence of their location which may be contradicted by other evidence. . Cf. Watrous v. Morrison, 33 Fla. 261, 14 So. 805 (1894), (even if contiguous owners agree to hire a private surveyor to settle their boundary dispute they are not estopped to challenge as erroneous the line located by that survey, and a non-consenting owner or one who takes under him will not be bound by the agreement of the other owners as to a boundary line between coterminous tracts); Bozeman v. Roberts, 188 So.2d 23, 24 (Fla. App.1966) (where a private surveyor failed to follow the official U.S. government survey, the property owners may repudiate their agreement to abide by that survey and challenge its correctness by introducing another private survey.) . The District Court had earlier stated as a preface to oral rendition of its judgment: “There is no question about the complete destruction and severe erosion that was at least substantially contributed to by the seawall in question, or would have been the result of any wall of a similar nature.” Later because of unidentified “clerical mistakes”, a written “corrected final judgment” was substituted for the oral judgment. It contains no finding of causation, unless Finding No. 4 is so construed. . During the trial the court referred to the possibility that a wall could be constructed landward of the MHWM but so close to the MHWM that it would be touched by the moving sea from time to time, and that impact of the sea on such a “legal” wall might have produced the same damage to the beaches as actually occurred. Therefore, possibly the court meant to say in Finding No. 4 that even if defendants built seaward of the MHWM (as the McGill survey tends to show), defendants nevertheless would not be legally liable because the same harm would in any event have been caused had defendants acted in a legal manner by building landward of the MHWM, i. e., the improper location of the wall was not a cause in the “but for” sense. This interpretation could not stand. It would be inconsistent with the oral statements of the court concerning actual causation. See note 12, supra. Also it is entirely speculative whether, if plaintiffs had chosen a site for the wall above the correctly-located MHWM — wherever that might be — that they would have chosen a location touched by the usual reach of the water. They might have elected to move inland above the usual reach of the sea, or they might have moved to a different type of construction, or even have abandoned the wall project as not economically feasible. The exclusion of “but for” cause cannot be predicated upon what defendants might or might not have done within a wide range of possibilities. Finally, this interpretation would run counter to the possibility of liability for the consequences of a wall built on defendants’ property, wherever built, if not built to protect the property from the “common enemy,” the sea. See part 3, infra.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. William Roger TRICE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Emric CLAYTON, Jr., Defendant-Appellant. Nos. 72-1317, 72-1318. United States Court of Appeals, Ninth Circuit. March 30, 1973. Bruce C. Gregor (argued), Sacramento, Cal., for appellant Trice. Bruce Babcock, Jr., Asst. U. S. Atty. (argued), William B. Shubb, Asst. U. S. Atty., Sacramento, Cal., for appellee. Martin F. Jennings, Jr. (argued), Sacramento, Cal., for appellant Clayton. Bruce Babcock, Jr., Asst. U. S. Atty. (argued), William B. Shubb, Asst. U. S. Atty., Sacramento, Cal., for plaintiff-appellee. Before BARNES, BROWNING, and WALLACE, Circuit Judges. WALLACE, Circuit Judge: A jury found Trice and Clayton guilty of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). The various witnesses at the scene were unable to identify the robbers, but one witness secured the license number of the getaway car. Shortly afterwards, the police stopped the car. Questioning of the lone occupant, Lorenzo Tijerina, led to the arrest of these appellants. They request reversal, each specifying three errors. We affirm. I. Clayton Clayton first argues that there was no probable cause for his arrest without a warrant. On the afternoon of the robbery, the driver of the getaway car, Tijerina, admitted his guilt, gave a detailed account of the robbery and implicated Clayton. Clayton argues that the uncorroborated testimony of an informant cannot support an attempted warrantless arrest and the attendant search and seizure. The reliability of an informant is the controlling factor in establishing probable cause for an arrest. See United States v. Mehciz, 437 F.2d 145, 149 (9th Cir.), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971). Ordinarily the informant’s information must be corroborated or verified to an extent sufficient to establish his credibility. See Musgrove v. Eyman, 435 F.2d 1235, 1238 (9th Cir. 1971). There was sufficient corroboration in this case, considering that: (a) Tijerina was stopped in the getaway car immediately after the robbery; (b) his admissions were against his own penal interest; (c) he correctly described the crime in detail; and (d) his sister told FBI agents that Tijerina and Clayton had left the house together about thirty minutes before the robbery. There is ample corroboration of Tijerina’s implicating statements and thus, there was probable cause for Clayton’s arrest. Clayton next asserts that the FBI entry into his apartment to effect his arrest was illegal and that the subsequent seizure of the marked money was, therefore, tainted. This contention is based upon his factual argument that the FBI knew Clayton was not in his apartment. In ruling on Clayton’s motion to suppress, the trial court found otherwise. Clayton has not demonstrated, as he must, that those findings were clearly erroneous. Finally, Clayton contends that the introduction into evidence, of his fingerprint which was lifted from the getaway car was improper and prejudicial. First, he argues that the relevancy of the testimony was outweighed by the prejudice. The admission of this evidence was within the trial judge’s discretion and there is no basis for finding that he abused that discretion. Second, he asserts that the expert witness who lifted the print and testified as to its identity and age was not sufficiently qualified and that his opinion was too speculative. The initial question of whether an expert witness has sufficient competency and qualifications to testify is also within the discretion of the trial judge. Fineberg v. United States, 393 F.2d 417, 421 (9th Cir. 1968). Again there is no showing of an abuse by the judge, especially since he properly instructed the jury that it was to consider the expert’s credentials and make its own determination as to whether to accept or reject his opinion. II. Trice Trice’s first allegation of error is that the trial court failed to grant him a judgment of acquittal. He argues that there was insufficient evidence to allow his case to go to the jury. The prosecution need not exclude every reasonable hypothesis except guilt; it need only present evidence which is substantial enough that a jury could reasonably arrive at a guilty verdict. See United States v. Nelson, 419 F.2d 1237, 1242-45 (9th Cir. 1969). The jury knew the following about Trice: although the robbers were masked, he roughly matched the composite description provided by the eyewitnesses to the robbery; he was apprehended six hours after the robbery with Clayton near Clayton’s apartment where marked money was found; he had marked money on his person; and more marked money was found stuffed under the seat he occupied in the squad car which took him to jail. This evidence when taken together and coupled with reasonable inferences would allow a jury reasonably to return a guilty verdict. The possession of recently stolen property will support an inference that Trice was the thief. Corey v. United States, 305 F.2d 232, 238 (9th Cir. 1962), cert. denied, 371 U.S. 956, 83 S.Ct. 511, 9 L.Ed.2d 503 (1963). Furthermore, the jury could properly conclude that Trice attempted to hide the money in the squad car and this also supports an inference of guilt-consciousness. Thus the trial judge did not err in allowing Trice’s case to go to the jury. Trice's second contention is that the trial judge erred in refusing to give an instruction concerning the testimony of the accomplice, Tijerina. When called as a witness, Tijerina surprised the government and answered only two questions before refusing to testify further, despite a grant of immunity. He was then held in contempt. The two answers he did give were an admission that he drove the getaway car and an acknowledgement that he knew Clayton. Trice sought an instruction, part of which directed the jury to disregard all of Tijerina’s testimony. Giving that instruction would have been error. The judge properly refused the instruction, but gave other instructions which, when taken together, cautioned the jury not to draw inferences from any unanswered questions nor from the fact that Tijerina, although charged in the indictment, did not appear as a defendant at the trial. Further, he would not allow the prosecutor to comment in his argument upon Tijerina’s refusal to testify. In his discretion, the trial judge properly handled a difficult situation while allowing competent testimony into evidence. Finally, Trice argues that his Sixth Amendment rights were violated because he was not provided a transcript of the grand jury’s proceedings. “This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory.” United States v. Jackson, 448 F.2d 963, 971 (9th Cir. 1971), cert. denied, 405 U.S. 924, 92 S.Ct. 970, 30 L.Ed.2d 796 (1972). Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Betty J. BUCKLEY, Plaintiff-Appellant, v. COYLE PUBLIC SCHOOL SYSTEM et al., Defendants-Appellees. No. 72-1520. United States Court of Appeals, Tenth Circuit. Submitted Jan. 11, 1973. March 5, 1973. Henry W. Floyd, Oklahoma City, Okl., and James I. Meyerson, NAACP, New York City (Nathaniel R. Jones, NAACP, New York City, on the brief), for plaintiff-appellant. Thomas R. Williams, Guthrie, Okl., for defendants-appellees. Before MURRAH, SETH and DOYLE, Circuit Judges. . Justice Douglas wrote in Skinner: We are dealing here with legislation • which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. Id. at 541, 62 S.Ct. at 1113. And as the Court stated in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972): If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed .2d 147 (January 23, 1973), holding that the right of privacy protected by the Fourteenth Amendment includes the woman’s right to terminate her pregnancy. If the right to maintain freedom from interference with terminating a pregnancy is a right of the magnitude described by the Supreme Court in Wade, certainly the interests here involved is entitled to at least similar recognition. WILLIAM E. DOYLE, Circuit Judge. This is an appeal from the final judgment entered following the granting of defendants-appellees’ motion for summary judgment. The plaintiff-appellant was a school teacher in the City of Coyle, Oklahoma Public School system. She was in her first year of employment and thus had no tenure. She was dismissed in accordance with a policy of the school system at the end of her sixth month of pregnancy. The action questioned the validity of this policy and of her termination pursuant to it. The suit was brought under the Civil Rights Act of 1866 and of 1871, and also of 1964, Title VII. In granting summary judgment the district court dismissed the action in its entirety stating that neither appellant’s constitutional rights 'nor her statutory rights had been violated and that she was entitled to neither injunctive relief nor damages. The specific conclusions and reasons of the trial court are as follows: The Court is of the opinion that there was no discrimination against Plaintiff either because of race or sex; that the rule regarding pregnancy is reasonable and applies to all women; that the Civil Rights Act applies only to persons of a class who were helpless to prevent becoming a member of that class. Women are such a class; they are not responsible for their sex; they did not choose it. Pregnant women do not constitute such a class; they are only a segment of a class. The Court concludes that Civil Rights under the Act, 42 U.S.C. 2000e(2) [2000e-2], are assertable only by persons of a designated class who had nothing to do with their condition, namely, race, color, religion, sex or national origin; that the Plaintiff did have something to do with respect to her pregnancy; she asserted her prerogative to become pregnant. Since the trial court ruled that the action of the plaintiff-appellant was insufficient on its face and thus did not even merit preliminary inquiry, our problem is whether it does present a constitutional claim of sufficient substance to justify a hearing on the merits. We hold that the claim has apparent substance and more; that its nature and character are such as to make out a case of probable rather than merely possible recovery and, therefore, that it was error for the trial court to summarily throw it out, so to speak. The plaintiff-appellant’s contention is that the school policy calling for dismissal at the end of the sixth month of pregnancy discriminated against her solely on the basis of sex and in so doing violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, plus the Civil Rights Act. She also maintains that she was discriminated against because of her exercise of First Amendment rights and also that she was the victim of discrimination based upon her color. I. We start with the most obvious of the alleged violations and that is the charge of discrimination based on sex. The trial court’s attempted distinction between discriminatory and non-diseriminatory regulations as being whether the condition involved is one which was involuntary must be rejected. The fact, if it be a fact, that pregnancy is a voluntary status really has nothing to do with the question. The point is that the regulation penalizes the feminine school teacher for being a woman and, therefore, it must be condemned on that ground. Judge Brown dissented in one of the earlier cases, Phillips v. Martin-Marietta Corp., 416 F.2d 1257, 1259 (5th Cir. 1969), vacated per curiam, 400 U.S. 542, 90 S.Ct. 496, 27 L.Ed.2d 613 (1971), a Title YII case in which the employer was willing to hire men with preschool age children for a certain position but not women, brought out the discriminatory nature of the regulation in these terms: The distinguishing factor seems to be motherhood versus fatherhood. The question then arises: Is this sex-related? To the simple query the answer is just as simple: Nobody — and this includes Judges, Solomonic or life-tenured — has yet seen a male mother. A mother, to oversimplify the simplest biology, must then be a woman. So also in our case we have a regulation which bears down upon the pex’son involved because she is a woman. The Sixth Circuit has also considered the question in La Fleur v. Cleveland Bd. of Educ., 465 F.2d 1184 (6th Cir. 1972), wherein the regulation provided for matenxity leave to be effective not less than five months before the expected date of the normal birth of the child. Certain other i'egulations which wei’e not condemned required that notice be given of the condition and also that the notice be given two weeks before the effective date of the leave of absence. A great deal of evidence had been taken by the trial court and much of this had sought to justify the regulation, i. e., to show a rational basis for it. The court rejected these efforts saying that the rule was inherently based upon a classification by sex. The court (Judge Edwards writing) went on to mention the obvious truth that “male teachers are not subject to many types of illnesses and disabilities.” The court continued : This record indicates clearly that pregnant women teachers have been singled out for unconstitutionally unequal restrictions upon their employment. Additionally, as we have observed, the rule is clearly arbitrary and unreasonable in its' overbreadth. As the Supreme Court said in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952): “We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” Id. at 192, 73 S.Ct. at 219. 465 F.2d at 1188. The Foux-th Circuit had a similar regulation before it in Cohen v. Chesterfield County School Bd., 5 EPD ¶ 7967 (4th Cir. 1972), rev’d en banc, 474 F.2d 395. In this case the regulation provided for the maternity leave to commence no later than the fifth month of pregnancy. A majority of the court in an opinion written by Chief Judge Haynsworth upheld the regulation as a x-easonable classification. Judge Winter wrote the minority opinion which argued that the provision was discriminatory and in violation of the equal protection clause of the Fourteenth Amendment since there was neither medical reason nor administx'ative justification for the x*egulation; that there existed no valid reason for treating maternity leave differently from any other medical leave or any other medical disabilities. It is important to note that a full evidentiary hearing had been held and it thus differs from our situation in which the cause was summarily dismissed. Appellees also rely on Schattman v. Texas Employment Comm’n, 459 F.2d 32, 42 (5th Cir. 1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688. This case is factually different from ours in that the person was given a maternity leave instead of being discharged, and the leave commenced not later than two months before the expected delivery date. At least some effort was apparent in that case to develop a provision bearing some relationship to the realities of the pregnancy, and here also an extensive evidentiary hearing was had. In our case the policy of the Board appears drastic and categorical. The classification here is at least susceptible to the charge leveled against it by appellant, namely, that it discriminates invalidly against womanhood, and that it invades plaintiff’s privacy by requiring her to choose between employment and pregnancy, thus curtailing her interest in having a child —an interest recognized as constitutional in Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Skinner saw the interest in procreating as a basic one which is within the protection of the Fourteenth Amendment. The remaining question is whether in determining the validity of the policy under consideration the trial court should apply the rational basis test enunciated in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) or the compelling state interest test of Shapiro v. Thompson, supra. See also Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). We conclude that the state must demonstrate a compelling interest in order to justify its policy because the interest involved is a fundamental one in that 1) it concerns the acknowledged right of the plaintiff to bear children, and 2) it demands that a school teacher select either employment or pregnancy. In holding that compelling interest is the applicable test, we have in mind the matters just mentioned, plus the fact that plaintiff has alleged that her race was a factor in the application of this policy — that white teachers are not subjected to it in every instance. This is an allegation that must be supported by evidence in order to be entitled to recognition, but if it is true the compelling state interest approach is the appropriate one. II. The trial court was also in error when it summarily disposed of this action, notwithstanding appellant’s allegation that the maternity regulation cloaks a more deep-seated policy of racial discrimination as well as reprisal resulting from appellant’s First Amendment activities regarding library acquisitions. She is entitled to prove these charges, for it cannot be questioned that a teacher’s exercise of First Amendment rights is not to be used as a ground for dismissal from public employment. See Pickering v. Board of Educ. of Tp. H. S. Dist. 205, 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). While it is true that the appellant does not have a constitutional right to continue public employment, it cannot be gainsaid that she does have the right to be free from the imposition of unconstitutional conditions in connection with that employment. Pickering v. Board of Educ., supra, 391 U.S. at 568, 88 S.Ct. 1731; Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Slochower v. Board of Higher Educ. of City of N. Y., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). III. Appellant has also alleged that notwithstanding the school policy considered above, the defendants have allowed white teachers to take maternity leaves, whereas her employment was terminated. Appellant claims that this of itself constituted racial discrimination and violation of the equal protection clause of the Fourteenth Amendment, as well as the Civil Rights Act. Having no evidence with which to judge this contention, and we do not attempt to do so, we merely recognize the obvious principle that racially discriminatory practices violate the Fourteenth Amendment and the civil rights statutes which have been cited above. See Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189, 193 (4th Cir. 1966). See also Haney v. County Bd. of Educ. of Sevier County, 429 F.2d 364, 371 (8th Cir. 1970); Wall v. Stanly County Bd. of Educ., 378 F.2d 275, 278 (4th Cir. 1967). Whether there has been a violation of the nature charged can only be determined from a consideration of the evidence offered. On remand the trial court should examine the facts and circumstances bearing on whether the policy in question has been employed in a discriminatory manner toward black teachers. IY. The appellant’s final contention is that she was denied procedural due process by the school system when it denied her a hearing. See Perry v. Sindermann, supra, and Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). This issue is moot at this point since the case has proceeded beyond the administrative stage. Similarly, injunctive relief would no longer be of any value. Appellant has, however, made a claim for damages for violation of her constitutional rights and this claim has not been determined. The judgment of the district court is reversed and the cause remanded for further proceedings consistent with the views expressed herein. . 42 U.S.C. § 1981; 42 U.S.C. § 1983; Civil Rights Act of 1964, Title VII; 42 U.S.C. § 2000e et seq. It is noteworthy that the Equal Opportunity Act now aiiplies to public schools and that the EEOC has adopted a rule which prohibits special maternity leave as discriminatory on the basis of sex. See 29 C.P.R. § 1004.10(h) (1973). Admittedly, however, Title VII does not come into xilay here since the plaintiff-appellant has not exhausted her administrative remedies. . See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and see also Williams v. San Francisco Unified School Dist., 340 F.Supp. 438, 442-443 (N.D.Cal.1972).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

CONTINENTAL BAKING COMPANY, Appellant, v. The OLD HOMESTEAD BREAD COMPANY and Interstate Brands Corporation, Appellees. No. 71-1679. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 18, 1972. Decided March 22, 1973. Rehearing Denied May 7, 1973. See also, D.C., 47 F.R.D. 560. John H. Schafer, of Covington & Burling, Washington, D. C. (Miles C. Cortez, Jr., of Welborn, Dufford, Cook, Phipps & Brown, Denver, Colo., Gordon A. Thomas, Rye, N. Y., and George R. Poehler and Charles Lister, of Covington & Burling, Washington, D. C., of counsel, with him on the brief), for appellant. John S. Pfeiffer, Denver, Colo. (Gorsuch, Kirgis, Campbell, Walker & Grover, Frederic L. Kirgis, Robert E. Warren, Jr., and Alan G. Clausen, Denver, Colo., with him on the brief), for appellee, The Old Homestead Bread Co. Edward L. Foote, Chicago, Ill. (Benjamin F. Stapleton, and Kenneth L. Starr, Denver, Colo., Edward J. Wendrow, and Brian A. Loftus, Chicago, Ill., Ireland, Stapleton, Pryor & Holmes, Denver, Colo., and Winston & Strawn, Chicago, Ill., of counsel, with him on the brief), for appellee, Interstate Brands Corp. Before SETH and HOLLOWAY, Circuit Judges, and LANGLEY, District Judge. SETH, Circuit Judge (By reassignment from HOLLOWAY, Circuit Judge). Appellee, The Old Homestead Bread Company, commenced this suit under the Sherman Act and the Robinson-Patman Act against the appellant, Continental Baking Company, Rainbo Bread Company, and Interstate Brands Corporation. Interstate crossclaimed against Continental, and Continental counterclaimed against Interstate. The action was tried to a jury which returned a verdict for The Old Homestead Bread Company against Continental in the amount of $1,048,500.00, with attorney fees of $290,000.00; and for Interstate Brands Corporation against Continental in the amount of $130,000.00 and $70,000.00 as attorney fees. Continental has taken this appeal, asserting several errors were committed by the trial court, and that there was not substantial evidence to support the verdict of the jury. Continental’s defense to the suit was generally that it was engaged in private label merchandising of its bread and the asserted price discrimination was in accordance with its use of the private label, “Tender Crust.” It also advanced the defenses of pricing to meet competition in good faith, and of cost justification. The initial causes of action of the plaintiff-appellee Old Homestead were based on section 2 of the Sherman Act [15 U.S.C. § 2], and on the RobinsonPatman Act [15 U.S.C. § 13(a)]. Interstate’s cross claim asserted the same causes of action. All the parties were engaged in the baking business and were selling bread and other bakery products at wholesale to independent grocery stores. The bakeries concerned were in Denver, Colorado. About two weeks before trial, Old Homestead filed an additional pretrial statement or proposed pretrial order which included reference to some additional facts not theretofore advanced, and based thereon, asserted these facts showed a violation of section 1 of the Sherman Act. A hearing was held as to this new evidence as Continental asserted that a continuance was necessary so it could conduct further discovery. The trial court denied the continuance, and ruled that this evidence, which related to the connection between Continental and Five States Supply Company, was within the scope of prior pretrial orders and issues and that Continental had access to the information. We find no abuse of discretion by the trial court in this ruling. There was also an objection by Continental to the joining of the several claims against it, and also an objection to both plaintiffs proceeding against it at the same time. The motion was denied and properly so. There was an ordering of the proof. The trial was somewhat complicated by the several claims, and cross claims of the several parties, but not unduly so. The trial court’s action in this respect was well within its discretion. See Continental Baking Co. v. Utah Pie Co., 396 F.2d 161 (10th Cir.). In Denver and southeastern Wyoming, before the complaint period (July 1964 through 1967), there were four principal wholesale bakeries supplying bread to the independent grocery stores. These were the appellant-defendant, Continental Baking Company, another defendant, Rainbo, which did not appeal, Old Homestead, and Interstate Brands. The retail chain stores baked bread for their own stores and not for others. Each of the four original parties to this suit operated large modern bakeries in Denver. In 1962 Continental built a new bakery in Denver with a very large capacity; at the time it was completed its share of the market served by the non-chain bakers could be supplied with its new plant operating at about fifty per cent of capacity. The plant could not be operated profitably at fifty per cent of capacity. Each of the parties was able to increase its sales through the year 1963, but the volume was produced at an increased unit cost. By 1964 each baker was losing money, but in July 1964 the wholesale prices for bread increased about ten per cent which was enough for each to operate profitably. Before 1964 each bakery served its independent grocery store customers with routemen who were responsible for deliveries, placing the bread in racks at the store, and for the placement of the product in an advantageous place in the store. The record shows that the white pan bread produced by the four bakers before and after 1964 was of like kind and quality. By far the greater number of independent grocery stores in the Denver-southeast Wyoming area during the complaint period were members of Associated Grocers (AG). This was a cooperative to purchase goods in quantity for its members. Before 1964 the members of AG bought bread from the different independent bakeries in the area. In the summer of 1964 a separate company was organized called “Five States Supply Company” to provide bread to AG members who wanted to join the new company. Five States had no separate offices or facilities, but operated through AG. For an AG member to also become a member of Five States, a fee of one hundred dollars was required, as was an agreement to comply with its bylaws. The bread to be supplied to its members by Five States was to be labeled “Tender Crust.” One of the bylaws of Five States was that the retail grocer member would keep the price of Tender Crust “. . .so that it will always be offered at the same price of any other bakery products of same quality, weight or size.” In July 1964 Continental entered into a written agreement with Five States whereby it agreed to furnish the private label “Tender Crust” bread and other bakery products. Under this agreement Continental was to also have “preferred space” on the store racks for its regularly advertised brands. The agreement between Continental and Five States also provided that the private label price, that is the Tender Crust price, to the retail grocery store member of Five States would be at least one cent per loaf less for Tender Crust than for Continental’s advertised products (Wonder Bread). It also provided that the wholesale price of advertised labels of Continental would be maintained at the wholesale prices of Continental’s competition. The competition was, of course, Rainbo, Old Homestead, and Interstate. The result of the agreement thus was that the Five States grocers, since they had agreed to charge at retail the same price for each product of like kind or quality, always made at least one cent more per loaf on the Tender Crust bread than on other labels they sold. This agreement was referred to as the “Tender Crust program.” There were some later changes by practice to include discounts of various kinds, but the basic agreement remained in effect during the complaint period. Before the advent of the Tender Crust program there had been no private label bread sold in the area by the parties to the suit. After the program began there were several private labels and secondary labels marketed. The wholesale prices of bread also began to drop rapidly as did the volume sold by the plaintiffs. Several officials of Continental attended board meetings of Five States from time to time and Continental assisted in preparing and circulating the newsletter of Five States. These newsletters in 1964 and 1965 urged more AG members to join Five States, and to so participate in the Tender Crust program. There were about 112 member stores in Five States by early 1965, 167 in February 1967, and 200 in January 1968. This was out of a total of 415 AG stores on the later date. The record shows that Continental in its Denver plants sold in 1963 about 27,700,000 pounds of bread products and lost money there in 1963, 1964, 1965, and 1966. In 1967 the operations of Continental at Denver showed a modest profit of $14,000.00, while nationally its profits were about twenty-one million dollars. In 1967 Continental had increased its sales in the Denver area to over 40,000,000 pounds of bread products. During the forty month complaint period the volume of sales by Old Homestead fell sharply, until, finally, on December 31, 1967, Old Homestead dropped out of the industry. In this opinion we only give consideration to the Robinson-Patman aspect of the litigation. This case thus involves primary-line competition since Old Homestead and Interstate were in competition with Continental, the party charging the allegedly discriminatory prices. It is clear that primary-line injury is protected by the Robinson-Patman Act. FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 80 S.Ct. 1267, 4 L.Ed.2d 1385. For convenience, Interstate will be referred to as a “plaintiff.” The basic provisions of section 2(a) of the Clayton Act as amended by the Robinson-Patman Act are as follows : “(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, . . . and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. . . .” To establish a claim under this Act, plaintiffs must have demonstrated price discrimination as defined by the statute, and that the effect resulting from the discrimination “may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination. . . .” The term “price discrimination” means no more than price differentiation, or the charging of different prices to different customers for goods of like grade and quality. FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 80 S. Ct. 1267, 4 L.Ed.2d 1385. It is undisputed that Continental charged one price per load for its product labeled “Wonder Bread” and a different price for its product labeled “Tender Crust Bread.” It is also uncontroverted that both of these brands were of like grade and quality. Since the goods are of like grade and quality, the fact that they are sold under different labels will not justify what would otherwise be price discrimination under section 2(a). FTC v. Borden Co., 383 U.S. 637, 86 S.Ct. 1092, 16 L.Ed.2d 153 (1966). Therefore, the price discrimination element of this action is established by uncontroverted facts. Price discrimination is, of course, not illegal per se. Plaintiffs, as indicated above, must have shown that the effect of the price discrimination “may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination. . . . . ” The courts and .the FTC have established several methods of proof directed to this injury to competition requirement. Growth Tending to Monopoly: By the language of the statute itself, price discrimination is unlawful if it may “tend to create a monopoly in any line of commerce.” If plaintiffs here can show that this price discrimination had a tendency to create a monopoly in their “line of commerce,” then this injury to competition requirement has been satisfied. Gold Strike Stamp Co. v. Christensen, 436 F.2d 791 (10th Cir.). There is some dispute in this case as to what should be considered the appropriate “line of commerce” or “relevant market.” Continental argues that the relevant market includes not only the independent wholesale bakers but also the bakeries of the chain grocery stores such as Safeway. Adopting this construction, Continental’s market share growth during the period of 1964-1967 was roughly from twenty per cent to twenty-nine per cent of the market. The plaintiffs, on the other hand, contend that the relevant market is that of the independent wholesale bakers only. This construction is more realistic because the customers of the independent bakers, namely the independent retail grocers, could only buy bread from the independent bakers and not from the • chain bakers. Therefore, the independent bakers did not compete, directly at least, with the chain bakers and so these should be considered two different “lines of commerce.” Adopting this construction, during the four-year period 1964-1967, inclusive, Continental’s market share went from about thirty-five per cent to fifty-one per cent. Also, the number of competitors went from four to three when Old Homestead dropped out. Under the monopoly cases (Sherman Act § 2), it is fairly clear that a market share of fifty-one per cent would not constitute monopoly power. See, e. g., United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir.), where, in dictum, it is stated that sixty per cent would not constitute monopoly power. However, the question here is whether a four-year growth from thirty-five percent to fifty-one per cent is growth tending to create a monopoly. Predatory Intent: Although the statute does not speak of “predatory intent,” the courts have reasoned that, from a finding of predatory intent, the jury can infer that a reasonable possibility of competitive injury exists. Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, n. 12 at 696, 87 S.Ct. 1236, 18 L.Ed.2d 406, and cases cited therein; Cornwell Quality Tools Co. v. C. T. S. Co., 446 F.2d 825 (9th Cir.). On the standard of “reasonable possibility,” see Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950 (10th Cir.). Since the “sum total of all the evidence must be considered” to find predatory intent, there is no set formula for such a finding. In the Utah Pie case, 386 U.S. 685, 87 S.Ct 1326, 18 L. Ed.2d 406, the Court stated that predatory intent could be found- from “persistent unprofitable sales below cost and radical price cuts themselves discriminatory.” There is some evidence in the case before us of sales below cost during a very short period, and discriminatory price cuts represented by discounts to Tender Crust customers only. Again in Utah Pie, the Court stated that the Act “comes into play to regulate the conduct of price discriminators when their discriminatory prices consistently undercut other competitors,” and considered this conduct to be highly indicative of predatory intent. See Unlawful Primary Line Price Discriminations: Predatory Intent and Competitive Injury, Columbia L.Rev. 68:137 (1968). There are several significant but isolated facts in the case before us which could support a finding of predatory intent. For example, in 1962, Continental built a bakery which was the largest in the Rocky Mountain Area but which at its opening operated at thirty-three million pounds, or fifty per cent of its capacity. The vice-president testified that he knew that it could not be operated profitably until it reached seventy-five per cent capacity, or fifty-two million pounds. From 1963 to 1967, Continental increased its production by fifty per cent or from thirty-three million pounds to fifty-two million pounds and at the end of the period was for the first time in the black. The seemingly impossible goal Continental set for itself in 1963 and, in view of the existing suppliers, the achievement of that goal would indicate that Continental’s operations were based on something more than “fierce competitive instincts.” The record also shows that the plaintiff Old Homestead ceased to do business on December 31, 1967, and on January 2, 1968, Continental raised its prices and did away with all discounts. There are other examples in the record which, when considered with those mentioned, could provide the jury with sufficient evidence from which to draw a strong inference of predatory intent on Continental’s part. Compare the cumulation of such facts in National Dairy Products Corp. v. FTC, 412 F.2d 605 (7th Cir.). Causal Connection: The record clearly shows that both plaintiffs suffered some injury during the complaint period. The amount of those damages is in dispute and will be discussed below. Continental offers a variety of explanations as to why plaintiffs suffered these injuries. However, taking the record as a whole, the jury could easily infer that Continental’s price discrimination incorporated in the Tender Crust program was the proximate cause of the price declines and of fluctuations during the period which resulted in lost profits and in a decline in sales actually made by appellees with a diversion of business from appellees to appellant. A good discussion of the jury’s latitude in assessing this causation factor in a case such as this can be found in this court’s opinion in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.). Having there found that the defendants had conspired and attempted to monopolize the vanadium ore market, the court considered the question of whether or not these violations were causally related to the injuries suffered by the plaintiffs as follows: “In our view of the evidence, the jury might very well have concluded that the failure of the venture was due to underfinancing, mismanagement or uneconomical operation, all factors over which neither the appellants nor either of them exercised any conscious control. “But even so, it is fairly inferable that more forces were at work to bring about the downfall of the Nisley-Wilson enterprise than the mere forces of nature or the inexorable laws of economics. In determining whether a jury finding of actionable damages is justified by the record, we must consider the plight of the enterprise in the environment of an established conspiracy to monopolize or attempt to do so . . . Viewed in this setting, we cannot say that the jury’s finding of attributable harm is unsupported in the record.” In the instant ease, the jury was carefully, repeatedly, and specifically instructed that no award against Continental was justified unless the damages claimed by appellees were caused by its price discrimination. As in the Union Carbide case, although the evidence on this point was conflicting, the question was properly submitted to and resolved by the jury. An analysis of the exhibits covering the years 1963 and 1967 permits the following tabulation to be made: Sales In Pounds of 1963 Dollars Bread Continental 5,100,875 27,739,659 Rainbo 2,559,039 14,938,838 Interstate 2,314,000 12.850.000 Old Homestead 4,118,938 22.850.000 Total 14,092,852 78,378,497 1967 Continental 7,319,792 40,850,512 Rainbo 3,186,818 17,521,511 Interstate 2,879,000 16,000,000 Old Homestead . 906,445 5,030,000 Total 14,292,055 79,402,023 In comparing the sales in dollars for the years 1963 and 1967, assuming that these four companies represent the total independent wholesale bread market, then Continental’s sales represented $5,100,875.00 of the total $14,092,852.00 or 36.2 per cent of the dollar volume of sales in 1963. In 1967, Continental’s sales represented $7,319,792.00 of approximately the same total volume or 51.2 per cent. Also, these figures show that Old Homestead’s losses during these years were not redistributed evenly over the remainder of the market but the relatively greatest amount went to Continental. Comparing the sales in pounds, Continental’s sales volume in 1963 was 27,739,659 of a total market of 78,378,497 or 35.4 per cent. In 1967, Continental’s sales volume was 40,850,512 of a total market of 79,402.-023 or 51.5 per cent. The Supreme Court in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S. Ct. 1502, 8 L.Ed.2d 510, pointed out that Congress chose language which was virtually identical for defining the injury to competition requirement for all violations covered by the different sections of the Clayton Act. The Court suggested therefore that if the anticompetitive effects of one violation are found to be proscribed by this language, then similar effects also result from a violation of another section. The record contains substantial evidence of the injury to competition to support the finding of the jury. Private Label and Consumer Preference: The defendant urges that this case represents no more than the proper use and function of private label merchandising, and plaintiffs’ attack is on this established sales method. “Consumer preference,” as we understand the term, is the difference in price between the same product (or essentially the same) sold under a private label and under an advertised label at the point where the two labels are considered an equally good buy by the consumer. This factor of consumer preference as explained and used by the Fifth Circuit in Borden Co. v. FTC, 381 F.2d 175 (5th Cir.), is that its inclusion is necessary in order to meet the problem or situation when private and advertised label goods are of like grade and quality, but should be treated differently under the Robinson-Patman Act. Thus, when the retail price margin between these two products accurately reflects the consumer preference, the prices while actually different are considered to be commercially equal. The defendant argues that the consumer preference price difference is a result of marketing both private and advertised labels in the same market, and is proper. Thus it urges that the trial court should have instructed the jury to take the factor into consideration. However, there was no evidence in the record to support such an instruction, if it be a proper one, which we do not here decide. The record instead shows that the bylaws of the Five States organization established by defendant and Associated Grocers requires that the retail price of bread of all labels should be maintained at the same level. This would seem to eliminate any issue of consumer preference, and at the same time gives an extra profit margin to those able to buy the Tender Crust bread, that is, those in the “program.” This consumer preference concept advanced by appellant was derived from the Supreme Court’s opinion in FTC v. Borden Co., 383 U.S. 637, 86 S.Ct 1092, 16 L.Ed.2d 153. In that case, the Court rejected the contention that two products, though physically identical, should not be considered to be of “like grade and quality” for Robinson-Patman Act purposes if a definite consumer preference for one over the other has been created by advertising. The Court refused to “exempt the effective advertiser from the Act.” The Court continued, “We think Congress intended to remit him to his defenses under the Act, including that of cost justification.” Thus, consumer preference considerations, to the extent that they are to be recognized, are to be treated under the defenses to the Act and are not a part of the plaintiff’s prima facie case under the statute. The burden of proof was on the defendant to justify what was otherwise a violation of the Act. Since no evidence was introduced on this issue, no instruction to the jury on this aspect of the defense was warranted. Therefore, we find no error in the trial court’s refusal to give such an instruction. The facts in this case and in Beatrice Foods Co., FTC Docket 8663 (1969), are quite similar and the Commission there stated: “The record also reflects, what we know from numerous cases involving the dairy and retail food industries, that the grocery store atmosphere is highly price sensitive. It [milk in Beatrice, and bread here] is one of the most important commodities carried in retail grocery stores. It has to be purchased frequently by the consumer because of its perishable nature. The record contains ample evidence that milk [in our case bread and cake products] is frequently used as a leader and advertised at special prices. “Furthermore, profit margins are notoriously low in the retail grocery business. The record shows that retailers take advantage of all available discounts and rebates in order to minimize cost and that differences in cost of a few pennies paid by the retailer for a major grocery item can have a substantial effect on gross and net profits.” The Commission also there quotes from Foremost Dairies, Inc. v. FTC, 348 F.2d 674 (5th Cir.), a case involving discounts on fluid milk to a chain of eight stores in Albuquerque, where that court said: “. . . It is unnecessary that there be evidence that the favored customer actually undersold his rivals; a substantial price advantage can afford a favored buyer a material capital advantage by enlarging his profit margin in a highly competitive field. The jury could well have inferred that the built-in profit differential was the reason why the Five States organization was formed — that is to enable its members to buy the same product more cheaply than nonmembers and so have a wider profit margin. It was reasonable for the jury to have concluded that Continental was aware of this and that, if anything, they were encouraging it. Continental was aware that if retail prices stayed the same, the incentive to buy Tender Crust would always be present — that is, the grocer was always insured that his profit on Tender Crust would be more than his profit on any other label bread. Continental was thus going to be able to secure and hold a large number of grocers. Also, because Wonder bread would always take second position in stores that bought Tender Crust, Continental was going to be able to better its position in many stores and increase its sales of Wonder, at the expense of all other wholesale bakers. The defendant urges that the Tender Crust label was “available” to all the independent grocers and thus there was no discrimination. It would appear that the availability doctrine or defense is peculiarly inappropriate or inapplicable to a primary line case such as this, but in any event, there was an abundance of evidence showing the prerequisites to joining the program which made the label not “available” for these purposes. These requirements included a membership fee of $100.00, an agreement to give Tender Crust bread the best shelf space with the second best to Continental’s advertised label, and to participate in the promotion of weekend specials. We find no basis to apply the availability doctrine. Defense of Good Faith Meeting of Competition: This well recognized defense to price cuts in circumstances such as are before us is strongly urged by the defendant Continental in this appeal. In FTC v. Cement Institute, 333 U.S. 683 at page 725, 68 S.Ct. 793 at page 815, 92 L.Ed. 1010 (1948), the Court said: “Section 2(b) permits a single company to sell one customer at a lower price than it sells to another if the price is ‘made in good faith to meet an equally low price of a competitor.’ But this does not mean that § 2(b) permits a seller to use a sales system which constantly results in his getting more money for like goods from some customers than he does from others.” Also in FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338, the Court held that a prerequisite to asserting the meeting of competition defense is that the party asserting the defense has established ■ normal nondiscriminatory prices which he reduces to meet the equally low price of a competitor when necessary. This court in Atlas Building Products Co. v. Diamond- Block & Gravel Co., 269 F.2d 950 (10th Cir.), held that the good faith meeting of competition defense was a question of fact for the jury. There is clearly enough evidence in the record before us from which the jury could have found against Continental on this defense. For example, John Barseh, sales manager of the wholesale division for Continental, testified as to how the contract with Five States was secured: “A. But I knew that some baker was negotiating a contract with them. “Q. But you didn’t know anything about price, did you, sir ? “A. No, sir. “Q. So my question is that the seventeen and a half cents that you offered to them had nothing whatsoever to do with any competitive move in the market, is that correct? “A. That’s correct.” As to a later price cut, Herbert Van Wyk, plant manager of Continental at Denver, testified: “Q. This reflects that a six percent discount on all bread sales for the Tender Crust products, is this correct? “A. That’s right. “Q. And that was in effect as of what date, sir ? “A. 9/26/66. “Q. And to what period, sir ? “A. Indefinite. “Q. And what brought that about? “A. Rainbo Bread Company came out with their Buttermilk bread at the same price as Tender Crust at that time. “Q. So what you’re saying is that Rainbo came out with a Buttermilk loaf of bread and charged the same price therefore that you were charging Tender Crust, is that correct ? “A. That’s right.” Thus the record shows that the initial negotiations and later price cuts were made without reference to what others in the market were pricing, and there was no “meeting” of competition. It should be noted that in Beatrice Foods, the record is replete with evidence of attempts by Beatrice to find out what the competitive bids were, of Beatrice offering one price and then lowering it because told that someone had already bid lower than that price, etc. Yet two members of the FTC, including the Chairman, did not think that this was sufficient. There is clearly an absence of evidence in the case before us from which the jury could have found that Continental initially or during the later price cuts and discounts was attempting in good faith to meet competition. Jury Instructions: The only specific instructions, the substance of which was not given, were the two relative to consumer preference. However, as indicated above, there was not enough evidence to warrant any instruction on this point being given, assuming the law permitted the giving of such instruction. The instructions as a whole were more than adequate to instruct the jury on the law relative to the case. They certainly covered all the legal theories involved, and as this court said in Walker v. Dean, 333 F.2d 753 (10th Cir.): “The record indicates that the jury was given . . . comprehensive instructions which adequately covered the issues involved in this case. Interstate Commerce: The appellant urges that there was no showing made by the plaintiffs as to interstate commerce to invoke the Robinson-Patman Act. In Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203 (5th Cir.), the court said that since the decision in Moore v. Mead’s Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 “. . . the critical language in the statute has been repeatedly construed to mean that the seller must not only be engaged in interstate commerce, but that one of the discriminatory sales must be in interstate commerce.” See also Littlejohn v. Shell Oil Co., 456 F.2d 225 (5th Cir.); Belliston v. Texaco, Inc., 455 F.2d 175 (10th Cir.); and Borden Co. v. FTC, 339 F.2d 953 (7th Cir.). The record at page 931 shows that Continental had sales in Casper, Sheridan, and Lander, Wyoming. A witness from Five States Supply testified that they had the “bread program” in Colorado and Wyoming. Continental estimated that it served 277 customers who buy Wonder bread in Wyoming, Kansas, and Nebraska from the Denver bakery. We said in Food Basket, Inc. v. Albertson’s, Inc., 383 F.2d 785 (10th Cir.), that: “Since Meade Bread, the critical language of 2(a) has been repeatedly construed to mean that the seller must not only be engaged in interstate commerce, but that one of the discriminatory sales must be in commerce. (Citing cases). “It seems safe to assume that if the post-Meade Bread ease law is contrary to- the language used there, the Supreme Court would have corrected the misinterpretation on repeated applications for certiorari. We take the statute to mean what it says, i. e., that at least one of the discriminatory sales complained of must be in commerce.” Thus as to interstate commerce, the officers of Five States Supply testified that they had the Tender Crust program in Wyoming; an officer of Continental estimated they had 277 customers of the Denver bakery in Wyoming, Kansas, and Nebraska. Thus it is clear that the interstate commerce requirement has been fully met. The Verdict: The jury returned a verdict on July 2, 1971, in favor of The Old Homestead Bread Company and against Continental Baking Company on each of Old Homestead’s claims in the amount of $262,125.00. The foreman, responding to a question asked by the court at the request of plaintiff’s attorney, stated that it was the intention of the jury that the amounts awarded on each of the four claims were to be added together to arrive at the total amount of damages that the jury had intended to award that plaintiff. Each juror was then asked separately if that was his or her intention, to which they all responded affirmatively. Thereupon the jury was asked to return on July 6, 1971, at which time the trial judge submitted a supplemental interrogatory to them as to Old Homestead, reading as follows: “What did the jury find the damage to be to Old Homestead Bread Company as total damages in each and all of its claims against Continental Baking Company reflecting the total amount of loss suffered by Old Homestead Bread Company resulting from the conduct of Continental Baking Company?” The jury answered that question this way: “We the jury found that the total amount of damages suffered, that is, loss of profit, out of pocket loss and loss of going concern value arising from each and all claims was $1,048,500.00.” The original verdicts were then resubmitted to the jury which crossed out the amount of $262,125.00 and in its place inserted $1,048,500.00 on each of the separate verdicts. Continental claims that since the jury was instructed that it could not cumulate damages, and in light of the “well recognized policy against impeachment of verdicts,” this was error. Careful review of the instructions to the jury disclosed only the following language relative to cumulation of damages, given by the trial judge at the beginning of the long, complicated instructions: “As you know, it is not a single lawsuit. In the first place, the plaintiff has brought an action against Continental on three different theories, violation of the Sherman Act, Section 1, and Sherman Act, Section 2, and the Robinson-Patman Act. These are alternative approaches, though. First, you are not called upon to assess the amount of damage as to each one of them and then accumulate them, if you were to decide in their favor, there is no assurance they will be, because they all come out of the same nucleus of thought, and as I say are simply different legal theories and different remedies which are advocated to recover an award of damages. “Consequently, I say this to you now and I think it ought to be kept in mind that they are entitled to a single recovery. In other words, if you were to, and I am not saying that you are apt to, decide in their favor on each of their alternative claims, still and all, there couldn’t be any accumulation of it. It would simple [sic] be a recognition of the several claims that they have advocated.” In our opinion, these references as to how the jury was to record the amount of damages, if any, that they found on each of the separate verdicts, coupled with the length and complexity of the trial and the instructions, does not bar an interrogatory as to the true intent of the jury relative to an award of damages. This court has said, in Young v. United States, 163 F.2d 187 (10th Cir.): “The rule to which reference has been made excluding testimony or affidavits of jurors to impeach the verdict for misconduct of members of the jury occurring within the jury room and in connection with the deliberations of the jury does not prevent the reception of evidence of jurors to show that through mistake, the real verdict on which agreement was reached in the jury room was not correctly expressed in the verdict returned into open court. “ . . . But the jurors are competent witnesses for the purpose of showing that through oversight, inadvertence, or mistake respecting the substance of the verdict returned into court, is [sic] was not the verdict on which agreement was actually reached in the jury room. . . . ” See also Freid v. McGrath, 77 U.S.App. D.C. 385, 135 F.2d 833, where the distinction is made where there is a mistake not apparent on the face of the verdict as compared to attempts to impeach the verdict on various other grounds. The reason and method used here were proper to correct the verdict first returned. Amount of Damages: Old Homestead— As mentioned above, the jury awarded Old Homestead a total of $1,048,500.00 before trebling, of which $38,660.00 was attributed to going concern value of the business on the date of dissolution, December 31, 1967, after having been in business seventy years. When, as a result of defendant’s violations of the antitrust laws, a plaintiff’s business ceases operation, an award for the “going concern value” on the date of cessation has been upheld. See Story Parchment Co. v. Paterson Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61 (1st Cir.). See also Atlas Building Products Co. v. Diamond Block & Gravel Co., 269 F.2d 950 (10th Cir.), where this court upheld allowing the jury to “consider as another element of damages the extent to which the value of appellee’s profit or the net worth of its assets had been diminished as a result of the price discrimination.” In the instant case, the jury was instructed that it could award damages for going concern value and the court gave a brief but adequate explanation of what elements to consider in making an award. We have examined the record and in light of the facts, the award of $38,660.00 certainly is supported by substantial evidence. Old Homestead’s computation of its claim for lost profits is shown in Exhibit X-433. Basically it took its total sales volume for the complaint period, multiplied that by ten per cent (to account for the average drop in prices throughout the period) and subtracted six per cent of that figure for commissions which would have been due. The resulting figure is $1,059,501.00. The jury’s award for lost profits was $1,009,840.00 ($1,048,500.00 minus $38,-660.00 for going concern value). As Old Homestead states in its brief, its damage claim is predicated on the assumption that the ten per cent price increase of July 10, 1964 (July price), would have held but for Continental’s violations. Defendant does not show that the July price was less than ten per cent higher than the average price through the period. Its attack centers on the causation question and on the assumption that the July price would have held but for the alleged violations. There was evidence before the jury to support the position of plaintiff as to the July price level and its being a reasonable price. As to the validity of the assumption of the continuation of the July 1964 price, there is the evidence relating to defendant’s actions on prices. The question of what the wholesale price would have been but for the introduction of the Tender Crust program is incapable of exact resolution. The interaction of the factors ensuing immediately at that point make the continuation at the assumed price a matter of inference. However, in cases such as this, the courts have repeatedly and consistently held the plaintiff to a lower standard of proof than he is normally required to meet. “Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such a case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” Story Parchment Co. v. Paterson Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544. “The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652. This position was recently reaffirmed by the Supreme Court in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). It has been otherwise stated: “ . . . having thus established the factum of damages, the amount thereof may be fairly approximated by the jury.” Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.). Also: “ . . . When wrongdoers, by their very actions, make it virtually impossible to prove damages precisely, they should not be heard to complain of the method of proof, if the method allowed by the trial court is reasonable under the facts and in the circumstances of the case.” North Texas Producers Ass’n v. Young, 308 F.2d 235, 245 (5th Cir.). The next question, therefore, is whether or not the method of proof used by Old Homestead was reasonable under the circumstances of this case. In this regard, the case of Story Parchment Co. v. Paterson Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544, seems to be virtually dispositive of the question. That was a Sherman Act case alleging price-fixing and conspiracy to monopolize. In reviewing the damages issue, the Court reasoned as follows: “There was evidence from which the jury reasonably could have found that . . . current prices, shown in detail, were higher during a period antedating the unlawful combination and price cutting in pursuance of it than afterward. It does not necessarily follow, of course, that these higher prices would have continued except for the conspiracy, but it is fair to say that the natural and probable effect of the combination and price cutting would be to destroy normal prices; and there was evidence of the prices received by petitioner before the cut prices were put into operation, and those received after, showing actual and substantial reductions, and evidence from which the probable amount of the loss could be approximated. The trial court fairly instructed the jury in substance that if they were satisfied that the old prices were reasonable and that they would not have changed by reason of any economic condition, but would have been maintained except for the unlawful acts of the respondents, the jury might consider as an element of damages the difference between the prices actually received and what would have been received but for the unlawful conspiracy.” (Emphasis added). The Court continued, stating the great latitude the jury had in such cases, and concluded by upholding the verdict. The only possible point of departure in the instant case is that the July price was in effect for only a few weeks prior to the price war. Under some circumstances, this fact might be fatal to the plaintiffs’ case. Here, however, plaintiffs took great pains to establish that the July price was a “reasonable price” and, therefore, would have held or gone higher. The record shows that through the early 1960’s, bread sales in the Denver area were up but costs were up even higher and prices had remained constant with the effect that profits were decreasing. By 1964, all competitors went in the red. From this evidence, plaintiffs argue and it can be inferred that the price increase of July 1964 was badly needed and was reasonable. This evidence lends support to the finding that the July price was “reasonable” and would have held. For another early Sherman Act case on point, see Thomsen v. Cayser, 243 U.S. 66, 37 S.Ct. 353, 61 L.Ed. 597 (1917). This court employed a similar method of computing damages in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.). There it appears the jury was allowed to determine what the reasonable price would have been throughout the complaint period and assess as damages the difference between the actual prevailing price and this hypothetical price. The Union Carbide case was cited by the Southern District of New York for the following proposition: “Reconstruction of a competitive price based on supply, demand, costs and other economic indicators is a logical and judicially recognized technique.” Ohio Valley Electric Corp. v. General Electric Co., 244 F. Supp. 914 (S.D.N.Y.1965). In that non-jury case, the court described in detail how it arrived at the “competitive price” upon which to base its damage award. 244 F.Supp. at 946. Plaintiff was allowed to project the price reduction against the sales made through the period to compute its damages in American Cooperative Serum Ass’n v. Anchor Serum Co., 153 F.2d 907 (7th Cir.). See also Dean Foods Co. v. Albrecht Dairy Co., 396 F.2d 652 (8th Cir.). Old Homestead's method of proof of damages was reasonable and proper under the circumstances. There was sufficient evidence from which the jury could reasonably infer that the result of Continental’s violation was to depress prices by approximately ten per cent throughout the complaint period, and that, therefore, the award to Old Homestead for lost profits was proper and based on substantial evidence. Interstate Brands— As mentioned above, the verdict awarded Interstate was $130,000.00 in damages, before trebling, presumably for lost profits on sales diverted from Interstate to Continental or at least on diverted sales caused by the Tender Crust program. One confusing aspect of the damage issue is that Old Homestead and Interstate used two completely different methods for computing lost profits. However, both methods appear to be reasonable and proper so this fact is of no real consequence. Interstate’s method was to introduce charts filled out by its routemen indicating the weekly sales made to each customer store before and after the Tender Crust program. These charts are in the record at X-934 through X-1045. Interstate produced a witness, Mr. Nees, who testified basically that if sales had increased $1,000.00 per week, Interstate would have realized an extra $425.00 per week in profits. In other words, the profit percentage on an additional volume of sales per week was 42.5 per cent. His theory was based on incremental accounting. This testimony gives sufficient evidentiary support to the assumption that Interstate would have made at least twenty per cent profit on these sales which were diverted because of the impact of the Tender Crust program. This, together with an analysis of the routemen’s charts, demonstrates that there was a basis for the jury verdict which is almost exactly the figures derived from the charts. There was thus substantial evidence to support the jury verdict in favor of Interstate. There was indeed sufficient evidence before the jury upon which to base the verdicts, and we find no error in the various rulings by the trial court. The case is thus afffirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Sam PIVAR v. T. I. MOSELEY et al., Appellants. No. 71-1883. United States Court of Appeals, Third Circuit. Argued at Christiansted Jan. 29, 1973. Decided April 10, 1973. Thomas Alkon, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellants. Thomas D. Ireland, Charlotte Amalie, St. Thomas, V. I., for appellee. Before MARIS, VAN DUSEN and ROSENN, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This is an appeal by the defendants, Tomlinson I. Moseley, Key Management Corporation and Oxford Corporation, from a judgment entered in favor of the plaintiff Sam Pivar in an action brought in the District Court of the Virgin Islands to recover a broker’s commission on a sale of a tract of land located in Estate Judith’s Fancy, St. Croix. The case was tried to the court, without a jury, and the plaintiff was awarded a commission in the sum of $49,130 together with interest thereon, plus an attorney’s fee and costs. The opinion filed by the trial judge, Chief Judge Christian, in the district court, Pivar v. Moseley et al., 1971, V.I., fully sets forth the background facts which he found had led to the culmination of the transaction here involved, and they need not be repeated here. For the purpose of this discussion, it is sufficient to say that in November 1968 one Richard M. Kimbrough called at Pivar’s real estate office inquiring about the availability of land for purchase. He had come to the Virgin Islands from Michigan with two associates, Rockwell T. Gust and E. Keigh Owens, to acquire land for development but had met with disappointments and his associates had returned to Michigan. Pivar showed Kimbrough the tract which was for sale by Moseley; Kimbrough was interested; the following day Kimbrough, Pivar and Moseley met and discussed the sale of the property. Thereafter Kimbrough reported the discussions to Gust and Owens. In May 1969, after a series of negotiations, Hamilton International Corporation, a Michigan corporation in which both Owens and Gust were associated, but in which Kimbrough had no interest, purchased the property here involved, which embraced more land than originally offered and which included a residence belonging to Moseley. The transaction was consummated by the exchange of the stock of two Virgin Islands corporations, Key Management Corporation and Oxford Corporation, which held title to the land, for stock of Hamilton International Corporation. At the time of the sale Moseley was the principal shareholder, president, and a member of the board of directors of both Key Management Corporation and Oxford Corporation. Hamilton International Corporation subsequently agreed to redeem its stock acquired by Moseley in the’ transaction. Based on the facts which he found the trial judge concluded that the plain tiff was entitled to a commission on the sale of the property. On this appeal, the defendants contend that the evidence does not support the findings. In considering the defendants’ contention we bear in mind the well-established principle which is the rule in the Virgin Islands that an agent must show that he was the effective or procuring cause in producing the result for which he seeks compensation, and that whether or not his efforts had such a substantial effect that he should be compensated for them depends upon the particular facts and circumstances of each case and is a question of fact to be resolved by the trier of fact. Restatement, Agency 2d, § 448 and Comments a and c; White v. Grovier, 1946, 237 Iowa 377, 21 N.W.2d 769; Hill v. Capps, 1964, 248 Miss. 601, 160 So.2d 186; 12 Am.Jur.2d, Brokers, §§ 190, 191. And see Hourston v. Harlvan, Inc., 3 Cir., 1972, 457 F.2d 1105. A finding of fact on this question, as on any other, may not be set aside on appeal unless clearly erroneous. Rule 52(a) F.R.Civ.P. The defendants argue that Pi-var’s prospect was Kimbrough who alone was introduced by him to Moseley, that Pivar never met with Gust and Owens who eventually consummated the sale, and that hence it was error for the trial judge to direct recovery of commission on a sale in which Kimbrough was not a purchaser. They also urge that Pivar’s act in introducing Kimbrough to Moseley was merely one of a chain of causes producing the contract of sale and not enough to support the finding that Pi-var’s activity was "the procuring cause. The trial judge fully considered these issues in his opinion, stating: “I find on all the evidence a continuous chain, albeit with starts and stops and intervening obstacles, from the showing of the property by Pivar to Kimbrough and their conferences and discussions with Moseley in November of 1968, through Kimbrough’s transmission of all his information (and enthusiasm) to Gust and Owens, on to their negotiations with Moseley and his counsel, and up to the final acquisition of the stock of the two defendant corporations by Hamilton International, which for all practical purposes effected the purchase and sale of the land. I do not regard it as essential to a broker’s right to a commission that he should have particinated in all or indeed in any of the negotiations once he brought buyer and seller together. I am satisfied that the efforts of Pivar is the foundation on which this transaction was consummated. The ultimate purchasers are, I find, the same ones mentioned by Kimbrough at the outset, although they have not acted as natural persons, but have effectively acquired ownership through their interest and holdings in Hamilton International Corporation. The same two persons, Gust and Owens, are the persons who now control the two corporate defendants, and as Rockwell Gust himself said, they learned of the owners of the property from Kimbrough. Their interest in the property was aroused by Kimbrough and, but for Kimbrough’s interest in the property, they would have shown none. I conclude that the plaintiff is entitled to a commission.” The finding thus made is fully supported by the evidence and we are wholly in accord with it. In view of this finding cases such as L. A. Clark Co. v. Millboro Lumber Co., 3 Cir. 1927, 22 F.2d 551, relied upon by the appellants, in which the courts found on the facts that the plaintiffs were not the procuring cause of the sales involved, are not controlling here. The judgment of the district court will be affirmed. . Restatement, Agency 2d, § 448. “An agent whose compensation is conditional upon his accomplishment of a specified result is entitled to the agreed compensation if, and only if, he is the effective cause of accomplishing the result. Comment: a. Meaning of effective cause. An agent is an ‘effective cause’ as that phrase is used in this Section, when his efforts have been sufficiently important in achieving a result for the accomplishment of which the principal has promised to pay him, so that it is just that the principal should pay the promised compensation to him. c. . . .an agent who has been promised compensation for his accomplishment of the result must show that his efforts have had substantial effect in pi-oducing it. Whether or not his efforts have liad such a substantial effect that he should be compensated for them is a question for She triers of fact.

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Frances GREENE, as Executrix of the Estate of Carl W. Greene, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 72-1155. United States Court of Appeals, Seventh Circuit. Argued Feb. 22, 1973. Decided April 5, 1973. Richard J. Gould, Green Bay, Wis., for plaintiff-appellant. Scott P. Crampton, Asst. Atty. Gen., Dennis M. Donohue, Atty., Tax Div., Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendant-appellee. Before CASTLE, Senior Circuit Judge, CUMMINGS and SPRECHER, Circuit Judges. CASTLE, Senior Circuit Judge. Frances Greene, the widow of and executrix under the will of Carl W. Greene, has appealed from the denial of her claim for a refund of a portion of the federal tax paid on her husband’s estate, 336 F. Supp. 464 (E.D.Wis.1971). At issue on this appeal is whether the Commissioner of Internal Revenue correctly determined that the estate taxes on the estate of Carl W. Greene should be paid out of the property passing to his widow. Mr. Greene passed away on February 25, 1967, leaving a gross estate of $748,-956.89. His will provided, in part: FIRST: It is my will and I hereby direct that all my just debts and expenses of last illness and funeral be paid by my executor hereinafter named as soon after my decease as conveniently may be. SECOND: All of my property, wherever located and of whatever nature, I give, devise and bequeath to my wife, Frances Greene. On August 28, 1966, Mrs. Greene filed a Declaration of Renunciation by which she disclaimed $368,727.25 worth of common stock which would have passed to her under the will; this stock then passed to her three sons under Wisconsin law as though it had been intestate property. On May 25, 1967, Mrs. Greene filed the estate tax return for the estate which claimed a marital deduction of $360,703.-69, for, under her computations, she was to get $380,229.14 of the estate and her sons were to pay the estate taxes and expenses out of the stock that passed to them through the renunciation. On March 27, 1969, the Commissioner of Internal Revenue assessed a deficiency of $39,545.75 in taxes and $5231.95 in interest against the estate. He determined that the provisions of Carl W. Greene’s will required that the estate pay federal taxes before it made any distributions to Mrs. Greene, and that accordingly Mrs. Greene’s share of the estate was $236,-751.09 and her marital deduction was only $223,391.02. Mrs. Greene paid the alleged deficiency and then filed a claim for a refund, which was denied. The County Court for Brown County, Wisconsin, where the will of Carl W. Greene had been admitted to probate, ruled on December 13, 1969 that the debts, expenses and federal estate taxes of the estate be paid out of the stock which was disclaimed by Frances Greene. On June 26, 1970, Mrs. Greene filed a complaint in the federal district court for a refund of the alleged deficiency that she had paid. The district court denied her claim, finding that neither Wisconsin law nor the decision of the Brown County Court required that the renounced property which passed to the sons should pay the estate taxes owing. Our consideration of the arguments presented on this appeal indicates that two fundamental questions are involved: 1) what interpretation and effect should be given to the direction in Carl Greene’s will that the just debts and expenses of his last illness and funeral be paid by his executor, and 2) what effect should be given to the judgment of the Brown County Court that the renounced property bear the payment of the estate taxes and expenses. In resolving the first issue, and in determining whether the estate shall realize a lower marital deduction under 26 U.S.C. § 2056(b)(4)(A) because the estate tax, debts, and administration expenses are subtracted from the gross estate before the marital deduction is computed, we must look to Wisconsin law. Congress has determined that state law should decide upon whom the burden of the federal estate tax should fall, and, consequently, the amount of the marital deduction allowed to a widow taking property through her husband’s will. Riggs v. Del Drago, 317 U.S. 95, 97, 63 S.Ct. 109, 87 L.Ed. 106 (1942), Will of Uihlein, 264 Wis. 362, 371-372, 59 N.W.2d 641, 646 (1953). A person executing a will in Wisconsin has two general options in determining which of his heirs shall bear the burden of the taxes levied against his estate. First, he may provide through his will that certain property shall be utilized for the payment of the taxes. See Wis.Stat. § 313.26 (1969) (This statute, in effect prior to April 1, 1971, has subsequently been amended.). Secondly, he can make no provision for payment and let the tax liability be determined through application of certain statutory and common law rules. See, e. g., Wis.Stat. § 863.11 (1971) (amended version of §§ 313.26-313.28), Estate of Joas, 16 Wis.2d 489, 114 N.W.2d 831 (1962), Estate of Esch, 4 Wis.2d 577, 91 N.W.2d 233 (1958), McGonigal v. Colter, 32 Wis. 614 (1873). Appellant argues that Carl W. Greene in effect made no provisions in his will that any property was to be used to pay the estate taxes. She argues that the property she renounced should therefore be treated as intestate property under Wis.Stat. § 238.135, and that this property should be used first to pay the debts and expenses of the estate under § 313.27 because, in the words of that statute, “the provisions made by will are not sufficient to pay the debt. . . . ” The key to appellant’s argument, then, is whether Carl W. Greene did make provisions in his will which were sufficient to pay his debts, including the estate tax. On its face, the first clause of the will appears to be a provision making all of the estate property available for the payment of the estate tax and other debts. We read the direction that the debts be paid “as soon as conveniently may be” as a command that the executrix use whatever property is necessary to pay the estate tax before disposing of the residue of the estate. Wisconsin law makes no distinction between state taxes and the other debts of a decedent. Will of Uihlein, 264 Wis. 362, 376, 59 N.W.2d 641, 648 (1953), cf. Re Doerfler’s Estate, 348 Ill.App. 347, 109 N.E.2d 230 (1952). Nor can we ignore the fact that Mr. Greene provided that his wife was to receive all his property after the payment of debts and expenses unless she predeceased him or failed to survive him by 60 days. It is only logical to assume that Mr. Greene realized that his wife would have to pay the estate taxes out of the property passing to her. Will of Cudahy, 251 Wis. 116, 119, 28 N.W.2d 340, 341 (1947). Conversely, the will contains no indication that Mr. Greene contemplated a shift in the estate tax burden should his wife renounce a portion of the property given her under the will. Appellant has attempted to establish that, despite its appearance, the first clause of the will was mere surplusage without legal effect. See, e. g., Estate of Koebel, 225 Wis. 342, 345, 274 N.W. 262, 264 (1937). We read the cases cited by appellant as merely adhering to the common law rule that the personal property in an estate is to be charged with the payment of debts before the real property is charged, and holding that language similar to that contained in the first clause of Carl Greene’s will is insufficient to change this rule. These cases do nothing to undermine the efficacy of a general direction that all the property of a testator be liable for the payment of taxes. In fact, the Wisconsin Supreme Court has recently held that such a general direction is legally effective as a means of directing the payment of estate debts. Estate of Pfaff, 41 Wis.2d 159, 161-162, 163 N.W. 2d 140, 141 (1968). We find no reason not to give effect to Mr. Greene’s direction for the payment of his debts before the distribution of his property. We are also cognizant of the provisions of Wis.Stat. § 313.26 which before its 1971 amendment allowed a testitor to designate which property passing under his will should be assessed for the payment of his estate tax. The statute provided: . . but a general direction to pay his debts out of his property shall not subject the homestead to the payment thereof. We interpret this language as a legislative recognition that a testator can insert an effective provision in his will to make all of his nonhomestead property liable for the payment of his debts. We find that the first clause in Carl Greene’s will did just that. Accordingly, we hold that “the provisions made by the will” were sufficient to pay his debts, and that it is unnecessary to invoke the operation of the other statutory provisions cited by the appellant. Appellant also argues that, even if this court should find that her husband designated that she pay the estate tax by the terms of his will, this court should impute an intent to him to realize the fullest marital deduction possible in the event that she should renounce some property. She cites Dodd v. United States, 345 F.2d 715, 719 (3d Cir. 1965), to support the proposition that it would be incredulous to think that her husband would have intended his estate to pay the highest possible estate tax by making his wife pay the entire amount of the estate tax under the present circumstances. We are bound by Wisconsin law and the enunciated reluctance of Wisconsin courts to grant an estate the fullest marital deduction when the terms of the will do not expressly provide that estate taxes should be paid from the portion of the estate that does not qualify for the marital deduction, Estate of Bauknecht, 49 Wis.2d 392, 396-397, 182 N.W.2d 238, 241 (1971), see also Will of Uihlein, 264 Wis. 362, 377-378, 59 N.W.2d 641, 649 (1953). Accordingly, we will not speculate on the intent of Mr. Greene. The second main issue centers on what effect should have been given by the district court to the judgment of the Brown County Court which held that Mrs. Greene’s sons should pay the estate tax out of the property that passed to them because of their mother’s renunciation. The standard for considering such state court determinations as delineated by Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967), does not require federal courts to be bound by the decisions of state probate courts: It follows here then, that when the application of a federal statute is involved, the decision of a state trial court as to an underlying issue of state law should not be controlling. ... If there be no decision by . . . [the highest court of the State] then federal authorities must apply what they find to be the state law after giving “proper regard” to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. The appellant contends that the opinion of the district court did not indicate that it had given “proper regard” to the decision of the Brown County Court. It is apparent, however, that the district court disagreed with the decision of that court, concluding that the Wisconsin Supreme Court would have decided the case differently if there had been a party who had taken an appeal, and consequently decided not to follow it. We concur in this action by the district court. As previously indicated, Wisconsin law supports the position taken by the district court in this case. Furthermore, the record contains no indication of what reasoning or case law the state court relied upon in reaching its decision, or what “relevant rulings” had been made by the “other courts of the State.” The district court may have also determined that the state court decision was not tempered by a “genuinely adversary proceeding.” Id. at 481, 87 S.Ct. 1776 (Harlan J., dissenting), for appellant did not contest the government’s representation on this appeal that no appearance was entered for the sons in the state probate court proceeding. The judgment of the district court dismissing appellant’s action is affirmed. Affirmed.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

Dwaine PAUL and Farm Power Irrigation, Inc., Plaintiffs-Appellants, v. SHUR-GRO IRRIGATION CO., INC., Defendant-Appellee. No. 72-3213 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 3, 1973. J. M. Kolander, R. C. Hamilton, Amarillo, Tex., for plaintiffs-appellants. James C. Sanders, Robert R.. Sanders, Amarillo, Tex., for defendant-appellee. Before BELL, GODBOLD and INGRAHAM, 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: This is a breach of contract action brought by appellants Dwaine Paul and Farm Power Irrigation Co., Inc., against Shur-Gro Irrigation Co., Inc., for failure to consummate an oral agreement to purchase appellants’ business. The jury returned a verdict in favor of the appellants. The appellee successfully moved for judgment notwithstanding the verdict on the grounds that Schiller, a member of Shur-Gro’s board of directors, was without authority to bind the corporation in this matter and further that the oral agreement was unenforceable under the Uniform Commercial Code. We are satisfied from a review of the record that the appellants failed to adequately establish authority on Schiller’s part to bind Shur-Gro in this transaction. The trial court in applying the standard enunciated in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir., 1969), found the evidence insufficient to support the jury’s determination of implied authority. We concur in this finding and affirm the judgment of the district court. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

INTERNATIONAL PAPER COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. No. 71-3531. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Jerome Ackerman, James R. McCotter and John W. Douglas, Washington, D. C., for petitioner. Gordon Gooch, Gen. Counsel, F. P. C., and George W. McHenry, Jr., First Asst. Sol., Washington, D. C., for respondent. J. Evans Attwell and Jack D. Head, Houston, Tex., for Tex. East. Transmission Corp. Dan A. Bruce, Houston, Tex., for Shell Oil. William B. Cassin, Houston, Tex., for United Gas Pipeline. Leon M. Payne, Houston, Tex., and W. Devier Pierson, Washington, D. C., for United Gas, Inc. Thomas M. Knebel, Washington, D. C., for Willmut Gas & Oil Co. Eaton A. Lang, Jr., Gulfport, Miss., and A. Edward Grashof, New York City, for Miss. Power Co. Wm. W. Bedwell and John J. Mullally, Washington, D. C., for Miss. River Transmission Corp. Harry L. Albrecht, Birmingham, Ala., for Southern Natural Gas Co. Christopher T. Boland, Washington, D. C., and Robert O. Koch, Owensboro, Ky., for Tex. Gas Transmission. Peter H. Schiff, Gen. Counsel, P. S. C. for N. Y., Albany, N. Y., and Richard A. Solomon, Washington, D. C., for Public Service Comm, for State of N. Y. Howard E. Wahrenbroek, Washington, D. C., and John M. Kuykendall, Jr., Jackson, Miss., for Miss. Valley Gas Co., and others. Clarence H. Ross and Raymond J. Petersen, Chicago, Ill., for Nat. Gas Pipeline. Arnold D. Berkeley, Washington, D. C., and Fred G. Benton, Sr., Baton Rouge, La., for State of Louisiana, and others. Barbara M. Gunther, Brooklyn, N. Y., for Brooklyn Union Gas. Richard W. Duesenberg and Dwight W. Miller, St. Louis, Mo., for Monsanto Co. John T. Miller, Jr., Washington, D. C., for Monsanto Co. and Texas Gulf Sulphur. George W. Hugo, Houston, Tex., for Texas Gulf Sulphur. John S. Schmid, New York City, for Boston Gas Co., and others. Thomas G. Johnson, William G. Riddoch and Dan A. Bruce, Houston, Tex., for Shell Oil Co. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: This case is one of a group arising from the adoption by the Federal Power Commission of “curtailment plans” filed by United Gas Pipe Line Company. These curtailment plans were the outgrowth of an order promulgated by the FPC and were aimed at serving the public interest by establishing a rational scheme of allocation of available natural gas in light of the current, somewhat critical, shortage of this much-used fuel. Due to this shortage, pipeline companies found that they would not be able to meet all of their current contractual obligations for delivery of gas. At present, the FPC has not finally approved any of the curtailment plans in question. It has, however, issued two orders, Opinions 606 and 606A, which are reviewable and are now challenged by numerous parties on several grounds before this court. Each of the contentions raised by this petitioner will be considered separately below. FPC Jurisdiction to Enter Curtailment Orders Affecting Direct Sale Customers. At the time this action was initially briefed with this court, we had previously held in Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, that the Commission did not have authority under the Natural Gas Act to order curtailment of sales to direct sale customers. In Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L. Ed.2d 369, the United States Supreme Court reversed that determination by this circuit and held that the Commission was authorized to entertain curtailment plans with regard to both direct sales and sales for resale. In this appeal International Paper does not challenge FPC jurisdiction over direct sales but limits its challenge only to certain language contained in Opinions 606 and 606A which relate to possible liability of a pipeline for contractual damages growing out of curtailment. Private Suits for Damages Growing out of FPC Approved Curtailments Compliance with an FPC curtailment order, when and if such an order is ultimately adopted will mean that a pipeline cannot deliver to each customer all of the gas it has contracted to deliver. This, of course, follows from curtailment since curtailment is itself only a response to a shortage of gas. An issue of major concern is whether or not an FPC curtailment order alone will serve to insulate a pipeline unable to meet contractual commitments from liability for this failure. This issue may arise in two closely related legal actions; first, a customer may simply bring an action in contract for breach, and secondly, some of United’s contracts contain “substitute fuel clauses” which may also serve as a basis for breach of contract suits. The FPC has attempted to address this issue in Opinions 606 and 606A. International Paper, and other petitioners in the related eases decided today, object to the result the FPC reaches on these matters. When United first presented its proposed curtailment plan to the Federal Power Commission, section 12.3 of the proposed tariff included the language: . nor shall Seller [United] be obligated to pay or credit such customers any sums with respect to substitute fuels burned by such customers during such a period of proration or interruption. Instead of acting directly on this proposed section, the FPC made the following rather enigmatic statement in its Opinion 606: We decline to render a declaratory order in Docket No. RP71-99, and so dismiss United’s petition, because it requests an interpretation of contract terms unnecessary in light of our action herein exercising jurisdiction over curtailment plans. Implementation of the curtailment plan itself, pursuant to our procedures, would be an absolute defense for United against all claims for specific performance, damages, or other requests for relief under these contracts affected by curtailments that may be initiated in the courts. No additional tariff language like that proposed in Section 12.3 on Original Sheet No. 72-A is necessary to limit liability under contracts when agencies’ orders, rules, or regulations authorize actions contrary to those contracts. The customers of United, while agreeing to the deletion of section 12.3 from the proposed curtailment plan, strenuously objected to this additional language inserted into the opinion by the PPC. Subsequently the FPC issued opinion 606A in which it sought to clarify the above language from Opinion 606: In clarification, this Commission has the responsibility and the authority to protect all consumers from efforts by pipelines to grant preferences in service to particular customers or classes of customers in times when gas shortage precludes fulfillment of all contracts for delivery of gas. A claim of preference in service directly or, in the case of substitute fuel clauses, indirectly, cannot operate to deprive this Commission of authority to assure fair and equitable curtailment plans. The pipeline companies cannot be faced with the dilemma of providing nondiscriminatory service as ordered by the Commission and at the same time incur liability for breach of contracts which grant discriminatory preferences, directly or indirectly. Thus, the Commission’s authority to preclude undue preferences and discriminations in service operates to preempt any contract provisions inconsistent with the exercise of that authority as not being in the public interest. Both on brief and at oral argument, the FPC maintained that no final action had yet been taken on either suits for damages or substitute fuel clauses because there has been no final adoption of United’s curtailment plan. It also appears to be the position of the Commission that mere adoption of a curtailment plan, without specific reference to either damage suits or substitute fuel clauses, will be an absolute defense to damage actions. If that is indeed the position of the FPC, we do not agree. We have decided that it would be helpful to all concerned for this court to attempt to set out its understanding of the FPC’s position and its opinion on that position. This court has been faced with the difficult task of determining just what was intended by the above language in Opinions 606 and 606A. After due study, we have determined that this language is mere dicta and has no force other than to reflect a position taken by the FPC which lacks support in the record before it. We undertake to give lengthy comment on this language so that no court in the future will be misled as to the import of this language because it was in an order upheld by this circuit. We also feel that by commenting on this language at this time we will give the FPC opportunity to further act on the matter if it so desires. It seems to this court that the FPC is trying to use either of two general lines of argument to support its claim that mere adoption of a curtailment order alone, without more, will serve as an absolute defense, to private contract actions. The first approach is gleaned from the language of the FPC in Opinion 606. That opinion seems to suggest that the FPC takes the position that its curtailment order alone will in all cases justify an absolute defense based on the contract theory of “impossibility of performance due to intervening governmental order.” We note that in the very curtailment cases relied on by the FPC for establishing this “rule of law” the governmental entity which decided the effect of the FPC order on the private contract action was not the FPC itself but rather the court in which the private action was brought. We feel that this is the proper way for deciding the effect of the FPC order where the only claim is a defense of impossibility due to the action of the FPC. We feel that a court which has the actual damage suit before it, and also the final FPC action, is best suited to determine the applicability of a defense recognized in contract law. As petitioner urges, there may be many reasons why a perfectly legal curtailment plan would not per se require that suits for damages would not also lie. First, it seems clear to this court that one major purpose of a curtailment plan is to allocate the available gas to prevent the richest and most powerful users from obtaining their full demand at the expense of the individual consumer. This view would take the position that the FPC has only acted to allocate what was available, not to say that damages could not follow for the failure to foresee that contract demands could not be met, especially if a customer could show that the selling party intentionally entered contracts which he knew that he might not be able to fulfill. On this point we fully agree with the language of the District of Columbia Circuit in Monsanto Company v. Federal Power Commission, 1972, 149 U.S.App. D.C. 396, 463 F.2d 799, 808: The propriety of this course is fortified, for the case at bar, by the consideration that even assuming the FPC’s curtailment jurisdiction is upheld, along the lines developed in its Opinion No. 606, it does not automatically follow that plaintiffs are lacking a contract remedy in damages. It is possible that the FPC may be held to have jurisdiction under § 4(b), to prohibit unreasonable preferences in transportation, without relieving the pipeline company of liability for damages. That is to say, the industrial user may be able to say: Given the pickle created by the pipeline company, what the FPC did was lawful and proper as to actual subsequent rationing of the limited supply of gas, but the pipeline company is liable in damages because of the way it put us all in the pickle. And in the case at bar, there is a claim for damages sustained before the FPC issued an order. We do not decide this question, but only identify the problem. Certainly the problem is one that requires attentive consideration. We too, like that circuit, do not seek at this time to resolve this issue, only to point it out. We do feel, however, that unless the FPC undertakes to directly speak on this matter, the proper forum for resolution will be in the court in which the issue is directly presented in the context of an actual controversy. There are several other reasons why a court might find that the contract law defense of impossibility due to governmental action might be inapplicable. The case of substitute fuel clauses is illustrative for in such a situation the proof might show that the clause was entered into, for valuable consideration, with an eye on the very FPC ordered curtailment which may occur in this case. As previously noted, we enter this lengthy discussion only to prevent some future court from feeling foreclosed at the outset from entertaining an action for contract damages merely because of this dicta in Opinion 606 and do not in any way pass on the validity of . any arguments ■ for applying or not applying an “impossibility” defense. Courts do not and should not blindly dismiss actions on the ground of impossibility due to governmental action. The order must itself be proper and must be addressed to the same considerations which are applicable to the suit for contract breach. If the FPC seeks to convince a court that its curtailment order insulates pipelines from damage suits, it would seem necessary for the agency to present its reasons therefor, and not leave a future court to speculate as to whether an order indeed reached a pending suit. In Opinion 606A the FPC, possibly recognizing the weakness of the position taken in Opinion 606, presented a different reason for supporting its language that the adoption of a curtailment plan would be an absolute defense to a suit for damages. In 606A the FPC seems to first suggest that it has the power to abrogate any clause in a contract involving the transportation of natural gas within its jurisdiction and, secondly, that this is indeed the determination that it will be making by the mere adoption of a curtailment plan without direct mention of such clauses. While this justification would at first seem directed primarily to substitute fuel clauses, it could also be applied to ordinary contract breach actions since the pipeline could take the position that curtailment had modified the amounts due for delivery under the contract and thus all amounts due were being delivered. The FPC bases its contention that it has the power to abrogate any contract clause on the following statements of the Supreme Court: * * * denying to natural gas companies the power unilaterally to change their contracts in no way impairs the regulatory powers of the Commission, for the contracts remain fully subject to the paramount power of the Commission to modify them when necessary in the public interest. The Act thus affords a reasonable accommodation between the conflicting interests of contract stability on the one hand and public regulation on the other. United Gas Pipeline Co. v. Mobile Gas Service Corp., 350 U.S. 332, 344, 76 S.Ct. 373, 381, 100 L.Ed. 373 (1956). * * -X- -X- * * Although the Natural Gas Act is premised upon a continuing system of private contracting, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, the Commission has plenary authority to limit or to proscribe contractual arrangements that contravene the relevant public interests. Permian Basin Area Rate Cases, 390 U.S. 747, 784, 88 S.Ct. 1344, 1368, 20 L. Ed.2d 312 (1968). While this language on its face seems to clearly place such a power in the FPC to void contract clauses, several petitioners, like International Paper, argue that such language was never intended to apply to the curtailment situation now before this court. For reasons subsequently made clear, we do not find it necessary at this time to decide the scope of the FPC’s claimed power to void contract clauses. Assuming the FPC’s claim of power to abrogate these clauses, based on the Supreme Court cases above, is sufficient, there still must be, as clearly pointed out by the Supreme Court, a showing that the FPC has made a determination that the contract terms to be abrogated are “not in the public interest” and that the FPC’s abrogation is within the power it is granted by the Natural Gas Act. The FPC has attempted in Opinion 606A to justify its power to invalidate these substitute fuel clauses under section 4(b) of the Natural Gas Act which prohibits “undue preferences.” The following language in Opinion 606A places the jurisdiction squaredly on that ground: Thus, the Commission’s authority to preclude undue preferences and discriminations ir. service operates to preempt any contract provisions inconsistent with the exercise of that authority as not being in the public interest. If the FPC is indeed seeking to void these contract terms “in the public interest” under the “undue preference” section, we feel that it has failed to accomplish this purpose through Opinions 606 and 606A. At the outset, this court wonders why if the FPC felt it was indeed exercising a power within the discretion given it by Congress, it undertook to so exercise the power in such a circuitous fashion. It would seem that the straight forward adoption of United’s proposed section 12.3 would be far preferable to the method used here by the FPC. That question aside, it is incumbent on an administrative agency to supply clear findings and reasons supporting the findings whenever it seeks to exercise its power. Meaningful review cannot otherwise be obtained. These axioms are deeply rooted in American administrative process and need no citation. Opinions 606 and 606A do not adequately identify the existence of the power exercised or the reasonableness of the attempted exercise. It must be recognized that there are two quite difficult determinations that the FPC must take before it can abrogate terms in private contracts even accepting the most favorable reading that the claimed power can be given. First, we feel it is incumbent on the agency to give clear reasons why it has determined that these substitute fuel clauses are indeed “undue preferences” within the meaning of that term in the Natural Gas Act. We would like to emphasize the word “undue” for it indicates to us that Congress may not have intended to void every item which could be termed a “preference”; especially if it existed in a contract which was the result of legitimate bargaining. As we understand it, the FPC has never considered these substitute fuel clauses individually or looked into the bargaining behind their inclusion in the contract. Under such circumstances, we find it hard to see how the FPC could have found them “undue preferences.” The bare eonclusory statements in Opinion 606A are of no help in discerning the Commission’s rationale. Secondly, we feel that the FPC must make findings and set forth its reasons for holding that abrogation of these clauses is “in the public interest.” The FPC must show that the recognized public interests in freedom to contract and contract stability are outweighed by the public interest it seeks to assert under the Natural Gas Act. Such considerations may indeed be present in this case but it is obvious to us that the FPC has not undei'taken to state them for the record. The brief, unsupported conclusions in Opinion 606A are clearly not sufficient to meet the requirements for proper administrative action. Again, allocation by curtailment may be “in the public interest” but it does not necessarily follow that insulation from damages is so justified. The latter question is the crux of the matter here. Therefore, if the FPC is seeking to abrogate these substitute fuel clauses on this justification, we will not allow it to do so without more than the bare conclusions of Opinion 606A. As previously-noted, we are at a loss to understand why the FPC was so reluctant to adopt a provision like proposed section 12.3 if that is indeed the result it wanted to reach and if it really felt that it had the power to adopt such a tariff provision. Again, with regard to the argument in damage suits that the contract is being fulfilled since the Commission changed the requirements, there is a gap in reasoning to say that finding curtailment to be in the public interest means damages should not be available. If the FPC has reasons to support a contention that the right to sue for damages is voidable by the Commission as against the public interest, it must address the issue of “damages in the public interest”, not “curtailment in the public interest.” Therefore, we feel that we cannot sanction those parts of Opinion 606 and Opinion 606A which indicate that the mere adoption of a curtailment plan, without more, will serve as an absolute defense to an action for damages, whether or not based on . a substitute fuel clause. When and if the FPC presents a clear determination, directly citing reasons for both its power to act and the result which it reaches, based on some adequate record, then an appellate court can properly review both the agency’s power to do what it has done and, within the well-established limits of judicial review of administrative action, the validity of the result based on the record before the agency. We fully recognize the length of time which has already passed in these proceedings and regret having to return part of this matter to the FPC. We refuse, however, to pass on this issue until the FPC makes clear where it draws its justification for its order and presents a full opinion and record which can serve as the basis for meaningful review. Affirmed in part and remanded in part. JOHN R. BROWN, Chief Judge (concurring) : I concur in the result and much of the opinion of the court. Believing that much of the court’s dictatorial commentary might be misunderstood either by the parties or the ubiquitous courts who might fall heir to these unknown damage claims, however, I think some clarification is in order. I. In Opinions 606 and 606A the Commission has spoken, rather cryptically, to the issue of whether compliance with an FPC sanctioned curtailment tariff would, should, or could exculpate a pipeline from its contractual duties to provide specified quantities of gas or pay for the substitute fuel used by its customers in lieu thereof. Curiously, the court suggests that the only forum invested with the power to make such a determination would be a court of law in which a damage suit was pending. But this is surely not what we mean to say, for it would necessarily overrule many of our prior cases in which we have held that the administrative agencies of our government — indeed, the FPC in particular — have not only a right, but a positive duty to determine the legal and practical ramifications of their valid orders. See, e. g., J. M. Huber Corp. v. Denman, 5 Cir., 1966, 367 F.2d 104; Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84. Perhaps the court creates this difficulty by failing to recall that the agency determination is subject to judicial review. We do not accord administrative agencies plenary jurisdiction, only primary. Thus, although the court is correct in requiring additional rulings from the FPC, it should be emphasized that the ultimate contentions of the respective parties will be subjected to judicial scrutiny. Yet, in the interim, we must require full consideration by the FPC. That the Commission may — indeed must — determine significant, sometimes decisive, questions of law is demonstrated by the Supreme Court’s action in FPC v. Louisiana Power & Light Co., 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L. Ed.2d 369, noted by the majority in Louisiana Power & Light Co. v. FPC, (No. 71-3429) 476 F.2d 132, that it is incumbent upon the FPC to decide at the threshold whether it has jurisdiction, and if so, to what extent it will be exercised. It is a mistake then for anyone to read our opinions of this date as denying the FPC the power to pass on questions of law. And a question of law might well be whether a pipeline-seller may be held liable for damages. II. The Supreme Court has made it manifestly clear that the FPC must exert its controls under the Natural Gas Act over the allocation of our nation’s mineral resources — curtailing service to industrial customers if necessary in the public interest. FPC v. Louisiana Power & Light Co., supra. Having concluded that the current critical gas shortage warrants the imposition of curtailment tariffs, the Commission has issued Opinions 606 and 606A. Clearly they must be observed. No injunctive relief would be appropriate. See Monsanto Co. v. FPC, 1972, 149 U.S.App.D.C. 396, 463 F.2d 799. But the various petitioner-customers involved in these cases suggest that, even given the premise that the FPC may order curtailment in fact, that they are still entitled to redress in the form of damages for breach of contract. As the court has suggested, there are two possible theories upon which this liability could be predicated — (i) that the failure to deliver the contractually stated quantity of gas, FPC curtailment order notwithstanding, constitutes a breach of the contract, and (ii) that the distributor must, under the “substitute fuel clauses” of some of the contracts, reimburse the customers for the additional expense incurred because of the necessity of resorting to alternative fuels and fuel-burning systems. The Contractual Quantity The damage litigation of Customer versus Pipeline seeking damages for failure to deliver may arise in two entirely distinct factual patterns. First, there is the customer who complains of the curtailment, but who is unable to make any substantial allegations or proof that his service was reduced by anything other than a governmentally ordered curtailment resulting from an acute shortage of natural gas. Surely the pipeline must be exonerated completely in this instance. But the basis of this exoneration is not, as the court suggests, the mere contractual defense of “impossibility of performance due to intervening governmental order.” It is based upon the intrinsic power of the federal government to pre-empt and abrogate private agreements in the interest of the public weal. It is a question of supremacy. This court, by decisions binding on this panel, has previously committed itself to the view that federal administrative regulation may often obliterate or extinguish claims for relief including damages normally available to an injured party. In Carter v. American Telephone & Telegraph Co., 5 Cir., 1966, 365 F.2d 486, 496, again requiring primary jurisdiction by reference to the FCC, we declared that a utility could not both be required to comply with a validly filed tariff and, at the same time, be liable for money damages based on monopolistic, anti-trust practices growing out of compliance with the tariffs prohibiting the attachment of “foreign” equipment. In the cáse sub judice, the curtailment order, if valid, constitutes an abrogation of any contractual provision calling for current delivery of specified quantities. It would be unthinking to suggest that, having curtailed in compliance with the dictates of the FPC, that the Pipeline could thereafter be held accountable for its compliance. See Carter, supra; PepsiCo, Inc. v. FTC, 2 Cir., 1972, 472 F.2d 179 [1972], This would seriously impair the orderly administration of the regulatory scheme. But there is a second factual pattern, best illustrated by the D.C. Circuit’s opinion in Monsanto, supra. Several established, so-called “firm” customers of the various pipelines have asserted that the need for curtailment was precipitated by the pipeline’s own failure to heed the signs of an impending crisis. These customers claim that, by taking on new obligations — knowing full well that its resources were limited — that the pipeline has created the “pickle”, 463 F.2d at 808, and counted on the FPC to bail it out with a curtailment order. I readily agree with the court that, if a customer could prove this element of “bad faith” on the part of the pipeline, that the parameters of the analysis might — and the word is might — be vastly altered, and warrant the FPC or the court entertaining the damage suit in concluding that the piper must pay the pipee. But, this too, would be subject to full considerations of the total impact of the decision including the source from which allowable damages are to come. Substitute Fuel Clauses Obviously, there is a significant difference between the quantitative contract clauses and the substitute fuel clauses, if, as the court suggests, the FPC seeks to justify the abrogation of these latter clauses under the “undue preference” section of the Act. But I agree with the Court that the record before us is not a sufficient indication that this is the basis for the Commission’s order. Accordingly, I agree that we must remand the case to the FPC for further clarification. In so doing, however, I would hasten to suggest that there is a major factor as yet unconsidered by Commission or court which must be thrown into the scales in order to determine what impact the decision to allow a damage action might have on the fulfillment of the goals of the Act — the factor of who must ultimately pay the damages. III. As long as we purport to comment on every issue which might be expected to emerge in connection with the curtailment order, I think that it would be appropriate for us to call attention to the factor of who must pay the judgment and, more significantly, from what funds. Assuming for the moment that the FPC and the reviewing court or damage suit court determine that it is appropriate to allow customers to recover damages in spite of the governmental sanction on the curtailment because of the Pipeline’s bad faith or the interpretation of the substitute fuel clauses, into which pocket must the customer dip? It would be an obvious frustration of the orderly control by the FPC if the damages could be paid out of current revenues contributed by ratepayers at rates necessarily increased to care for this exponential liability. Bad faith or not, the rate-payers of America are entitled to be free from this burden. Only if the damages can be assessed out of retained surpluses or assets not needed to meet customer demands, can they be collected. The test is one of impact, and the impact on the rate-paying public would be too great if it were any other way. IV. The FPC is not a sterile body incapable of determining legal problems of the most far-reaching kind. Its authority to regulate is plenary and exclusive. It speaks through orders both negative and positive. And the law vests it with the power to determine whether its exclusive responsibility is to be thwarted or frustrated by any action, whether in the form of disobedience to a curtailment order, or by imposing on current ratepayers the burden of paying for the past sins of the pipeline. In short, the apparent winners of this appeal have not gotten much. . A “substitute fuel clause” is an agreement in the contract whereby the pipeline agrees to reimburse the customer for any premium which the customer must pay to obtain another fuel during periods which the gas supply is interrupted. These substitute fuel clauses differ in form from contract to contract and their exact application to these curtailment situations is in dispute. The clause in the International Paper-United Gas Pipeline contract is reproduced below: Excerpt From July 21, 1955 Contract Between. United Gas Pipe Line Company And International Paper Company (Mobile Mill), .4s Amended XVII. USE OF SUBSTITUTE FUEL It is recognized by Buyer that in the pipe line operations of Seller it is desirable to relieve as far as possible conditions which cause excessive or peak demands of gas, and it is recognized by Seller that in the plant operations of Buyer it is desirable to eliminate any shut-downs caused by failure of the gas supply from whatsoever cause. Accordingly, in order to enable both Seller and Buyer to eliminate the above-described conditions, it is agreed that Buyer shall furnish or cause to be furnished at Buyer’s sole cost and expense proper and adequate facilities (including oil storage tanks, fuel lines, oil meters and oil burning equipment) necessary to enable Buyer to use Bunker “C” grade fuel oil, to be purchased and supplied by Buyer, in lieu of gas for Buyer’s fuel requirements, up to the Maximum Daily Delivery Obligation then in effect, under the conditions hereinafter set forth; and that payments with reference to such fuel oil so used by Buyer shall be made between the parties hereto as hereinafter specifically provided. All fuel oil so used by Buyer for its fuel requirements shall be accurately metered by Buyer as it is used. If so requested by Seller at any time and from time to time, Buyer agrees that it will use Bunker “C” grade fuel oil purchased and supplied by Buyer, as above set forth, in lieu of gas for Buyer’s fuel requirements hereunder during the period or periods of time so requested by Seller. In the event Seller is excused by reason of force majeure or pro-ration of impaired deliveries from delivering gas to Buyer for Buyer’s fuel requirements hereunder, up to the Maximum Daily Delivery Obligation then in effect, and Buyer uses Bunker “C” grade fuel oil for its fuel requirements, even though not so requested to do by Seller, during the period Seller is so excused from delivering gas hereunder, all such fuel oil so used by Buyer during any period of not more than seven consecutive days shall be deemed to have been used by Buyer at Seller’s request. Payments with reference to fuel oil which is used by Buyer for its fuel requirements at Seller’s request, up to the Maximum Daily Delivery Obligation then in effect, as provided in the next preceding paragraph, shall be made between the parties as hereinafter set forth. On or before the fifth day of the month following any month hereunder during which Buyer used fuel oil for which payments are to be made between the parties as above provided, Buyer shall furnish to Seller a statement, together with supporting computations, calculations and determinations, showing: (a) The number of barrels of fuel oil used by Buyer on each day during the preceding- billing month for its fuel requirements in lieu of the quantities of gas which Seller failed to deliver on each day during such month up to but not in excess of the Maximum Daily Delivery Obligation in effect hereunder on each such day. (b) The weighted average (expressed in cents per barrel) of the purchase prices, per barrel, f. o. b. Buyer’s plant, paid by Buyer for all quantities of fuel oil in Buyer’s storage facilities during the preceding month; such weighted average price shall not include any storage and handling costs and expenses for such fuel oil at Buyer’s plant, and shall not take into consideration any volumetric losses or gains resulting from the storage and handling of such fuel oil. (c) The amount of money due Buyer by Seller for such fuel oil so used by Buyer for its fuel requirements hereunder during such preceding month, which amount shall be determined by multiplying the number of barrels of fuel oil so used by Buyer during such preceding month as provided for in sub-paragraph (a) above, by the weighted average purchase price per barrel of the fuel oil in Buyer’s storage facilities during such preceding month as provided for in subparagraph (b) above. Upon receipt of each such statement from Buyer, Seller shall determine the gas equivalent of such fuel oil so used by Buyer for its fuel requirements hereunder during such preceding month; such determination to be made on the basis of one barrel of Bunker “C” grade fuel oil being the equivalent of 6,000 cubic feet of gas. The total quantity of such gas equivalent, so determined, shall be added to the total quantity of gas actually delivered by Seller to Buyer hereunder during such preceding month in order to arrive at the Monthly Rate per Mcf to be paid by Buyer to Seller for such gas equivalent during the month in question. Such monthly rate per Mcf, so arrived at, shall be multiplied by the total quantity of such gas equivalent, so determined for the month in question as above provided, and the result of such multiplication, without any adjustment thereof for Btu, shall be the amount of money due Seller by Buyer for such gas equivalent during the month in question. Proper adjustments shall be made on the bill to be rendered by Seller to Buyer for gas delivered by Seller to Buyer during the preceding month, to give effect to the amount of money due Buyer by Seller as above provided, for fuel oil so used by Buyer during such preceding month, and to the amount of money due Seller by Buyer, as above provided, for the gas equivalent of such fuel oil. . At present, part of this proceeding lias been remanded by the Commission to the administrative law judge for further hearings. These hearings are directed specifically, as we understand it, to the question of any bad faith by United, in contracting for gas which it knew might not be available, relying on curtailment as an “out” if enough gas was indeed not available. . Michigan Consolidated Gas Co. v. Panhandle Eastern Pipe Line Co., 6 Cir., 1949, 173 E.2d 784; Panhandle Eastern Pipe Line Co. v. Michigan Consolidated Gas Co., 6 Cir., 1949, 177 F.2d 942. . We wish to point out that this part of our opinion is predicated on the assumption that the FPC was trying to say that mere adoption of a curtailment plan, without reference in the plan to damage suits, would give rise to an impossibility defense. In the next part o'f this opinion we discuss in more detail the claim that the FPC seems to rely on in Opinion 606A — that the mere adoption of a curtailment plan by the FPC will automatically be an exercise by the FPC to prevent “undue preferences” thus foreclosing damage actions. . For tlie protection of the public interest, it is quite logical to say that an administrative agency can determine where the available gas should go. It seems to us that it does not automatically follow that a determination that it is in the public interest for Y, a hospital, not X, a factory producing expensive jewelry, to receive the gas that X is foreclosed from going against the supplier for shortsightedness or overreaching in entering contracts for gas which he was ultimately unable to supply. . As we understand it, the PPC has not undertaken to directly consider any specific “substitute fuel clause” or the bargaining bistory which led to its inclusion in the contract. . Sec. 4. (b) No natural-gas company shall, with respect to any transxjortation or sale of natural gas subject to the jurisdiction of the Commission, (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service. . This position of the court does not seem greatly at variance with that of the FPC. Repeatedly at oral argument counsel for the Commission argued that no final determination on the damage issue had been made. The court was troubled, however, by the further assertion, which we detected in the Commission's opinions, briefs, and argument, that once any curtailment plan was adopted, without specific findings directly aimed at the damage issue, no damage action of any type could lie. We have undertaken in this opinion to set out the reasons we feel such a position is invalid with the hope that time and energy will be conserved by addressing file noted deficiencies before any final order is entered. . The principles announced by the court in this principal case today are applicable to a series of connected eases. See Mississippi Power & Light Co. v. FPC, (No. 72-1003) 476 F.2d 136; Gulf States Utilities Co. v. FPC, (No. 71-3627) 476 F.2d 135; Louisiana Power & Light Co. v. FPC, (No. 71-3429) 476 F.2d 132; State of Louisiana v. FPC, (No. 72-1220) 476 F.2d 140; Mississippi Valley Gas Co. v. FPC, (No. 72-1157) 476 F.2d 137. Likewise, my comments apply to those cases. . In the words of the court: “We note that in the very curtailment cases relief on hy the FPC for establishing this ‘rule of law’ the governmental entity which decided the effect of the FPC order on the private contract action was not the FPC itself but rather the court in which the private action was brought. We feel that this is the proper way for deciding the effect of the FPC order .... We feel that a court which has the actual damage suit before it, and also the final FPC action, is best suited to determine the applicability of a defense recognized in contract law.” . The best illustration of the point is offered by the subsequent history of the Huber case itself. In Huber we vacated two judgments after jury trials awarding royalties on the basis of fair market value, rather than the ceiling prices fixed by the FPC. We remanded with directions for the District Court to require the parties to seek a declaratory order from the FPC on the question of whether gas royalties were “sales of gas for resale in interstate commerce.” The FPC answered the question affirmatively, thereby holding that the royalties were subject to FPC rate ceilings. Denman v. J. M. Huber Corp., 42 F.P.C. 164. On subsequent judicial review the D.C. Circuit found this to be an erroneous statement of the law. Mobil Oil Corp. v. FPC, 1972, 149 U.S. App.D.C. 310, 463 F.2d 256. Cert. denied, 1972, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676. But this in no way denigrates our holding in Huber or Weymouth. For by holding that a court must stay its hand until the administrative agency has had the opportunity to act, we do not suggest that a judicial determination is inappropriate, but merely that it should be postponed. . See note 1 of the court’s opinion. . Apparently the administrative law judge is now hearing evidence on this matter. See the court's note 2, supra. Thus, we can expect some definitive statement from the Commission in review. . See Part III, infra.

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LOUISIANA POWER & LIGHT COMPANY and New Orleans Public Service Inc., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. No. 71-3429. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Charles King Mallory, Andrew P. Carter, W. C. Nelson, New Orleans, La., Nelson Jones, Houston, Tex., Howard E. Wahrenbrock, Washington, D. C., John M. Kuykendall, Jr., Jackson, Miss., for petitioners. Gordon Gooch, Gen. Counsel, Ruben Lozner, Staff Counsel, Leo E. Forquer, Sol., J. Richard Tiano, George W. McHenry, Jr., First Asst. Sols., F. P. C., Washington, D. C., for respondent. William B. Cassin, Houston, Tex., for United Gas Pipeline. Leon M. Payne, Houston, Tex., W. DeVier Pierson, Washington, D. C., for United Gas, Inc. William G. Riddoch, Dan A. Bruce and Thomas G. Johnson, Houston, Tex., for Shell Oil. Clarence H. Ross and Raymond J. Petersen, Chicago, Ill., for Natural Gas Pipe Line of America. Christopher T. Boland, Washington, D. C., and Robert O. Koch, Owensboro, Ky., for Texas Gas Transmission. J. Evans Attwell and Jack D. Head, Houston, Tex., for Texas Eastern Transmission Corp. Harry L. Albrecht, Birmingham, Ala., for Southern Natural Gas Co. Thomas M. Knebel, Washington, D. C., for Willmut Gas & Oil Co. Eaton A. Lang, Jr., Gulfport, Miss., and A. Edward Grashof, New York City, for Miss. Power Co. George M. Wear, Monroe, La., for Olinkraft, Inc. Wm. W. Bedwell, Washington, D. C., and James H. Wuller, St. Louis, Mo., for Miss. River Transmission Corp. Peter H. Schiff, Gen. Counsel, P.S.C. for N. Y., Albany, N. Y., Richard A. Solomon, Washington, D. C., for Public Service Comm, for State of N. Y. Arnold D. Berkeley, Washington, D. C., and Fred G. Benton, Sr., Baton Rouge, La., for State of Louisiana and others. Barbara M. Gunther, Brooklyn, N. Y., for Brooklyn Union Gas Co. Richard W. Duesenberg and Dwight W. Miller, St. Louis, Mo., for Monsanto Co. John T. Miller, Jr., Washington, D. C., for Monsanto Co. and Texas Gulf Sulphur. John J. Mullally, Washington, D. C., for Miss. River Transmission Corp. George W. Hugo, Houston, Tex., for Texas Gulf Sulphur. John S. Schmid, New York City, for Boston Gas Co., and others. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. PER CURIAM: This case is one of a group arising from 1;he adoption by the Federal Power Commission of “curtailment plans” filed by United Gas Pipe Line Company. These curtailment plans were the outgrowth of an order promulgated by the FPC and were aimed at serving the public interest by establishing a rational scheme of allocation of available natural gas in light of the current, somewhat critical, shortage of this much-used fuel. Due to this shortage, pipeline companies found that they would not be able to meet all of their current contractual obligations for delivery of gas. At present, the FPC has not finally approved any of the curtailment plans in question. It has, however, issued two orders, Opinions 606 and 606A, which are reviewable and are now challenged by numerous parties on several grounds before this court. Each of the contentions raised by these petitioners will be considered separately below. FPC Jurisdiction to Enter Curtailment Orders Affecting Direct Sale Customers At the time this action was initially filed with this court, we had previously held in Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, that the Commission did not have authority under the Natural Gas Act to order curtailment of sales to direct sale customers. In Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369, the United States Supreme Court reversed that determination by this circuit and held that the FPC was authorized to entertain curtailment plans with regard to both direct sales and sales for resale. Therefore, this opinion by the Supreme Court has conclusively settled this first issue raised by these petitioners and the Commission’s jurisdiction is no longer subject to challenge on this basis. Opinions 606 and 606A and Damage Suits for Contract Breach Growing Out of Curtailment Petitioners here, as have the petitioners in several other of the cases arising from this curtailment situation, object to language in Opinions 606 and 606A issued by the Federal Power Commission on October 5, 1971, and December 3, 1971, which indicated that the adoption of a curtailment plan by the Commission pursuant to its procedures would serve as an “absolute defense” to any private contract actions against the pipeline for damages growing out of the curtailment. This court has today issued a full opinion on this point in International Paper Company v. Federal Power Commission and no purpose would be served by fully restating the result reached in that case here. Therefore we adopt as part of this opinion the holding of International Paper Company v. Federal Power Commission with regard to the effect of Opinions 606 and 606A on possible suits for breach of contract growing out of any curtailment plan which is ultimately adopted. Curtailment on the “Green System East” Petitioners in this case strongly urge that United has improperly, with the aid of the Commission, been curtailing gas deliveries on its “Green System East.” In Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, 339-340, this court held that the “Green System East” was purely intrastate and not subject to Commission regulations. The Supreme Court,’ in Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L. Ed.2d 369, reversed this court on that point and held that it was within the primary jurisdiction of the FPC to determine its jurisdiction in the first instance, subject of course to the usual appellate review of that administrative decision. The precise objection made by petitioners in a supplementary brief filed five days prior to oral argument was that United, with the knowing acquiescence of the FPC, was curtailing deliveries on the “Green System East” for several months before the FPC ever made its initial finding of jurisdiction over that pipeline. The claim is that curtailment is not retroactive and that curtailment while the Commission was making its initial jurisdictional decision was improper. The issue was not orally argued. This panel of the court has recently been assigned to review the FPC’s ultimate decision on jurisdiction over the “Green System East.” Louisiana Power & Light, et al. v. Federal Power Commission, No. 72-1714 (consolidated with several other cases on the same issue). We notice in the briefs for those cases that this issue is raised and answered. Since argument in those cases will be forthcoming in the near future, we feel that a better resolution of this issue can be made in those cases. We therefore decline to pass on this issue at this time. As to the issues raised by these petitioners, the orders of the FPC are affirmed in part and remanded in part. . 5 Cir. 1973, 476 F.2d 121.

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GULF STATES UTILITIES COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. No. 71-3627. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. John G. Tucker and Stanley Plettman, Beaumont, Tex., for petitioner. Gordon Gooch, Leo E. Forquer, Gen. Counsel, Ruben Lozner, J. Richard Tiano, Staff Counsel, and George W. McHenry, Jr., First Asst. Sol., Washington, D. C., for respondent. William B. Cassin, Houston, Tex., for United Gas Pipe Line. Leon M. Payne, Houston, Tex., and W. DeVier Pierson, Washington, D. C., for United Gas, Inc. Thomas G. Johnson and Dan A. Bruce, Houston, Tex., for Shell Oil. William G. Riddoch, Christopher T. Boland, Washington, D. C., and Robert O. Koch, Owensboro, Ky., for Texas Gas Transmission. J. Evans Attwell and Jack D. Head, Houston, Tex., for Texas Eastern Transmission. Harry L. Albrecht, Birmingham, Ala., for Southern Natural Gas Co. Thomas M. Knebel, Washington, D. C., for Willmut Gas & Oil Co. Eaton A. Lang, Jr., Gulfport, Miss., and A. Edward Grashof, New York City, for Miss. Power Co. Wm. W. Bedwell, John J. Mullally, Washington, D. C., James H. Wuller, St. Louis, Mo., for Miss. River Transmission Corp. Peter H. Schiff, Gen. Counsel, P. S. C. for N. Y., Albany, N. Y., and Richard A. Solomon, Washington, D. C., for Public Service Comm, for State of N. Y. Howard E. Wahrenbrock, Washington, D. C., and John M. Kuykendall, Jr., Jackson, Miss., for Miss. Valley Gas Co. and others. Clarence H. Ross and Raymond J. Petersen, Chicago, Ill., for Natural Gas Pipeline of America. Arnold D. Berkeley, Washington, D. C., and Fred G. Benton, Sr., Baton Rouge, La., for State of La. and others. Barbara M. Gunther, Brooklyn, N. Y., for Brooklyn Union Gas Co. Richard W. Duesenberg and Dwight W. Miller, St. Louis, Mo., for Monsanto Co. John T. Miller, Jr., Washington, D. C., for Monsanto Co. and Texas Gulf Sulphur. George W. Hugo, Houston, Tex., for Texas Gulf Sulphur. John S. Schmid, New York City, for Boston Gas Co. and others. Charles E. McGee, John T. Ketcham and Robert J. Haggerty, Washington, D. C., for Algonquin. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. PER CURIAM: This case is one of a - group arising from the adoption by the Federal Power Commission of “curtailment pláns” filed by United Gas Pipe Line Company. These curtailment plans were the outgrowth of an order promulgated by the FPC and were aimed at serving the public interest by establishing a rational scheme of allocation of available natural gas in light of the current, somewhat critical, shortage of this much-used fuel. Due to this shortage, pipeline companies found that they would not be able to meet all of their current contractual obligations for delivery of gas. At present, the FPC has not finally approved any of the curtailment plans in question. It has, however, issued two orders, Opinions 606 and 606A, which are reviewable and are now challenged by numerous parties on several grounds before this court. Each of the contentions raised by this petitioner will be considered separately below. FPC Jurisdiction to Enter Curtailment Orders Affecting Direct Sale Customers At the time this action was initially filed with this court, we had previously held in Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, that the Commission did not have authority under the Natural Gas Act to order curtailment of sales to direct sale customers. In Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369, the United States Supreme Court reversed that determination by this circuit and held that the Commission was authorized to entertain curtailment plans with regard to both direct sales and sales for resale. Therefore, this opinion by the Supreme Court has conclusively settled this first issue raised by this petitioner and the Commission’s jurisdiction is no longer subject to challenge on this basis. Opinions 606 and 606A and Damage Suits for Contract Breach Growing out of Curtailment Petitioner here, as have the petitioners in several other of the cases arising from this curtailment situation, objects to language in Opinions 606 and 606A issued by the Federal Power Commission on October 5, 1971, and December 3, 1971, which indicated that the adoption of a curtailment plan by the Commission pursuant to its procedures would serve as an “absolute defense” to any private contract actions against the pipeline for damages growing out of the curtailment. This court has today issued a full opinion- on this point in International Paper Company v. Federal Power Commission and no purpose would be served by fully restating the result reached in that case here. Therefore we adopt as part of this opinion the holding of International Paper Company v. Federal Power Commission, supra, with regard to the effect of Opinions 606 and 606A on possible suits for breach of contract growing out of any curtailment plan which is ultimately adopted. The orders of the FPC are affirmed in part and remanded in part. . 5 Cir. 1973, 476 F.2d 121.

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MISSISSIPPI POWER & LIGHT COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. No. 72-1003. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Richard M. Merriman, Harry A. Poth, Jr., Washington, D. C., Sherwood W. Wise and Richard B. Wilson, Jr., Jackson, Miss., for petitioner. Gordon Gooch, Leo E. Forquer, Gen. Counsel, J. Richard Tiano, and George W. McHenry, Jr., First Asst. Sols., F.P. C., Washington, D. C., for respondent. William B. Cassin, Houston, Tex., for United Gas Pipe Line. Leon M. Payne, Houston, Tex., and W. DeVier Pierson, Washington, D. C., for United Gas, Inc. Christopher T. Boland, Washington, D. C., and Robert T. Koch, Owensboro, Ky., for Texas Gas Transmission. Peter H. Schiff, Gen. Counsel, P.S.C. for N.Y., Albany, N. Y., and Richard A. Solomon, Washington, D. C., for Public Service Comm, of N. Y. Eaton A. Lang, Jr., Gulfport, Miss., and A. Edward Grashof, New York City, for Miss. Power Co. Harry L. Albrecht, Birmingham, Ala., for Southern Natural Gas. Thomas M. Knebel, Washington, D. C., for Willmut Gas & Oil Co. J. Evans Attwell and Jack D. Head, Houston, Tex., for Texas Eastern Transmission. Howard E. Wahrenbrock, Washington, D. C., and John M. Kuykendall, Jr., Jackson, Miss., for Miss. Valley Gas Co., and others. William W. Bedwell, John J. Mullally, 'Washington, D. C., and James H. Wuller, St. Louis, Mo., for Miss. River Transmission Corp. Clarence H. Ross, and Raymond J. Petersen, Chicago, Ill., for Natural Gas Pipeline of America. Arnold D. Berkeley, Washington, D. C., and Fred G. Benton, Sr., Baton Rouge, La., for State of Louisiana and others. Barbara M. Gunther, Brooklyn, N. Y., for Brooklyn Union Gas Co. Dan A. Bruce, Thomas G. Johnson and William G. Riddoch, Houston, Tex., for Shell Oil. Richard W. Duesenberg, and Dwight W. Miller, St. Louis, Mo., for Monsanto Co. John T. Miller, Jr., Washington, D. C., for Monsanto & Texas Gulf Sulphur. George W. Hugo, Houston, Tex., for Texas Gulf Sulphur. John S. Schmid, New York City, for Boston Gas Co., and others. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. PER CURIAM: This case is one of a group arising from the adoption by the Federal Power Commission of “curtailment plans” filed by United Gas Pipe Line Company. These curtailment plans were the outgrowth of an order promulgated by the FPC and were aimed at serving the public interest by establishing a rational scheme of allocation of available natural gas in light of the current, somewhat critical, shortage of this much-used fuel. Due to this shortage, pipeline companies found that they would not be able to meet all of their current contractual obligations for delivery of gas. At present, the FPC has not finally approved any of the curtailment plans in question. It has, however, issued two orders, Opinions 606 and 606A, which are reviewable and are now challenged by numerous parties on several grounds before this court. Each of the contentions raised by this petitioner will be considered separately below. FPC Jurisdiction to Enter Curtailment Orders Affecting Direct Sale Customers At the time this action was initially filed with this court, we had previously held in Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, that the Commission did not have authority under the Natural Gas Act to order curtailment of sales to direct sale customers. In Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369, the United States Supreme Court reversed that determination by this circuit and held that the Commission was authorized to entertain curtailment plans with regard to both direct sales and sales for resale. Therefore, this opinion by the Supreme Court has conclusively settled this first issue raised by this petitioner and the Commission’s jurisdiction is no longer subject to challenge on this basis. Opinions 606 and 606A and Damage Suits for Contract Breach Growing Out of Curtailment Petitioner here, as have the petitioners in several other of the cases arising from this curtailment situation, objects to language in Opinions 606 and 606A issued by the Federal Power Commission on October 5, 1971, and December 3, 1971, which indicated that the adoption of a curtailment plan by the Commission pursuant to its procedures would serve as an “absolute defense” to any private contract actions against the pipeline for damages growing out of the curtailment. This court has today issued a full opinion on this point in International Paper Company v. Federal Power Commission and no purpose would be served by fully restating the result reached in that case here. Therefore we adopt as part of this opinion the holding of International Paper Company v. Federal Power Commission, swpra, with regard to the effect of Opinions 606 and 606A on possible suits for breach of contract growing out of any curtailment plan which is ultimately adopted. Opinions 606 and 606A and Substitute Fuel Clauses Petitioner Mississippi Power & Light has a contract with United Gas Pipe Line Company which contains a “substitute fuel clause.” For this reason, this petitioner objects to those parts of Opinions 606 and 606A which indicate that such clauses are unenforceable. As we did with the damage suit issue, we fully treated this contention in our opinion issued today in International Paper Company v. Federal Power Commission, supra, and herewith adopt the holding of that case on this issue as part of this opinion. The orders of the FPC are affirmed in part and remanded in part. . 5 Cir. 1973, 476 F.23 121.

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MISSISSIPPI VALLEY GAS COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. No. 72-1157. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Howard E. Wahrenbrock, Washington, D. C., and John M. Kuykendall, Jr., Jackson, Miss., for petitioners. J. Richard Tiano, First Asst. Sol., Gordon Gooch, Gen. Counsel, Leo E. Forquer, Sol., George W. McHenry, Jr., First Asst. Sol., F.P.C., Washington, D. C., for respondent. William B. Cassin, Houston, Tex., for United Gas Pipe Line. Leon M. Payne, Houston, Tex., and W. DeVier Pierson, Washington, D. C., for United Gas Inc. William W. Bedwell, Washington, D. C., and James H. Wuller, St. Louis, Mo., for Miss. River Transmission Corp. J. Evans Attwell and Jack D. Head, Houston, Tex., for Texas Eastern Transmission. Arnold D. Berkeley, Washington, D. C., for State of Louisiana and others. Fred G. Benton, Sr., Baton Rouge, La., and Thomas M. Knebel, Washington, D. C., for Willmut Gas & Oil Co. Peter H. Schiff, Gen. Counsel, P.S.C. for N. Y., Albany, N. Y., and Richard A. Solomon, Washington, D. C., for Public Service Comm, for State of N. Y. Barbara M. Gunther, Brooklyn, N. Y., for Brooklyn Union Gas Co. Dan A. Bruce, Thomas G. Johnson and William G. Riddoch, Houston, Tex., for Shell Oil. Richard W. Duesenberg, and Dwight W. Miller, St. Louis, Mo., for Monsanto Co. John T. Miller, Jr., Washington, D. C., for Monsanto Co. and Texas Gulf Sulphur. Harry L. Albrecht, Birmingham, Ala., for Southern Natural Gas Co. Charles E. McGee, John T. Ketcham, and Robert J. Haggerty, Washington, D. C. , for Algonquin Gas Transmission Co. Christopher T. Boland, Washington, D. C., and Robert O. Koch, Owensboro, Ky., for Texas Gas Transmission. George W. Hugo, Houston, Tex., for Texas Gulf Sulphur. John S. Schmid, New York City, for Boston Gas Co., and others. Eaton A. Lang, Jr., Gulfport, Miss., and A. Edward Grashof, New York City,' for Miss. Power Co. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. PER CURIAM: This case is one of a group arising from the adoption by the Federal Power Commission of “curtailment plans” filed by United Gas Pipe Line Company. These curtailment plans were the outgrowth of an order promulgated by the FPC and were aimed at serving the public interest by establishing a rational scheme of allocation of available natural gas in light of the current, somewhat critical, shortage of this much-used fuel. Due to this shortage, pipeline companies found that they would not be able to meet all of their current contractual obligations for delivery of gas. At present, the FPC has not finally approved any of the curtailment plans in question. It has, however, issued two orders, Opinions 606 and 606A, which are reviewable and are now challenged by numerous parties on several grounds before this court. Each of the contentions raised by these petitioners will be considered separately below. FPC Jurisdiction to Enter Curtailment Orders Affecting Sales for Resale At the time this action was initially filed with this court, we had previously held in Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, that the Commission did not have authority under the Natural Gas Act to order curtailment of sales to direct sale customers. In Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369, the United States Supreme Court reversed that determination by this circuit and held that the Commission was authorized to entertain curtailment plans with regard to both direct sales and sales for resale. Therefore, this opinion by the Supreme Court has conclusively settled this first issue raised by these petitioners and the Commission’s jurisdiction is no longer subject to challenge on this basis. Objection to Lack of a “Threshold Determination” by FPC as to Need for Curtailment In a supplementary brief filed after oral argument, these petitioners strongly object to the imposition by the FPC of curtailment plans filed by the pipelines without some preliminary hearing or determination that curtailment was warranted. We feel that we have adequately addressed these assertions in Alabama Gas Corporation v. Federal Power Commission, 5 Cir. 1973, 476 F.2d 142. Therefore the opinions and orders of the FPC as to the issues raised by these petitioners are affirmed.

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STATE OF LOUISIANA et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. No. 72-1220. United States Court of Appeals, Fifth Circuit. Feb. 7, 1973. Rehearing and Rehearing En Banc Denied April 13, 1973. Arnold D. Berkeley, Washington, D. C., and Fred G. Benton, Sr., Baton Rouge, La., for petitioners. Gordon Gooch, Gen. Counsel, George W. McHenry, Jr., First Asst. Sol., Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol., F. P. C., Washington, D. C., for respondent. William B. Cassin, Houston, Tex., for United Gas Pipe Line. Leon M. Payne, Houston, Tex., and W. DeVier Pierson, Washington, D. C., for United Gas, Inc. Thomas M. Knebel, Washington, D.C., for Willmut Gas & Oil Co. J. Evans Attwell and Jack D. Head, Houston, Tex., for Texas Eastern Transmission Corp. Peter H. Schiff, Gen. Counsel, P. S. C. for N. Y., Albany, N. Y., and Richard A. Solomon, Washington, D. C., for Public Service Commission for State of N. Y. Barbara M. Gunther, Brooklyn, N. Y., for Brooklyn Union Gas Co. Howard E. Wahrenbrock, Washington, D. C., and John M. Kuykendall, Jr., Jackson, Miss., for Miss. Valley Gas Co. and others. Dan A. Bruce, Thomas G. Johnson and William G. Riddoch, Houston, Tex., for Shell Oil. Richard W. Duesenberg and Dwight W. Miller, St. Louis, Mo., for Monsanto Co. John T. Miller, Jr., Washington, D. C., for Monsanto Co. and Texas Gulf Sulphur. Wm. W. Bedwell, John J. Mullally, Washington, D. C., and James H. Wuller, St. Louis, Mo., for Miss. River Transmission Corp. Harry L. Albrecht, Birmingham, Ala., for Southern Natural Gas Co. George M. Wear, Monroe, La., for Olinkraft, Inc. Charles E. McGee, John T. Ketcham and Robert J. Haggerty, Washington, D. C. , for Algonquin Gas Transmission Co. Christopher T. Boland, Washington, D. C., and Robert O. Koch, Owensboro, Ky., for Texas Gas Transmission. George W. Hugo, Houston, Tex., for Texas Gulf Sulphur. John S. Schmid, New York City, for Boston Gas Co. and others. Eaton A. Lang, Jr., Gulfport, Miss., and A. Edward Grashof, New York City, for Miss. Power Co. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: This case is one of a group arising from the adoption by the Federal Power Commission of “curtailment plans” filed by United Gas Pipe Line Company. These curtailment plans were the outgrowth of an order promulgated by the FPC and were aimed at serving the public interest by establishing a rational scheme of allocation- of available natural gas in light of the current, somewhat critical, shortage of this much-used fuel. Due to this shortage, pipeline companies found that they would not be able to meet all of their current contractual obligations for delivery of gas. At present, the FPC has not finally approved any of the curtailment plans in question. It has, however, issued two orders, Opinions 606 and 606A, which are reviewable and are now challenged by numerous parties on several grounds before this court. Each of the contentions raised by these petitioners will be considered separately below. FPC Jurisdiction to Enter Curtailment Orders Affecting Direct Sale Customers At the time this action was initially filed with this court, we had previously held in Louisiana Power & Light Company v. United Gas Pipe Line Company, 5 Cir. 1972, 456 F.2d 326, that the Commission did not have authority under the Natural Gas Act to order curtailment of sales to direct sale customers. In Federal Power Commission v. Louisiana Power & Light Company, 1972, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369, the United States Supreme Court reversed that determination by this circuit and held that the Commission was authorized to entertain curtailment plans with regard to both direct sales and sales for resale. Therefore, this opinion by the Supreme Court has conclusively settled the first issue raised by these petitioners and the Commission’s jurisdiction is no longer subject to challenge on this basis. Opinions 606 and 606A and Damage Suits for Contract Breach Growing Out of Curtailment Petitioners here, as have the petitioners in several other of the cases arising from this curtailment situation, object to language in Opinions 606 and 606A issued by the Federal Power Commission on October 5, 1971, and December 3, 1971, which indicated that the adoption of a curtailment plan by the Commission pursuant to its procedures would serve as an “absolute defense” to any private contract actions against the pipeline for damages growing out of the curtailment. This court has today issued a full opinion on this point in International Paper Company v. Federal Power Commission and no purpose would be served by fully restating the result reached in that case here. Therefore we adopt as part of this opinion the holding of International Paper Company v. Federal Power Commission, supra, with regard to the effect of Opinions 606 and 606A on possible suits for breach of contract growing out of any curtailment plan which is ultimately adopted. FPC’s Failure to Consider a Nationwide Curtailment Plan The State of Louisiana and other petitioners in this action allege that the failure of the FPC to entertain proposals for curtailment on a nationwide scale, rather than on a pipeline by pipeline basis, is an abuse of administrative discretion. We feel that this challenge has been foreclosed by the Supreme Court in Federal Power Commission v. Louisiana Power & Light Co., supra. The court stated therein: We conclude therefore that FPC has jurisdiction asserted in this case and that the Natural Gas Act fully authorizes the method chosen by the FPC for its exercise. 406 U.S. at 647, 92 S.Ct. at 1841. (Emphasis supplied). The “method chosen” is a pipeline by pipeline consideration, thus it cannot be said that such a “fully authorized” method is an abuse of discretion. Louisiana’s Claim of Equity as a Gas-Producing State Louisiana eloquently argued to this court that its status as a major gas-producing state merited it some special consideration in the battle over where necessary curtailments must come. The state asserts that it is an abuse of discretion for the FPC to refuse to consider these “equities.” The conflict between producing states and consuming states is readily discernible. See Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. at 633, n. 12, 92 S.Ct. at 1835 (and text accompanying). This claim by Louisiana is • essentially an argument for a preference.The FPC is a federal agency charged with evenhandedly supervising power matters on a national basis once jurisdiction is established. A major purpose was to prevent the “haves” from being unfair to the “have nots.” Therefore, we do not find it an abuse of discretion for the FPC to refuse to consider a claim of preference based on the fortuitous location of gas reserves in a certain area. Affirmed in part and remanded in part. . 5 Cir. 1973, 476 F.2d 121.

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ATLANTA GAS LIGHT COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. ATLANTA GAS LIGHT COMPANY et al., Plaintiffs-Appellants, v. SOUTHERN NATURAL GAS COMPANY and Federal Power Commission, Defendants-Appellees. ALABAMA GAS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. Nos. 72-1475, 72-1539 and 72-1415. United States Court of Appeals, Fifth Circuit, Feb. 7, 1973. Rehearing Denied July 11, 1973. Albert G. Norman, Jr., Carroll L. Wagner, Jr., Atlanta, Ga., and John E. Holtzinger, Jr., Washington, D. C., for Atlanta Gas Light Co. James E. Joiner, Atlanta, Ga., for Ga. Power Co. John W. Hinchey, Asst. Atty. Gen., and Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for Ga. Public Service Comm. John Izard, Jr., and Charles L. Gowen, Atlanta, Ga., James J. Flood, Jr., Washington, D. C., and Ronald L. Kuehn, Jr., Birmingham, Ala., for Southern Natural Gas Co. John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Gordon Gooch, Gen. Counsel, George W. McHenry, Jr., Comm. Staff Counsel, Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol., F.P.C., Washington, D. C., for F.P.C. Edwin D. Robb, Jr., and George W. Williams, Savannah, Ga., for Savannah Electric & Power Co. Howard E. Wahrenbrock, Washington, D. C., for Miss. Valley Gas Co. Thomas F. Brosnan, Washington, D. C., Leon M. Payne, Houston, Tex., R. Y. Patterson, Jr. and Norman E. Duke, Winter Park, Fla., for Fla. Gas Transmission Co. Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. BELL, Circuit Judge: Under § 4 of the Natural Gas Act, 15 U.S.C.A. § 717c, any “natural-gas company” must file with the Federal Power Commission a notice of any change in a service rendered by the company in connection with the sale or transportation of natural gas subject to the jurisdiction of the Commission. Subsections (d) and (e) of § 4 provide that the Commission may, upon receipt of a notice of change, allow the change to take effect, or it may “suspend” the change until it determines, after hearing, that the change is lawful. These consolidated appeals arise (1) from petitions for review filed by Alabama Gas Corporation (Alagasco), Atlanta Gas Light Company (Atlanta Gas), et al., who challenge the lawfulness of the Commission’s action in allowing Southern Natural Gas Company (Southern), a jurisdictional pipeline, to institute a plan which curtails gas deliveries under contracts between Southern and the petitioners, and (2) from the dismissal by the district court of a complaint filed by Atlanta Gas and others seeking declaratory relief against the Federal Power Commission for its interim adoption of Southern’s curtailment plan, and equitable relief and damages against Southern for breach of its service contracts. We affirm the action of the Commission challenged in the petitions for review, and we affirm the dismissal of that portion of the district court complaint which relates to the prayer for declaratory and equitable relief. For reasons stated, we vacate the dismissal of that portion of the complaint which relates to the prayer for damages and remand to the district court to retain jurisdiction for possible further proceedings. Nos. 72 — HI 5 and 72-U75 On April 15, 1971, the Federal Power Commission issued Order No. 431. That order required all jurisdictional pipelines to submit “written reports” to the Commission stating how the pipelines would implement the Commission’s policy of protecting the dwindling supply of natural gas and of insuring reliable and adequate service for the 1971-1972 heating season. The order provided that any pipeline which, because of shortages, found that it would be “necessary” to curtail service during the heating season should file with the Commission revised tariff sheets embodying a curtaih ment plan, “pursuant to §§ 4 and 5 of the Natural Gas Act.” See footnote (2). In response to Order No. 431, Southern filed a revised tariff sheet with the Commission on November 24, 1971. The revised tariff curtailed the volume of gas which Southern was obliged to deliver under contracts with certain customers and established service priorities among several classes of customers. Relying upon a statement by Southern that some curtailment of firm service commitments would be necessary during the 1971-1972 season, but expressly declining to decide whether elements of the plan were otherwise lawful, the Commission permitted the plan to take effect after a nominal suspension period of one day, pending completion of suspension proceedings under § 4. These proceedings are still pending. Alagasco, Atlanta Gas, and others, whose service contracts with Southern were affected by the curtailment plan, petitioned the Commission for leave to intervene in the suspension proceedings. When the Commission permitted the curtailment plan to take effect, the intervenors requested the Commission to reconsider its interim action. These petitions were denied. A petition for partial stay of the suspension order, filed by Atlanta Gas, was denied by the Commission on March 24,1972. The petitions for judicial review of the Commission’s action, filed pursuant to § 19 of the Act, 15 U.S.C.A. '§ 717r, followed in due course. The petitioners contend that the Commission cannot, under § 4, permit a curtailment plan to take effect on an interim basis without making, at the very least, a preliminary determination that the curtailment is necessary in order to effectuate the policies of Order No. 431. The petitioners contend, further, that where, as they alleged, the curtailment plan establishes service priorities that are inconsistent with priorities established in outstanding certificates of public service and convenience, the Commission cannot allow the plan to take effect without invoking the elaborate hearing procedure set out in § 7 of the Act, 15 U.S.C.A. § 717f. Finally, the petitioners contend that the Commission’s action was unlawful because the Commission did not, prior to the interim action, undertake a detailed evaluation of the environmental impact of the curtailment order, as required by the National Environmental Protection Act (NEPA), 42 U.S.C.A. § 4321 et seq. The Commission maintains, first, that the contested action was not a reviewable order; second, that it may properly employ § 4 procedures, unadorned by preliminary findings of fact, in the exercise of its curtailment power; and finally, that the NEPA does not require the issuance of a detailed environmental statement prior to the issuance of an interim suspension order. Reviewability The Natural Gas Act provides for review by the court of appeals of “an order issued by the Commission in such proceeding” under the Act. 15 U.S.C.A. § 717r(b). The Act does not require that the order be “final”, and the Act does not, by its terms, impose any other limitation on the class of actions subject to review. The courts have recognized this fact; nevertheless, they have traditionally declined to review many actions which, in a literal sense, are “orders issued by the Commission in a proceeding” under the Act. In general, the courts have declined to review non-final orders that are not “definitive” in their impact upon the rights of the parties and do not threaten the petitioner with “irreparable harm”. See Federal Power Commission v. Metropolitan, Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 82 L. Ed. 1408; Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 1960, 285 F.2d 737; Algonguin Gas Transmission Co. v. Federal Power Commission, 1 Cir., 1953, 201 F.2d 334. The requirement that the reviewable order be “definitive” in its impact upon the rights of the parties is something more than a requirement that the order be unambiguous in legal effect. It is a requirement that the order have some substantial effect on the parties which cannot be altered by subsequent administrative action. See Atlantic Seaboard Corp. v. Federal Power Commission, 4 Cir., 1953, 201 F.2d 568. The additional condition of reviewability —the requirement that the order threaten “irreparable harm” — is, to that extent, redundant, since an “irreparable” injury, like the effect of a “definitive” order, cannot be redeemed by subsequent official action. See Atlantic Seaboard Corp. v. Federal Power Commission, supra at 572. We hold that the Commission’s interim suspension order is reviewable because it is definitive in its impact upon the rights of the parties and threatens irreparable harm. The order permits Southern to withhold volumes of gas which it is obliged to deliver under private contract. The order may prove to be temporary, since it' may be changed when the Commission considers the facts of the case on the merits. But the present effect of the order cannot be substantially altered by subsequent action of the Commission. There is nothing the Commission can do at a later date to change the fact that the petitioners do not now receive volumes of gas which they may be entitled to receive under contract. In terms of its impact upon the parties, the order is as “definitive” as it could be; and if it is legally injurious, its consequences will be irremediable at a later date. The petitions for review are properly before this court. The Legality of § U Procedures In Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), the Supreme Court upheld the power of the (Commission to order the curtailment of gas deliveries to all customers of jurisdictional pipelines — customers purchasing gas for their own consumption as well as customers purchasing gas for resale to ultimate consumers. More critically, for purposes of the present appeals, the court held that the Commission may properly utilize the procedures of § 4 as a means of exercising its curtailment power. Without seriously contesting the power of the Commission to order curtailments, the petitioners strenuously urge the impropriety of a curtailment procedure which allows a curtailment plan designed by a pipeline to take effect before the Commission has determined, after hearing or after some minimal preliminary investigation, that curtailment is “necessary” within the meaning of Order No. 431. Petitioners maintain that such a procedure is subject to abuse and, in fact, that it has been abused in this case: Southern, they contend, faces no shortages that necessitate a curtailment of firm or non-interruptible service, as contemplated by Order No. 431. Southern has chosen, they allege, to exploit the procedure sanctioned by that order to reallocate sales for its own financial gain. Petitioners maintain as well that in light of the inconsistency between priorities established in the curtailment plan and priorities established in outstanding certificates of public convenience and necessity, the plan should not go into effect without a hearing as contemplated by § 7 of the Act. 15 U.S. C.A. § 717f. By arguing that a hearing is required, petitioners advocate a curtailment procedure which has been expressly rejected by the Supreme Court. In Louisiana Power & Light Co. v. Federal Power Commission, the court found that any process which would require the Commission to hold a hearing before taking remedial action would be an “unsuitable” vehicle for the exercise of curtailment power, because (1) the process would entail substantial delay and (2) any remedial order could only have prospective application. 406 U.S. at 643, 92 S.Ct. at 1840, 32 L.Ed.2d at 387. In essence, the court found that the general state of emergency created by the national shortage of natural gas necessitates a curtailment process which allows the Commission, in particular cases, to act “now” and find facts later. Accordingly, the court held that the adoption of such a procedure by the Commission was within the general power of the Commission to take all measures “necessary and appropriate” to effectuate the provisions of the Act. See 15 U.S.C.A. § 717o. This holding is seriously at variance with the petitioner’s position that a prior hearing is required where persons who oppose curtailment contend that it is not necessary within the meaning of Order No. 431, or that priorities established by the curtailment plan are inconsistent with priorities established in outstanding certificates of public convenience and necessity. We hold that the consideration of these contentions may be properly deferred until the hearing is ultimately held, and that the Commission may not be required to abandon a procedure which facilitates effective interim action. Similar difficulties attend the less sweeping argument that the Commission may permit a curtailment plan to take effect only after some minimal preliminary determination that the plan is consistent with Order No. 431. The Supreme Court has held that the Commission may employ the procedures of § 4 in the exercise of its curtailment power. Section 4 does require the Commission to give reasons in writing when it suspends the operation of a proposed change in service. Absent suspension, however, there is no requirement that the Commission make a preliminary determination of the validity of the proposed change. In short, unless the Commission acts to suspend the proposed change, the change will take effect. The Commission may enter upon a hearing to determine the lawfulness of the change but the change will become effective unless suspended. We are not persuaded that a different procedure, one required neither by statute nor by case law, is required here, solely because the notice of change is filed in response to an administrative order (Order No. 431). The argument of petitioners that a curtailment plan may not take effect without a preliminary determination by the Commission that a curtailment of firm or non-interruptible service is necessary is further weakened by the facts of this particular case. Here the Commission has made a determination of sorts. Petitioners sought to have the curtailment plan suspended for the full statutory period. Relying upon Southern’s statement that a curtailment of firm service would be required during the 1971-1972 heating season, the Commission, informed by what the petitioners concede to be the “enormous amount of data” in its possession regarding the supplies of natural gas available to pipeline companies, determined that only a one-day suspension period was warranted in this case. This determination was made without benefit of a hearing and there was no decision as to whether elements of the curtailment plan were “unjust, unreasonable, unduly discriminatory or preferential,' or otherwise unlawful”. This determination, presumably based on facts already within the knowledge of the Commission, was effective, pending a plenary hearing. The National Environmental Protection Act Considerations that justify the Commission’s power to follow expeditious procedures in the exercise of its curtailment power obtain with equal force where, as here, aggrieved persons contest the validity of an interim curtailment order on the ground that the Commission must undertake a detailed evaluation of the environmental impact of curtailment prior to the issuance of the order. A detailed evaluation of the environmental impact of a curtailment order would entail precisely the sort of delay which the Supreme Court noted and disapproved in the course of a decision which held that the Natural Gas Act authorizes the Commission to follow summary procedures in exercising its curtailment power. Louisiana Power & Light Co. v. Federal Power Commission, supra. Cf. Port of New York v. United States, 2 Cir., 1971, 451 F.2d 783. Such considerations of policy, together with the familiar principle of statutory construction which requires the reconciliation of diverse statutory provisions where reconciliation is possible, would in themselves be ample support for a holding that the NEPA does not mandate a detailed environmental investigation at the interim stage. The mandate of the NEPA on federal agencies is that they comply with the procedural duties. imposed by the Act to the fullest extent possible. See Calvert Cliff’s Coord. Com. v. United States Atomic Energy Com’n, D.C. Cir., 1971, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-1115. As there noted, the legislative history of the NEPA interprets “to the fullest extent possible” to mean compliance unless compliance would give rise to a violation of statutory obligations. As Louisiana, Power & Light Co., supra, makes clear, the Federal Power Commission has a statutory duty to the public under the Natural Gas Act to take effective interim curtailment action in the exigencies presented by gas shortages. We cannot say that the NEPA suspends this duty of the Commission. In sum, we affirm the order of the Commission which is here in question. No. 72-1539 Claiming to be aggrieved by the interim curtailment plan which we have reviewed in Nos. 72-1415 and 72-1475, Atlanta Gas, et ah, initiated a civil action in the district court. They asserted that the order was illegal and advanced arguments substantially the same as those later advanced in the petitions for review. By way of relief they prayed (1) for a declaration that the interim order had no effect upon Southern’s contractual obligations, (2) for an injunction against Southern to restrain implementation of the curtailment plan, (3) for specific performance of the contract between Southern and Atlanta Gas; and (4) as to Atlanta Gas only, for damages for breach of contract. Finding that the Federal Power Commission and, on review, the court of appeals were the proper forums for the adjudication of these claims, the district court dismissed the complaint, relying upon the doctrine of primary jurisdiction and the special statutory review provisions of § 19 of the Act. 15 U.S.C.A. § 717r. We agree with the district court except as to the claim of Atlanta Gas for damages allegedly arising out.of breach of contract. We have already decided, in our consideration of the petitions for review, that the interim curtailment order was valid. This is sufficient answer to any contention that the district court should have reviewed the action of the Federal Power Commission under the doctrine of reviewing administrative conduct alleged to be in excess of delegated powers or contrary to specific statutory provisions. Cf. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). At the same time, quite apart from questions concerning the legality of the interim order, the dismissal of the complaint by the district court raises question concerning the impact of a Federal Power Commission interim order, otherwise legal, upon claims grounded in private contract — claims which are alleged to be within the diversity jurisdiction of the district court. We turn then to these questions. As to the prayers for specific performance and injunctive relief, the dismissal of the complaint was proper. An order as sought from the district court would have required Southern to deliver gas according to a schedule that was inconsistent with the curtailment plan placed into effect by the Commission. It would have constituted an unwarranted interference with lawful regulatory authority. Cf. Michigan Consolidated Gas Co. v. Panhandle Eastern Pipe Line Co., 6 Cir., 1949, 173 F.2d 784. The district court could not enjoin the Commission under the circumstances and it could not have achieved the same result by enjoing Southern and requiring it to perform the contract. Thus, as regards the prayer for injunctive and specific performance relief, the complaint, though within the diversity jurisdiction of the district court, did not state a claim upon which relief could be granted. This leaves for consideration the question of damages for breach of contract presented in the context of diversity jurisdiction. Without the involvement of the Commission we would have nothing more than a simple suit for breach of contract under notice pleading concepts. No answer to the complaint has been filed. We have not seen the contract. On the one hand, it is urged that the complaint does not state a claim upon which relief can be granted because of the primary jurisdiction of the Commission and because of the failure to exhaust administrative remedies. If on the other hand, a claim is stated for breach of contract, we are told of the anticipated defense of impossibility of performance due to the supervening Commission order. And, of course, this defense may also ultimately involve whether an interim order, as distinguished from a final order, may constitute such a defense. We are of the view that the district court was premature in dismissing the claim of Atlanta Gas for damages arising out of the alleged breach of contract. We perceive the position of the district court to be that the court was without jurisdiction over the entire matter, including the breach of contract claim, because of the scheme of statutory regulation which vests regulatory power in the Commission. This seems to be somewhat broader than the doctrine of primary jurisdiction or the failure to exhaust administrative remedies. We think that the course to be followed by the district court is dictated by Carter v. American Telephone & Telegraph Co., 5 Cir., 1966, 365 F.2d 486. That case was a private antitrust action for treble damages and injunctive relief. The complaint anticipated a defense implicating the validity of a tariff which purported to restrict the use of the contested device. We held that the question of the validity of the tariff was within the primary jurisdiction of the Federal Communications Commission and that the proper procedure for the district court to follow was to remand the case to the Federal Communications Commission for a determination of that issue, while retaining jurisdiction of the ease. Here, although the interim order was asserted as a basis for dismissal, it is clear that the question of validity vel non of the curtailment is still to be decided by the Commission. Given these facts, we hold that the better procedure is for the district court to retain jurisdiction over the claim for damages pending final decision by the Commission on the validity of the proffered curtailment plan. To this end, we vacate the order of the district court on the breach of contract claim. We neither forecast nor foreclose the issues, if any, which may be presented in the district court, once the validity of the curtailment plan has been finally determined. In Nos. 72-1415 and 72-1475, the order of the Commission is affirmed. In No. 72-1589, the order of the district court is affirmed in part, and vacated and remanded in part for further proceedings consistent herewith. . 15 U.S.C.A. § 717c: (c) Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from June 21, 193S) and in such form as the Commission may designate, and shall keep open in convenient . form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services. (d) Tinless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changos to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they .shall ho filed and published. (e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, State commission or gas distributing company, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer pei’iod than five months beyond the time when it would otherwise go into effect, and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it liad become effective. If the proceeding lias not been concluded and an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the natural-gas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible. . “Order Promulgating Statement of General Policy” in Docket No. R-418 (Order No. 431). The order provided in pertinent part: In 1970, the staff, having been directed, surveyed jurisdictional pipelines to determine whether adequate gas was available to the pipelines in order to fill storage fields in anticipation of the 1970-71 heating season and in anticipation of emergencies which would arise during the heating season if adequate gas supplies were not available to the consumer. It appearing to the Commission that supplies were not available, the Commission, acting pursuant to its emergency powers, promulgated Order 402 (35 F.R. 7511) and 402A (35 F.R. 8927) which authorized distribution companies to make resales of gas to other distribution companies and to jurisdictional pipelines in order to assure that the storage fields would be filled by winter and authorized the emergency purchases of gas from otherwise non jurisdictional companies. This action was taken on May 6, 1970 and .Tune 3, 1970. By notice of proposed rule-making issued October 6, 1970 and adopted December 10, 1970 the Commission amended Section 157.29 of its Regulations (Order No. 418, 35 F.R. 19173) to permit emergency purchases of gas by natural gas pipelines directly from gas producers. Notwithstanding these emergency measures, a number of natural gas pipelines indicated their inability to deliver sufficient gas to meet their firm demands. Because of the implementation of emergency purchases coupled with a winter of normal temperatures serious disruptions of service wore not widespread. * * * * * § 2.70 Measures for the Protection of Reliable and Adequate Natural Gas Service. This Commission, charged with the responsibility for natural gas reliability, hereby promulgates as a statement of general policy that jurisdictional pipeline companies shall take all steps necessary for the protection of as reliable and adequate service as present supplies and capacities will permit during the 71-72 heating season and thereafter, including adequate injection into storage in anticipation of the heating season. In order to effectuate the foregoing: (1) During the storage injection season all natural gas pipelines subject to the jurisdiction of the Commission, should make every reasonable effort to fill all storage fields supplied by such pipelines to a capacity sufficient to meet the anticipated heating season demands. (2) All jurisdictional pipelines will within 30 days hereof, submit a written report (four copies) to the Secretary of the Commission indicating how the instant statement of policy will be implemented. Pipelines responding that curtailment will be necessary will file a tariff sheet, pursuant to Sections 4 and 5 of the Natural Gas Act and the Commission’s Regulations thereunder, setting forth a curtailment plan to effectuate the instant policy or state that the curtailment program if any, currently on file will effectuate this policy. The curtailment plan proposed may be divided between the injection season and the heating season, since different objectives may require different treatment. Consideration should bo given to the curtailment of volumes equivalent to all interruptible sales and to the curtailment of large boiler fuel sales where alternate fuels are available. (3) The Commission recognizing that additional short-term gas purchases may still be necessary to meet the 1971-1972 demands, will continue the emergency measures referred to earlier for the stated 60-day period. If the emergency purchases are to extend beyond the 60-day period paragraph 12 in the Notice issued by the Commission on July 17, 1970, in Docket No. R-389A should be utilized (35 F.R. 11638). The Commission will consider limited term certificates with pre-granted abandonment, if the pipeline demonstrates emergency need, after complying with paragraphs 1 and 2, above. (4) Where emergency gas purchases are made and/or a curtailment program is instituted to implement the above policy the pipeline should place, or already have in effect, volumetric limitations on sales at current levels. (5) Notice should be taken that the Commission will re-examine existing commodity rate levels and, to the extent necessary, may redesign existing commodity-demand rate relationships in present and future pipeline rate cases. (6) Pipelines who can do so are encouraged to propose exchange arrangements with other pipelines. (7) Jurisdictional pipelines have the responsibility in the first instance to adopt a curtailment program by filing appropriate tariffs. Such tariffs, if approved by the Commission, will control in all respects notwithstanding inconsistent provisions in sales contracts, jurisdictional and non-jurisdictional, entered into prior to the date of the approval of the tariff. Nothing stated herein should be construed as placing a limitation on measures to be taken by jurisdictional pipelines to effectuate the instant policy. (B) The statement of general policy adopted herein shall be effective upon issuance of this order. . The Commission characterized the changes effected in the revised tariff sheets as follows: “The filing in Southern’s response to our Order No. 431 and the changes contained in those tariff sheets represent Southern’s proposed curtailment plan. The plan is divided into two parts, one for the storage injection period (April 1 through October 31) and the other applicable for the heating season (November 1 through March 31). Generally the storage injection plan involves these steps : (1) curtailment of deliveries of gas in excess of Contract Demand of a resale customer at each delivery point, or in excess of the firm requirements of direct consumers, where the gas is used or sold as fuel for electric generation in a plant where generation of electricity for sale represents the primary function of such plant; (2) curtailment of deliveries of gas in excess of the Contract Demand of a resale customer at each delivery point, or in excess of the firm requirements of direct consumers, where the gas is used or sold for interruptible use; (3) curtailment of remaining electric generation fuel requirements; (4) curtailment of remaining interruptible use requirements; (5) curtailment of firm industrial re- . quirements; and (6) curtailment of remaining requirements. The heating season curtailment plan is similar to the storage injection curtailmént plan except that (1) following the initial curtailment of gas used as fuel for electric generation on an individual delivery point basis, the remaining curtailment steps are on a group basis; and (2) systemwide conjunctive billing is permitted a multiple delivery point customer during the heating season when such customer is limited to a below Contract Demand or Maximum Delivery Obligation and the forecast mean temperature at Birmingham Alabama is 35° Fahrenheit or lower.” Order Suspending Proposed Tariff Sheets, December 23, 1972. . Georgia Power Company, Georgia Public Service Commission, and Savannah Electric and Power Company. . The suspension order provided in pertinent part: “On November 24, 1971, Southern Natural Gas Company (Southern) tendered for filing under Section 4 of the Natural Gas Act revised tariff sheets to its ETC Gas Tariff, Sixth Revised Yolume No. 1 and requested that those sheets become effective December 25, 1971, or, if suspended, that the period of suspension be limited to one day. * sj: s¡; s|: * “Protests have been filed to Southern's proposed curtailment plan and requests have been made that we suspend the plan for tlie full statutory period. We find that Southern’s proposed plan has not been shown to be lawful and may be unjust, unreasonable, unduly discriminatory, or preferential, or otherwise unlawful under the Natural Gas Act. Consequently, we will suspend the tendered tariff sheets. Southern has stated that curtailments of firm service may be required during this heating season and its present tariff does not contain a curtailment procedure. Consequently, we believe that a one-day suspension period, as requested by Southern, is warranted in this case. . . . ” . We do not reach the question whether a tariff revision of the type here involved is a “major federal action significantly affecting the quality of the human environment” within the jurisdictional meaning of the NEPA. § 102(C). Title 42, § 4332(C). Cf. Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 211. . Tho other plaintiffs, Georgia Power Company, Savannah Electric and Power Company and the Georgia Public Service Commission, did not claim a breach of contract and thus do not claim damages. . No question is presented in this ease of a ruling by the Commission that Commission approval of a curtailment plan prevents a recovery for breach of contract, either because of the preference avoidance power of the Commission, 15 U.S.C.A. § 717c (§ 4 of the Natural Gas Act), or otherwise. Cf. Louisiana Power & Light Co. v. Federal Power Commission, 5 Cir., 1973, 476 F.2d 132, this day rendered.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. James CASTEEL, Defendant-Appellant. No. 72-1644. United States Court of Appeals, Tenth Circuit. Argued and Submitted Jan. 10, 1973. Decided March 29, 1973. Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Bruce E. Miller, and Richard L. Meyer, Asst. U. S. Attys., on the brief), for plaintiff-appellee. Sam A. Crow, of Crow & Skogg, Topeka, Kan., for defendant-appellant. Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges. McWilliams, circuit judge. James Casteel was convicted by a jury of transporting in interstate commerce two forged checks in violation of 18 U. S.C. § 2314. He now appeals and we affirm. It was stipulated at trial that Casteel caused to be transported in interstate commerce from Topeka, Kansas, to Kansas City, Missouri, the two checks in question, cashing one check at Falley’s Market, in Topeka, and the second at Sutton’s Market, also in Topeka. It was further stipulated that each of the checks had been forged by one Thomas Dorsey. Accordingly, the only real issue in the case was whether Casteel knew at the time he cashed the checks that they were forged or falsely made instruments. Evidence adduced upon trial disclosed that one Dee Osborn had her purse stolen while working at a Montgomery Ward store in Topeka. In Miss Osborn’s purse was her checkbook containing blank checks on a Kansas City, Missouri, bank. The two checks which formed the basis for the present pi’osecution were identified by Dee Osborn as being hers, each bearing her printed name on its face. Each check also bore a maker’s signature which purported to be that of Miss Osborn. Miss Osborn denied, however, that such purported signatures were in fact hers, and testified that she had given no one permission to sign her name for her. As above indicated, it was stipulated that one Thomas Dorsey had made out the face of each of the two checks, forging in each instance the signature of Dee Osborn as the maker of the cheek. James Casteel was the named payee on each check, and he in turn endorsed each check as the payee in cashing them at the two markets in Topeka. As mentioned, the only real issue in the ease was whether Casteel had so-called guilty knowledge when he cashed the two checks, i. e., knowledge of the falsity of the checks. To establish this element of the offense, the Government relied chiefly on the testimony of two lady employees of a local Topeka concern known as Research & Data Corporation, hereinafter referred to as R & D. The nature of that company’s business was described by one witness as follows: “Our Research & Data works with merchants, and business and law enforcement on bad checks, shoplifting and other similar types of losses. Primary purpose is the prevention of these crimes. The businesses do send in their losses such as cheeks to us to work on. We are employed by the business on a monthly employment basis like an employee * * The two employees of R & D testified that the two checks in question were referred to them by the two markets which had initially cashed them, the cheeks having been returned to the markets after payment had been stopped. One employee testified that she telephoned Casteel and asked him to drop into her office and discuss the two checks in question. Several weeks later Casteel did appear at the offices of R & D where he was interviewed concerning his knowledge of the two transactions. Both of these employees testified that on that occasion Casteel stated that it .was he who had endorsed the two checks and that he knew the “checks were bad when he cashed them.” According to these two witnesses, Casteel was advised that what he had said could be used against him in court, and that he replied that he knew it. Casteel then left the offices of R & D and was not arrested till sometime later. Casteel testified at his trial that he did not know the checks were forged when he cashed them, though he did know they were forged when he was interviewed by the employees of R & D. Casteel then went on to testify that the checks in question were given him by his friend, Thomas Dorsey, in exchange for some auto parts. Casteel explained the fact that the maker’s signature on each of the two checks was purportedly that of Dee Osborn, and not that of Thomas Dorsey, by testifying that he just assumed that Miss Osborn was a friend of Dorsey and was buying the parts for him. Casteel’s testimony was corroborated to some degree by his sister and his mother. Neither the Government nor Casteel called Thomas Dorsey as a witness, a fact that will be referred to in more detail in a moment. At trial, objection was made to the admission into evidence of the statements made by Casteel to the employees of R & D on the ground that Casteel was not given a full and effective warning of his constitutional rights at the outset of the interrogation process as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). In fact, says counsel, Casteel was given no warning, let alone a full and effective one. This objection was overruled by the trial court and the principal contention in this court concerns the propriety of that ruling. At the outset it is to be noted that R & D is a private enterprise, and not a public law enforcement agency. According to the record, R & D received the two checks here in question from the two markets which had cashed the checks, each market being a subscriber to the services afforded by R & D. The latter then made its investigation of the matter, which included an interview with Casteel, with the checks in question being ultimately forwarded to the FBI The two employees of R & D had no special powers of arrest and their testimony was that they could only ask Casteel to come to their offices, which he did after a delay of several weeks, and that at the conclusion of the interview Casteel was free to leave, which he did. There is nothing in the record before us to indicate that R & D in its investigation of the matter was acting as an alter ego of any law enforcement agency, or was in anywise in collusion with any such agency. Nor is there any contention that the statements themselves were involuntarily given by Casteel. Rather, it is the position of counsel that Casteel’s statement to the two employees of R & D should have been excluded solely because of the failure to give a Miranda warning. On this state of the record we hold that there was no requirement that a Miranda warning be given Casteel by the employees of R & D, and that accordingly the trial court did not err in admitting into evidence the admissions thus attributed to Casteel. As we read Miranda v. Arizona, supra, the necessity of fully and effectively informing one of his constitutional right to remain silent, or obtain the presence of counsel, arises when a custodial interrogation by law enforcement officers is about to commence. The Constitution does not protect an alleged criminal against his own failure to remain mute in every environment and under all circumstances. Stowers v. United States, 351 F.2d 301 (9th Cir. 1965). Since the instant case does not involve a custodial interrogation by law enforcement officers, we deem Miranda to be inapplicable. To hold that Miranda does have applicability would require an extension of that rule, and we are disinclined to thus extend. See United States v. Cowley, 452 F.2d 243 (10th Cir. 1971), where we held that a Miranda warning was not needed where the statements in question, though given to the police, were made before the defendant was taken into custody or otherwise deprived of his freedom of action in any significant way. Two cases from other Circuits are directly in point. In United States v. Bolden, 461 F.2d 998 (8th Cir. 1972), it was held that a statement given a store security officer was not inadmissible evidence because of the failure to give a Miranda warning in view of the fact that the defendant when he made the statement was not under “custodial interrogation” because: (1) defendant's freedom of action had not been restrained in any significant way; (2) his statements were in fact voluntarily given; and (3) the statements were not given to a “law enforcement official.” In United States v. Antonelli, 434 F.2d 335 (2d Cir. 1970), it was held that the Fifth Amendment privilege against self-incrimination does not require the giving of a Miranda warning by private citizens or security personnel employed thereby who take a suspect into custody. We subscribe to the result and reasoning in each of those eases. See also in this regard: Note, Criminal Law Admissibility of Confessions or Admissions of Accused Obtained During Custodial Interrogation by Non-Police Personnel: Are the Miranda Warnings Required?, 40 Miss.L. J. 139 (1968); and Note, Confessions Obtained Through Interrogations Conducted by Private Persons, Investigators, and Security Agents, 4 Willamette L.J. 262 (1966). Our holding is in line with our reasoning in the recent case of United States v. Harding, 10th Cir., 475 F.2d 480, 1973. There, we held that the Fourth Amendment prohibition against “unreasonable searches” did not apply to searches by “private citizens not acting in collusion with federal officers.” In the instant case, there is the suggestion that the two employees of R & D to whom Casteel volunteered his incriminating statements were “acting in consort with the FBI.” It is sufficient to say that the record simply does not support such conclusion. The fact that the checks in question were eventually forwarded to the FBI, or that the two employees did from time to time in the course of their duties converse with various law enforcement officers is insufficient to support the suggestion that in calling Casteel into their office and making inquiry about the checks, the two employees of R & D, in the language of Antonelli, had some sort of a “de facto connection with any public law enforcement agency.” Counsel also argues that the judgment should be reversed because of improper closing argument by the Government’s attorney. In his closing argument, counsel for Casteel chided the Government for failing to call as its witness Thomas Dorsey, the stipulated forger of the two checks. In response thereto the Government attorney noted that Dorsey was Casteel’s friend and wondered if Dorsey was such a good friend of Casteel’s, why he (Dorsey) “isn’t here testifying for him.” In this regard counsel argues that by such comment the Government’s attorney improperly placed on Casteel the overall burden of proof, or at least the burden to produce Dorsey. This particular matter is without merit. The comment was «• not improper. Counsel does have the right to reply to an argument raised by his opposing advocate. United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir. 1968). In United States v. Panepinto, 430 F. 2d 613 (3d Cir. 1970), cert. denied sub nom. Orangio v. United States, 400 U. S. 949, 91 S.Ct. 258, 27 L.Ed.2d 256 (1970), defense counsel, as in the instant case, in closing argument took the prosecutor to task for failure to call a certain witness who conceivably could have refuted the defendant’s testimony. In that case, it was held that the prosecutor was justified in thereafter pointing out that the defendant also had the power to subpoena the witness in question to corroborate his story, had he been so inclined. The comment by the Government attorney in the instant ease was equally justified. Judgment affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Michael APOLLO, Defendant-Appellant. No. 72-2005. United States Court of Appeals, Fifth Circuit. April 3, 1973. Rehearing Denied May 18, 1973. Robert J. Lerner, William M. Coffey, Milwaukee, Wis., for defendant-appellant. William S. Sessions, U. S. Atty., Wayne P. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee. Before ALDRICH, SIMPSON and CLARK, Circuit Judges. Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation. CLARK, Circuit Judge: Michael Apollo was convicted after a jury trial on two counts related to smuggling untaxed marijuana into the United States from the Republic of Mexico. The first count alleged that Apollo engaged in a conspiracy with thirteen other defendants to import marijuana in violation of 21 U.S.C. § 963. The second-count charged Apollo and three others with the substantive offense of importing approximately 700 pounds of marijuana in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(a)(1). He appeals. We reverse. 1. SUFFICIENCY OF THE EVIDENCE Apollo contends that the evidence presented at trial was insufficient to support his conviction and therefore that his motion for a directed acquittal was improperly denied. We recite the proof in the light most favorable to the jury’s verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). A. The Company Direct evidence consisting of the testimony of guilty-pleading co-defendants and an unindicted co-conspirator established the existence of an extensive marijuana smuggling operation known to the participants as The Company. The central parties of this conspiracy were Dr. Willis B. Hollingsworth and members of the Estes family. To assist in the importation and distribution of marijuana, The Company enlisted the assistance of additional parties including David Willingham, a licensed aircraft pilot, and Philip Homburg who served as sales agent for The Company in Indianapolis, Indiana. Between May and September 1971, The Company’s aircraft made at least seven trips to northern Mexico and returned to the United States with substantial quantities of marijuana. The next-to-the-last of these trips occurred on September 10 when Willingham delivered 1,100 pounds of Mexican marijuana to Homburg in Indianapolis. The following day, after a stop-over in Milwaukee, Wisconsin, to pick up William Estes and 5,000 dollars, Willingham flew back to Sabinas Hidalgo, Mexico, where the 5,000 dollars was used by Dr. Hollingsworth to purchase another shipment of 700 pounds. A few hours later Hollingsworth and Willingham were arrested by customs officers at the San Antonio, Texas airport. Two days later, Homburg was arrested while transporting the prior 1100-pound delivery of marijuana from Indianapolis to Milwaukee. B. The Milwaukee Connection Thi'ough Philip Homburg, The Company had made connection with Charles Cocroft, a wholesale dealer in marijuana in Milwaukee. In August 1971, Homburg made several deliveries of Company marijuana to Cocroft. By the end of the month Cocroft informed The Company that he had a potential purchaser for much larger quantities of the weed — up to 1,000 pounds per week — if the price could be reduced to 100 dollars per pound. On September 11 William Estes went to Milwaukee to authorize this reduced price contract for The Company. During these negotiations with Estes, Cocroft left the meeting with approximately 100 pounds of marijuana, then returned with the 5,000 dollars, and announced that the deal with the large-scale retail dealer had been consummated. Cash in hand, Estes and Willing-ham left immediately on the first leg of the ill-fated round trip to Sabinas Hidalgo. C. Apollo and The Company Michael Apollo’s alleged role in the conspiracy was as the retail distributor to whom Cocroft sold and agreed to sell Company marijuana. At the date of Apollo’s trial Cocroft, who had been arrested and released on bond, was a fugitive from justice. Since none of the other alleged conspirators ever dealt directly with Apollo, proof of his conspiracy participation rests on testimony of witnesses who described what they saw and heard of the negotiations between Cocroft and Apollo, or who simply repeated what Cocroft told them. The Government’s evidence against Apollo consisted of (1) testimony of Philip Homburg concerning three meetings between Cocroft and Apollo; (2) testimony of Dean Johnson about transfers of marijuana and accompanying conversations between Cocroft and Apollo; (3) testimony of co-defendants Homburg and William Estes regarding statements made to them by alleged co-conspirator Cocroft that Michael Apollo was the retail distributor with whom Coeroft had worked out an agreement to sell Company marijuana; (4) testimony of Carol Hoagland, a girl Apollo dated, that in November 1971 Apollo told her he- was then dealing in marijuana; and (5) two bricks of marijuana which were found in Apollo’s car when it was seized in March 1972. D. Twice-Told Tales In Montford v. United States, 200 F.2d 759, 760 (5th Cir. 1952), this court laid down the rules governing the sufficiency of evidence in cases where, as here, testimony is introduced to prove the defendant’s connection with a conspiracy by hearsay statements and declarations of persons named as his co-conspirators but not otherwise proven to be such: The declarations of one conspirator made in furtherance of the objects of the conspiracy, and during its existence, are admissible against all members of the conspiracy. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But a defendant’s connection with a conspiracy can not be established by the extrajudicial declarations of a co-conspirator, made out of the presence of the defendant. There must be proof aliunde of the existence of the conspiracy, and of the defendant’s connection with it, before such statements become admissible as against a defendant not present when they were made. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, 701 . . . . In testing the sufficiency of the evidence to support Apollo’s conviction, we must therefore disregard the extensive testimony which recited Cocroft’s statements to his fellow conspirators implicating Apollo as the retail outlet for The Company’s marijuana. See Panci v. United States, 256 F.2d 308 (5th Cir. 1958). E. Evidence of Subsequent Offenses The proof that tended to link Apollo with dealing in marijuana two to six months after the alleged conspiracy and importing offenses for which he was on trial was improperly admitted. At the outset it must be borne in mind the evidence did not show convictions although they strongly tended to indicate conduct which would violate the laws of Wisconsin. Next, we consider that it was the Government’s assertion that the probity of this proof lay in its tendency to show a pattern or scheme of conduct. The problem for this theory is that Apollo was not on trial for being a marijuana pusher but for illicitly introducing the weed into the United States. The proper test for balancing the substantial relevance and materiality such subsequent misconduct evidence must possess against the less-than-subtle prejudice it carries is well defined in prior precedent and need not be reiterated. See United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972) and the cases there cited. See also the proposed Rules of Evidence for United States Courts and Magistrates § 404(b) and 2 J. Wigmore on Evidence § 304. Apollo’s November admission to Miss Hoagland that he was then dealing in marijuana and the discovery of two bricks of the substance in a search of his car in March obviously constituted two strikes against him with the jury. Just as with prior conviction evidence, such proof of subsequent suspicious activity must be limited to that which substantially relates to an element of the present offense to be admissible. This proof won’t pass muster and it should not have been allowed. F. The Good Stuff Stripped of the toxic hearsay and prejudicial “bad man” evidence, the Government’s proof is reduced to establishing four meetings between Cocroft and Apollo. The first occurred in mid-August 1971, immediately after Philip Homburg had delivered a load of Company marijuana to Coeroft’s Milwaukee apartment. Both Homburg and Johnson testified that they saw Apollo enter Co-croft’s bedroom which served as a warehouse for Company marijuana; however, neither witness overheard any conversation which may have occurred therein. Johnson testified that upon leaving the bedroom Apollo was carrying a closed, plastic sack containing what Johnson believed to be compressed bricks of marijuana. At that moment and in Johnson’s presence, the following exchange occurred: COCROFT: “Can you handle it ?” APOLLO: “Oh yes, I can handle it. I’m going to run it up to Madison.” COCROFT: “I need the money as soon as possible because I want to recop [i. e. repurchase] so that we can get orders and things going.” APOLLO: “Well, I’ll get the money as soon as possible. Is it good stuff?” COCROFT: “It is Mexican. I only have the best.” Homburg testified that he was in Co-croft’s apartment during two additional meetings between Cocroft and Apollo in late August or early September. However, on neither occasion did Homburg overhear private conversations between the two men nor did he observe a transfer of marijuana or any other incriminating activity. Johnson testified that he was present at a fourth meeting between Co-croft and Apollo on September 11, the day of William Estes’ visit to Milwaukee. At this time Johnson observed the transfer of suitcases by Cocroft and Apollo from Cocroft’s automobile to Apollo’s car. During the transfer, Johnson overheard the following conversation : COCROFT: “It looks like we’re just moving.” APOLLO: “I’ve got to leave right now to run up to Madison.” COCROFT: “Good. I’ve got some stuff coming right away and they want cash for it.” Apollo makes no contention that Johnson’s recitation of these conversations between Cocroft and Apollo were inadmissible hearsay. These conversations are clearly admissible as res gestae or as admissions and adopted admissions of the defendant. McCormick, Law of Evidence § 239, § 246, § 274. G. The Test Applied Apollo contends that above recited evidence does not prove that he had entered into an illicit agreement with the members of the smuggling conspiracy and, in fact, proves nothing more than that Apollo was a purchaser of Company marijuana. Apollo relies upon the opinion of the Seventh Circuit in United States v. Ford, 324 F.2d 950, 952 (1963): “The relationship of buyer and seller absent any prior or contemporaneous understanding beyond a mere sales agreement does not prove a conspiracy In such circumstance, the buyer’s purpose is to buy; the seller’s purpose is to sell. There is no joint objective.” This court has recently cited Ford for the proposition that: “Absent an agreement to advance a joint interest, any purchases and sales would normally not constitute conspiratorial activity.” United States v. Cook, 461 F.2d 906, 910 (1972). See also United States v. Koch, 113 F.2d 982 (2d Cir. 1940) (single purchase of narcotics insufficient to prove conspiracy); United States v. Varelli, 407 F.2d 735, 748 (7th Cir. 1969) (isolated purchases of merchandise stolen from Interstate Commerce insufficient to prove conspiracy). The Government, in response, cites a line of cases following the Second Circuit’s opinion in United States v. Bruno, where that court indicated that proof of purchases and sales of narcotic drugs, without other evidence of agreement, was a sufficient basis upon which a jury could infer a conspiratorial connection among the participants. The reasoning was epitomized thus: 105 F.2d 921, 922, rev’d on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). See also United States v. Tramaglino, 197 F.2d 928, 931 (2d Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952); United States v. Reina, 242 F.2d 302, 306-307 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957); Valentine v. United States, 293 F.2d 708 (8th Cir. 1961), cert. denied, 369 U.S. 830, 82 S.Ct. 848, 7 L.Ed.2d 795 (1962); but see United States v. Aviles, 274 F.2d 179, 189-190 (2d Cir.), cert. denied as to various parties, 362 U.S. 974-982, 80 S. Ct. 1057-1073, 4 L.Ed.2d 1009-1016 (1960). The evidence did not disclose any cooperation or communication between the smugglers and either group of retailers, or between the two groups of retailers themselves; however, the smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole. We find it unnecessary in this case to define precisely how limited purchases, in number or size, may be in such “mere purchases” cases and still permit the intent to participate in an unlawful conspiracy to be inferred by a jury. Compare United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L. Ed. 128 (1940) with Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). In the present case, there was direct proof of a continuing relationship between Apollo and Cocroft, a known conspirator, which resulted on at least two occasions in the witting transfer of Company marijuana to Apollo. Furthermore, the conversations between Apollo and Cocroft in the presence of third parties demonstrate that Apollo was aware of Cocroft’s involvement with one or more other parties in a large-scale operation to illicitly import and distribute marijuana. Whether Apollo was intended to be within Cocroft’s “we” when Cocroft stated he needed the proceeds from Apollo’s resales so - “we can get orders and get things going” or when he told Apollo, “It looks like we’re just moving,” these statements indicated that Apollo was fully aware that he was the product outlet and the source of cash inflow that enabled the unlawful plan to operate. We find this evidence, although cloudy as to the exact terms of agreement between Cocroft and Apollo, sufficient to support a reasonable inference that Apollo had entered an illicit joint venture with Cocroft and his co-conspirators. In terms of this Circuit’s test for the sufficiency of circumstantial evidence in criminal cases, “reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.” United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); United States v. Gaviria, 471 F. 2d 1181, 1183 (5th Cir. 1973). It cannot be gainsaid that the viable evidence in this case was skimpy. This is frequently true in conspiracy situations, nevertheless the evidence, when viewed most favorably to the correctness of the jury’s conclusion, was sufficient to support a guilty verdict in regard to Apollo’s participation in the conspiracy. Since it was and since a party to a conspiracy is liable as a principal for all offenses committed in furtherance of the conspiracy while he is a member, Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Roberts v. United States, 416 F.2d 1216, 1223 (5th Cir. 1969); Gradsky v. United States, 376 F.2d 993, 996 (5th Cir.), cert. denied, Grene v. United States, 389 U.S. 908, 88 S.Ct. 224, 19 L.Ed.2d 224 (1967), the jury was entitled to hold Apollo responsible for the substantive offense charged in Count Two. II. CONSPIRATORIAL HEARSAY Despite the fact that we find the trial record evinces marginally sufficient non-hearsay evidence to support Apollo’s convictions, it is clear that the guilty verdicts cannot be permitted to stand. Virtually from the starting gun, the court allowed the Government erroneous hearsay shortcuts that mandate reversal. In Lutwak v. United States, the Supreme Court taught this rule: In the trial of a criminal case for conspiracy, it is inevitable that there shall be, as there was in this case, evidence as to declarations that is admissible as against all of the alleged conspirators; there are also other declarations admissible only as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration. These declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them. Even then, the application of the rule places a heavy burden upon the jurors to keep in mind the admission of certain declarations and to whom they have been restricted and in some instances for what specific purpose, [emphasis added] 344 U.S. 604, 618-619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Cf. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Lutwak established a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant’s participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S. Ct. 639, 21 L.Ed.2d 572 (1969). The order of admission of proof in a conspiracy ease is, of course, a matter within the discretion of the trial court; See, e. g., United States v. Rhoden, 453 F.2d 598, 600 (5th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972); United States v. Knight, 416 F.2d 1181, 1185-1186 (9th Cir. 1969); Downing v. United States, 348 F.2d 594, 600 (5th Cir.), cert. denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965). Testimony concerning the declarations of co-conspirators may be admitted before the existence of the conspiracy is established by independent evidence. But the unmistakable hazard of allowing this procedure highlights the need for the court to condition the minds of the jurors so that they will not fail to remember that none of this hearsay will bootstrap the necessary establishment of the conspiracy itself by firsthand proof. From beginning to end, the record in the present case is replete with the instances in which government witnesses recited extrajudicial statements from Cocroft and other alleged co-conspirators linking Michael Apollo to the smuggling conspiracy. Upon the first instance of such testimony, the defendant promptly objected to its introduction without a cautionary instruction. Not only did the court overrule this objection, but further stated in the presence of the jury that “connection with conspiracy must of necessity be established by some hearsay in this kind of case.” Thereafter, without further comment and over consistent defense objections, the court permitted a veritable flood of similar hearsay testimony. The Government calls our attention to the charge given by the court at the conclusion of the trial. While it does contain an accurate statement of the role of hearsay evidence in conspiracy cases, it came too late. This delicately dangerous defusing must be firmly in the jury’s minds when the hearsay is proffered. An instruction at the end of the trial cannot correct the erroneous refusal to give the proper cautionary instruction when it was first requested. We expressly pretermit ruling on the remaining errors asserted. Reversed. . Since there was no motion in the alternative for a new trial based on the insufficiency of the evidence, reversal on this ground would require that the indictment be dismissed. United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971); 2 Wright, Federal Practice and Procedure § 470 (1969). . Hollingsworth and five members of the Estes family pled guilty to the conspiracy and substantive charges alleged in the indictment. . We note that, having defended the admission of the two bricks on the ground that this evidence tended to show the commission of the offense of conspiracy seven months prior to the seizure, the government inconsistently argues, in regard to the maximum consecutive sentences imposed on Apollo after the present convictions, that this marijuana was evidence of the commission of a separate offense of possession of marijuana for resale during the period when Apollo was free on pretrial bail. . In light of our decision in Part II of this opinion, we do not decide whether its introduction standing alone constituted reversible error. We simply hold that this proof added nothing to the sufficiency of the evidence to support the Government’s conspiracy case. . The Government now argues that Apollo could have been convicted as an aider and abettor under 18 U.S.C. § 2. The case was not submitted to the jury on that theory, the Government’s requested charge having been given strictly in terms of Pinkerton liability. A conviction cannot be affirmed on appeal on a theory which was not presented to the jury.

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UNITED STATES of America, Plaintiff-Appellee, v. John Spruill BEASLEY, Defendant-Appellant. No. 72-1825. United States Court of Appeals, Ninth Circuit. April 5, 1973. David M. Rothman, Beverly Hills, Cal., for defendant-appellant. William D. Keller, U. S. Atty., D. Henry Thayer, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee. Before WRIGHT and WALLACE, Circuit Judges, and EAST, District Judge. Honorable William G. East, United States District Judge, Eugene, Oregon, sitting by designation. WALLACE, Circuit Judge: Beasley was convicted of the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. His appeal alleges two errors: that certain evidence at the trial should have been suppressed since it was obtained in violation of the Fourth Amendment and that the trial' court erred in not answering a question propounded by the jury. We affirm. Beasley was driving a 1971 Lincoln with two passengers when the California Highway Patrol stopped him for speeding. Both officers noticed that, although this late-model vehicle should have had blue and gold California license plates, it had the older black’and gold ones. The driver stated he was John Beasley and produced a Xerox copy of a California vehicle registration for the vehicle. The registration .showed that Patrick Brady owned the ear. Beasley claimed that Brady was his roommate and had given him the permission to drive the Lincoln. Officer Thompson proceeded to fill out a speeding citation while Officer Cross radioed Highway Patrol headquarters. A record check there revealed that the license plates on the car belonged to a 1965 Pontiac and that the vehicle identification number on the copy of the registration was for a 1969 Pontiac belonging to Beasley. Cross then noted that the vehicle identification number on the Lincoln (which was in plain view) was different from that on the Xerox copy of the registration slip presented. By similar radio record check, he was advised the car was registered to Avis-Rent-A-Car. Armed with this information, the officers requested that Beasley accompany them from alongside the busy highway to the Highway Patrol office 11 miles away. Once at the station, Cross was told by his superior officer to search the car for the “packing slip” and any Avis identification numbers. The “packing slip” is a packet secreted in the automobile by the manufacturer which contains certain information including the vehicle identification number. During this search, he looked in the glove compartment and saw an Eneo credit card receipt. After they determined the car was stolen, it was seized and later introduced at trial. While searching under the front seat, one of the places where “packing slips” are hidden, Cross discovered a wallet. He looked inside the wallet and found that the wallet belonged to Steven Shannahan. When asked about the wallet, Beasley replied that he did not know Shannahan and that the wallet did not belong to him. The wallet was also introduced at the trial. The trial judge did not state the basis for his denial of the motion to suppress. It is possible that the true owner, Avis, gave permission to the Highway Patrol by telephone for the search, but the record is unclear on this point. And unaided by any finding of fact, we are unable to draw such an inference. The totality of the facts, including those which Cross obtained by radio while Beasley was stopped on the highway, constituted sufficient probable cause. This probable cause, together with the requisite exigencies, allowed a warrantless search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543 (1925). But, in the instant case, the officers did not search on the highway; rather they requested Beasley to follow them to the California Highway Patrol office. “The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See United States v. Barron, 472 F.2d 1215 (9th Cir., 1973) In the instant case, mobility was still a factor as neither Beasley nor his companions were under arrest at the time of the search. In fact, mobility existed to a greater degree than in Chambers where the defendants were under arrest. 399 U.S. at 52 n. 10, 90 S.Ct. 1975. Therefore, we hold that the search for the “packing slip” was reasonable under the circumstances. Chambers v. Maroney, supra; United States v. Ellison, 469 F.2d 413 (9th Cir. 1972); United States v. Ellis, 461 F.2d 962 (2d Cir. 1972). See also United States v. Zemke, 457 F.2d 110 (7th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972). There is nothing in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) to the contrary. The rule of Chambers is adhered to in the majority (id. at 478-82, 91 S.Ct. 2022) and the plurality (id. at 458-60, 91 S.Ct. 2022) segments of the opinion. See United States v. Ellison, supra; United States v. Zemke, supra. While properly searching for the “packing slip,” Cross found the wallet under the front seat.' It was reasonable and legally permissible for him to open it for the limited purpose of determining ownership. This is especially true when he found it in a car which he had reason to believe belonged to a rental agency. Limited and reasonable measures can be taken by a law enforcement official to protect property obvious to him and left in an automobile in his custody. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed. 2d 1067 (1968); United States v. Mitchell, 458 F.2d 960, 961-62 (9th Cir. 1972). After approximately two hours of deliberation, the jury sent out a note stating: “Do we the jury have to be sure beyond all doubt that Beasley knew it [the car] was stolen?” The court did not answer the question and the jury returned the verdict some three hours later. Although Beasley’s attorney was aware of these developments at some point prior to the return of the verdict, no objection was made. Beasley has failed to demonstrate the requisite plain error. Wilson v. United States, 422 F.2d 1303 (9th Cir. 1970). “The necessity, extent and character of additional instructions are matters within the sound discretion of the trial court.” 422 F.2d at 1304 (citations omitted). Affirmed. EUGENE A. WRIGHT, Circuit Judge, concurs in the result. . The reasoning of the Court in Chambers is significant: Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a ear before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. 399 U.S. at 51-52, 90 S.Ct. at 1981. . “And as to the automobile exception, we do not question the decisions of the Court in . Chambers v. Maroney . . . .” 403 U.S. at 482, 91 S.Ct. at 2047.

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UNITED STATES of America, Plaintiff-Appellee, v. John E. SWINDLER, Defendant-Appellant. No. 72-1826. United States Court of Appeals, Tenth Circuit. Argued and Submitted Feb. 22, 1973. Decided March 27, 1973. Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Bruce E. Miller, and Glen S. Kelly, Asst. U. S. Attys., on the brief), for plaintiff-appellee. Patrick J. Hurley, Braintree, Mass., for defendant-appellant. Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge. WILLIAM E. DOYLE, Circuit Judge. The appellant was convicted September 5, 1972, of the offense of conveying from place to place within the United States Penitentiary at Leavenworth, Kansas, a thing designed to kill, injure, or disable an employee, officer, agent or inmate of that institution. The indictment was pursuant to 18 U.S.C. § 1792. The facts are simple. The incident in question occurred on November 12, 1971, when the carpenter foreman, one Kenneth Payne, noticed a large quantity of sparks being emitted from a sanding machine. Payne went to investigate and the defendant stepped back next to the wall so that Payne’s view of him was partially blocked. The appellant then reached behind himself and when Payne got to him he was holding a 16 penny nail in his hand. He told Payne that he was making a screwdriver out of it. Appellant was requested to go to the office approximately forty feet from the sanding machine. Once inside the office the appellant was searched by Payne and this yielded a steel bar which had been ground apparently and which was being made into a knife. It was found in the appellant’s trousers pocket and was still hot. Testimony was that this item would be naturally found in the machine shop, but not in the carpenter shop. Payne testified that when he was taking the appellant from the carpenter’s shop to the captain’s office appellant asked Payne if he could talk him “out of this.” The contentions made on this appeal are that, first, the evidence was insufficient to establish conveyance from place to place within a federal penal institution of a weapon, contrary to 18 U.S.C. § 1792; second, that the offense in question requires proof beyond a reasonable doubt of a specific intent to violate the statute or to knowingly and wilfully perform the act which the law forbids. It is claimed that the court erred in failing to instruct the jury as to the element of specific intent; third, that the court erred in refusing to grant a writ of habeas corpus ad testificandum for an inmate witness named Pino; fourth, that the government’s failure to furnish an FBI report containing informal statements of certain witnesses constituted a violation of 18 U.S.C. § 3500; fifth, that the act under which this case was prosecuted is unconstitutional. On behalf of the government the evidence consisted of the testimony of two correctional officers at the Leavenworth institution together with an FBI agent who was assigned to the institution. The substance of the testimony of Kenneth Payne has been set forth. A Mr. Kenny was in the office at the time that Payne searched appellant and discovered the instrument in question and he partially observed what occurred. The FBI agent testified that a portion of the instrument was hot when it was first brought to him several minutes after it came into Payne’s possession. Witnesses on behalf of the defendant testified that he was sharpening nails and did not have the metal in his possession or on his person. I. SUFFICIENCY OF THE EVIDENCE The thrust of the argument on behalf of appellant is that there is no proof of actual conveyance, but rather evidence that the instrument was found in his possession after it had been moved from the grinder to the office. It is true that the testimony is circumstantial, but his possession of it in the office is indeed a strong circumstance since it is most unlikely that the defendant would have assumed possession of this instrument after he arrived at the office since he knew that he would be searched. On the contrary, he would have unloaded it if possible. This court has held in a recent decision that even a short space in which the transportation occurred is enough and the defendant does not quarrel with this rule. See United States v. Meador, 456 F.2d 197 (10th Cir. 1972). At about the same time it was ruled that the movement of a knife to a stationary position did not constitute ' transportation, but that is not this case. Compare United States v. Bedwell, 456 F.2d 448 (10th Cir. 1972). We now turn to consideration of the additional point as to the sufficiency of the evidence, the contention that the proof is inadequate to establish the capacity of the knife to produce injury or death. There was testimony that the metal bar was indeed being ground into a “knife.” The jury had before it the object itself — a ten inch piece of sharpened steel. So expert testimony was unnecessary since the jury could conclude that this object was designed to kill, injure or disable. Although in United States v. Roche, 443 F.2d 98, 100 (10th Cir. 1971), two expert witnesses testified that it was their opinion that the device there in question was a weapon, as defined by § 1792, the court stated: we think it unnecessary in this ease to construe whether the terms “weapon” and “firearm” encompass only devices of demonstrated lethal capability. ->:• •» * clearly the statute goes further than prohibiting only proven combat weapons. The crime extends to carrying devices designed to kill, injure or disable, regardless of their subsequently proven effectiveness. II. WHETHER SPECIFIC INTENT WAS ESTABLISHED It is noteworthy that there is no mention of intent in paragraph two of § 1792, supra. The offense consists of conveying into the institution, or from place to place therein, any firearm, weapon, explosive or any lethal or poisonous gas, or any other substance or thing designed to kill, injure or disable. Thus, all the emphasis is on the act. The proof must establish, first, the existence of a weapon or thing designed to kill, injure or disable. Secondly, it is essential that the weapon or thing be transported within the institution. The statute is silent on intent, but obviously criminal intent is an essential element and the judge recognized this. His instruction called for knowingly doing the act of transporting an instrument and so knowledge that the thing transported was a weapon or thing designed to kill, injure or disable. Defendant contends that there must be in addition a proof of specific intent to disobey the law, and he cites our decision in United States v. Meador, 456 F.2d 197, 199 (10th Cir. 1972) as requiring this. True, we noted in that opinion that the trial court had instructed the jury that the defendant had to have specific intent to disobey the law as a necessary prerequisite to conviction. We approved the trial court’s instruction as being “full and complete.” On a reconsideration of this question, in the light of the facts here presented, we are of the opinion that the statute does not demand proof of specific intent as is suggested in Meador, and we further believe that the trial court’s instruction at bar was, under the statute, not only sufficient but was appropriate. III. THE DENIAL OF THE DEFENDANT’S REQUEST PURSUANT TO RULE 17(b) Error is not apparent in the denial of defendant’s application to subpoena the witness Pino who was then at Springfield, Missouri. The only assurance that defendant’s counsel could give to the court was that Pino was present in the institution and in the carpenter’s shop on the day of the incident. He could not represent to the court that Pino’s testimony was necessary to an- adequate defense. Under these circumstances the court’s refusal was within its discretion under Rule 17(b). IV. Nor do we see any error in the failure of the government to furnish 18 U.S.C. § 3500 statements. These consist of informal descriptions by the investigating FBI agent as to testimony of several witnesses. Examination discloses that these are not true statements within the contemplation of 18 U.S.C. § 3500, and while it might have been better policy for the United States Attorney to furnish these, we are unable to say that the failure to do so would require a reversal since prejudice was not suffered. V. As to the contention of the appellant that the statute, § 1792, is so vague and indefinite that it does not give notice of conduct which it prohibits, we have dealt with -this question previously in United States v. Hedges, 458 F.2d 188 (10th Cir. 1972); United States v. Bedwell, 456 F.2d 448 (10th Cir. 1972); and United States v. Meador, 456 F.2d 197 (10th Cir. 1972), and are of the opinion that the statute is clear enough, and indeed we have so held in Carter v. United States, 333 F.2d 354 (10th Cir. 1964). We conclude that the judgment of the district court should be and the same is hereby affirmed. . The second paragraph of this section provides: Whoever conveys into such institution, or from place to place therein, any firearm, -weapon, explosive, or any lethal or poisonous gas, or any other substance or thing designed to kill, injure, or disable any officer, agent, employee, or inmate thereof, or conspires so to do— . The trial court’s instruction that knowledge was a requisite element reads: In every crime there must exist a union or joint operation of act and intent. The burden is always on the prosecution to prove act and intent beyond a reasonable doubt. Intent may be proved by circumstantial evidence. It rarely can be established by any other means. While witnesses may see and hear and thus be able to give direct evidence what a defendant does or fails to do, there can bo no eye witness account of the state of mind witli which the acts were done or omitted. What a defendant does or fails to do may indicate intent or lack of intent to commit the offense charged. It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted, so unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused. In determining the issue ns to intent, the jury is entitled to consider any statements made and acts done or omitted by the accused and all facts and circumstances in evidence which may aid in determination of state of mind.

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Jerry WOHL, sometimes known as Jerome S. Wohlmuth, et al., Appellants, v. Roslyn Wohlmuth KEENE et al., Appellees. No. 72-1706. United States Court of Appeals, Fourth Circuit. Argued Dec. 6, 1972. Decided April 4, 1973. John M. Bader, Wilmington, Del. (Bader, Dorsey & Kreshtool, Wilmington, Del., Claude L. Callegary and Callegary, Callegary & Smith, Baltimore, Md., on brief), for appellants. Theodore C. Mitchell, Baltimore, Md. (Paul C. Wolman, Jr., Blades & Rosenfeld, James H. Langrall, John J. Woloszyn and Weinberg & Green, Baltimore, Md., on brief), for appellees. Before WINTER, CRAVEN and WIDENER, Circuit Judges. WINTER, Circuit Judge: Invoking the diversity jurisdiction of the district court, plaintiffs sought to have the court (a) grant a declaratory judgment voiding a prior decree of a Maryland equity court and voiding certain settlement agreements to which one of the plaintiffs was a party, and (b) assume jurisdiction over two trusts, remove the trustees, appoint substituted trustees, require an accounting, and grant other relief. The decree and the settlement agreements, all of which were made in 1957, purportedly settled a dispute between the parties over two testamentary trusts. Plaintiffs claimed that they should be relieved from both, because the settlement agreements and decree were procured by fraud, and those agreements and the decree violated Maryland law and the spendthrift trust provisions in the two trusts. The district court, 340 F.Supp. 107, dismissed the complaint without prejudice to plaintiffs’ rights to seek relief from a state court, holding that while it had jurisdiction to adjudicate the dispute, plaintiffs had a “plain, adequate and complete” remedy in the state equity court rendering the decree, so that the district court, in the exercise of its discretion, should “refuse to exercise its equitable powers.” Alternatively, and on the merits, the district court concluded that plaintiffs had not “shown” diligence in bringing suit, or alleged fraud, so as to entitle them to relief under applicable Maryland law and, moreover, that plaintiffs could not retain the benefits derived from the settlement agreements and the prior decree and still sue. Finally, the district court ruled that, in any event, suit by the minor plaintiffs was premature. As to its first ground of decision, we understand that the district court invoked the doctrine of abstention; we think it inapplicable in a case of this type. As to the alternate grounds of decision, we think the case inappropriate for summary disposition. Accordingly, we reverse the judgment of dismissal and remand the case for further proceedings. I. The undisputed facts are set forth in detail in the opinion of the district court and need not be restated here. It suffices to summarize by stating that plaintiff Jerry Wohl, sometimes known as Jerry Wohlmuth, was the beneficiary of certain testamentary trusts created by one of his four uncles and his father. The trusts came into being in 1937 and 1939. The trusts contained spendthrift clauses customary in Maryland in documents of this nature. The two minor plaintiffs are the children of Jerry Wohl, and they may have a possessory interest in the trusts depending upon the occurrence of certain contingencies. The res of the trusts was primarily the testators’ interests in the family clothing business originally operated by Jerry Wohl’s father and his four uncles. In 1956, Jerry Wohl sued the trustees (who were his other uncles), attacking their administration of the trusts and their operation of the family business. A state equity court assumed jurisdiction over the trusts. The litigation was ultimately settled by a series of family agreements and a consent decree of the equity court. The effect of the settlement, from the standpoint of Jerry Wohl, was that he sold his interests in the trusts, and released all claims against the trustees, for $10,000 in cash paid to him and $15,000 to be placed in a new trust to provide support for himself and his children (if he should later marry, as he subsequently did). In the district court, Jerry Wohl attacked the prior transactions, alleging that the sale of his interests in two spendthrift trusts violated state law and was in derogation of the intent of the testators who created the trusts. He alleged also, that when he entered into the settlement he was unemployed, without funds, and in a severe state of emotional distress; that the trustees and other beneficiaries of the trusts, in breach of their fiduciary duty, “took advantage of his condition by persuading him to sell his interest in the trusts,” and that he agreed to sell because of his emotional and financial state. He further alleged that defendants conspired to commit a fraud in the state equity court by willfully concealing from the court the fact that the trusts contained spendthrift provisions and that the class of contingent beneficiaries under the trusts was not closed, with the result that the state equity court lacked jurisdiction to enter the decree. II. That the district court’s diversity jurisdiction was properly invoked was not questioned by the district court and it is not contested on appeal. As a consequence, we proceed directly to a consideration of whether, as the district court concluded, it possessed the discretion not to exercise that jurisdiction in the case at bar. We think not. The judge-made doctrine of abstention is applicable only in special circumstances, AFA Distributing Co., Inc. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4 Cir., Jan. 3, 1973), and none of the traditional factors justifying abstention appear to be present in the ease at bar. Abstention may be appropriate where state action is being challenged in a federal court as being contrary to the federal Constitution, and resolution of state law questions might be dispositive of the cáse. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); AFA Distributing Co. v. Pearl Brewing, supra. Abstention may also be warranted to avoid unnecessary conflict with the state in the administration of its own affairs. Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L.Ed. 1424 (1943); Alabama P.S.C. v. Southern Railway, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). AFA Distributing Co. v. Pearl, supra, 470 F.2d at 1213. Abstention is not appropriate solely to avoid the decision of difficult state law questions. Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943); McNeese v. Board of Ed. for Community School District, 373 U.S. 668, 673 n. 5, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); AFA Distributing Co., Inc. v. Pearl Brewing Co., 470 F.2d 1210 (4 Cir. 1973); Martin v. State Farm Mutual Automobile Insurance Co., 375 F.2d 720 (4 Cir. 1967). See generally, Wright, Federal Courts, § 52, 2nd ed., 1970. Although abstention may be proper when the unsettled question of state law is one which only a state tribunal could authoritatively construe, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Crawford v. Courtney, 451 F.2d 489, 492 (4 Cir. 1971); see Lake Carrier’s Assoc. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972), that factor is not present in the instant case. The district court’s concise alternative decision on the merits, 340 F.Supp. at 113, and its citation to numerous Maryland cases demonstrates that the applicable state law does not lack certainty. See Akrotirianakis v. Burroughs, 262 F. Supp. 918, 925 (D.Md.1967) (Thomsen, C. J.). In diversity cases where state law is relatively settled, discretion to abstain is especially limited: The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment. Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 11, 88 L.Ed. 9 (1943). See also County of Alleganey v. Frank Mashuda Co., 360 U.S. 185, 79 S. Ct. 1060, 3 L.Ed.2d 1163 (1959). But none of the “exceptional circumstances” enumerated in Meredith, supra, 320 U.S. at 235, 64 S.Ct. 7, applies to the case at bar. In concluding to abstain, the district court placed heavy reliance on 7 Moore, Federal Practice j[ 60.37 [3], p. 638 (2nd Ed., 1972). The apparent thrust of the citation is that if an independent state proceeding would lie to invoke the relief sought, a similar action brought instead in a federal court would be appropriate; but if a supplementary state proceeding, by motion or other pleading, is available and is “plain, adequate and complete,” a federal court should abstain from exercising its equitable powers. Because the district court read Maryland Rule 625 to provide such relief by way of a supplementary proceeding in the same court that rendered the original decree, the district court declined to exercise its equitable powers. The distinction advocated by Moore finds little support in case law. The primary case cited by Moore in its support is Griffith v. Bank of New York, 147 F. 2d 899 (2 Cir. 1945), cert. denied 325 U.S. 874, 65 S.Ct. 1414, 89 L.Ed. 1992 (1945). This was a diversity case where the district court dismissed a claim by a beneficiary of a trust against the testamentary trustee. Several state judgments in the case had preceded the federal suit. Deciding first that the federal court was not compelled to deny relief on the facts presented, the Court of Appeals reasoned: Assuming power to act, nevertheless should the district court refuse to take jurisdiction in the exercise of discretion? Although we have found no direct authority, it would seem that there should be some discretion in a federal court to refuse equitable relief where state procedure is intended to be exclusive — at least in the absence of a showing that that procedure is inadequate to protect a plaintiff, (emphasis supplied). 147 F.2d at 904. Yet, having suggested this result, the Court, cognizant of Meredith v. City of Winter Haven’s language reminding of “the general duty of federal courts in diversity cases to decide questions even involving state law unless some exceptional circumstances . . . intervene,” concluded that no sufficient ground for dismissal by the district court had been shown. Our own prior decisions indicate, although they do not expressly decide, that abstention was improper, even where diversity jurisdiction was invoked to attack collaterally a judgment of a state court. The Firestone Tire & R. Co. v. Marlboro Cotton Mills, 282 F. 811, 815-816 (4 Cir. 1922); McFarland v. Curtin, 233 F. 728, 732-733 (4 Cir. 1916). See also Resolute Insurance Company v. State of North Carolina, 397 F.2d 586, 589 (4 Cir. 1968). Our analysis of the supporting authority undergirding the portion of U 60.37 [3] relied on by the district court, and the view we have consistently expressed in earlier cases, persuades us that the cited portion of Moore should not be followed. Overall, our conclusion is that abstention was improper. III. We do not agree that plaintiff’s alleged cause of action may be summarily dismissed for the reasons advanced by the district court. The conclusion that Jerry Wohl had not shown ordinary diligence and hence was barred from suing suggests that he was guilty of laches. The action in the district court was equitable in nature and no statute of limitations was directly applicable. But laches as a defense to the assertion of an equitable claim depends not only upon inaction during the passage of time, but also upon a change of position to their detriment on the part of the persons against whom the claim is asserted. Since there were no allegations or proof in this respect, lack of ordinary diligence per se was no bar to the action. The conclusion that Jerry Wohl’s “cause of action in the original suit was [not] meritorious, in light of the findings of the consent decree,” does not, in our view, bar relief. Of course it is true that in order to set aside an enrolled decree under Md. Rule 625, a state court must also find that the moving party has a meritorious cause of action in the original suit and that he has shown “such facts and circumstances as will certainly establish the fraud . allegedly resorted to in obtaining the judgment sought to be vacated.” Tasea Development Corp. v. Dale, 222 Md. 474, 479, 160 A.2d 920, 923 (1960). But, in the suit before us, Wohl has alleged that fraud was practiced, both on him and on the state equity court. Its findings, contained in the consent decree, may therefore be suspect. Certainly it did not adjudicate Wohl’s original charges of mismanagement of the trust assets, so that at the present time the merit or lack of merit in the original case is unknown. The district court also concluded that the federal complaint had not sufficiently alleged fraud, because Wohl, “himself a lawyer, was represented by counsel of his own choosing, entered into the family settlement, and consented to the decree in which Judge Harlan [the state judge] stated that he had read and considered the exhibits, which showed the interest of the trustees and included the two wills containing the spendthrift clauses.” We think summary disposition improper. These facts are, of course, relevant to the issue of fraud, but they are not determinative when Jerry Wohl has alleged, in the complaint and under oath in his affidavit, that (1) his uncles, who were in complete control of the family business, had told him that he would gain nothing by pursuing his suit for an accounting, and that he would be well advised to arrange an amicable settlement of that suit; (2) his uncles advised him that he was a beneficiary under their wills, that he would eventually receive substantial benefits, and that if he would be “reasonable” about the accounting suit they would not change their wills; (3) that during the relevant period he was unemployed, “suffering from alcoholism,” and in need of financial assistance; and (4) subsequent to the entry of the decree his counsel advised him that the state equity court had not been told of the spendthrift provisions and that the court had not discovered them on its own. We think that these allegations were sufficient to raise factual issues of whether fraud had been practiced on either Jerry Wohl or the state equity court, or both, and that the case was inappropriate for summary disposition. The district court’s concern that plaintiffs may not maintain the action while retaining the benefits of the earlier settlement is well taken, but it, too, is not a ground for summary disposition. As a general rule, when a party knows the facts and voluntarily accepts the benefits of a judgment, he thus waives any errors in the decree and es-tops himself from appealing the decree. Dubin v. Mobile Land Corp., 250 Md. 349, 243 A.2d 585 (1968). Here, there is not an appeal; there is a collateral attack based on fraud. Wohl alleges in effect that he did not know the facts, and accepted the state decree and its benefits under both duress and the mistaken impression that this was essentially his only choice. He alleges that fraud may also have been committed on the court. Accepting the allegations as we must at this time, Wohl’s allegedly innocent acceptance of the benefits should not prevent these issues from being resolved. Of course, plaintiffs may not retain the fruits of the 1957 transactions and regain their rights under the trusts, in addition; but, if plaintiffs are found to be entitled to benefits in the present action, there will be ample opportunity to reduce their recovery by what they may have already received. There is no need totally to deny recovery. Nor do we think that the action is “premature,” as the district court concluded, with respect to the minor plaintiffs. It seems obvious that they would be entitled to no greater rights than their father, Jerry Wohl, and if their father is shown to be entitled to relief there would be no greater burden on the defendants to adjudicate the rights of the minor plaintiffs now rather than later. Of course, at most, the minor plaintiffs would be entitled only to declaratory relief since they have no present possessory interest. Overall, we conclude that the merits should be adjudicated only after an evidentiary determination, or at least a full opportunity for the parties to develop a case on motion for summary judgment. Reversed. . The district court relied primarily on Rule 625 of the Maryland Rules of Procedure which gives a Maryland trial court revisory power over its judgment or decree. Even after the expiration of thirty days after entry, a Maryland court is vested with revisory power “in case of fraud, mistake or irregularity.” Presumably, upon an appropriate showing, the Maryland equity court could withdraw its decree approving the settlement agreements and terminating the original litigation. . Both trusts provided that income payable to any beneficiary should be paid “into the hands” of the beneficiary “and not into the hands of another,” and that neither inoome nor principal should be subject to “any assignment or anticipation by any beneficiary,” and, hence, under Maryland law were spendthrift trusts. The purpose of a spendthrift trust is to protect a beneficiary from his own improvidence by protecting his income (and here, principal, also) from his creditors and rendering it inalienable by him before payment. Maryland law deems a spendthrift trust valid and enforceable. See generally, Safe Deposit and Trust Co. of Baltimore v. Robertson, 192 Md. 653, 65 A.2d 292 (1949); Manders v. Mercantile Trust & Deposit Co., 147 Md. 448, 128 A. 145 (1925). . Even the proposal of the American Law Institute to ooniract federal jurisdiction would not permit abstention in the present case. See ALI, Study of the Division of Jurisdiction Between State and Federal Courts, 48-50, 282-298 (1969). Indeed, as the commentary to proposed § 1371 indicates, the abstention doctrine is applicable only in a suit where it is claimed that state legislative or administrative action is invalid because contrary to controlling federal law. Even then, the appropriate remedy is stay, and not dismissal, as was granted here. . The only other case cited by Moore is Osterling v. Commonwealth Trust Co., 35 F.Supp. 704, aff’d 115 F.2d 809 (3 Cir. 1940). Although somewhat similar factually to the case at bar, that case involved the accounting of an estate within the exclusive jurisdiction of a probate court, and the essential charges in the federal complaint had been submitted to and decided by the probate court. Moreover, the case was decided prior to Meredith, sujjra, and the modern development of limitations upon the abstention doctrine. . At the outset, it is not clear whether the district court, in passing on the merits, decided a pure motion to dismiss or whether, since the complaint had been amplified by the filing of Jerry Wohl’s affidavit, the district court granted summary judgment. We do not find it necessary to resolve this procedural ambiguity.

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Earnest NEVEAUX, Plaintiff-Appellee, v. LYKES BROS. STEAMSHIP CO., INC., Defendant-Appellant. No. 72-3086 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 12, 1973. F. L. Beckenstein, Wendell C. Radford, Beaumont, Tex., for defendant-appellant. Ned Johnson, Fred J. Rafes, Beaumont, Tex., for plaintiff-appellee. Before GEWIN, COLEMAN, and MORGAN, 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: Earnest Neveaux brought suit in admiralty against Lykes Brothers Steamship Company, Inc. (Lykes Brothers) seeking maintenance and cure for an illness that he contracted on December 22, 1970 while employed as a seaman by the defendant. After the presentation of evidence in a non-jury trial, the district court upheld this claim. It found that Neveaux suffered a gum infection accompanied by chills and fever during December of 1970 while working on the SS RUTH LYKES and that these symptoms persisted requiring further treatment after he left that vessel on January 18, 1971. The court awarded maintenance and cure in the amount of $392.-00 and reimbursement of medical expenses totaling $97.80. It further permitted the recovery of $150.00 in attorney’s fees on the ground that it was necessary for Neveaux to incur that expense in order to obtain the foregoing relief. We affirm the district court’s judgment in all respects except as to the allowance of attorney’s fees. Although Lykes Brothers makes several assignments of error, a careful review of the briefs and record in this case discloses that the only claim warranting discussion is that relating to the district court’s award of attorney’s fees to Neveaux. It is clear that Neveaux was treated for a gum disorder along with chills and fever when he was serving on board the SS RUTH LYKES. These symptoms continued after he left the ship and finally, almost a month later, became so serious that he sought private medical treatment. In a letter to Lykes Brothers dated February 24, 1971, Neveaux gave notice that he was seeking maintenance and cure for an illness diagnosed by his family physician to be typhus. The letter contained no elaborative details. Lykes Brothers did not deny the claim immediately but instead requested further medical information to aid it in reaching a final decision. In explanation of the delay, it was pointed out that Neveaux had been declared fit for duty when he departed the SS RUTH LYKES on January 18, 1971 and that the incubation period of typhus raised some question as to whether he could have contracted the disease while in the company’s employ. On the facts of this case, we conclude that Lykes Brothers’ procedure in handling Neveaux’s claim did not exhibit the kind of arbitrary and capricious conduct which is prerequisite to an award of attorney’s fees in cases such as this one. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed. 2d 88, 92 (1962); Richard v. Bauer Dredging Co., 433 F.2d 954, 955 (5 Cir. 1970). The judgment of the district court is hereby modified to eliminate the allowance of attorney’s fees but the judgment is affirmed in all other respects. Judgment modified and affirmed. . Neveaux also claimed damages resulting from Lykes Brothers’ failure to provide a safe place to work and for the unseaworthiness of the SS RUTH LYKES. He abandoned both causes of action at the time of the trial.

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William Nicholas KARCHER, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Defendant-Appellee. No. 72-3542. United States Court of Appeals, Fifth Circuit. March 20, 1973. William Nicholas Karcher, pro se. Robert L. Shevin, Atty. Gen., Arnold Ginsberg, Asst. Atty. Gen., Tallahassee, Fla., for defendant-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. PER CURIAM: William Nicholas Karcher has appealed from the district court’s denial of his petition for habeas corpus. We affirm the ruling below. Appellant is presently confined in a federal prison, by virtue of a federal sentence which he does not attack in these proceedings. In his habeas petition filed below, the appellant complained of his five-year sentence for the crime of “entering without breaking.” He was convicted and sentenced on his plea of guilty of this offense on March 5, 1970, in the Criminal Court of Record of Dade County, Florida. There was no direct appeal. Appellant contended in his federal habeas petition that the state conviction and sentence are invalid because he was denied a speedy trial on the charges. The district court denied relief on the following grounds, as stated in the final order: “The petitioner is not attacking the voluntariness of his guilty plea, merely the failure to bring him to trial within three terms of court. A plea of guilty is an admission of all the elements of a formal criminal charge. United States v. Bendicks, 449 F.2d 313 (5th Cir. 1971). Such a plea waives all nonjurisdictional defects in the proceedings against him. Gafford v. United States, 438 F.2d 106 (5th Cir. 1971). The issue of an accused’s right to a speedy trial is nonjurisdiction[al] in nature. Fowler v. United States, 391 F.2d 276 (5th Cir. 1968). The petitioner has therefore waived the ground he presently seeks to assert.” We find no error in the district court’s holding, based on the record which was then before it. In an unsworn letter-request for rehearing, Karcher alleged generally that his defense was prejudiced by the delay; and that the state's attorney wrongfully induced his plea by threats of longer consecutive sentences if he went to trial. The district court was justified in disregarding these unverified factual allegations, which it did in denying rehearing. See 28 U.S.C. § 2242; Application of Gibson, 9th Cir. 1954, 218 F.2d 320, cert. denied 348 U.S. 955, 75 S.Ct. 445, 99 L.Ed. 746; Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 148 F.2d 857, cert. denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003. Furthermore, the record shows that Karcher has not attempted to exhaust his available state remedies on these additional grounds, as required by the provisions of 28 U.S.C. § 2254(b). Such exhaustion is a prerequisite to the granting of federal habeas corpus relief to a state prisoner. See Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438; Lee v. Wainwright, 5th Cir. 1972, 468 F.2d 809 [1972]; Williams v. Wainwright, 5th Cir. 1971, 452 F.2d 775; Jackson v. Wainwright, 5th Cir. 1971, 450 F.2d 289. The order appealed from 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. . Which the state court ordered to run concurrently with Karcher’s federal sentence.

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David Allen LONG, a minor 18 years of age, by his father and next friend, Albert L. Long, Plaintiff-Appellant, v. Kobert ZOPP, head football coach of Greenbrier East High School, et al., Defendants-Appellees. No. 72-2302. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1973. Decided March 29, 1973. Michael C. Smith, Union, W. Va., for appellant. E. M. Payne, III, Beckley, W. Va. (Bowers, File, Hodson & Payne, Beckley, W. Va., on brief), for appellees. Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge. PER CURIAM: Massie v. Henry (4th Cir. 1972), 455 F.2d 779, found it constitutionally impermissible for public schools to impose “hair codes” on their students. The football coach at Greenbrier East High School, however, decreed that all members of the football squad at that school should observe a “hair code” prescribed by him, not merely during football season, but throughout the school year, under penalty of being denied their “letter” for participation as a member of the team. The plaintiff was a student at Greenbrier East High School and a member of the football squad who, by his participation, earned a right to a “letter” in football. He had observed the “hair code” ordered by the football coach during the football season but allowed his hair to grow beyond the prescribed length thereafter. Because of his noncompliance with the “hair code” in the off-season school year, he was denied at the end of the school year his football “letter” and an invitation to the Athletics Banquet by the coach. This action of the coach, on appeal, was sustained by the school authorities. The plaintiff seeks by this action to void as an unconstitutional deprivation this denial of his right to a football “letter” by the school authorities. The District Court dismissed his action. We reverse. The doctrine of Massie is equally applicable to all school-controlled activities. It extends to school athletic programs, as well as to school academic programs. Awards, properly earned in either field, cannot be used as instruments to enforce compliance with a “hair code”, for the enforcement of which there is no compelling necessity. Assuming arguendo that there might be some hygienic or other reason to support a “hair code”, as promulgated by the football coach during football season, such reason would plainly not justify the enforcement of the code after the football season had ended. The action of the football coach was accordingly in violation of the principles enunciated in Massie. See Dunham v. Pulsifer (D.C. Vt.1970) 312 F.Supp. 411. The plaintiff is entitled to injunctive relief. Under the circumstances, we do not feel a monetary award is warranted. Reversed with instructions.

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Ellis RADER et al., Plaintiffs-Appellants, v. Melvin CLIBURN et al., Defendants-Appellees. No. 72-1874. United States Court of Appeals, Sixth Circuit. Argued Feb. 8, 1973. Decided March 28, 1973. J. H. Reneau, III, Celina, Tenn., for plaintiffs-appellants. J. A. Wells, LaFayette, Tenn., Lamar Alexander, Nashville, Tenn., Dearborn & Ewing, Nashville, Tenn., J. H. Reneau, Jr., Lafayette, Tenn., on brief, for defendants-appellees. Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges. PER CURIAM. The Board of Education of Macon County, Tennessee, was reapportioned by order of the United States District Court for the Middle District of Tennessee on February 25, 1970. Clark v. Austin, Civil Action No. 538. The reapportionment order, issued by then District Judge William E. Miller, was the culmination of a class action filed by residents and taxpayers of Macon County claiming the Board’s election districts violated the dictates of the one-man, one-vote doctrine as announced by the United States Supreme Court. See Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There was no appeal from the agreed order which, in addition to providing for a new zone system, ordered an election of Board members for concurrent initial terms of six years, beginning in September 1970. On April 19, 1972, twenty-six months after Judge Miller’s above described order, the present appellants, Macon County residents who had not been parties to the Clark suit, brought this action in the Middle District of Tennessee seeking a “correction” of the earlier order. The appellants claimed that the Clark order failed to take into consideration a Tennessee statute which provided that, if a federal court abolished a county board of education for reasons of malapportionment, staggered terms were to be given to new board members. The appellants claim that Judge Miller’s order in providing for concurrent six-year terms for the new board members was beyond the jurisdiction of the District Court. District Judge L. Clure Morton dismissed the appellants’ suit, holding that there was no deprivation of any federal right asserted and that the court had no jurisdiction under 42 U.S.C. § 1983. Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S. Ct. 2847, 33 L.Ed.2d 767, rehearing denied, 409 U.S. 898, 93 S.Ct. 95, 34 L.Ed. 2d 157 (1972). Judge Morton held that there were only two possible grounds for relief, action under Rule 60(b) (6) of Fed.R.Civ.P. or as an independent suit in equity for relief from a judgment. We affirm the judgment of dismissal. There can be no serious contention that Judge Miller was without power to mandate the concurrent six-year terms for board members. The status of federal district courts as courts of equity affords them great latitude in the fashioning of remedies for constitutional violations in reapportionment cases. See W.M.C.A., Inc. v. Lomenzo, 238 F.Supp. 916 (S.D.N.Y.1964), aff’d, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2 (1965); Reynolds v. State Election Board, 233 F.Supp. 323 (W.D.Okl.1964). There has been no showing under Rule 60(b)(6) of anything to indicate that the District Court overlooked any State statute in issuing the 1970 order. To the contrary, the District Judge, with his long background of experience in Tennessee law, both as a judge and practicing attorney, is presumed to have been aware of all relevant Tennessee statutes. As for the independent suit in equity, there have been no grounds alleged or shown which would merit relief. This assuredly is not a case of unusual and exceptional circumstances, Crosby v. Mills, 413 F.2d 1273, 1276 (10th Cir. 1969), for which such relief may be granted. This court is of the opinion that in 1976 at the expiration of the present terms of members of the Macon County Board of Education the staggered election system outlined by T.C.A. § 49-208 will take effect; that is, members elected in 1976 will serve for staggered terms as provided by the statute. Affirmed. . Chapter 252 of the Public Acts of 1967 describes the action which should be taken for the establishment of school boards in the situation where federal courts declare the membership of a county school board in violation of the United States Constitution. That act makes applicable T.C.A. § 49-208 (ch. 262, Pub. Acts of 1961) to this situation. It provides for staggered terms of office for school board members. Chapter 262, Pub. Acts of 1961 provides the following: “An Act to provide a system of staggered terms for members of County Boards of Education. “Section 1. Be it enacted by the General Assembly of the State of Tennessee, That at the next regular election immediately preceding the expiration of the terms of office which members of the various County Boards of Education are now serving, the members of the County Boards of Education shall be elected in the following manner, and the provisions hereof shall be controlling both in those Counties where members of Boards of Education are elected by the Quarterly County Court and in those Counties where members of the Boards of Education are elected by the vote of the people: ” Appellants claim that Judge Miller’s order, providing for six-year terms for the members of the newly constituted board violated the statute. . Rule 60(b), Fed.R.Civ.P. provides: “(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the’following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) - fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ; (4) the judgment is void ; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

AEROJET-GENERAL CORPORATION, Plaintiff-Appellant, v. Reubin O’Donovan ASKEW, Etc., et al., Defendants-Appellees. No. 73-1300. United States Court of Appeals, Fifth Circuit. March 5, 1973. See also D. C., 355 F.Supp. 928. George W. Wright, Jr., Karl B. Block, Jr., Miami, Fla., for plaintiff-appellant. Robert L. Shevin, Atty. Gen., Barry S. Richard, Deputy Atty. Gen., M. Stephen Turner, Gen. Counsel, Bd. of Trustees, Tallahassee, Fla., Stuart Simon, Dade County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for defendants-appellees. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. PER CURIAM: This matter is before the court on a request by appellant Aerojet-General Corporation for a temporary stay of state court proceedings pending this court’s resolution of this appeal from an .order of the United States District Court for the Northern District of Florida. Both appellant and appellees have filed briefs on this motion and appellant has filed a reply brief. This court has determined that, because of the factual circumstances which will become evident, this appeal is one which may properly be disposed of summarily by this court at this time. See Groendyke Transport, Inc. v. Davis, 5 Cir. 1969, 406 F.2d 1158. We have, therefore, concluded that the stay requested by the appellant is granted and that this case will be remanded to the district court for the Northern District of Florida for further proceedings not inconsistent with this opinion. The subject matter of this instant litigation has had a long history in the courts. At issue is the ownership of several thousand acres of land in Dade County, Florida. In 1961, Aerojet entered a lease-option contract with the Trustees and the State Board of Education of Florida concerning the lands in issue. In 1969, Aerojet sought to exercise its option to purchase but the Board of Trustees refused to convey. Aerojet then instituted an action against the Trustees demanding specific performance of the option. This court, in Aerojet-General Corp. v. Askew et al., 5 Cir. 1971, 453 F.2d 819, upheld the district court’s order of specific performance. After the initial entry of the lease-option contract between Aerojet and the Trustees, but before Aerojet sought to exercise its option, section 253.111 of the Florida Statutes, F.S.A., was enacted into law. This section, enacted in 1965, requires that the Trustees shall not sell or convey any lands to any private parties without first giving notice to the County Board of Commissioners that the land is available to the county for public purposes. In compliance with the mandate of this court, the Trustees executed a deed conveying the land in question to Aerojet on June 20, 1972. Metropolitan Dade County, not a party to this previous federal court action, sought a writ of mandamus from the Florida Supreme Court compelling the Trustees to comply with section 253.111 by offering the land to Dade County before sale. On October 11, 1972, the Florida Supreme Court, in State ex rel. Dade County v. Askew et al., 267 So.2d 827 (Fla., 1972), a proceeding in which Aerojet was not a party, construed the option contract between Aerojet and the Trustees to contemplate application of Florida statutes in effect at the time of exercise of the option. Following this decision, on October 31, 1972, the Trustees issued a deed on these same lands previously conveyed to Aerojet to Metropolitan Dade County. In response to these events, Aerojet sought a declaratory judgment of its rights in the land vis-a-vis Dade County from the district court for the Northern District of Florida, the court which had previously ordered specific performance of the option contract. On October 31, 1972, that court enjoined the defendant Trustees and Dade County from instituting any suit challenging Aerojet’s title pending resolution of this action. On January 8, 1973, the district court apparently modified that order and in effect dissolved the injunction. A reading of the. opinion of the district court shows that this injunction was dissolved specifically to encourage the instigation of a state court suit to quiet title. The district court stated that the action was taken because “there are present unsettled questions of Florida law concerning transfer of public lands” which the court felt could be illuminated by state court consideration of underlying public policy in such transfers. Two days after this order of the district court was filed, Metropolitan Dade County commenced a quiet title suit in state court seeking to quiet title against Aerojet. Aerojet filed an appeal from the order dissolving the temporary injunction which had prohibited any such court suits and, at the same time, sought a stay of the state court quiet title suit pending appeal of the propriety of the district court’s dissolution of the injunction. It is that application for a stay which is currently before this court. At this point, the one factor which leads this court to summarily remand this matter occurs. In addition to filing this appeal of the dissolution order, Aerojet sought and obtained removal of the quiet title suit brought by Dade County from state court to the United States District Court for the Southern District of Florida. Thus, at this time, we are faced with the district court for the Northern District holding this suit in abeyance in order to obtain a state court adjudication of public policy. At the same time, it has become patently obvious that the asserted rationale for this abstention has been eliminated by the removal of the quiet title action from state court. The Northern District will now be able to obtain only the views of the Southern District as to the questions of public policy it feels are involved. Thus, we are faced with two suits in federal courts which allegedly may well turn on resolution of similar issues — the applicability of the Florida statute and the underlying state public policy on disposal of public lands. Since the express grounds for the district court’s (Northern District) order have now evaporated, we feel that the expense, both monetary and in the form of judicial energies, which would accompany the full briefing and argument of this instant appeal would be wasted. We, therefore, order that the Northern District’s original injunction against any suits challenging Aerojet’s title be reinstated so that that court can consider the merits of Aerojet’s claim. Remanded. . In the opinion of this circuit in the first Aerojet-General Corp. v. Askew et al. case, the impact of Florida statute 253.111 on the lease-option contract was apparently not passed on. One of Aerojet’s claims in the instant proceeding is an assertion that failure to press the statute as a defense in this earlier suit is res judicata on the issue and it can now not be relitigated. . It appears to the court that there is a strong argument here for transfer and consolidation of the quiet title suit with the instant proceeding. That would allow for all overlapping issues and any additional ones to be considered and resolved in a single forum. Hopefully, resolution in such an action would be a firm step toward bringing this complicated dispute to a truly final conclusion.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Kenneth R. MANCUSO, Plaintiff, Appellee, v. James L. TAFT, Mayor, et al., Defendants, Appellants. No. 72-1180. United States Court of Appeals, First Circuit. Argued Sept. 13, 1972. Decided March 20, 1973. Peter Palombo, Jr., City Sol., with whom Jeremiah S. Jeremiah, Jr., Asst. City Sol., was on brief, for appellants. Ralph J. Gonnella, Providence, R. I., for appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, Rhode Island, filed as a candidate for nomination as representative to the Rhode Island General Assembly on October 19, 1971. On the same day the Mayor of Cranston began the process of enforcing § 14.09(c) of the City Home Rule Charter which prohibits “continuing in the classified service of the city after becoming a candidate for nomination or election to any public office.” Mancuso promptly filed suit in the district court seeking relief pursuant to 42 U.S.C. §§ 1981, 1983, and 1988 and asserting jurisdiction under 28 U.S.C. § 1343 and 28 U.S.C. §§ 2201 and 2202. Pursuant to an agreement of the parties, enforcement of the charter was restrained pending resolution of the issue. The appellant mayor subsequently advised appellee that he would impose only a ten-day suspension and not dismissal if the suit were unsuccessful. The appellee lost the election. The district court granted appellee’s motion for summary judgment on the merits, finding § 14.-09(c) violative of the First Amendment, 341 F.Supp. 574 (D.R.I.1972). The city officials appealed. Although we choose to analyze the charter provision in equal protection terms, rather than the First Amendment terms employed by the district court, we affirm its judgment. Standing At the outset, we acknowledge that our first impression was that while assault on the charter might be made by other city employees seeking office, appellee was in a poor position to complain. He is a policeman, an official called upon for important exercise of discretion, and he ran as a candidate for a partisan nomination for the position of. state representative for the very district in which he served as policeman. But several independent reasons, which we deem persuasive, singly and collectively, have led us to the conclusion that appellee’s right to raise this equal protection challenge does not depend on the possibility of his conduct being properly proscribed by a more narrowly drawn provision. First, we are of the opinion, for reasons stated subsequently, that the charter provision significantly affects the exercise of First Amendment rights by Cranston’s public employees. In such circumstances, binding precedent — Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965); United States v. Raines, 362 U.S. 17, 22, 80 S. Ct. 519, 4 L.Ed.2d 524 (1960); Goguen v. Smith, 471 F.2d 88 (1st Cir. Dec. 14, 1972); see also Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970)—as well as the sound underlying policy of avoiding the chilling impact of piecemeal adjudication of fundamental rights require consideration of a facial attack by one affected by the regulation. We see no reason why this standing rule should change when First Amendment rights are analyzed in an equal protection context. Grayned v. City of Rockford, 408 U.S. 104, 106-107, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Second, we believe that both candidates and voters may challenge on its face on equal protection grounds a candidacy restriction because of its impact on voting rights. A candidate for public office, such as the appellee, is so closely related to and dependent upon those who wish to vote for him and his litigation will so vitally affect their rights that courts will relax the rule of practice (which is designed to assure vibrant representation of the vital interests of non-parties) and will permit a candidate to raise the constitutional rights of voters. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971), aff’d, 468 F.2d 883 (6th Cir. 1972); see generally Eisenstadt v. Baird, 405 U.S. 438, 444-446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Moreover, we note that under § 17-14-2, General Laws of Rhode Island, a candidate must himself be a qualified voter in the district which he seeks to represent. Hence, in one sense, appellee seeks only to assert the rights of his own class. That voters and candidates may attack candidacy restrictions affecting voting rights on their face seems indisputable. Bullock, supra; Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Green, supra; Manson v. Edwards, 345 F.Supp. 719 (E.D.Mich.1972); McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) (three-judge court). In this regard, the dissent’s disagreement seems to be only with the standard, not the propriety, of review. Finally, we believe that in any case, whether or not the regulation implicates First Amendment or voting rights, one within the terms of a classification may challenge it facially on equal protection grounds. Although the language of the Raines rule, 362 U.S. at 21, 80 S.Ct. 519, would seem to cover equal protection claims, we find that both precedent and sound policy reject its application. We know of no case in which the Supreme Court has refused to consider a facial equal protection challenge by one within the affected classification. Nor has the Supreme Court explicitly considered whether the claimant could properly be subject to a narrower regulation. Rather, in all cases, the Court has simply analyzed the challenged classification on its face. We believe the Court has eschewed “hard core” analysis in this area because of’its invitation to judicial legislation. Facial consideration forces a court to analyze and approve (or disapprove) only one regulation — that written by the legislative body. To close the courthouse door on hard core plaintiffs requires a precise determination (and necessarily approval) of the permissible outer limits of narrower legislation. The number of such determinations would be limited only by the number of differently situated plaintiffs. In contrast, facial adjudication requires only consideration of the various factors which suggest the possibility of less drastic alternatives, without forcing specific definition of the permissible limits. Moreover, unlike disorderly conduct, breach of peace, or other roughly defined proscriptions, statutory classifications subjected to equal protection challenge usually leave no question as to the persons subject to the regulation. Individual adjudications would therefore appear unnecessarily to impose repetitive judicial scrutiny and possibly intervention. Ironically, then, in equal protection litigation of broad, unambiguous classifications, judicial restraint would seem to us to require facial rather than individual adjudication. We therefore hold that the appellee has standing. Standard of Scrutiny Appellee’s complaint, simply put, is that Cranston has divided its citizenry into two groups for purposes of candidacy for public office: in one group, all classified civil servants, who are prohibited from filing as candidates; and, in the other, all other citizens, free to run for office, subject only to general age and similar requirements. In determining the propriety of this discrimination, we must first examine the nature of the interests infringed by § 14.09(c) to ascertain the proper standard of review. The Supreme Court has tended to use one of two standards for review when determining whether a particular state action violates the equal protection clause of the Fourteenth Amendment. For state action concerning economic regulation and taxation, the Court has employed a relaxed review, upholding the challenged action if it is sustained by some rational and legitimate state interest. See Kotch v. Bd. of River Port Pilot Comm’rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093. (1947). For state action which substantially infringes fundamental interests, however, the Court has subjected the state action to stricter scrutiny, requiring the state to show that its action is necessary to promote a compelling state interest. In evaluating candidacy restrictions there are two interlocking interests, both fundamental, that must be considered. We naturally consider the rights asserted by the plaintiff in claiming the opportunity to become a candidate for public office. But whenever a state or city regulates the right to become a candidate for public office, it also regulates the citizen’s right to vote; the person or persons whose candidacy is affected may be the voters’ choice for public official. As Chief Justice Burger stated in the recent case of Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), “[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Therefore, in order to properly consider the impact of the Cranston charter provision and hence to arrive at a standard of review, we consider also the public interest in an unhampered, unconditioned vote, as reflected here by the voters’ interest in having a broad pool of candidates from which to select their public officials. Because guidance from the Supreme Court on this matter is more recent and direct, we turn to this latter dimension of the candidacy problem first. A. Voting Rights In Bullock, the Chief Justice stated that not every candidate restriction affects the right to vote sufficiently to require a strict equal protection review of the restriction. The task of the federal courts is to “examine in a realistic light the extent and nature of their impact on voters.” 405 U.S. at 143, 92 S.Ct. at 856. The Bullock Court cited two factors which persuaded it to use strict review on a law which required potential candidates to pay filing fees totalling upwards of $1000 before they would be placed on the primary ballot: the pool of candidates available for selection by the voters was substantially diminished and the impact of the restriction fell on citizens according to their economic status. Although we face a somewhat different situation from that in Bullock, we find similar factors here indicating a substantial and significant effect on voters’ rights. We note initially that while in Bullock the filing fees were so large that they indirectly limited the pool of candidates, here the pool is directly and substantially limited by a prohibition on the candidacies of a specific class of people — the public employees of Cranston. As the district court noted, 341 F.Supp. at 576-577, and as other courts have recognized, see, e. g., Bagley v. Washington Township Hospital District, 65 Cal.2d 499, 55 Cal.Rptr. 401, 421 P.2d 409 (1966), the number of citizens who find employment in the public sector has grown tremendously over the years. To prohibit these citizens from seeking public office constitutes a substantial contraction of the potential candidacy pool. Moreover, this significant number of people who are covered by the Cranston rule are deterred from seeking office in a very effective manner. Cranston does not have a system which makes it easy for the public employee to accommodate his interest in his job and his interest in seeking elective office. Rather, § 14.-09(c), by requiring resignation “after becoming a candidate for nomination or election” necessitates an extremely difficult decision by the potential candidate: he must either give up his public job or he must give up his candidacy. Secondly, the Cranston charter excludes a specific group with unique qualifications for public office. City employees have made government their daily work. They see the work of government within their department and as their department deals with the public and other parts of government, local, county, state, and national. They ought to be able to pinpoint problems and formulate solutions much more effectively than many other citizens. The experience and insight garnered from day-today grappling with the bureaucracy could well make these individuals particularly attractive to the voters. For these reasons, then, we find that the fundamental interest of the right to vote is significantly affected by § 14.09(c) of the Cranston charter and that therefore strict equal protection review must be applied. B. First Amendment Rights We now inquire whether the interest of the individual in running for public office is an interest protected by the First Amendment, so that any law which significantly infringes that interest must be given strict review. The Supreme Court has never directly decided this point. However, Williams v. Rhodes, supra, strongly suggests that the activity of seeking public office is among those protected by the First Amendment. Moreover, two state supreme courts have found, in facially invalidating flat bans on public employee candidacies challenged by deputy sheriffs, that the right to run for office is a First Amendment right. Minielly v. State, 242 Or. 490, 411 P.2d 69 (1966) (en banc); Kinnear v. City and County of San Francisco, 61 Cal.2d 341, 38 Cal. Rptr. 631, 392 P.2d 391 (1964) (en banc). See also Fort v. Civil Service Comm’n, 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385 (1964) (en banc); DeStefano v. Wilson, 96 N.J.Super. 592, 233 A.2d 682 (1967). We come to the same conclusion. The right to run for public office touches on two fundamental freedoms: freedom of individual expression and freedom of association. Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. See Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the most effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public office — means generally considered among the most appropriate for those desiring to effect change in our governmental systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual’s expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters. It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranston charter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group’s standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. See Williams v. Rhodes, 393 U.S. 23 at 41-42, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Harlan, J., concurring); cf. NAACP v. Button, 371 U.S. 415, 429-431, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party’s programs to the people are precluded from doing so because those nominees are civil servants. Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review. Our conclusion that § 14.09(c) of the Cranston charter must receive strict equal protection scrutiny is made with full cognizance of the city’s assertion that United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), in which the Supreme Court upheld a provision of the federal Hatch Act, requires a more relaxed “reasonableness” standard of review. We deem Mitchell not controlling on this question for several reasons. First, and most important, is the fact that the Mitchell Court was not faced with, and did not rule on, an equal protection challenge. Indeed, until the Supreme Court’s decision in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), it was not clear that the equal protection clause was fully applicable, through the Fifth Amendment’s due process clause, to legislation such as the provision of the Hatch Act which was considered in Mitchell. Moreover, although the Court, in response to the petitioner’s First, Fifth, Ninth, and Tenth Amendment claims considered rights of expression and political activity, there was no discussion of the impact of the restrictions on voting rights. Second, we note that even in the First Amendment area, the Mitchell case may have been drained of its vitality by the development of constitutional doctrine in the past twenty-five years. As the district court pertinently observed, 341 F.Supp. at 577-581, the expanded use of the overbreadth doctrine in evaluating statutes which touch areas protected by the First Amendment casts serious doubt on the validity of employing a “reasonableness” standard for review of provisions regulating the expressive activity of public employees. See Hobbs v. Thompson, 448 F.2d 456, 471-475 (5th Cir. 1971); Fort v. Civil Service Comm’n, supra; National Ass’n of Letter Carriers v. United States Civil Service Comm’n, 346 F.Supp. 578 (D.D. C.1972), prob. juris. noted, 409 U.S. 1058, 93 S.Ct. 560, 34 L.Ed.2d 510 (Dec. 11, 1972). But see Broadrick v. Oklahoma, 338 F.Supp. 711, 716 (W.D.Okl.1972), prob. juris. noted, 409 U.S. 1058, 93 S.Ct. 550, 34 L.Ed.2d 510 (Dec. 11, 1972). To the extent, moreover, that the Mitchell Court relied on the notion that public employment is a privilege rather than a right, and that the constitutional validity of legislative regulation turns on proper pigeon-holing of the rights and the privileges, 330 U.S. at 99 n. 34, 67 S.Ct. 556, its precedential value is even more questionable. Since Mitchell, the Court, in an unbroken line of decisions, has abolished the right-privilege distinction. See Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L. Ed.2d 811 (1968); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L. Ed.2d 534 (1971). See generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). In addition, we note factual distinctions between Mitchell and the present case which we deem of legal significance. Mitchell treated the United States Hatch Act where appellee challenges the charter provision of the city of Cranston and hence strict stare decisis is not involved, cf. Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972); the Hatch Act provision prohibited only partisan political activity while the Cranston charter covers both partisan and nonpartisan activity; and the provision at bar specifically limits the right to become a candidate for public office while in Mitchell the Court was faced only with restrictions on the arguably less significant right of routine political participation. Finally, we note that the constitutionality of the Hatch Act and an analogous state statute is presently before the Court. National Ass’n of Letter Carriers and Broadrick, supra. Interest of the Community In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of the Mitchell decision. National Ass’n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to achieve a compelling state interest. Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public’s confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor’s office who is running for the local zoning board has access to confidential files which could provide “pressure” points for furthering his campaign is destructive regardless of whether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force. We do not, however, consider the exclusionary measure taken by Cranston — a flat prohibition on office-seeking of all kinds by all kinds of public employees — as even reasonably necessary to satisfaction of this state interest. Bullock v. Carter, 405 U.S. at 144, 92 S.Ct. 849. As Justice Marshall pointed out in Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972) “[s]tatutes affecting constitutional rights must be drawn with ‘precision’. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); United States v. Robel, 389 U.S. 253, 265, 88 S.Ct. 419, 19 L.Ed. 2d 508 (1967)”. For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation — a broad prophylactic rule — may be unnecessary to fulfillment of the city’s objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest. As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office. The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of “ballot box purity” justified its imposition of one year and three month residency requirements before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer’s right to vote. Id. at 353-354, 92 S.Ct. 995. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees. Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the loeal offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress ' poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by their architects, it seems clear that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics to warrant distinctive treatment in a charter of this sort. The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees who either participate in decision-making or at least have some access to information concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superi- or. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to avoid. We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases a public employee would be able to campaign aggressively and still continue to do his job well. Since § 14.09(c) of the Cranston charter is not necessary to further any compelling ’state interest, it cannot be upheld under the equal protection clause. The judgment of the District Court is affirmed insofar as the District Court granted relief against § 14.09(c) of the charter and part 3(c) of Civil Service Rule X. CAMPBELL, Circuit Judge (dissenting). I respectfully dissent from the Court’s opinion. I am completely unable to see how the plaintiff, a police officer, can be said to have been denied equal protection of the law as against persons not in the classified service of the City of Cranston. The City (as I believe my brothers would concede) had a legitimate interest, even a compelling one, in keeping its law enforcement personnel (at least) out of local politics. Thus, given the nature of his office, he was not improperly treated. That other civil servants holding less sensitive offices may have a stronger case (the point largely relied upon by the court) seems wholly irrelevant to the issue here, which is simply whether or not this plaintiff was denied rights guaranteed to him by the Constitution. This is not a case of irrational under-inclusiveness — as it would be, for example, had uniformed police been barred from candidacy but detectives allowed to run. See Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Grayned v. City of Rockland, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L. Ed. 1655 (1942). Being placed in a class drawn so as to exclude others similarly situated would be a denial of equal protection since one is subjected to burdens from which others are irrationally excused. But it does not necessarily follow that being placed in a class which may also include persons not identically situated, gives one constitutional cause for complaint. The others’ misfortune may, as here, constitute no conceivable unfairness to the person legitimately classified. Plaintiff (and what might be considered his sub-class, law enforcement personnel) would seem to have no right to a windfall simply because we speculate that others within the classified service (librarians, if any, etc.) might have better reason to object to being barred from politics. I do not see how their hypothetical complaints— which are not before us — demonstrate that plaintiff was in any respect denied equal protection. In Collins v. Texas, 223 U.S. 288, 295-296, 32 S.Ct. 286, 288, 56 L.Ed. 439 (1912), where an unregistered osteopath challenged state registration laws for doctors, Mr. Justice Holmes said, “On these facts we are of the opinion that the plaintiff in error fails to show that the statute inflicts any wrong upon him contrary to the 14th Amendment. . If he has not suffered, we are not called upon to speculate upon other cases, or to decide whether the followers of Christian Science or other people might in some event [ever] have cause to complain.” See United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) is likewise a case of arbitrary underindu.siveness (contraception could not be denied to the single but allowed to the married). Baird’s being allowed to raise the rights of the unmarried raises a different issue — analogous to the present plaintiff’s right, which I do not question, to raise the rights of those who might vote for him. Thus I would limit the inquiry to whether a civil servant like the plaintiff can constitutionally be barred by law from seeking political office of the type plaintiff has been seeking; and I would hold that he can be so barred, just as judges may appropriately be barred from politics. Admittedly if the case is analyzed on First Amendment rather than equal protection grounds, there is precedent for an “overbreadth” approach. To the rule that a plaintiff may not assert the rights of others, Raines, above, 362 U.S. at 22, 80 S.Ct. 519 notes the exception in cases of “freedom of speech.” Thus a statute burdening freedom of speech may properly be attacked on grounds of overbreadth by one who might be regulated by a more narrowly drawn statute. Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972). The strongest statements that political candidacy may be a First Amendment right are in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L. Ed.2d 24 (1968). But as recently as Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Court has limited its analysis of candidacy restrictions to equal protection grounds. It is by no means yet clear that every restriction on candidacy is such a burden on “freedom of speech” as to warrant First Amendment (much less overbreadth) analysis. Free speech, in its direct and usual sense, is presumed to facilitate the working of free government. I question the majority’s implicit assumption that the political candidacy of one in the full-time employ of the taxpayers is entitled to the benefit of the same presumption. Simply because political candidacy has an ultimate effect upon free speech does not mean that it is free speech, or that it reflects values which are in all respects indistinguishable. In the present case, we deal with several interests, all of importance to the working of free government: the right of a citizen to seek office (and of voters to elect him), and the right of the body politic to control, and to ensure the faithfulness, of those in its employ. I see no constitutional reason to exalt the one over the other, and hence I see no reason to favor overbreadth analysis in this situation. By so doing we judicially establish a priority as to which the Constitution is silent. For the same reason that I do not favor overbreadth analysis, I question application of the “compelling interest” standard. Bullock v. Carter, above, indicates that that standard is applicable where an invidious economic burden is placed upon an otherwise qualified candidate. It does not go so far as to apply the standard to non-invidious restrictions based upon reasonable civic notions of eliminating politics from the civil service. Here, the compelling standard is immaterial so long as we focus upon plaintiff’s case; even under that test, the City was plainly warranted in restricting the candidacy of police officers. Yet my brothers are assisted by one aspect of the standard when they come to deal with the putative “others” within the class — non-law enforcement officers. They argue that since the challenged legislation can stand only to the extent there is a “compelling interest”, the City must follow the least restrictive alternative when regulating all its civil servants. I would hold, instead, that normal equal protection analysis, based upon determining whether or not the charter provision has a rational basis, should be applied. I would reverse the decision of the district court and dismiss the complaint. . Mancuso also sought relief against enforcement of § 14.09 (f) of the city-charter, which prohibits “making directly or indirectly if a member of the classified service any contribution to the campaign funds of any political organization or candidate for public office or taking any part in the management of any political organization or in the' conduct of any political campaign further than in the exercise of the rights of a citizen to express his opinion and to cast his vote.” This city challenged appellee’s standing to attack subsection (f) since it had neither attempted nor threatened to enforce that section against Mancuso. See Wisconsin State Employees Ass’n v. Wisconsin Natural Resources Bd., 298 F. Supp. 339, 344-345 (W.D.Wis.1969) [hereinafter ’Wisconsin State Employees]. Mancuso argued that since he had violated the terms of that subsection and since the city had already “noticed” his conduct by attempting to enforce a related provision against him, he should be able to attack subsection (f). The district court ruled Mancuso had standing and proceeded to firid subsection (f) unconstitutional. Whether or not the actions of the parties have so crystallized as to present a justiciable controversy as to subsection (f) is a very close question. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). However, another factor has made it unnecessary for us to decide that difficult issue. At oral argument the city represented to this court that subsection (f) is designed to cover the activities of employees who participate in the campaigns of other people and that only subsection (c) is intended to cover the activities of the candidate employee. While not as authoritative as an official construction of the statute, this clarification has persuaded us that Mancuso should not have been allowed to attack subsection (f). The city’s interpretation is reasonable. It makes sense out of both subsections and renders neither surplusage. The interpretation is bolstered by the existence of another subsection, (e), proscribing the solicitation of funds, which stands in the same posture as (f), i. e., a more specific functional prohibition, which is necessarily embraced, insofar as candidates are concerned, by the flat ban of (c). It seems entirely reasonable to conclude that these narrower controls are not designed for the major offender. In addition, the city’s action in this case, threatening enforcement only of (c), is consistent with this interpretation. These factors, taken together, render Mancuso’s challenge to subsection (f) too speculative for federal judicial resolution at this time. Appellee also challenged, and the dis- ■ trict court invalidated, the city’s Civil Service Rule X, parts 3(c) and (f) which implement the charter provision. For the reasons just noted, we do not adjudicate the validity of part 3(f). We see no barrier, however, to our consideration of the challenge to both subsection (c) of the charter and part 3(c) of the Rules, although for convenience we refer hereafter only to the charter provision. Since the appellee clearly has a cause of action under 42 U.S.C. § 1983, we need not consider whether he 'also could' have . proceeded under the other provisions he invoked. . The appellee below attacked the Cranston charter provision on both First Amendment and equal protection grounds. We recognize that some basic issues must be faced under either analysis but choose to review the provision under the equal protection clause. We do this because § 14.09(c) of the charter treats the right to run for public office, a right implicating not only First Amendment principles but also the principles established in the cases dealing with the public’s right to an unfettered and meaningful vote, cases usually framed in an equal protection context. See Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). As our discussion of the First Amendment interests indicates, we would reach the same result were we to use direct First Amendment analysis. . We do not read Judge Campbell’s dissent as denying the existence of a First Amendment right here, or the charter provision’s serious impact on the exercise of that right, and thus appellee’s standing to mount a facial attack. Rather his balancing of the interests of municipality and citizen indicates to us an adjudication of the merits. . In Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970), the Court refused to consider an equal protection challenge to a court rule furnishing co-defendants only one transcript to be shared on appeal. Although the Court cited Raines, its reasoning was that claimant, who had been loaned a separate copy by the State Attorney General, could not attack the classification which had not adversely affected him. Id. at 286, 90 S.Ct. 501. Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439 (1912), from which the dissent quotes language suggestive of a hard-core exception, seems to us to represent only the Wade principle. There an osteopath challenged on due process and equal protection grounds a Texas statute making, criminal the practicing of medicine for money without having registered with the appropriate Board. The Court held that his challenge to the statutory definition of medicine need not be considered since he had never tried to get a license which the Court assumed would have been granted had he submitted his professional diploma. The case thus seems to stand for the proposition that one arguably eligible for statutory benefits may not challenge the statute as unconstitutional until he has sought and been denied the benefits, i. e., is within the deprived class. See Morf v. Bingaman, 298 U.S. 407, 413, 56 S.Ct. 756, 80 L.Ed. 1245 (1936); Hendrick v. Maryland, 235 U.S. 610, 621, 35 S.Ct. 140, 59 L.Ed. 385 (1915); Standard Stock Food Co. v. Wright, 225 U.S. 540, 550, 32 S.Ct. 784, 56 L.Ed. 1197 (1912). . See, e. g., Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1665 (1942); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Eisenstadt v. Baird, supra. Even the Chief Justice’s lone dissent in Baird was only on- the grounds that the respondent there was not within the affected class, i. e., authorized distributors, see n. 4 supra, not on the grounds that one within the class but possibly subject to less broad rules cannot complain. We note that the Court has recently permitted and upheld a facial attack on the Texas abortion statute based- on due process grounds despite a dissenting member’s objection that the plaintiff may not have had standing to challenge the statute on its face since she may have been, as of the time of the filing of the complaint, within her third trimester as to which the Court permitted regulation even to the point of prohibition. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (U.S. Jan. 22, 1973). Since the Court there used the same analysis we employ here, i. e., whether the regulation which affects a fundamental interest is narrowly drawn to promote a compelling state interest, we deem the facial consideration in Doe supportive of our reading of past equal protection cases. . Judge Campbell’s suggestion of a standing rule in equal protection cases dependent upon the nature of the attack — i. e., allowing a hard core plaintiff to challenge if his attack is based on underinclusiveness but denying standing generally if his claim is that the prohibition is overinclusive— seems to us, wholly apart from the prudential reasons noted above and the difficulty of apply his formula for overinelusiveness challenges, to be without authority and an unnecessary straitjacketing of the court and the parties. As to the authorities, Grayned, supra, involved an overinelusiveness claim — that the picketing ordinance banned peaceful as well as non-peaeeful, non-labor picketing — raised by an admitted hard core offender. 408 U.S. at 106, 92 S.Ct. 2294. Skinner was admittedly decided on under-inclusiveness grounds, but came to the Court — and won the concurrence of the Chief Justice — primarily on overinelusiveness claims (not all three-time thieves are parents of potentially dangerous offspring), though phrased in due process terms. Baird was explicitly decided on both over- and underinclusiveness, 405 U.S. at 450-454, 92 S.Ct. 1029. See also United States v. Bishop, 469 F.2d 1337 (1st Cir. 1972). Skinner and Baird, moreover, reveal the problems of practicality of the proposal. Many cases involve both under- and overinelusiveness claims. Concern for mere judicial efficiency, not to mention fairness to the parties (including the affected government) would dictate adjudication of all of an individual’s claims at once. This case is an example. Although we find overinelusiveness problems regarding the integrity rationale — the ban covering many whose candidacy would pose no danger to the system’s honesty— wo see the charter provision as under-inclusive in relation to the efficiency rationale — not covering many other outside activities which could also drain employee energy and distract co-workers. Were the appellee to be limited to an underinclusive complaint, the municipality would be deprived of its strongest defense, its compelling interest in the integrity of its civil service. Moreover, had appellee known that he was to be so limited, he might have been able to show that others working for the city, but designated by Civil Service Bule XV as being in the unclassified service — such as independent real estate appraisers, engineers, management consultants, and even political appointees — exercised discretionary functions and possessed confidential information, and hence presented risks of abuse of power similar to those posed by the employees subject to the ban. We do not see the gain in so circumscribing a plaintiff, a defendant, or, for that matter, a court. . It is not entirely clear whether the allegation of any infringement of a fundamental interest triggers strict review or whether the infringement must be substantial before the statute requires more than a “reasonableness” review. Compare Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972) [“Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review”, citing McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969)] with Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964) [“Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”] Since a substantiality requirement might be read into the word infringement, the matter may be of no moment. Nevertheless, we need not decide this issue because we find that, after considering the matter before us, there is here a substantial burden on both voting and First Amendment rights sufficient to invoke the rigor of strict equal protection review. . According to latest census figures, there are approximately 2,700,000 federal employees and 9,900,000 employees of state and local government, excluding personnel of the armed forces. U.S. Bureau of the Census, Statistical Abstract of the United States 221 (1971). . We do not know if the number of potential candidates excluded by the Cranston charter provision would be as large as the number excluded by the filing fees required by a statute like that considered in Bulloch. The Court there found that the fees were so large that many candidates would be effectively precluded from access to the ballot. 405 U.S. at 143, 92 S.Ct. 849. On the other hand, the Chief Justice noted that undoubtedly some candidates of modest means could secure ballot positions by soliciting contributions from friends and supporters. In contrast, because of the flat exclusion of civil servants this charter may effectuate a greater proportional contraction of the candidacy pool. Regardless of how one compares the scope of the exclusion here with that in Bulloch, however, we conclude that the exclusion in the present case is a substantial one. . The dissent, although not denying that the candidacy ban here effects a substfmtial contraction of the potential candidacy pool and thus of voter choice, focuses upon the lack of an “invidious economic” burden, such as that in Bulloch, in finding strict scrutiny inapplicable. Although the Court in Bulloch considered the economic impact as one of the two factors triggering strict scrutiny in that case, it did not say, and we do not believe that it could have meant, that only economic restrictions with a substantial effect upon voter choice demand rigorous review. In Williams v. Rhodes, supra, the Supreme Court found that state statutes restricting minority party access to the ballot heavily burdened the right to vote and thus required strict equal protection review. We note that other courts have held that durational residency, Mogk v. City of Detroit, 335 F.Supp. 698 (E.D. Mich.1971) (three-judge court); McKinney v. Kaminsky, 340 F.Supp. 289 (M.D. Ala.1972); Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965), and age restrictions, Manson v. Edwards, 345 F. Supp. 719 (E.D.Mich.1972), on candidacy require strict scrutiny even without consideration of whether another fundamental interest, such as the right to travel, was involved. . In Williams v. Rhodes, supra, the Court held that First Amendment rights were “fundamental” for purposes of equal protection review. See also Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). As noted above, the Supreme Court in Bullock stated that only candidate restrictions with substantial impact on voters would receive the strict review appropriate for legislation which affects the right to vote. We need not decide whether a similar threshold determination is required with regard to an individual’s right to run for office, since we find that the provision here at issue imposes a severe hurdle to appellee’s candidacy and hence to his exercise of his First Amendment rights. As noted above, it does not merely present the would-be candidate with minor requirements before being entitled to a place on the ballot; it forces the public employee to make an all-or-nothing choice between his job and his candidacy. . While independent candidates may often be unsuccessful in partisan elections, we take judicial notice of the fact that local elections are often nonpartisan in nature, and that even in partisan contests, independent candidates do occasionally win. . Thus we cannot concur with the court in Johnson v. State Civil Service Dept., 280 Minn. 61, 157 N.W.2d 747 (1968), when it states that public office is usually sought “for the purpose of earning a living or advancing one’s political career.” . The appellant refers to Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400, 88 L.Ed. 497 (1944), for the proposition that “[t]he right to become a candidate for state office, like the right to vote for the election of state officers ... is a right or privilege of state citizenshij), not of national citizenship.” In Snowden, the plaintiff sought relief under the Fourteenth Amendment and the Civil Rights Act, claiming that election officials had improperly certified the results of a primary election in which he had been a candidate. The part of the opinion quoted dealt with the interpretation of the first clause of the Fourteenth Amendment and ruled that the right to become a candidate for state office was not a privilege or immunity under the national Constitution. Proceeding to subsequent clauses of the Amendment, the Court found that an equal protection claim could not be grounded in the statutory classification made by the legislature, for the legislation on its face was harmless; rather it held that any denial of equal protection in the case before it had to be proved by showing arbitrary application of the statute by the election board. Thus the Court did not reach the question of whether the First Amendment, through the Fourteenth Amendment, protected the right to run for office against unjustified legislative classifications. A second reason why Snowden is not controlling is that it is a product of an outlived theory of the division of federal and state responsibilities. The very quote which speaks of the right to run for state office also speaks of the right to vote in state elections, and cites Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 82 L.Ed. 252 (1937) as support. But in 1966 the Supreme Court, in Harper v. Virginia Bd. of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 16 L. Ed.2d 169 overruled Breedlove, holding that the Constitution protected the right to vote in state elections from the state’s imposition of a poll tax. Finally, the charter provision in question in this case is not limited to the right to run for state office but also prohibits candidacies for national offices. . See Gray v. City of Toledo, 323 F.Supp. 1281 (N.D.Ohio 1971); Wisconsin State Employees, supra. . Cf. Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (fear of fraudulent solicitations cannot justify permit system since “frauds may be denounced as offenses and punished by law.”) . The following practices are prohibited by section 14.09 of the city charter: “ (b) wilfully or corruptly making any false statement, certificate, mark, grade, rating or report to any examination or test held or certification or appointment made under the provisions of this chapter or in any manner committing or attempting to commit any fraud preventing the impartial execution of such provisions or the rules and regulations established thereunder. * * * * * (d) giving, rendering or paying any money, service or other valuable thing for, or account of or in connection with an appointment, promotion or proposed appointment or promotion.” . See Stack v. Adams, 315 F.Supp. 1295 (N.D.Fla.1970) where the court struck down a similar provision because it added a qualification to run for the national Congress, in violation of Article I, Section 2 of the United States Constitution. Cf. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). See also Storer v. Brown (N.D.Cal. Sept. 8, 1972), prob. juris. noted, 410 U.S. 965, 93 S.Ct. 1441, 35 L.Ed.2d 700 (U.S.Mar. 5, 1973). . I do not say that overinclusion, particularly if coupled with a definition of a simple class which is patently objectionable, may never give rise to an equal protection attack by one otherwise subject to appropriate regulation. Hero, however, we are dealing with a very complex overall class made up of numerous sub-classes of employees each of which has its own unique position. I do not think that judicial analysis in one fell swoop, in a case which .shows no impropriety in plaintiff’s classification, is either necessary or desirable, since it places us in a position of deciding issues which have not been fully aired by interested parties. I believe that a court should resolve constitutional questions only to the extent necessary to deal with the rights of the real litigants before it. I think that this is a particularly unfortunate case in which to resolve the broad issues considered by the majority. . I do not, moreover, yet concede the validity of such hypothetical complaints. There are many different job categories in the classified service of the City of Cranston; I think a much better record is necessary before we attempt to decide whether or not the broad candidacy restriction is warranted with respect to the many differing positions. The reason for dealing with plaintiff’s, not someone else’s, case is that we are not well informed as to the latter. . I have not attempted to discuss the many reasons which can be advanced to support the statute in issue. I think it not entirely beside the point that the federal Hatch Act was sustained twenty-five years ago. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Its validity (and that of certain similar state legislation) are again under attack and will soon be redetermined. See National Ass’n of Letter Car. v. United States C. S. Com’n, 346 F.Supp. 578 (D.D.C.1972); review granted, 409 U.S. 1058, 93 S.Ct. 560, 34 L.Ed.2d 510 (1972). The decision in the latter case seems likely to control what we do here. I see no small principle at stake: the right of the citizens and taxpayers to attempt to deal as best they can with the frustrating and difficult problem of how to regulate and control those who, ostensibly, “serve” them (and whose salaries they pay). Many issues are involved : the possible conflict of interest between one who, for example, teaches at a school and is also on the school board; the impact on fellow civil employees of one who engages in politics. If one can run, then one should also be able to promote another’s candidacy. There are states where the personnel of a state agency customarily qpend their time before elections promoting candidates. I seriously doubt the wisdom of judicial decisions removing from flics citizenry and their legislatures much of their power to deal practically, if imperfectly, with such matters. The difficulty of judicial intervention in this field is suggested in Broadrick v. Oklahoma State Personnel Board, 338 F. Supp. 711 (W.D.Okl.1972), review granted, 409 U.S. 1058, 93 S.Ct. 550, 34 L.Ed. 2d 510 (1972), where one issue before the Supreme Court is an alleged denial of equal protection because the employees of some but not all state agencies were precluded from political activity. If an attempt is made to reduce the scope of the legislation here in issue, one can foresee further equal protection attacks based upon the argument of arbitrary imderinclusiveness.

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Albert C. TONEY et al., Plaintiffs-Appellees, v. N. A. WHITE et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Myrtis BISHOP et al., Defendants-Appellants. No. 72-3307. United States Court of Appeals, Fifth Circuit. March 19, 1973. Rehearing Granted June 1, 1973. John T. Seale, Asst. Dist. Atty., Tallulah, La., for defendants-appellants. William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., George Strichler, New Orleans, La., Donald E. Walter, U. S. Atty., Shreveport, La., M. Karl Shurtliff, Gerald W. Jones, Attys., Dept, of Justice, Washington, D. C., Thomas Clark, Dist. Atty., St. Joseph, La., for plaintiffs-appellees. Before ALDRICH, SIMPSON and CLARK, Circuit Judges. Hon. Bailey, Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation. CLARK, Circuit Judge: On April 4, 1970, a Democratic primary for Mayor, Village Marshall, Board of Aldermen, and Democratic Executive Committee was conducted in Tallulah, Louisiana. Black candidates opposed whites for each of the positions. With the exception of Town Marshall and one of the three positions on the Democratic Executive Committee, white candidates won by margins ranging from 24 to 140 votes. On May 4, 1970, the defeated black candidates and their supporters filed suit against the incumbent Democratic Executive Committee to set aside the results of the April 4 primary for the offices of Mayor, Board of Aldermen, and all Democratic Executive Committee posts on the ground that the rights of the plaintiffs and of all black voters in the municipality secured by the Fifteenth Amendment and the Voting Rights Acts had been violated by a selective and racially discriminatory purge of the roll of registered voters immediately prior to the primary. The United States subsequently filed a similar action against Myrtis Bishop, the parish registrar of voters, which was consolidated with the former case for trial. The district court found that the acts and omissions of the registrar constituted a violation of the Fifteenth Amendment and the Voting Rights Acts, enjoined the defendants from engaging in further discriminatory practices, voided the primary election results, and ordered that a new primary election be held. Toney v. White, 348 F.Supp. 188, 195-196 (W.D.La.1972). We affirm as to the prospective injunctive relief but reverse that portion of the judgment which voided the election and ordered the primary races to be rerun. THE FACTS For over a decade Madison Parish, Louisiana, and particularly the Village of Tallulah, the parish seat, have been the center of intense voter rights activity. On three previous occasions the United States District Court has enjoined parish election officials from engaging in discriminatory conduct against Negro voters. In United States v. Ward, 222 F.Supp. 617 (W.D.La.1963) rev’d on other grounds, 349 F.2d 795 (5th Cir.) modified on rehearing, 352 F.2d 329 (5th Cir. 1965), the court permanently enjoined parish officials from discriminatory practices in regard to voter registration. In Brown v. Post, 279 F.Supp. 60 (W.D.La.1968), the court found racial discrimination in the distribution of absentee ballots for a school board election. In United States v. Post, 297 F.Supp. 46 (W.D.La.1969), the court held that erroneous instructions on voting machines had the effect of denying Negro voters an effective ballot in a special election for Town Marshall. In the latter two cases, as in the present action, the district court required new elections to be held. Neither of these decisions was appealed. The present case involves an allegedly selective and discriminatory purge of registered voters from the parish voting rolls in the month preceding the 1970 Democratic primary. The facts as found by the district court are as follows: (1) The purge of 4-year non-voters. On March 5, 1970, the date on which the voting rolls were closed to further registration prior to the April 4 Democratic primary, the registrar published in a local newspaper a list of 141 voters from the parish whose names were to be removed from the rolls for failure to vote in any election during the preceding four years. This notice was defective under Louisiana law because it failed to state that those listed had the right to appear at the registrar’s office within three days of the second newspaper publication to prove their right to remain registered. The 141 voter total on the purge list was comprised of 130 Negroes and 11 whites. Of those eventually removed from the voting rolls, a total of 68 were registered Democrats living in the Village of Tallulah and thus eligible to vote in the April 4 primary. Among those 68 Democrats, 63 were Negroes and 5 were whites. In March 1970, 31 additional persons, 18 blacks and 13 whites, were listed on the voting rolls of Madison Parish who had not voted in the prior four year period, but were not included in the list published by Registrar Bishop on March 5. (2) The purge for unreported change of address: In March 1970 Registrar Bishop also notified 29 Negro voters that their right to remain registered was challenged for failure to report that they had changed their address. Of this group, 24 appeared at the registrar’s office and were reinstated on the voting rolls, but 12 of this number were removed from the Tallulah municipal registration rolls and placed on the general Madison Parish rolls. After other adjustments, the district court found that 19 black voters originally registered as Democrats in the Village of Tallulah were removed from the rolls within a month prior to the primary. During this period the Registrar did not challenge any white voters for unreported change of address. At trial plaintiffs produced a list of 141 white registrants who they asserted should have been challenged for failure to report changes of address. Of these unchallenged whites, 72 voted in the April 4 primary. After the primary contest, the Registrar challenged 75 white voters from this list of 141 at the request of black political leaders and 72 of those challenged were removed from the municipal voting rolls. (3) Failure to challenge absentee voters: La.Rev.Stat. § 18:1080 requires parish registrars to canvass voter rolls for persons who have only voted by absentee ballot for the previous two-year period and require each such voter to substantiate his right to continue to vote in the locality. Although the statute anticipates that challenges under § 18:1080 are to be conducted simultaneously with challenges under § 18:240 and § 18:131, Mrs. Bishop did not challenge any voter to explain continual absentee voting. The parish voting records contained 62 Tallulah registrants, 61 whites and 1 oriental, who had voted exclusively by absentee ballot for a period of two years preceding March 1970. On the other hand, the record showed no black registrant who had voted exclusively absentee during the same period. In summary, the district court found that immediately prior to the April 4, 1970 Democratic primary Registrar Bishop purged from the voter rolls a group of predominately black registrants and, at the same time, failed to challenge similarly situated white voters. The court further found that the procedures followed in cancelling the names of the predominately black group were technically deficient under Louisiana law because of failure to give proper notice to the challenged registrants. The court concluded that the number of voters affected by this application of the Louisiana voting statutes was sufficient to have affected the results of the municipal primary. However, the court found no “calculated racially motivated purpose for the acts and omissions of the Registrar.” INDISPENSABLE PARTIES For the first time in this litigation appellants raise on this appeal the contention that the candidates nominated in the primaries are indispensable parties under Fed.R.Civ.P. 19 and that this party deficit requires dismissal or remand. This point is without merit. Determinations of indispensability are bottomed on equitable principles. Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Schutten v. Shell Oil Company, 421 F.2d 869 (5th Cir. 1970). These candidates have known of the pendency of this suit practically since its inception, their interests have been fully represented and protected, and their absence will in no way affect the grant of complete relief. CONSTITUTIONAL AND STATUTORY VIOLATIONS The Fifteenth Amendment to the United States Constitution prohibits states from denying or abridging the right of citizens to vote on account of race. The Civil Rights Act of 1870, as amended, 42 U.S.C. § 1971(a) forbids any distinctions based on race in the voting process. And Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, prohibits imposition of any practice or procedure which has the effect of denying or abridging the right of any citizen to vote on account of race or col- or. Selective application of laws governing the removal of registrants from voter rolls is a violation of these constitutional and statutory provisions where the effect of such purging is to remove a group which is predominately of one race while leaving unchallenged similarly situated members of another race, notwithstanding the fact that the registration of those challenged could have been legally cancelled under a nondiscriminatory application of the registration statute. United States v. McElveen, 180 F.Supp. 10 (E.D.La.) aff’d sub nom. United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535 (1960). In McElveen the voter registrar of Washington Parish, Louisiana, challenged and subsequently cancelled the registration of 1377 black voters and ten white voters. The district court there found that defects and deficiencies similar to those upon which challenges to black registrants were based could have been found in the registration records of over 50% of the white voters in the parish. This evidence was held sufficient to establish a discriminatory and unconstitutional application of the registration statutes requiring injunctive relief. In the present case, the number of black voters purged from the voting rolls during the month prior to the Democratic primary substantially exceeded the number of white voters purged. Additionally, the plaintiffs have demonstrated that the registrar failed to challenge a significant number of white voters who should have been challenged under a uniform application of the Louisiana voting statutes. At trial, Registrar Bishop offered the following explanations : (a) as to the unchallenged 4-year voters — mere inadvertence accounted for the names overlooked; (b) as to unchallenged changes of address — she relied on lists presented by interested citizens, she did not challenge all blacks whose names were presented to her by white candidates, and she had at other times (though not immediately prior to a contested election) challenged white registrants based on lists presented by black citizens; and (c) as to the failure to challenge continual absentees — she asserted that she was unaware of Section 18:1080 of the Louisiana Statutes since it was omitted from the manual for parish registrars furnished to her by the State Attorney General. However, these explanations must be viewed in light of the uneontested cumulative racial effect of the challenged and non-challenged groups. See Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), aff’d en banc 461 F.2d 1171 (5th Cir. 1972). The appellants emphasize the finding by the district court that Mrs. Bishop’s actions did not involve any calculated racially motivated purpose. In McElveen a similar defense was thus rejected: The action of the defendant Registrar in giving effect to the mass challenges of the individual defendants achieved a discriminatory result in violation of his duties under the 15th Amendment. Whether or not he had the racially discriminatory purpose which motivated the action of the individual defendants and the defendant Citizens Council is irrelevant as a matter of law. Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244. 180 F.Supp. at 14. In short, the record supports the district court’s finding that the acts and omissions by Registrar Bishop in the period immediately preceding the April 4, 1970 Democratic primary constituted a violation of the Fifteenth Amendment and the Voting Rights Acts. REMEDY Finding these constitutional and statutory violations of federally guaranteed voting rights, the district court not only ordered prospective relief from similar practices but also voided the prior polling and ordered the holding of a new primary election. In setting aside the results of the primary balloting, the court below relied on the precedent of its own opinion in Brown v. Post, supra, 279 F.Supp. at 64, and thus on the decision of this court in Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967). In Bell we stated: Drastic, if not staggering, as is the Federal voiding of a State election, and therefore a form of relief to be guardedly exercised, this Court in Hamer v. Campbell, 5 Cir., 1966, 358 F.2d 215, cert. denied, 1966, 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79, expressly recognized the existence of this power. Of course as that opinion emphasizes, not every unconstitutional racial discrimination necessarily permits or requires a retrospective voiding of the election. 376 F.2d at 662. See Hamer v. Ely, 410 F.2d 152, 156 (5th Cir.) cert. denied 396 U.S. 942, 90 S.Ct. 372, 24 L.Ed.2d 243 (1969). The appellees contend that the, court below acted correctly because Bell and subsequent cases establish a two-level standard: (1) where racially discriminatory practices could not have affected the result, the election may be set aside only if the violations were gross and intentional; (2) where the discrimination could have affected the election results, then neither grossness nor intent is relevant. This position misinterprets the standards established in Bell and is otherwise unsupported by precedent. While many factors militate against setting aside a completed state election, the most important being the community’s substantial interest in finality and stability in the election process, Bell v. Southwell, supra, held that this remedy is appropriate when racial discrimination occurs which is “gross, spectacular, [and] completely indefensible” and no effective judicial remedy is available prior to the holding of the election. 376 F.2d at 664; McGill v. Ryals, D.C., 253 F.Supp. 374, 376-377, appeal dismissed 385 U.S. 19, 87 S.Ct. 212, 17 L.Ed.2d 17 (1966). The present case is altogether different from Bell. Here, the acts and omissions of Registrar Bishop were neither flagrant nor grossly discriminatory. Her application of the purge procedures in the period immediately prior to the contested primary, while undoubtedly contrary to the letter and spirit of Louisiana law and in violation of constitutional and statutory rights of black electors because of its effect, cannot be said to have so infected the electoral process as to require that the election be declared void, especially since there was no attempt to seek judicial relief prior to the election. The activities of the parish registrar and the status of the voter rolls are matters of public record of which the present plaintiffs had constructive if not actual knowledge prior to the election. Thus, the present case did not involve acts of discrimination which occurred during the actual voting process or which were willfully concealed until it was too late for the affected parties to seek pre-election relief. Compare Bell v. Southwell, supra, 376 F.2d at 664; United States v. Post, supra, 297 F.Supp. at 50. In cases of racial discrimination in voter registration, the federal court system provides a source for prompt, complete and effective relief— including the postponement of elections and the reinstatement of improperly purged voters. See, e.g. Hamer v. Campbell, supra, 358 F.2d at 215; United States v. McElveen, supra; Gray v. Main, 309 F.Supp. 207 (M.D.Ala.1968). By the same token, where discriminatory practices are known or could be discovered with reasonable diligence, it is the duty of affected parties to bring their grievances forward for prompt pre-election adjudication. Thompson v. Brown, 434 F.2d 1092, 1096 (5th Cir. 1970); Smith v. Paris, 257 F.Supp. 901, 905-906 (M.D.Ala.1966), aff’d as modified 386 F.2d 979 (5th Cir. 1967); McGill v. Ryals, supra, 253 F.Supp. at 376. Cf. Troxler v. St. John the Baptist Parish Police Jury, 469 F.2d 647 (5th Cir. 1972). The alternative to requiring such prompt action as a prerequisite to relief is to permit if not encourage parties who could raise a claim to lay by and gamble upon receiving a favorable decision of the electorate, then, if they lose, cover their bad bet by undoing the ballot results in a court action. This alternative entails not only a manifest intrusión into state political processes, but also requires the court to invoke a presumption which we specifically refused to entertain in Bell — that voters, both voting and barred from voting, made or would make their electoral decisions exclusively along racial lines. The other cases relied on by appellees are inapposite. In Hamer v. Campbell, supra, the plaintiffs sought a preliminary injunction several weeks prior to the date set for municipal primaries to delay the impending elections until racially discriminatory practices could be rectified. This Court, reversing the district court’s denial of the injunction, stated that “[S]ince the District Court should have enjoined the election in the Town of Sunflower, we have concluded that under the special circumstances of this case we must now require that the District Court again set it aside.” 358 F.2d at 222. Perkins v. Mathews, 336 F.Supp. 6 (S.D.Miss.1971) presents an analogous chain of events: In Perkins the plaintiffs sought injunctive relief against implementation of new procedures which affected voting in Canton, Mississippi, municipal elections without the approval of the United States Attorney General as required by Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Several months before the impending elections, a three-judge district court denied relief. 301 F.Supp. 565 (S.D.Miss.1969). The Supreme Court, reversing the district court’s interpretation of the Voting Rights Act, remanded for a determination of whether a new election should be held, 400 U.S. 379, 395-398, 91 S.Ct. 431, 440-441, 27 L.Ed. 2d 476 (1971). On remand the district court ordered that a new election be held in one ward where, but for the imposition of at-large elections, a different candidate would have been elected. In so doing, the court pointed out that the former election had proceeded only after the federal court had given local officials a green light, albeit under an interpretation of law which was ultimately held to be erroneous, 336 F.Supp. at 9. Thus, in both Hamer and Perkins granting new elections was necessary to correct an erroneous denial of pre-election relief, a situation which does not exist in the present litigation. The decisions in Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969) and United States v. The Democratic Executive Committee of Barbour County, 288 F.Supp. 943 (M.D.Ala. 1968), provide no support for the appellee’s position that an election may be set aside even where the discriminatory practices are adjudged to be inadvertent or unintentional. In Hadnott the Supreme Court ordered a new election in Green County, Alabama to rectify the willful and contemptuous action of a local election officer who had omitted the names of black candidates in defiance of a court order requiring their inclusion. The Barbour County decision is similar to Hadnott in that the district court not only found purposeful discrimination against Negroes in violation of the Fourteenth and Fifteenth Amendments but also willful defiance of previous court orders. 288 F.Supp. at 946-948. This, of course, is not such a case. In fact there is no appeal from the district court’s finding that the Registrar’s acts lacked any calculated discriminatory purpose. Indeed, the only reported decisions which suggest that a completed election may be set aside, where there is neither a finding of gross, intentional racial discrimination nor a timely pre-election request for injunctive relief, are the previous decisions of this same court involving earlier elections in Madison Parish. Brown v. Post, supra, 279 F.Supp. 60 and United States v. Post, supra, 297 F.Supp. 46. As we previously noted, neither of these decisions was appealed. CONCLUSION The decision of the district court is affirmed to the extent that -it orders prospective relief from racial discrimination in registration and voting in Madison Parish, but it is reversed insofar as it declares void the result of the April 4, 1970, primary for Mayor, Board of Aldermen, and Democratic Executive Committee in the Village of Tallulah and orders a new election. Affirmed, in part. Reversed, in part. ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges. BY THE COURT: A member of the Court in active service having requested a poll on the applications for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc, It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. . See Note, Voting Rights: A Case Study of Madison Parish, Louisiana, 38 U.Chi. L.Rev. 726 (1971). . Under Louisiana law it is the mandatory duty of the parish registrar to conduct prior to October 1 of each year a purge of 4-year non-voters. La.Rev.Stat. § 18:240(1). Section 18:240 does not fix a date upon which the registrar is to begin such a purge. In the opinion of the Louisiana Attorney General, a purge conducted within the 30 days prior to an election, during which the voter books are closed for reregistration, is not within “the spirit of the law.” But if a purge is conducted within this pre-election period, registrants who ax>pear before the registrar and validate their registration must be allowed to vote in the impending election. Op.La.Atty.Gen., 1956-58, pp. 209-11. . Mrs. Bishop also sent notice by mail to these 141 voters. Each letter informed the registrant that he could appear to show cause why. his name should not be removed from the roll. The district court ruled that this information in the notice by mail was insufficient to correct the deficiency in the newspaper publication, because Louisiana law, La.Rev.Stat. § 18:240(2), requires both mail and published notice to be complete and correct. . Among the 63 Negroes pni'^ed without proper notice, only two were shown to have appeared at the polls on Democratic primary day and both were allowed to vote. . La.Rev.Stat. § 18:131. Notice to these voters failed to strictly comply with the procedure required by Louisiana law, La. Rev.Stat. § 18:132, for the removal of voters for illegal or fraudulent registration. . Removal of residence from a municipality results in immediate loss of the right to vote for municipal officers. Op. La.Atty.Gen.1948-50, p. 159; 1946-48, p. 223; 1942—44, p. 422; 1942-44, p. 423; 1942-44, p. 421; 1936-38, p. 293; 1936-48, p. 198. . The Louisiana Constitution, Article 8, § 11, provides that certain persons may be absent from their domicile without losing their voting residence, e, g., voters serving in the Armed Forces, seamen engaged in navigation, and students attending- an institute of learning distant from their home parish. . Absentee ballots, east overwhelmingly for white candidates, have been decisive in many recent elections in Tallulah. For example, in April 4, 1970 Democratic primary, black candidates for each position received a majority of the votes cast at the polls on election day; however, all but two were defeated as a result of heavy absentee balloting which averaged over 6 to 1 for their white opponents. 348 F.Supp. at 194. See also Brown v. Post, supra, where the white candidate received 510 absentee ballot votes compared with two for his black opponent, who lost by 169 votes. In that election all 512 absentee ballots were cast by white voters. . See also United States v. Clement, 231 F.Supp. 913 (W.D.La.1964) and United States v. Crawford, 229 F.Supp. 898 (W.D.La.1964) rev’d in regard to remedy, 358 F.2d 89 (5th Cir. 1966); United States v. Wilder, 222 F.Supp. 749 (W. D.La.1963); United States v. Association of Citizens Councils, 196 F.Supp. 908 (W.D.La.1961). . The record shows that during her term of office prior to the trial in the court below, Mrs. Bishop removed 1,096 registrants from the voter rolls, 521 white and 575 black. However, prior to Marcli 5, 1970 she had removed more white voters from the registration rolls than blacks. . The Perkins decision affirms the principle established in Bell v. Southwell, supra, that, except in the unusual circumstances such as the erroneous denial of pre-election relief, setting aside a complete election is “required only upon a finding by the Court that gross and indefensible racial discriminatory practices were employed in the election.” 336 F.Supp. at 9. . Keller v. Gilliam, a reapportionment case, is one-of-a-piece with Hamer and Perkins. In Keller we found that the district court committed “clear error” in permitting an election to be held before implementing a previously mandated reapportionment plan. Thus we required a new election to be held under the revised apportionment. 454 F.2d 55, 57 (5th Cir. 1972). . It should be pointed out that in previous phases of the Barbour County litigation, the district court and this court refused to set aside Executive Committee elections conducted under the racially discriminatory apportionment plan. Smith v. Paris, 257 F.Supp. 901 (M.D. Ala.1966), aff’d as modified 386 F.2d 979 (5th Cir. 1967).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Michael F. KELLEY, Defendant-Appellant. No. 72-1272. United States Court of Appeals, First Circuit. Argued Nov. 9, 1972. Decided March 30, 1973. Ira L. Schreiber, Providence, R. I., with whom Schreiber, Clingham & Gordon, Providence, R. I., were on brief, for appellant. Paul F. Ware, Jr., Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges. PER CURIAM: Appellant was convicted of violating and conspiring to violate 26 U.S.C. § 4705(a), now repealed by Pub.L. 91-513, Title III, § 1101(b)(3)(A), October 27, 1970, 84 Stat. 1292, by dealing in cocaine not in pursuance of a written order form issued for that purpose. His conviction was affirmed in United States v. MacDonald, 455 F.2d 1259 (1st Cir. 1972). Subsequently, he alleged that the sentence was illegal in that it was based on a statute repealed prior to his sentencing, that the trial judge improperly denied appellant’s motion for treatment commitment pursuant to the Narcotics Addict Rehabilitation Act, 18 U.S.C. § 4251 et seq. (NARA), and that his ten year sentence violates the constitutional prohibition against cruel and unusual punishment. In the light of appellant’s request that we reconsider our holding in United States v. Bradley, 455 F.2d 1181 (1st Cir. 1972), that probation is not available to persons sentenced under the former 26 U.S.C. § 7237(b), we withheld decision pending Supreme Court review. We now consider that question foreclosed by the Court’s opinion, Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). Whatever merit might exist in appellant’s claim that parole may still be available to persons in his situation, presumably under 18 U.S.C. § 4202, we note that the Supreme Court expressly reserved judgment on this matter, id. at 4370 n. 6, and we have been presented no reason for considering it now, in this proceeding, so far in advance of its possible applicability to appellant who has served less than two years of his ten year sentence. Appellant’s NARA issue is more troublesome because it appeals that the district court may have improperly applied that act in part. Assuming appellant was not one “who is or has been so far addicted to the use of such narcotic drugs as to have lost the power of self-control with reference to his addiction”, 18 U. S.C. § 4251(a), he still may qualify as one “who habitually uses any narcotic drug . . so as to endanger the public morals, health, safety or welfare”, id., see also United States v. Lindsey, 324 F.Supp. 55 (D.D.C.1971), either clause being sufficient by itself to define an “addict”. Before the trial court and upon appeal the government focused upon disproving appellant’s contentions insofar as loss of self-control is concerned. All we have in the district court’s opinion is a bare conclusion that appellant was not an addict. Nevertheless, 18 U.S.C. § 4251(f) (2) bars from eligibility one whose primary purpose in making the sale for which he is convicted was not to support his habit. While the district court may have erroneously thought, as colloquy seemed to indicate, that this provision related to prior convictions, we have serious doubts that the evidence could be said to support the necessary finding as to primary purpose. In any event, we note that the court explicitly exercised its discretion in refusing to place appellant in the custody of the Attorney General. The relevant law, § 4252, is permissively phrased to vest such discretion in the sentencing judge, even if he finds that the offender is “eligible” and an “addict”. Whatever might be the scope of review of such discretion in other cases, we cannot say that here, where appellant agreed to sell $6,000 of cocaine — an act seemingly “involving quantities of narcotics far in excess of any personal needs, [there was any] abuse of discretion in not invoking NARA.” United States v. Clayton, 450 F.2d 16, 21 (1st Cir. 1971). Finally, even if we were to measure appellant’s sentence against the suggested constitutional test for cruel and unusual punishment of Mr. Justice Brennan in Furman v. Georgia, 408 U.S. 238, 305, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which is suggested here in the brief for the United States, we cannot say, in light of the facts of this case, that the ten year sentence given appellant violates his constitutional rights. See also McWilliams v. United States, 394 F.2d 41, 48 (8th Cir. 1968). Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Roosevelt WALKER, Petitioner-Appellant, v. E. B. CALDWELL, Warden, Georgia State Prison, Respondent-Appellee. No. 71-3253. United States Court of Appeals, Fifth Circuit. April 3, 1973. Joseph W. Popper, Jr., Macon, Ga., for petitioner-appellant. Arthur K. Bolton, Atty. Gen., Dorothy T. Beasley, Harold N. Hill, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee. Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges. SIMPSON, Circuit Judge: Roosevelt Walker, a Georgia state prisoner, appeals from the district court’s denial of his petition for writ of habeas corpus. We are required here once again to examine the minimum standard of duty imposed upon appointed counsel in a felony case where the defendant pleads guilty. After careful review of the record, the briefs and the contentions of the parties at oral argument we reverse. Walker was arrested in Baldwin County, Georgia, on August 23, 1969, and charged in eleven separate indictments with seven counts of burglary (Criminal Code of Georgia, 1969, § 26-1601), three counts of theft by taking (Criminal Code of Georgia, 1969, § 26-1802), and one count of carrying an unlicensed, concealed pistol. On Friday, August 29, 1969, Walker attended by court-appointed counsel pled guilty in Georgia state court to each of the charges against him. He was sentenced to three years confinement on each of the seven charges of burglary and on each of the three counts of theft by taking, all sentences to be served consecutively, a total of thirty years imprisonment. On the charge of carrying an unlicensed, concealed pistol, Walker was sentenced to six months in a public work camp, this sentence to be served concurrently. Subsequent to his imprisonment, Walker petitioned the state courts of Georgia for a writ of habeas corpus contending, inter alia, that he was at all times innocent of the charges against him, that he had never expressed a desire to plead guilty, that he had been denied effective assistance of counsel at the time of his pleas, and that therefore his pleas of guilty were not knowingly, voluntarily and understandingly made. After a hearing, the state court denied relief. Walker then sought habeas corpus relief from the Middle District of Georgia federal district court. On the basis of an insufficient state court record, that court denied relief without an evidentiary hearing. Walker v. Smith, 5 Cir. 1971, 439 F.2d 392. We reversed, and directed the district court to conduct an adequate evidentiary hearing to permit Walker to develop his contentions that he was deprived of his constitutional rights in connection with his criminal conviction by the State of Georgia, and to accord Walker representation in connection with such hearing if that court should, in its discretion, determine that such representation was required in the interests of justice. The hearing was held on July 26, 1971. Walker testified. Deposition testimony was introduced from the Sheriff of Baldwin County, two of his deputies, the judge of the state court who accepted Walker’s pleas and sentenced him, and from Walker’s appointed counsel. Petitioner’s counsel attended and cross-examined at the depositions. On October 7; 1971, the district court again denied habeas corpus relief. Walker v. Caldwell, M.D.Ga.1971, 335 F.Supp. 308. This appeal followed. At the time of Walker’s convictions, it was the practice to take all guilty pleas on Friday mornings in the Baldwin Superior Court. On Friday, August 29, 1969, Walker was transported to the court, apparently on the basis of an indication to the Sheriff or one of his deputies that he wished to plead guilty. Walker had not as yet discussed his case with any member of the bar. The Judge of the Superior Court, Judge George S. Carpenter, appointed James M. Watts, Jr., an attorney, to represent Walker and his co-defendants at the proceeding. Watts, whose office adjoins the courtroom, handled roughly ninety per cent of the appointed cases in this court, without fee. He represented approximately 500 defendants each year, and usually handled about ten cases each plea day. Watts talked to Walker for a very brief period of time. Walker testified that Watts only talked to him for five minutes. Watts, although unable to remember the specific incidents of his representation of Walker, testified in the court below by deposition that it was his usual practice to spend from ten to thirty minutes on each case on an average plea day. It is uncontradicted however, that on the morning in question Watts did not seek to investigate the facts of the charges against Walker, talk to any witnesses, explore the possibility of a motion to suppress, or engage in any plea bargaining. Watts testified below that he follows a substantially different practice when representing fee clients rather than appointed clients. Watts also testified that he only determined to his satisfaction that Walker’s pleas were voluntarily and understandingly made, and did not advise Walker whether to plead guilty. After his brief discussion with Walker, Watts pleaded Walker guilty to all charges against him. Walker is illiterate and Watts signed the pleas of guilty. No record was made of the plea proceedings in the state court, other than the formal notations of pleas and sentencing. On appeal to this Court, Walker contends that: (1) habeas corpus relief must be granted under Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, since no record was made of the proceedings in state court; (2) the district court erred in finding that Walker was afforded and enjoyed the benefits of effective assistance of counsel at the time of his pleading and sentencing; and (3) the district court erred in finding that Walker knowingly, voluntarily, and understandingly entered pleas of guilty to the charges in state court. Since we agree with the district court’s determination of the Boykin issue, we address ourselves solely to Walker’s contention that he was denied effective assistance of counsel at the time of his pleas, and that therefore his pleas were not voluntarily and intelligently given. The determination of these issues is first a question of fact for the trial court, not to be disturbed on appeal unless clearly erroneous. Rule 52(a), F.R.Civ.P. The precise issue of whether a particular defendant enjoyed “effective” assistance of counsel, is, in the end, however, a question of law. As implied by the Supreme Court in Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, there is a legal standard, by definition normative and prescriptive, which must be applied to a particular set of facts in order to determine whether an accused received effective assistance of counsel. Thus while we question the trial court’s findings of fact (see footnotes 4, 5, and 6 and accompanying text), we think the trial court erred in its conclusion of law, under either version of the facts, that Walker enjoyed effective assistance of counsel and thus pleaded guilty both voluntarily and intelligently. In Powell v. State of Alabama, supra, the “Scottsboro case”, the Supreme Court granted certiorari to decide whether the denial of the assistance of counsel in a criminal case violated the due process clause of the Fourteenth Amendment of the United States Constitution. In that case several blacks were accused of the rape of two white females. The state trial court appointed “all the members of the bar” to represent the defendants at arraignment. Only at the trial itself was specific defense counsel appointed. Limiting itself to the facts of this particular case, the Supreme Court held that in a capital case where the defendant is indigent and incapable of making his own defense, the court has the duty of appointing counsel to represent the defendant. The Court held that this duty was not discharged by an appointment that precluded effective assistance, that mere appointment of counsel is insufficient in and of itself to comply with the due process clause. While limited to its facts, Powell discussed the principles underlying effective assistance of counsel: “However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. . 287 U.S. at 52, 53 S.Ct. at 58, 77 L. Ed. at 162. •X- -X- -X- -X- -X- -X- “[S]uch designation of counsel as was attempted [here] was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard [T]his action of the trial judge in respect of appointment of counsel was little more than an expansive gesture, imposing no substantial or definite obligation upon any one . . . [T]he defendants did not have the aid of counsel in any real sense. . 287 U.S. at 53, 56, 57, 53 S.Ct. at 58, 59, 60, 77 L.Ed. at 162, 164. X- X X X X X “It is not enough to assume that counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thorough-going investigation might disclose as to the facts. No .attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial . . . Under the circumstances disclosed, we hold that defendants were not accorded the right of counsel in any substantial sense. To decide otherwise, would simply be to ignore actualities . . . 287 U.S. at 58, 53 S.Ct. at 60, 77 L.Ed. at 165. •X- -X- -X- -X- -X- X- “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issues or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. 287 U.S. at 68, 69, 53 S.Ct. at 64, 77 L.Ed. at 170. •X- -X- -X- -X- * * “[W]e are of the opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment.” 287 U.S. at 71, 53 S.Ct. at 65, 77 L. Ed. at 172, 173. In Von Moltke v. Gillies, supra, the Supreme Court delineated the standards to be applied in determining whether an accused who pleads guilty has been afforded effective assistance of counsel. The Court held that the accused in Von Moltke, who pleaded guilty, was denied effective assistance of counsel, and stated that: “A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial, [citations omitted] Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent. 332 U.S. at 721, 68 S.Ct. at 322, 92 L. Ed. at 319, 320. -X- -X- -X- * -X- -X- “In Powell v. State of Alabama [citations omitted], the trial court, instead of appointing counsel particularly charged with the specifc duty of representing the defendants, appointed the entire local bar. This Court treated such a cavalier designation of counsel as a mere gesture and declined to recognize it as a compliance with the constitutional mandate relied on in that case. It is in this light that we view the appointment of counsel for petitioner when she was arraigned. This lawyer, apparently reluctant to accept the case at all, agreed to represent her only when promised by the judge that it would take only two or three minutes to perform his duty. And it seems to have taken no longer. Even though we assume that this attorney did the very best he could under the circumstances, we cannot accept this designation of counsel by the trial court as anything more than token obedience to his constitutionally required duty to appoint counsel for petitioner. Arraignment is too important a step in a criminal proceeding to give such wholly inadequate representation to one charged with a crime.” 332 U.S. at 722, 723, 68 S.Ct. at 322, 323, 92 L.Ed. at 320. The correct legal standard to be applied where an accused with appointed counsel pleads guilty is as stated by the Supreme Court in Von Moltke. Further we note the language of McCarthy v. United States, 1969, 394 U.S. 459, 89 S. Ct. 1166, 22 L.Ed.2d 418, to the effect that “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” [Emphasis added] 394 U.S. at 466, 89 S.Ct. at 1171, 22 L.Ed. at 425. Providing this “understanding of the law in relation to the facts” is the function of the accused’s appointed counsel. We have previously considered the question of the standards to be applied to determine whether a defendant enjoyed effective assistance of counsel. We held in Kent v. Sanford, 5 Cir. 1941, 121 F.2d 216, that an attorney appointed to represent an indigent defendant is under an initial obligation to his client equal to that duty owed when he is retained and paid by the accused to represent him. We recognized in Lamb v. Beto, 5 Cir. 1970, 423 F.2d 85, however, that the same duty is not owed by appointed counsel to an accused who pleads guilty as to one who decides to go to trial: Obviously, more would be required of counsel if the plea had not been guilty for some duty might have arisen to support this plea. However, it appears that the only required duty of counsel under the most liberal construction when a plea of guilty is entered is that counsel . . . should ascertain if the plea is entered voluntarily, and knowingly. Id. at 87. The scope of this duty of appointed counsel in guilty plea cases, to insure that the plea is entered voluntarily and knowingly, has been examined by us in several recent cases. On the facts of these cases we have generally denied relief. The cases in which we have denied relief fall into two categories. First, in many cases the petitioner has merely presented a bare assertion, unsupported by the record and contradicted at an evidentiary hearing, that he was denied effective assistance of counsel. In these situations we have uniformly denied relief on the basis of the “clearly erroneous rule”, Rule 52, F.R.Civ.P. See Farmer v. Beto, 5 Cir. 1971, 446 F.2d 1357; Gotcher v. Beto, 5 Cir. 1971, 444 F.2d 696; Busby v. Holman, 5 Cir. 1966, 356 F.2d 75. Second, we have denied relief where the petitioner attacked the effectiveness of his appointed counsel on the sole ground of the shortness of the time his counsel spent on his behalf. In Daugherty v. Beto, 5 Cir. 1967, 388 F.2d 810, we denied relief on this ground, and noted that the petitioner’s appointed counsel was a highly respected attorney and that “although this' fact alone does not establish his effectiveness in a particular case, neither does brevity of consultation, without more, establish ineffectiveness.” Id. at 813. Daugherty has been consistently followed in this Circuit. See Woodard V. Beto, 5 Cir. 1971, 447 F.2d 103; Lamb v. Beto, supra; O’Neal v. Smith, 5 Cir. 1970, 431 F.2d 646; Evans v. Beto, 5 Cir. 1969, 415 F.2d 1129. In the only recent habeas corpus case in which the petitioner did not present merely a bare conclusionary assertion or rely solely upon the shortness of time his counsel spent on his case, we affirmed the granting of habeas corpus relief to the petitioner. Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075. There we held that the petitioner was denied effective assistance of counsel in his state court proceeding when he pleaded guilty. Commenting upon the Supreme Court’s recent decisions in McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L. Ed.2d 785, and Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L. Ed.2d 747, we stated: “A necessary result of the seriousness with which courts treat pleas of guilty, however, is that courts have a concomitant responsibility to assure that defendants who plead guilty do so voluntarily and knowingly. We think that an equally important aspect of the courts’ responsibilities in this problem area is the protection of the accused’s right to the benefit of reasonably competent counsel in making his plea, especially when that plea is entered on advice of counsel. One cannot read the Supreme Court’s opinions in McMann, Parker and Brady, supra, without being impressed by the significance the Court attached to the role of counsel in the process of deciding how to plead. In all three cases, it was obvious that the Supreme Court envisioned a system under which the defendant, advised by reasonably competent counsel, makes an informed and conscious choice ... In any particular case in which the system fails . . . it is the courts’ duty to supply relief.” [Emphasis original] Id., 438 F.2d at 1079. In examining the facts of the Colson case, it is clear that more was involved than a bare assertion that his appointed counsel spent too little time with him: “There is testimony from petitioner in this case that his court-appointed counsel informed him that one of his co-defendants was going to testify against him, that counsel could not undertake to defend him, and that the best thing petitioner could do was plead guilty. Petitioner’s counsel contradicted much of this testimony, but it was uncontroverted that petitioner adhered to his decision to plead not guilty until the day the case was called. Furthermore, it was uneontradieted that there was considerable discussion between the petitioner and his counsel, on the one hand, and the state trial judge, on the other, before petitioner entered his final plea. During this colloquy, it appears that petitioner resisted pleading guilty for some time before finally relenting. It also appears that although counsel knew beforehand that petitioner wanted to plead not guilty, counsel appeared in court on the day the case was called completely unprepared to go to trial. On this record the trial judge made a fact finding that petitioner’s guilty plea was the product of ineffective assistance of counsel . . . We agree . . . with the district court’s finding that under either version of the facts, the evidence in this case demonstrates that petitioner was ineffectively represented in his state court proceeding. We reach this conclusion even in light of the narrow duty imposed on counsel representing a defendant who pleads guilty. See Lamb v. Beto, supra. For we believe that the evidence in this case supports the conclusion that counsel actively tried to convince petitioner to plead guilty in the face of petitioner’s repeated protestations of innocence; and to offset this evidence, there was no evidence that counsel’s advice to plead guilty was based on any evaluation of petitioner’s chances had he gone ' to trial. In other words, we do not have before us a case of ‘reasonably competent’ advice which, with the benefit of hindsight, turned out to be mistaken . . .We are of the opinion that on this record there is no way that an appellate court could conclude that counsel had fulfilled his duty to ascertain that his accused client’s plea of guilty was voluntarily and understandingly made. We therefore affirm the district court’s order to set aside the conviction.” Id. at 1079, 1080, 1081. The complete factual situation persuaded the Colson panel that the petitioner had been denied effective assistance of counsel. Note 5 noted that the advice given an accused by his appointed counsel need not be “correct”, only “reasonably competent”, but went on to state: “. . . when . . . the defendant resisted pleading guilty and no reasons were given for urging a guilty plea on the defendant, courts cannot assume that there were satisfactory reasons for the plea. This is especially true when there appear positive reasons in the record why a petitioner might have pleaded not guilty.” id. at 1081. Colson stresses the fact that petitioner’s counsel never spoke to the co-defendant, and never bothered to even find out who the witnesses were that petitioner maintained could provide an alibi for him. Also the petitioner had never been identified in a lineup, as had his co-defendants. Our most recent decision in this area, Cooks v. United States, 5 Cir. 1972, 461 F.2d 530, was a direct appeal rather than a post-conviction state habeas case, but the constitutional standard applied is not different. There the defendant’s conviction was vacated on the basis of lack of effective assistance of counsel. Cooks, an indigent, pleaded guilty on the advice of his appointed counsel to interstate transportation of a forged security in violation of Title 18, U.S.C. § 2314. As in Colson, supra, we held that the record, taken as a whole, demonstrated that the defendant was denied effective assistance of counsel: “Defendant, a virtual illiterate with a minimal, sixth-grade education, was charged on a facially defective six-count indictment . . . Notwithstanding the obvious inefficacy of the indictment, Defendant was advised by court-appointed counsel that should he go to trial on the indictment, he would face a maximum sentence of up to sixty years — ten years on each count. Instead of risking such an extended incarceration, defense counsel advised Defendant to accept a ‘plea bargain’ which had been negotiated with the Government’s Attorney — if Defendant would plead guilty to Count I of the indictment [transporting the American Express Money Order], and face a maximum penalty of ten years in prison, the Government would move to dismiss the other five (unenforceable) counts. The Defendant quite understandably accepted the deal. “While the good faith errors of appointed counsel are normally insufficient to justify granting a motion to vacate sentence, significant misleading statements of counsel can rise to a level of denial of due process of law and result in a vitiation of the judicial proceeding because of ineffective assistance of counsel, [citations omitted] Where counsel has induced defendant to plead guilty on the patently erroneous advice that if he does not do so he may be subject to a sentence six times more severe than that which the law would really allow, the proceeding surely fits the mold we describe as a ‘farce and a mockery of justice’, [citations omitted] •X* -X- *X- * -X- * “. . . [Although counsel need not be a fortune teller, he must be a reasonably competent legal historian. Though he need not see into the future, he must reasonably recall (or at least research) the past [T]he controlling Supreme Court precedents which demonstrate unequivocally that defendant could not possibly receive a total of 60 years on the indictment were decided more than a decade before this defendant pleaded guilty. Effective counsel should have been aware of and advised the defendant of, at a minimum, the maximum — that is, the maximum penalty as the law was then understood. “Moreover, in addition to not having adequately advised his client of the possible punishment under the indictment, there is affirmative evidence in the record that counsel did not even inform the defendant regarding the nature of the offenses charged —not even of the single count to which the defendant pleaded guilty. •X4 * -X- -X’ *X' “. . . [T]here is absolutely nothing in the record to demonstrate that the defendant had any understanding of the nature of the offense charged in the indictment, the factual basis for it, or, as discussed above, of the possible criminal sanctions of that conduct.” [Emphasis original] 461 F.2d 531, 532, 533. Thus taking into consideration the illiteracy of the defendant, the “patently erroneous” advice of appointed counsel, the failure of appointed counsel to even inform the defendant of the nature of the offenses charged, and the lack of any showing in the record of any understanding by the defendant of the proceedings against him, the Cooks panel of this Court held that the defendant’s guilty plea was invalid. Against the backdrop of the Supreme Court’s admonitions in Powell and Von Moltke and in the light of our recent decisions in the area, particularly the Col-son case, we proceed to examine the record before us in the instant ease. The petitioner here does not merely make an unsupported assertion or rely exclusively on the brief time his appointed counsel, Watts, spent with him. Here we have the highly questionable prevailing practice in the Baldwin Superior Court of routinely appointing a single resident attorney to represent ten or more defendants at every Friday morning plea day without compensation; the lack of a record of the proceedings; the fact that Watts offered no advice to Walker as to whether or not to plead guilty; the significant fact of Walker’s illiteracy; numerous indictments involving ten separate offenses on different occasions, all dealt with in a few minutes; and the fact that Watts made no attempt (1) to investigate the facts of the charges against Walker, (2) to talk to any witnesses, (3) to explore the possibility of a motion to suppress, or (4) to engage in any plea bargaining even though the presence of ten serious charges should suggest the possibility of plea bargaining to the veriest tyro. Of the eleven' indictments against Walker, three charged him with the crime of theft by taking under § 26-1802 of the Criminal Code of Georgia (1969). Section 26-1812 of this chapter states that “[a] person convicted of violation of sections 26-1802 shall be punished as for a misdemeanor except: (a) If the property which was the subject of the theft exceeded $100 in value . . . .” Section 26-401 defines a felony as “a crime punishable by death, or by imprisonment for life, or by imprisonment for more than 12 months,” (§ 26-401 (e)) while a misdemeanor “means any crime other than a felony” (§ 26-401 (g)). It would appear then that the maximum punishment for a misdemeanor under the Criminal Code of Georgia is 12 months’ imprisonment. The above is set forth in order to point out that each of the three indictments charging Walker with theft by taking involved property the value of which was less them $100, i. e., a misdemeanor. Yet the state trial judge sentenced Walker to three years on each indictment, clearly in excess of the statutory maximum. Since Walker does not here challenge the sentences he received we do not reach this point on appeal. But the unchallenged imposition of illegal sentences is indicative of the atmosphere surrounding Walker’s pleas of guilty, and is an eloquent testament to the quality of representation by his counsel. We emphasize at this point that no record was made at the time of Walker’s pleas and sentencing. Coupled with the admitted operation of a pro forma assembly line for the representation of criminal defendants by counsel on plea days this adds weight to our conclusion that the entire court proceedings lacked the requisite regard for the rights of accused persons appearing before the court. Taking the situation here as a whole, we hold that Walker’s plea and conviction approximates the situation in Von Moltke, where the Supreme Court stated that “[e]ven though we assume that this attorney did the very best he could under the circumstances, we cannot accept this designation of counsel by the trial court as anything more "than token obedience to his constitutionally required duty to appoint counsel for petitioner.” In view of the total factual situation present when Walker pleaded guilty we hold that he was denied effective assistance of counsel, and hence that his pleas were not voluntarily and knowingly given. This result is reached on the facts here. We do not hold that every appointed counsel representing an accused who desires to plead guilty, or whom he advises to plead guilty, must investigate all the facts of the case, explore all possible avenues of defense, etc., to the extent required of appointed counsel representing an accused who pleads not guilty and goes to trial. We do hold that under these facts, as in Von Moltke and Colson, something more is required than the pro forma procedure followed here. The key words are “effective assistance of counsel.” Much of the language of our recent cases in the area refers to whether the assistance of counsel was “effective”. We must not ignore the equally important first requirement that appointed counsel actually and substantially assist his client in deciding whether to plead guilty. The judgment of the district court is reversed, and the cause is remanded with directions to grant Walker’s petition for a writ of habeas corpus. The State of Georgia has the option, of course, of retrying Walker, at which time he will be allowed to replead. Reversed and remanded. BELL, Circuit Judge (specially concurring) : I concur in the result reached that appointed counsel was ineffective under the circumstances. The district court did not really come to grips with the issue of the alleged ineffectiveness of counsel. The focus was on the Boykin claim, and on the claim that the pleas of guilty were not voluntarily made. The claim of ineffectiveness of counsel having been considered in a tangential fashion if at all, we would normally remand for findings and conclusions on this issue. However, this is the second appearance of the case in this court and it is in the interest of both petitioner and the public to conclude it if possible. The public has the right to hold petitioner responsible on the charges against him, and he has the right to plead anew, either guilty or not guilty. I agree that the matter can be concluded on the basis of ineffectiveness of counsel, given the hurried process employed and the irrefutable proof of ineffectiveness which appears in the fact that petitioner pleaded and was sentenced to felonies on three counts which were in fact misdemeanors. It is also admitted that counsel did not familiarize himself with the facts as to any of the charges or make any judgment as to whether petitioner should plead guilty. These facts make out ineffectiveness of counsel as a matter of law. I do, however, fully agree with Judge Bootle that petitioner failed to prove his claim that the state trial judge accepted the pleas of guilty in the face of petitioner’s protestations of innocence. I do not understand the majority to hold otherwise. . In Boykin v. Alabama, supra, the Supreme Court held that: “In Carnley v. Cochran [citations omitted] we dealt with a problem of waiver of the right to counsel . We held: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which simo, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ We think that the same standard must be applied to determining whether a guilty plea is voluntarily made . We cannot presume a waiver of . . . important federal rights from a silent record.” [Emphasis added] 395 U.S. at 242, 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279, 280. Relying on the italicized language in Hoykin above and on this Court’s decisions in Dennis v. Henderson, 5 Cir. 1970, 435 F.2d 1288, and Nobles v. Beto, 5 Cir. 1971, 439 F.2d 1001, the district court determined that Boykin does not require the automatic setting aside of a conviction obtained on a plea of guilty where the record is silent. The court concluded that “ . . .in situations where the question of the voluntariness of a guilty plea is 2'aised in a habeas corpus action the court is authorized and should either hold an evidentiary hearing to establish a record whereby it can be deter-mined that a plea of guilty was freely and voluntarily entered or else rely on a record established in a state habeas corpus hearing, which record is adequate under the provisions of 28 U.S.C.A. § 2254.” Walker v. Caldwell, M.D.Ga.1971, 335 F. Supp. 308, at 313. The district court thus concluded that if an evidentiary hearing held after the entering of the plea shows that the pleas were voluntarily and intelligently made, that the proscriptions of Boylcin are satisfied and the lack of a record at the time of the original plea is not fatal. We agree. Dennis v. Henderson, supra; Nobles v. Beto, supra. . Nor can we ignore the Supreme Court's recent admonition in Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, to the effect that Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as felony cases. Counsel is needed so that the accused may know precisely what lie is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution. . The formal requirements of this duty are now the responsibility of the trial judge in federal courts. Rule 11, F.R.Crim.P. . For example, Mr. Watts testified below that “usually if it is a burglary case, the person who is the victim of it — I say usually, a good part of the time — he will be in court”. Walker was, of course, charged with seven burglaries. Watts testified that he could not remember whether the victims of the burglaries were in court on the morning of Friday, August 29, 1969, but he was sure that he made no attempt to and did not talk to any of them. Mr. Watts also testified as to whether he made any investigation as to the value of the items alleged to have been stolen by Walker: Q. I notice that in each one of these accusations that the value is given to the property that was allegedly taken from these various places. For example, the first one gives a value of $200, and each one all the way through gives some value. What does that have to do with the case? Is that a necessary element of the crime? A. I don’t think it makes any difference in the burglary, but I think in the theft by taking, I believe over a certain value, there is a difference as to whether or not it is a felony or a misdemeanor. I am not certain offhand. And as to why the District Attorney puts the amount in, I don’t really know. Q. Did you make any independent investigation in any of these cases to determine if the value as stated in the accusation was an accurate value, a fair value. A. I don’t remember specifically on these, but usually I do inquire about that, and generally my opinion of the value of those items, unless they are in exceptionally poor condition, is that the valuation that they place on them is less than, in my opinion, a fair value should be, and I think it is the policy of the Sheriff’s Department and the District Attorney’s office to put minimum value on things instead of maximum. But there again, that is an opinion. Q. I notice here that a battery taken from the truck of Wilbur Wise, they have got it at $25, and that could be either way high or way low, couldn’t it, depending on the age and condition and type of battery? A. That’s true, but I believe most of Mr. Wise’s property consisted of trucks and machinery and it would be likely have been a heavy duty battery. He operated bulldozers and ten-ton trucks and things. Q. Did you ever see any of these items that were allegedly taken? A. Not that I recall. Q. I believe you have said that you did not leave the courtroom in connection with any of these eases? A. I don’t think I did with these. . Mr. AVatts testified below that he advised AValker of possible sentences he might receive if he pleaded guilty: Q. Were you satisfied that he [Walker] understood what the consequences of pleading guilty would be? A. Yes. I explained to him the number of counts for burglary and the number of other charges and told him that he could get 20 years for each count of burglary, and I am not certain but I think it is 10 years for theft by taking. I don’t recall offhand the punishment for the other two. Mr. Watts was also asked why each of the indictments included the dollar value of the property that had been allegedly stolen: A. I don’t think it makes any difference in the burglary, but I think in the theft by taking, I believe over a certain value, there is a difference as to whether or not it is a felony or a misdemeanor. I am not certain offhand. And as to why the District Attorney puts the amount in, I don’t really know. Thus Mr. Watts appears to have been ignorant of the fact that whether the crime of theft by taking is a felony or misdemeanor depends upon whether the value of the property taken is more or less than $100. As discussed in the text, each of the indictments charging Walker with theft by taking assesses the value of the property taken as less than $100, and thus was a misdemeanor, the maximum penalty for which is 12 months’ imprisonment. In addition, it appears from the testimony of Judge Carpenter, the state trial judge, that he was also unaware that AValker had been charged with three misdemeanors, i. e., theft by taking. Q. Now, you say there were nine burglaries. AVere not there three theft by taking or were there nine burglaries? A. Well, I believe they were burglaries. Q. Let me refer you to Accusation and Sentence No. 21315, 21316, and 21317 as the certified copies appear in the record from Tattnall Superior Court, the habeas corpus transcript, and ask you if they are three that you may have referred to as burglaries that are theft by taking. A. I think that by referring to 26-802, which is, of course, theft by taking, this happened about the time the new criminal code went into effect. Q. So we are talking about the same cases? A. Yes, it is the same thing. If you turn to Code Section 26-802, you will see that it deals with burglary and related offenses. The new Criminal Code of Georgia, including § 26-1802 (Theft by taking), went into effect on July 1, 1969, some two months prior to Walker’s pleading and sentencing. Section 26-802, referred to by Judge Carpenter above, deals with “Trial and conviction of parties who did not directly commit the crime.” Section 26-1802 deals solely with theft by taking. Burglary and related offenses are covered by Chapter 26-16 of the Code, sections 26-1601 and 26-1602. In light of the three year sentences received by Walker, we can only assume that Judge Carpenter was not aware that the value of the goods taken must be $100 or more to constitute the felony of theft by taking. We do note that under the old Georgia criminal law, tiie watershed value was $50. See, e. g., Ga.Code, § 26-2627 (1953). Judge Carpenter’s testimony below as to his usual practice in guilty plea cases was as follows: Q. What disposition was made of these eases [Walker’s] before you? A. They came on — I assume that this was tried on Friday. Friday is plea day for the Circuit. The matter came on, and while it has been almost two years, and handling cases in eight counties in the Circuit, and there are a great many of them, I cannot remember what happens in each case, and I wouldn’t attempt to say. But knowing my practice for a long time, I have always taken pains to see that defendants were properly represented. I realize the seriousness of that. Many times, after they have wanted to plead, there may be some intimation that they probably don’t, well, I stop it right then. I don’t ever take a plea unless I am satisfied that the plea is freely and voluntarily done and with the advice of counsel. Mr. Watts testified that he made no attempt to advise Walker whether to plead guilty. In addition, we hold today that AValker was not “properly represented”. . The district court made a credibility choice between Walker and his appointed attorney and the state trial judge. We cannot say that the court erred in finding much of Walker’s testimony before him to be unbelieveable. We do note two circumstances, however. First, Walker alone testified in person before the district court. His appointed attorney, the state trial judge, the sheriff and his deputies, all testified by deposition. Secondly, in his opinion denying Walker habeas corpus relief, the district court stated that: “To credit the testimony of petitioner would require that we discredit the testimony [deposition] of a member of the bar, the Sheriff of Baldwin County along with two of his deputies and of Judge Carpenter [the state trial judge]. Judge Carpenter affirmatively stated that he would never countenance an involuntary plea of guilty. 1 happen to know Judge Carpenter and I know that he would not do so even if he had not so testified. It is unthinkable that this experienced, capable and conscientious Judge would sentence a man to 30 years after that man told him that he was not guilty of the charges against him. Nor can it be presumed that a member of the bar would plead a man guilty without authority to do so and over his protestations of innocence. To make a finding that the events did transpire as alleged by petitioner would require a much stronger showing than we have here.” ' [Emphasis added] Walker v. Caldwell, M.D.Ga., 335 F. Supp. 308 at 315. Our decision of this case is not based upon either crediting Walker’s testimony or upon discrediting that of Judge Carpenter or Mr. Watts. Neither evaluation is necessary. But we note: (1) whether Judge Carpenter was “experienced, capable and conscientious” is not the issue ; rather, in a case of this kind we are concerned witli the particular events that transpired on the morning of Friday, August 29, 1969; (2) the lack of a record of the proceedings, combined with the inability of these witnesses to remember the details of Walker’s pleas and sentencing forces courts in cases like this to rely on circumstantial evidence to determine what actually occurred; the “usual practice” of court and counsel does not in and of itself render Walker’s testimony incredible ; and (3) in Colson, supra, at least, we had the situation where appointed counsel pled his client guilty against his will. In addition, were we to reach a different result in this case, we might consider remanding the case for reconsideration by a different district court judge not as well acquainted with the state trial judge.

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Victoria Lamonte ESLINGER, for herself and for all other women similarly situated, Appellants, v. Lovick Oliphant THOMAS, as Clerk of the Senate of South Carolina, Erle Elias Morris, Jr., as President ex officio of the Senate of South Carolina, and as a representative of the Senators of South Carolina, Appellees. No. 72-1542. United States Court of Appeals, Fourth Circuit. Argued Dec. 5, 1972. Decided March 28, 1973. Laughlin McDonald, Columbia, S. C. (Charles Morgan, Jr., Norman Siegel, Emily Carssow, Morris Brown and Neil Bradley, Atlanta, Ga., on brief), for appellants. Randall T. Bell, Asst. Atty. Gen., and E. N. Zeigler, Florence, S. C. (Daniel R. McLeod, Atty. Gen., Hubbard W. McDonald, Jr., Asst. Atty. Gen. of South Carolina, and Paul M. Moore, Spartanburg, S. C., on brief), for appellees. Before WINTER, CRAVEN and FIELD, Circuit Judges. WINTER, Circuit Judge: Victoria Lamonte Eslinger sued for herself and other women similarly situated, alleging that she had been denied temporary employment as a page in the South Carolina Senate solely because of her sex. She prayed declaratory and injunctive relief on behalf of all temporary and permanent employees, as well as damages. The district court found as a fact that there was no discrimination on the basis of sex with regard to permanent employees. Although it found that employment as a page was denied her solely because of her sex, the. district court denied her any relief. Eslinger v. Thomas, 340 F.Supp. 886 (D.S.C. 1972). In large part, we disagree and remand with directions to grant equitable relief. I. In November, 1970, plaintiff, a law student at the University of South Carolina, was recommended by a South Carolina state senator for appointment as a page for the senate for the 1971 session of the South Carolina General Assembly —a species of temporary employment. Subsequently, defendant Thomas, Clerk of the Senate, informed her that she could not be employed as a page because she was female. Her informal appeals to the Governor and Lieutenant Governor of South Carolina failed, as well as her sponsoring senator’s intercession with the clerk. The district court found that, at the time plaintiff sought employment, pages were usually college students and a large number were law students at the University of South Carolina Law School. Pages performed various duties assigned by senators, the clerk and other employees of the senate, including running errands, both personal and official, for senators, preparation and distribution of Acts, proofreading, indexing, bookkeeping, obtaining food and drink for the senators, assisting with committee records, relaying messages to senators, attending committee meetings, acting as assistants and helpers to clerks of various committees, and otherwise taking care of senators’ needs. Pages are temporary employees; they work only for the months the senate is in session. The positions are quite attractive to students. Although they are not overpaid, working hours are not long, working hours may be adjusted to suit the convenience of the employee, and pages have the opportunity to view the lawmaking process and to meet state officials. Suit was filed in February, 1971. Several months, thereafter, the South Carolina Senate adopted Resolution S. 525, establishing new classifications and duties of part-time employees formerly known as pages. Under this resolution, females may be employed as “clerical assistants” and “committee attendants,” but not as “Senate pages.” As a condition of employment, a female is also required to furnish a written statement from her parent or guardian assuming responsibility for her transportation,' safety and supervision to and from her local residence and the senate and at her local residence. At the time of trial, three women had been employed pursuant to this resolution, but plaintiff did not apply for such employment, insisting on her right to be a “Senate page.” After finding that the suit was not barred by the eleventh amendment, the district court found that defendants Morris, the Lieutenant Governor of South Carolina and President ex-officio of the Senate of South Carolina, Brown, the President Pro Tempore of the Senate, and all other senators were immune from suit as state legislators under the speech or debate clause (Art. I, § 6, cl. 1, U.S.Constitution). The Clerk of the Senate, defendant Thomas, was held not immune from suit under that clause. The district court determined that the custom of the South Carolina Senate to deny females positions as pages, prior to the adoption of Resolution S.525, denied plaintiff her “Constitutional right to seek employment and be employed.” The district court concluded, however, that the constitutional rights of female citizens were not violated by the superseding provisions of S.525, and that the prohibition against females running personal errands for senators (one practical effect of the resolution) was not shown to be “arbitrary or wanting in rational justification.” In addition, the district court found that the claim for monetary damages against Morris and Brown was barred under the speech or debate clause; the clerk was found not liable for damages because he acted in good faith. Finally, the district court found that the senate did not discriminate on the basis of sex with regard to permanent employees. Although the contention that such discrimination existed was not abandoned on appeal, it was not vigorously pressed; and since our examination of the record demonstrates that the finding was not clearly erroneous, we will not consider the issue further. For the reasons stated below, we agree that damages are not recoverable by plaintiff, but we think that she and the class she represents are entitled to declaratory and equitable relief. II. It is clear that the Lieutenant Governor, the President Pro Tempore and all state senators joined as defendants in this suit are immune from suit, and liability for damages. The protection of the speech or debate clause of the Constitution of the United States has been extended to state legislators. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). The scope of the privilege granted is not unlimited, but a senate resolution is protected to the same degree as words spoken in'actual debate. Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The passing of acts and resolutions is the very essence of the legislative process, and any attempt to punish a legislator for such actions would manifestly tend to “control his conduct as a legislator,” in derogation of the clause. Gravel, supra at 618, 92 S.Ct. at 2623. See United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); Tenney v. Brandhove, supra. We reject plaintiff’s argument that defendants waived their immunity under the speech or debate clause by their failure to allege it formally in their answers to the complaint and amended complaint. The issue was raised during trial. All parties requested and were given leave to file post-trial memoranda. While we do not have their briefs in the record, we presume that they discussed the issue, because it was a basis of decision by the district court. In any event, both the possibility and validity of an immunity defense in this case were apparent from the beginning, and plaintiff has shown no prejudice as a result of the timing of assertion of the defense. We can only conclude that assertion of the defense was sufficiently timely that it should be considered and where, as here, it is meritorious, it should be sustained. The clerk was acting in good faith and, we agree, should not be liable for damages. His position was not unlike that of the Board of Visitors of the University of Virginia, whose actions in maintaining an all male state college did not subject them to liability under § 1983: The defense of official immunity should be “applied sparingly in suits brought under § 1983” Nevertheless, it should be available to public officials who act in unquestioned good faith and in perfect accord with long standing legal principle only to find their discretionary conduct declared illegitimate under a later constitutional interpretation. In an analysis of the immunity doctrine, Judge Learned Hand stated that its purpose is to encourage conscientious public officials by not “exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors” . . . . The admissions policy formulated by the University Board of Visitors and acquiesced in by the other defendants was in contravention of no clear constitutional principle when adopted. We hold that plaintiffs are not entitled to damages under § 1983. Kirstein v. Rector and Visitors of University of Virginia, 309 F.Supp. 184, 189 (E.D.Va. Three-Judge Court, 1970). Although the clerk may have acted with little sensitivity to a swelling tide of legal and social precedent rapidly eroding the bastion of male chauvinism, he acted in the light of a long-standing, albeit vaguely defined, “custom” of the South Carolina Senate barring female pages. He did no more, or less, than what had always been done. “While high state officials may be expected to be reasonable men, they neither can nor should be expected to be seers in the crystal ball of constitutional doctrine.” Westberry v. Fisher, 309 F.Supp. 12, 17 (D.Me.1970). The clerk should not be “charged with predicting the future course of constitutional law.” Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). Good faith alone may not always be enough to avoid liability for damages. Certainly there is nothing in § 1983, or the fourteenth amendment to suggest that an improper motive is a requirement for a federal cause of action. Instead, § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). Thus, what defenses there are to a § 1983 action are those that would exist in a parallel state common law tort action, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Jenkins v. Averett, 424 F. 2d 1228, 1233 (4 Cir. 1970); and only when good faith alone would be a sufficient defense to a tort, would it usually be a sufficient defense to a § 1983 action based on that tort. Roberts v. Williams, 456 F.2d 819, 826 (5 Cir. 1971), cert. denied 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971). A federal cause of action based on sex-discrimination has no deep common-law roots; rather, it emerges from recent enlightened approaches to what constitutes equal protection of the laws under the fourteenth amendment. Consequently, there exists in this case no well-defined common-law defense of good faith to adopt as a'defense in the federal suit. Yet, as Kirstein, supra, points out, in the area of sex-discrimination, the inchoate state of legal guidelines suggest that good faith, coupled with reasonable grounds to believe one is acting within the law, should be sufficient to preclude liability for damages. Properly applied, such a test, based on the circumstances of each case, maintains the effectiveness of § 1983 actions while providing conscientious state officials with some protection against the cutting edge of a rapidly developing legal doctrine. We are persuaded from our consideration of the record that, in fact, the clerk demonstrated a reasonable basis for his good faith actions and was justified in raising this defense to avoid monetary liability. We sustain it. III. Although Thomas is immune from damages, by virtue of his being a legislative employee, he is not immune from suit and the grant of equitable relief. Legislative employees who participate in unconstitutional activity are responsible for their acts. Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Thus, we turn to the merits of the claim for equitable relief. Our starting point is the district court’s finding, which was not clearly erroneous, that “plaintiff was denied employment as a temporary employee of the Senate of South Carolina at the beginning of the January, 1971 Session solely because of her sex.” Plaintiff’s challenge to the employment practices of the South Carolina Senate is grounded primarily on the equal protection clause of the fourteenth amendment. She urges us to find sex a “suspect classification,” which would require “close judicial scrutiny” of a governmental action based upon such a classification, see, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Until recently an argument that a classification based upon sex violated the equal protection clause bore little chance of success. However, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L. Ed.2d 225 (1971), the Court struck down a classification based upon sex, holding invalid an Idaho statute which gave a mandatory preference to a male over a female for appointment as administrator of an estate when both were equally qualified and within the same entitlement class. In describing the test of validity, the Court said: The Equal Protection Clause [denies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike . . .” [citation omitted]. The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of [the statute], (emphasis supplied). 404 U.S. at 75-76, 92 S.Ct. at 253-254. Thus Reed, in a case of invidious sex discrimination, prescribed as a test of validity the presence of a “fair and substantial” relation between the basis of the classification and the object of the classification. A classification based upon sex is less than suspect; a validating relationship must be more than minimal. What emerges is an “intermediate approach” between rational basis and compelling interest as a test of validity under the equal protection clause. Green v. Waterford Board of Education, 473 F.2d 629 (2 Cir. 1973); Wark v. Robbins, 458 F.2d 1295, 1297 n. 4 (1 Cir. 1972); Gunther, The Supreme Court, 1971 Term. Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 17 (1972). When we apply the test of Reed, we are compelled to conclude that S.525 denies equal protection. The “public image” of the South Carolina Senate and of its members is obviously a proper subject of state concern. Apparently, the South Carolina Senate felt that certain functions performed by pages on behalf of senators, e. g. running personal errands, driving senators about in their autos, packing their bags in hotel rooms, cashing personal checks for senators, etc., were “not suitable under existing circumstances for young ladies and may give rise to the appearance of impropriety.” Resolution S.525, n. 2, supra. In their brief, defendants argue that “[i]n placing this restriction upon female pages, the Senate is merely attempting to avoid placing one of its employees in a conceivably damaging position, protecting itself from appearing to the public that an innocent relationship is not so innocent, and maintaining as much public confidence while conducting the business of the people of South Carolina as possible.” We find this rationale unconvincing. It rests upon the implied premise, which we think false, that “[o]n the one hand, the female is viewed as a pure, delicate and vulnerable creature who must be protected from exposure to criminal influences; and on the other, as a brazen temptress, from whose seductive blandishments the innocent male must be protected. Every woman is either Eve or Little Eva — and either way, she loses.” Johnson and Knapp, Sex Discrimination By Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 704-5 (1971). See also, Seidenberg v. McSorley's Old Ale House, Inc., 317 F. Supp. 593, 600 (S.D.N.Y.1970); Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal. Rptr. 329, 485 P.2d 529 (1971). We have only to look at our own female secretaries and female law clerks to conclude that an intimate business relationship, including traveling on circuit, between persons of different sex presents no “appearance of impropriety” in the current age, graduated as we are from Victorian attitudes. We note also that South Carolina has had female senators. While the record does not reflect their ages, the association of female senator with male page has not given rise to a sufficient “appearance of impropriety” to require legislative regulation which is the reverse of S.525. In short, present societal attitudes reject the notion that, in most forms of business endeavor, free association between the sexes is to be limited, regulated and restricted because of a difference in sex. The requirements of S.525 of a written statement from the female’s parent or guardian assuming responsibility for her transportation, safety and well-being and for her “strict supervision” stand on no firmer ground. Adult females, or nearly adult females, are no longer chattels of their husbands or parents. If they are tendered and accept special protection or special courtesies, there is no violation of right; but unwelcome special protection, especially denial of employment opportunity, foisted upon them is counter to modern law and modern social thinking. We do not question the right of the Senate of South Carolina to make such regulations and to exercise such control as it may think appropriate in keeping with its sense of propriety as to the duties of all pages, male and female. But such regulation and control must be kept within the bounds of the Constitution. The latter does not permit denial of employment opportunity to female pages because they are female. Since we can find no “fair and substantial” relation between the object of S.525 (combatting the “appearance of impropriety”) and the ground of difference (sex) upon which the classification rests, we reverse with regard to the denial of declaratory and injunctive relief and remand the case for further proceedings. Affirmed in part; reversed in part; costs awarded to plaintiff. . Suit was grounded on the fourteenth amendment and 42 U.S.C.A. §§ 1983 and 1988. The district court was vested with jurisdiction under 28 U.S.C.A. § 1343(3) and (4) and 42 U.S.C.A. §§ 1983 and 1988. . A SENATE RESOLUTION RELATING TO CLASSIFICATION OF SOME PART-TIME EMPLOYEES AND CERTAIN RESPONSIBILITIES RELATING TO THEIR EMPLOYMENT. Whereas, the Senate desires to create reasonable classification of some part-time employees heretofore generally known as pages ; and Whereas, applicants for these part-time positions must be sponsored by a Senator and the final selection of these applicants is a prerogative of the Senators, subject to such rules and regulations as the Clerk of the Senate shall prescribe; and Whereas, it is the sense and judgment of the Senate that certain functions performed by pages in personal attendance upon the Senators and in the performance of personal errands for Senators while the Senate is in session are not suitable under existing circumstances for young ladies and may give rise to the appearance of impropriety; and Whereas, recent renovations in the State House have provided additional office space for routine clerical and committee functions; and Whereas, some routine clerical and committee duties may be appropriately performed by young ladies ; and Whereas, the Senate wishes to establish reasonable classifications and responsibilities for the filling of these positions according to the duties required, with reasonable restrictions. Now, therefore, Be it resolved by the Senate of the State of South Carolina: That the following classifications of some part-time employees are: 1. Senate pages, whose primary duties shall be assisting the regular high school pages (three) in performing the various errands and duties as requested by the Senators, President and clerks, shall be male students. 2. Clerical assistants, whose primary duties shall be posting of records or indexing, bookkeeping, preparation and distribution of temporary acts and proofreading, may be female students. 3. Committee attendants, whose primary duties shall be answering telephones, assisting with committee records, relaying of messages to Senators attending committee meetings, and other duties assigned by the Chairman, may be female students. Be it further resolved that no female student nominated by a Senator to one of these positions classified herein shall be appointed until the Senator files with the Chairman of the Rules Committee of the Senate a written statement, accompanying such appointment, from the parent or guardian of the female student concerned that such parent or guardian: (1) Will be responsible for the safe transportation of the female student between the Senate and the female student’s place of local abode, and return; and (2) Will assume full responsibility for the safety, well-being and strict supervision of such female student while she is in her place of local abode. The Rules Committee of the Senate shall hear and report to the Senate complaints concerning the refusal of appointment of Senate pages, committee attendants and clerical assistants by the Senators nominating them, and the failure of a Senator promptly to make complaint to the Rules Committee shall be deemed to be a withdrawal of the nomination giving rise to the complaint. . Where good faith as a defense to damages is permitted, it is unnecessary to give any consideration to the significant issue of whether the eleventh amendment bars the granting of monetary damages against a state officer sued in his official eapacity. Compare Rothstein v. Wyman, 467 F.2d 226 (2 Cir. 1972); Like v. Carter, 353 F.Supp. 405 (D.E.Mo.1973); and Westberry v. Fisher, 309 F.Supp. 12 (D.Me.1970) with Jordan v. Weaver, 472 F.2d 985 (7 Cir. 1973). . Plaintiff argues that in damage actions against public officials charged with an unconstitutional violation of property or contractual rights, courts have generally not adopted the defense of good faith, citing, inter alia, the back pay cases of Harkness v. Sweeny Independent School District, 427 F.2d 319 (5 Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971) and Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 (4 Cir. 1966). But, as these cases point out, a claim for back pay is not simply a claim for damages, but rather an integral part of the equitable remedy of reinstatement. No question of reinstatement is involved here, and the damage claim, although labeled as one for back pay, is independent from plaintiff’s claim for injunctive relief to ban invidious sex classifications in the hiring of pages. . Bradwell v. Illinois, 16 Wall. 130, 83 U.S. 130, 21 L.Ed. 442 (1873) (license to practice law); Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908) (limitation on hours of work); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948) (prohibiting employment as a bartender); Hoyt v. Florida, 386 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (absolute right of exemption from jury duty). But see Alexander v. Louisiana, 405 U.S. 625, 634, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (concurring opinion of Mr. Justice Douglas). . For a sex discrimination case espousing the concept of a “suspect classification,” which requires a compelling state interest to sustain it, see Sail’er Inn v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971). See also, Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment? 84 Harv. L.Rev. 1499 (1971); Johnson and Knapp, Sex Discrimination By Law: A Study in Judicial Perspective, 46 N.Y.U.L.Rev. 675, 686 (1971); United States ex rel. Robinson v. York, 281 F.Supp. 8, 14 (D. Conn.1968). . See, e. g., McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), “[t]he constitutional safeguard [the equal protection clause] is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective.” . See Dahlstrom, ed., The Changing Roles of Men and Women (1967) ; Montagu, Man’s Most Dangerous Myth 181-84 (4th ed. 1964); Myrdal, An American Dilemma 1073-78 (2d ed. 1962); Watson, Social Psychology: Issues and Insights 435-56 (1966); Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo.Wash.L. Rev. 232, 235-42 (1965). . This resolution was modeled on S.Res. 112, adopted by the United States Senate on May 13, 1971: Resolved, That no individual shall be denied appointment as a Senate page, elevator operator, or postoffice employee, or as a Capitol policeman whose compensation is disbursed by the Secretary of the Senate, solely on the basis of sex. In the case of Senate pages, however, until such time as the fireproof building containing dormitory and classroom facilities, as authorized by section 492 of the Legislative Reorganization Act of 1970, is constructed and the pages are living under appropriate supervision in such building, the Sergeant at Arms of the Senate shall promulgate and have in effect regulations for the appointment of pages of the Senate requiring that no female page shall be appointed by a Senator until the Senator files with the Sergeant at Arms a written statement accompanying such appointment that the Senator— (1) will be responsible for the safe transportation of the female page he appoints between the Senate and the page’s place of local abode and return ; and (2) will assume full responsibility for the safety, well-being, and strict supervision of such female page while such page is in her place of local abode. It is noteworthy that the U. S. Senate Resolution makes no distinction based on sex regarding employment of pages. The restrictions imposed on females are temporary in nature and they are not a fair indicator of decision here when one considers that U. S. Senate pages are of high school age while South Carolina Senate pages are usually college and law students. . Our resolution of this case suggests no departure from our recent holding in Cohen v. Chesterfield County School Board, 474 F.2d 395 (4 Cir., Jan. 18, 1973), rev’g 326 F.Supp. 1159 (E.D.Va. 1971). In Cohen, this Court applied the rational basis test to uphold a maternity leave regulation of the School Board against an equal protection attack. The majority concluded that the School Board regulation was “not an invidious discrimination based upon sex. It does not apply to women in an area in which they may compete with men,” i. e., having children. In contrast, the selection process for jobs as senate pages is an area in which women could be very much in competition with men.

f2d_476/html/0233-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Herman A. STUHL, Plaintiff-Appellant, v. G. Joseph TAURO et al., Defendants-Appellees. No. 72-1390. United States Court of Appeals, First Circuit. Heard March 7, 1973. Decided March 29, 1973. Robert W. Hagopian, Wrentham, Mass., for plaintiff-appellant. Lawrence T. Bench, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., were on brief, for defendants-appellees. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. CAMPBELL, Circuit Judge. Plaintiff-Appellant has conceded that the sole issue to be decided is whether the district court erroneously denied plaintiff’s request for a three-judge court. We conclude that the district court was correct in its determination, although we do not find it necessary anew to reach the issue of whether a substantial federal question was presented, preferring instead to rest our decision upon principles of res judicata and direct estoppel. Plaintiff-Appellant’s complaint, with one addition hereinafter described, is practically identical to one he filed against the same defendants on June 18, 1971 (D.Mass. No. 71-1215-W). That suit was dismissed by the district court on June 30, 1971, for want of a substantial federal question. Proceeding under Local Rule 6, we affirmed dismissal on September 21, 1971, stating, in part: Inasmuch as no substantial constitutional question exists it was appropriate for the single judge to dismiss the complaint and not to invoke a three-judge district court. Plaintiff-Appellant’s motion for leave to file a petition for rehearing late was denied on October 12, 1971, and he apparently did not file a petition for certiorari in the United States Supreme Court. Plaintiff-Appellant has thus fully and completely litigated the question of whether his complaint presented a substantial federal question; ^e may not now relitigate this issue, regardless of whether the prior decision is deemed to be on the merits or merely “jurisdictional.” Restatement of Judgments §§ 45(c), comment d and 49, comment b; Lyle v. Bangor & Aroostook Railroad Company, 237 F.2d 683, 685 (1st Cir. 1956) (citing Restatement of Judgments § 45(c), comment d); cert. denied, 353 U.S. 913, 77 S.Ct. 672, 1 L.Ed.2d 667 (1957); Acree v. Air Line Pilots Association, 390 F.2d 199, 203 (5th Cir. 1968); cert. denied 393 U.S. 852, 89 S. Ct. 88, 21 L.Ed.2d 122 (1968); Estevez v. Nabers, 219 F.2d 321 (5th Cir. 1955); American Hawaiian Ventures v. M. V. J. Latuharhary, 257 F.Supp. 622, 627-628 (D.N.J.1966); LaBarbera v. Batsch, 10 Ohio St.2d 106, 227 N.E.2d 55, 59 (1967); St. Paul Hosp. Wkrs. H. & W. v. Bethesda Lutheran Hosp., 265 Minn. 256, 121 N.W.2d 325, 326 (1963). As the Fifth Circuit observed in Estevez v. Nabers, supra 219 F.2d at 323-324: Plaintiff insists that the first judgment was not “on the merits” and should not bar this subsequent action. The dismissal of the first action can be ascribed to a lack of jurisdiction or to the absence of a substantive claim; actually the ground of dismissal amounted to both of these. But even if regarded as a decision not on the merits, the first action precludes a new adjudication of the question already decided. . . . The only difference between Plaintiff-Appellant’s complaint in 71-1235-W and the present case is an additional sentence to the effect that he “is arbitrarily being denied admission to law school.” This minor addition does not raise a question sufficiently distinct from those raised previously to avoid the estoppel created by decision of the prior action. “[Wjhether the first decision was on the merits or not is not important here, since we regard the two actions as not materially different, and the question actually decided in the first action disposes of the present one as well.” Estevez v. Nabers, supra 219 F.2d at 324. The observations of Mr. Justice Frankfurter in Angel v. Bullington, 330 U.S. 183, 192-193, 67 S.Ct. 657, 662, 91 L.Ed. 832 (1947) may be pertinent: The doctrine of res judicata reflects the refusal of law to tolerate needless litigation. Litigation is needless if, by fair process, a controversy has once gone through the courts to conclusion . . . . And it has gone through, if issues that were or could have been dealt with in an earlier litigation are raised anew between the same parties. Judgment affirmed.

f2d_476/html/0234-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Janet M. HERREMAN et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees. No. 72-1055. United States Court of Appeals, Seventh Circuit. Argued Jan. 24, 1973. Decided March 22, 1973. Jack Aulik, Sun Prairie, Wis., for plaintiffs-appellants. Harlington Wood, Jr., Morton Hollander, Robert M. Feinson, Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendants-appellees. Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges. SPRECHER, Circuit Judge. The question is whether the widow of a National Guard officer killed while returning from a Florida fishing trip with the Adjutant General of the State of Wisconsin, as a non-paying passenger on a military aircraft, may sue the United States under the Federal Tort Claims Act. Jerold F. Herreman was a Captain in the Wisconsin Army National Guard and the Army National Guard of the United States. On January 26, 1969, he joined Major General Ralph Olson, the Adjutant General of the State of Wisconsin, in Key West, Florida. The General and his wife were vacationing in Florida and had invited Captain Herreman to come down from Milwaukee to go fishing with the General. Intending to return home, on January 29, 1969, the Captain appeared at the Key West Naval Air Station, Florida, in military uniform and requested, on a space-available basis, transportation back to Milwaukee on the military aircraft assigned to transport General Olson home. The request was granted. The aircraft crashed on its flight from Key West to Milwaukee, killing General Olson, his wife, and Captain Herreman. The visit to Key West to fish with the General was a purely social visit. At the time of the crash of the aircraft, Herreman was not on any mission pertaining to the Wisconsin Army National Guard. Neither he nor his unit of assignment was in active federal service. He was not on active duty for training or inactive duty training in his Army National Guard of the United States status, nor was he performing training or duty as a member of the Army National Guard. Herreman’s widow brought this action pursuant to 28 U.S.C. § 2674 of the Federal Tort Claims Act, asserting that the United States is liable. She also named the Wisconsin Air National Guard as a defendant. After several affidavits were filed by the parties, the district court entered a summary judgment in favor of the United States and dismissed the claim against the Wisconsin Air National Guard. The court concluded at 332 F.Supp. 763, 766 (E.D.Wis.1971): “[Ejven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then (whichever way the rule is phrased) he will be barred from suing the Government. In the instant case, Captain Herreman was fatally injured while taking advantage of special travel privileges granted military personnel. While taking advantage of this privilege, it is undisputed that he was under military jurisdiction. The fact that he was not on active duty or that he was pursuing purely pleasurable activities is of no . . . relevance . . . The outer dimensions of this problem are measured by two Supreme Court cases decided in successive years. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), two brothers who were then members of the armed forces of the United States on furlough, driving their own automobile along a highway, collided at an intersection with a United States Army truck. The Court held that their injuries were “not incident to their service” and that their claims were therefore cognizable under the Federal Tort Claims Act. 28 U.S.C. § 2674. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), three servicemen while on active duty and not on furlough sustained injury due to the negligence of others in the armed forces. The Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159. The issue in this ease is whether Herreman’s activity at the time he was killed in the crash was incident to his service. At the time of his death Herreman was a member of the Wisconsin Army National Guard with the rank of captain, assigned to the Selective Service Section, Headquarters and Headquarters Detachment at Madison, Wisconsin. In accordance with 10 U.S.C. § 3351(a), he was also a federally recognized captain in the Army National Guard of the United States, a reserve component of the United States Army. 10 U.S.C. § 3077. “The Army consists of . the Regular Army, the Army National Guard of the United States . . .”. 10 U.S.C. § 3062(c)(1). Hence, Herreman at the time of his death was a member of the United States Army. See Layne v. United States, 190 F.Supp. 532 (S.D.Ind.1961), affirmed, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U. S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962). “The transportation of members of the Army throughout the United States shall be under the immediate control and supervision of the Secretary of the Army and agents appointed or designated by him.” 10 U.S.C. § 4741. Similarly, the transportation of members of the Air Force is under the control and supervision of the Secretary of the Air Force. 10 U.S.C. § 9741. The aircraft in which Herreman was killed was military property of the United States but was assigned to the Wisconsin Air National Guard for its use. At the time of the crash, the aircraft had been on a duly authorized flight for the purpose of providing navigational training for Wisconsin Air National Guard personnel on board the aircraft and of transporting Major General Olson from Key West Naval Air Station, Florida, to Milwaukee, Wisconsin. Pursuant to his power to control and supervise the transportation of “members [and] . . . equipment” of the Air Force (10 U.S.C. § 9741), of which the Air National Guard of the United States is a component part (10 U.S.C. § 8062(d)(1), the Secretary of the Air Force promulgated Air National Guard Regulations No. 76-6 (May 23, 1950), which included paragraph 4b which describes passengers to include as follows: “Military personnel in appropriate uniform in the categories indicated below, without reimbursement, upon proper identification and when the aircraft is on a duly scheduled training flight, or on a strictly military mission. No flight of an Air National Guard aircraft will be scheduled for the specific purpose of transporting military personnel on leave but such personnel may ride as passengers when the aircraft is on a training flight or a strictly military mission. -X- * * -X- -X- * “(2) Military personnel of the National Guard . . . ” It is not disputed that the aircraft in this case was on a duly authorized and duly scheduled navigational training flight. Herreman was riding in uniform on the aircraft as a non-paying passenger. While on board the aircraft, he was subject to military courtesies and discipline. Most important however, he was subject to the “immediate control and supervision” of both the Secretary of the Army and the Secretary of the Air Force and “agents appointed or designated” by them. He was on board a military training flight engaged in a military mission. The situation comes very close to that existing in Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955), where a cadet on leave from the United States Military Academy at West Point was “riding gratuitously in a military plane under military discipline and under the laws and regulations in force at the time.” Id. at 550. In dismissing the claim of the cadet’s parents under the Federal Tort Claims Act, the Court said at 551, 552: “The Trial Court was undoubtedly correct in holding that a cadet riding under military discipline on an army plane under control of a superior officer has no claim under the Act for injury sustained through whatever cause. This principle would not vary even though the service man were on leave and whether he were on the plane voluntarily or by command. He was in line of duty. Under such circumstances, his parents could not recover for his death. -X -X- * -X -X * “ . . . In riding aboard that plane, under these allegations, Herman Archer was either ‘in command’ or ‘under command.’ “The complaint in this case on its face did not state a cause of action or a claim upon which relief could be granted against the United States.” Here also, Herreman was “in line of duty” and “under command.” Under those circumstances, his activity at the time he was killed was incident to his service. The district court properly rendered judgment for the government under Feres v. United States, supra. It is significant that if Herreman had sought passage without his uniform and in the capacity of non-military or civilian personnel, it would have been necessary (1) for Major General Olson to execute “a certificate to be attached to the flight clearance certifying” that Herreman was “on National Guard business,” Air National Guard Regulations No. 76-6, par. 4j, and (2) for Herreman to execute a release releasing and discharging “the Government of the United States, and all of its officers and agents, acting officially or otherwise, from any and all claims, demands, actions, or causes of action, on account of my death or on account of any injury to me which may occur by reason of the said flight . . . .” No. 76-6, par. 6. The judgment is affirmed. Affirmed. . As an Army officer, Herreman was also subject to 10 U.S.C. § 4743, which provides : “Under such conditions as the Secretary of tlie Army may prescribe, officers of the Army may, in the performance of their duties, use means of transportation provided for the Army and its supplies.” A similar statute applies to Air Force officers using transportation provided for the Air Force. 10 U.S.O. § 9743.

f2d_476/html/0238-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Luther G. SCOTT, Jr., Appellee, v. Harold VANDIVER, Sheriff of Abbeville County, South Carolina, and George M. McMahan, Supervisor of Abbeville County, South Carolina, Appellants. Luther G. SCOTT, Jr., Appellee, v. Ray McMAHAN, Appellant. Nos. 72-1760, 72-1761. United States Court of Appeals, Fourth Circuit. Argued Dec. 5, 1972. Decided March 16, 1973. Joseph E. Major, Greenville, S. C. (J. D. Todd, Jr., Greenville, S. C., and William P. Greene, Jr., Abbeville, S. C., on brief), for Harold Vandiver and George McMahan. C. Rauch Wise, Greenville, S. C., for Ray McMahan. Karl L. Kenyon and G. Ross Anderson, Jr., Anderson, S. C., for Luther G. Scott, Jr. Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges. BUTZNER, Circuit Judge: Harold W. Vandiver, George Mc-Mahan, and Ray McMahan appeal from a judgment holding them liable under 42 U.S.C. § 1983 (1970) for an assault against Luther G. Scott, Jr. They assert that the district court should have required Scott to exhaust available state judicial remedies before proceeding under § 1983; that the trial judge made erroneous findings of fact and conclusions of law; that they were not acting “under color of” state law; that neither Harold W. Vandiver, the county sheriff, nor George McMahan, the county supervisor, was responsible for the acts of James Hunter and Ray McMahan; and that the damages awarded by the district court were excessive. We affirm on all issues except the judgment against supervisor George McMahan. The defendant’s threshold contention that the district court should have required Scott to exhaust state remedies is without merit. A § 1983 claimant does not have to exhaust state judicial remedies before pursuing his federal cause of action. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). I Although the evidence conflicted on many points, there was ample testimony to support the trial judge’s acceptance of the following version of the facts, and we are bound by his findings under Rule 52 of the Federal Rules of Civil Procedure. On July 23, 1970, the Calhoun Falls police reported to Sheriff Vandiver that a woman had been shot within his jurisdiction. Before going to the house where the shooting occurred, the sheriff drove to the county farm to pick up some bloodhounds. While there, he requested two county employees, James Hunter and Ray McMahan, to assist him in his investigation. Hunter and Mc-Mahan got in McMahan’s truck and followed the sheriff’s vehicles. Not far from the scene of the reported shooting, Scott was walking along the side of the road, going from his home to his brother’s home. Scott did not resemble the person suspected of the crime, but when Hunter and McMahan saw him, they stopped and told him to get in the truck with them to go to the sheriff. They did not identify themselves or explain the authority for their orders. While the two men were talking to him, Scott saw a gun on the seat of the truck and immediately began to run. Hunter and McMahan both jumped out of the truck to chase him, and Hunter fired his gun in Scott’s direction. As Scott fled, he fell and severely injured his shoulder, but he regained his feet and reached his brother’s house. His brother came out of the house armed with a shotgun and asked the men why they were shooting at Scott. Without explanation, the men returned to the truck and sped off towards the house where the sheriff was investigating the crime they had erroneously suspected Scott of committing. They told the sheriff of their encounter with Scott, and he, realizing that Scott was not a suspect, sent one of his deputies to find out what had happened. The evidence justifies the district court’s finding that Ray McMahan was a joint participant with Hunter. Likewise, it supports the finding that Hunter and Ray McMahan used “excessive force and oppression in the attempted unlawful apprehension and arrest of [Scott].” The. record negates the common law defenses of good faith and probable cause, which under other circumstances may be available in § 1983 actions. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973). II The defendants contend that Scott is not entitled to recover under § 1983 because Hunter and Ray McMahan were not acting “under color of” law when they assaulted Scott. Hunter insisted that he was exercising his right as a citizen when he discharged his pistol and gave chase to Scott. With respect to this issue, the evidence supported the district court’s findings: the supervisor and sheriff had a long-standing agreement that county employees would assist the sheriff if he made a request through proper channels; Ray McMahan had previously assisted the sheriff on manhunts; the sheriff told Scott’s relatives that Hunter and Ray McMahan were assisting him in response to his request; and neither McMahan nor Hunter was disciplined for the assault. English common law, which remains the law of South Carolina unless changed by statute, authorized a sheriff to summon bystanders to assist him in apprehending felons. 1 Blackstone, Commentaries* 343; see also Sutton v. Allison, 47 N.C. 339, 341 (1855). The sheriff’s authority is implicitly recognized in S.C.Code Ann. § 53-199 (1962), which empowers a deputy sheriff to call out a posse comitatus to assist in arresting suspected violators of the law. It is apparent that this statute supplements, rather than supersedes, the common law. To hold otherwise would irrationally confer on a deputy sheriff powers greater than the sheriff’s. The trial court’s findings and South Carolina law support the conclusion that Hunter and Ray McMahan were temporary state law enforcement officers when they assaulted Scott. Their status brings them squarely within § 1983. Borrowing from cases construing a related criminal statute, the Supreme Court has ruled that the phrase “under color of” state law embraces “[m]isuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). Monroe held that the victim of police misconduct had a § 1983 claim against the police who violated his federally secured rights. Other federal courts have followed Monroe’s interpretation of § 1983 by awarding compensation to the victims of unlawful police assaults. It is immaterial whether the status of Hunter and Ray McMahan was created directly by the state’s posse comitatus law or whether it arose out of the sheriff’s custom of enlisting county employees to assist in manhunts. A custom may support a § 1983 claim if it has “the force of law.” Adiekes v. Kress & Co., 398 U.S. 144, 162, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Here the sheriff’s common law powers to summon bystanders infused his custom of using county employees in manhunts with the force of law. Ill Sheriff Vandiver asserts that he is not responsible for the assault committed by Hunter and Ray McMahan because the doctrine of respondeat superior should not be applied to actions brought under § 1983. We need not, however, examine the applicability of the doctrine because it is not essential to the sheriff’s liability. As shown in Part II, the sheriff acted under color of South Carolina law when he requested Hunter and Ray McMahan to assist him in the manhunt, and they in turn acted under color of state law when they assaulted Scott. It is appropriate, therefore, to look to South Carolina law to ascertain the sheriff's responsibility for the actions of his subordinates. 42 U. S.C. § 1988 (1970). The Court of Appeals for the Sixth Circuit recently relied on state law to sustain an award of punitive damages against a Tennessee sheriff for an assault committed by his deputy. McDaniel v. Carroll, 457 F.2d 968, 969 (6th Cir. 1972); accord Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971) (compensatory damages); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955) (compensatory damages). Other examples of the extension of state law to § 1983 actions are familiar: federal courts apply state statutes of limitations to § 1983 claims, O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914), Almond v. Kent, 459 F.2d 200, 203 (4th Cir. 1972); state law insures the survival of a § 1983 cause of action, Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); a federal court may resort to the state law of torts to supply the elements of the § 1983 claim, Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970); and defenses recognized by state common law may be raised to contest a § 1983 claim, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Moreover, state law is available to a § 1983 claimant under the doctrine of pendant jurisdiction without the necessity of showing diversity of citizenship. Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970); Whirl v. Kern, 407 F.2d 781, 793 (5th Cir. 1969). The Supreme Court of South Carolina has expressly ruled that a sheriff’s responsibility for the acts of his deputy is not dependent on the doctrine of respondeat superior. Instead, liability is based on the deputy’s position as the sheriff’s representative for whose official acts the law holds the sheriff strictly accountable. Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 262 (1939). The sheriff’s liability is clearly defined in Teasdale v. Hart, 2 Bay 173, 175 (S. C.1798): “Every sheriff [is] liable for the acts of all his officers, and all persons acting under him in every subordinate capacity; and they on their parts, are bound to conduct themselves in the like manner as the sheriff himself ought to do, if he was present; and he is not to be let off, on account of the blunders, misconduct, or errors of any of his inferior agents.” This rule, promulgated in accordance with the common law almost two centuries ago, has not been impaired by the passage of time. On the contrary, it has been reaffirmed, Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 262 (1939), and codified with respect to deputies and special deputies, S.C.Code Ann. §§ 53-71, -83 (1962). It is broad enough to include Hunter and Ray McMahan, who, as temporary law enforcement officers, acted under the sheriff in a subordinate capacity. Assault by a sheriff’s deputy in the performance of his duties is among the specific acts for which a sheriff is liable. Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 261 (1939) (dictum). Because this is the wrong that Hunter and Ray McMahan committed, the district court properly held the sheriff liable. IV Supervisor George McMahan stands on a different footing. The proof does not show that he was responsible for the conduct of Hunter and Ray McMahan at the time they assaulted Scott. As county supervisor, he was normally the person for whom they worked. However, Sheriff Vandiver had assumed supervision of the men, and they were no longer performing tasks within the ordinary scope of their jobs as heavy equipment operator and truck driver for the county while they were on the manhunt. The trial court’s finding that the supervisor and sheriff had agreed that county employees could assist the sheriff does not impose liability on the supervisor. The agreement did not provide that the supervisor would exercise control over the employees or retain responsibility for their acts while they were in the service of the sheriff. The sheriff alone was in charge of the men at the time of the assault, and under no theory can Supervisor McMahan be held liable. V Finally, the defendants contend that excessive damages were awarded. Ascertainment of damages arising from personal injuries involves questions that are essentially factual, and an award by a district judge will not be upset unless it is clearly erroneous. Fed.R.Civ.P. 52(a); Neal v. Saga Shipping Co., 407 F.2d 481, 487 (5th Cir. 1969); Lukmanis v. United States, 208 F.2d 260, 261 (2d Cir. 1953). We have reviewed the evidence concerning damages and conclude that the trial judge’s award of $22,993.44 was not excessive. See McClure v. Price, 300 F.2d 538, 545 (4th Cir. 1962). Accordingly, the judgment of the district court against Harold W. Vandiver and Ray McMahan is affirmed, and Scott shall recover his costs. The judgment against George McMahan is reversed, and he shall recover his costs against Scott. . James Hunter, a fourth defendant, did not file any responsive pleading to Scott’s complaint, but lie testified as a witness for the defendants. The district court entered a default judgment against him from which lie did not appeal. . 42 U.S.C. § 1983 (1970) provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . Apparently no crime was pver committed. The sheriff testified that following his investigation he concluded that the woman had shot herself. . State v. Charleston Bridge Co., 113 S.C. 116, 101 S.E. 657, 660 (1919). . S.C.Code § 53-199 (1962) provides: “May call out posse comitatus ; penalty for refusing to assist. — Any sheriff, deputy sheriff, constable or other officer specially empowered may call out the bystanders or posse comitatus of the proper county to his assistance whenever he is resisted or has reasonable grounds to suspect and believe that such assistance will be necessary in the service or execution of process in any criminal case and any deputy sheriff may call out such posse comitatus to assist in enforcing the laws and in arresting violators or suspected violators thereof. Any person refusing to assist as one of the posse comitatus in the service or execution of such process, when required by the sheriff, deputy sheriff, constable or other officer shall be liable to be indicted therefor and upon conviction shall be fined and imprisoned, at the discretion of the court and any person who shall fail to respond and render assistance when summoned by a deputy sheriff to assist in enforcing the laws and in arresting violators or suspected violators thereof shall be guilty of a misdemeanor and, upon conviction shall be fined not less than thirty nor more than one hundred dollars or imprisoned for thirty days.” . Williams v. United States, 341 U.S. 97, 99, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Screws v. United States, 325 U.S. 91, 112, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). . Jenkins v. Averett, 424 F.2d 1228, (4th Cir. 1970); Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963); Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958). Cf. York v. Story, 324 F.2d 450 (9th Cir. 1963). . In view of our conclusion that the status of Hunter and Bay McMahan, as temporary state law enforcement officers, subjects them to liability under § 1983, we need not consider the alternative theory that they subjected themselves to liability by willfully participating in the manhunt with the sheriff. Cf. United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). . Compare Hill v. Toll, 320 F.Supp. 185 (E.D.Pa.1970) (doctrine of respondeat superior applied to § 1983 claim) with Sanberg v. Daley, 306 F.Supp. 277 (N.D. Ill.1969) (doctrine held inapplicable). Cf. Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752, 753 (4th Cir. 1955) (bus driver’s corporate employer held liable without discussion of the doctrine). . 42 U.S.C. § 1988 (1970) provides: “The jurisdiction in civil matters conferred on the district courts by the provisions of this chapter . . . shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all oases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . . , the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction ... is held, so far as the .same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . .”

f2d_476/html/0243-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

James R. DORSEY, Appellant, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, et al., Appellees. No. 72-1324. United States Court of Appeals, Fourth Circuit. Submitted Feb. 23, 1973. Decided April 5, 1973. Thornhill, Kennedy & Vaughan, Beckley, W. Va., and Jo B. Gardner, Monett, Mo., on brief, for appellant. William C. Beatty, Huntington, W. Va., and Richard J. Bolen, Huntington, W. Va., on brief for appellees. Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge. PER CURIAM. James R. Dorsey appeals from an order of the district court granting defendants’ motion for summary judgment. Defendant railroad discharged him as a conductor on November 13, 1969 after a company Board of Inquiry found that he had violated a rule prohibiting the use of intoxicants by employees while on company property. In his complaint, Dorsey claimed that his discharge violated the terms of his employment contract and deprived him of his employment and property without due process of law; that defendant railroad and the other named defendants conspired to so discharge him; and that such action was done with malice. Contending that his case was a wrongful discharge cause of action within the rule of Moore v. Illinois Central R. R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), Dorsey instituted this action in the district court without exhausting his remedies before the National Railroad Adjustment Board (NRAB). After this action was brought, the Supreme Court expressly overruled Moore and held in Andrews v. Louisville & Nashville R. R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), that any railroad employee alleging a violation of the collective bargaining agreement must follow the administrative procedures set forth in the Railway Labor Act, 45 U.S.C. § 151 et seq. Dorsey acknowledges that Andrews requires exhaustion of administrative remedies in cases alleging only a common law breach of contract but contends that Andrews left undecided the question whether a wrongful discharge complaint alleging a constitutional violation should be exempted from the exhaustion requirement. Dorsey states that the Board of Inquiry which investigated his ease denied him due process in several respects; specifically, he alleges that the Board conducted an improper investigation of the charge against him, held preliminary unrecorded meetings in violation of a contract provision requiring a complete record of all the evidence, and denied him the right to have a representative and to face his accusers. All of these alleged due process violations occurred during the initial hearing by the employer on railroad property. At this stage, “The dispute is between private parties and the applicable procedure for settling the dispute is governed by the contract between them.” Edwards v. St. Louis-San Francisco R. R., 361 F.2d 946, 954 (7th Cir. 1966). “The federal courts are not the guarantor of any rights of either labor or management at the initial hearing, either by force of the Constitution or Railway Labor Act . . . . ” Edwards at p. 954. See Otto v. Houston Belt & Terminal Ry., 319 F.Supp. 262 (S.D.Texas 1970). We conclude that Andrews is controlling and that the district court properly found that Dorsey was required to exhaust his remedies with the NRAB before bringing suit in federal court. In Andrews, the court said: “A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. Union Pacific Ry. Co. v. Price, 360 U.S. 601 [79 S.Ct. 1351, 3 L.Ed.2d 1460] (1959).” 406 U.S. at 325, 92 S.Ct. at 1565. Since the dispute in this case was taken to the NRAB, we believe that the Railway Company could have properly defended the instant action on the grounds that an award of the NRAB would be final and could not be collaterally attacked because of 45 U.S.C. § 153, First (m), in an independent proceeding. Andrews, supra. Such an award could be judicially reviewed only under § 153 First (q), as mentioned in footnote 1. In the court below, and on appeal, appellant contended that defendants Frost, Sims, Epperly and Heslep conspired with the defendant Railway Company to cause his dismissal. Dorsey never sought relief from the defendants in their capacity as private individuals who interfered with his employment with the railroad, other than in the context of a conspiracy to discharge him, the merits of which is in the exclusive jurisdiction of the NRAB. Since a corporation can act only through its agents, the effect of Dorsey’s charge of conspiracy between the defendant Railway Company and its agents was to charge a conspiracy by a single party. Pearson v. Youngstown Sheet and Tube Co., 332 F.2d 439 (7th Cir. 1964), cert. den. 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 185 (1964). Therefore, the district court properly dismissed Dorsey’s conspiracy claim. Accordingly, we dispense with oral argument and affirm the judgment of the district court. Affirmed. . Wo note that before the district court entered its order the railroad submitted Dorsey’s discharge claim to the NRAB pursuant to 45 U.S.C. § 153 First (i). On November 2, 1972, the NRAB decided that Dorsey was guilty of the violation charged but that the penalty imposed was excessive. The NRAB ordered that Dorsey be reinstated to his position witli full seniority rights and that he receive payment of any wages lost more than one year after the date of discharge. Dorsey may seek judicial review of the NRAB’s decision pursuant to 45 U.S.C. § 153 First (q). . The instant dispute was taken to -the NRAB by the defendant Railway Company. (Appellant’s brief p. 8). We are of opinion that this fact has no effect on the operation of 45 U.S.C. § 153 First (m), since § 153 First (i) allows either party to submit the dispute to the NRAB. See Andrews, supra ; Brotherhood of Rail. Train, v. New York Cent. Ry. Co., 246 F.2d 114, 118 (6th Cir. 1957), cert. den. 355 U.S. 877, 78 S.Ct. 140, 2 L.Ed.2d 107 (1957).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

J. R. DAVIS (Estate of J. R. Davis in substitute for and stead of J. R. Davis, Deceased), Plaintiff-Appellant, v. W. BRUNS & COMPANY, Defendant-Third Party Plaintiff-Appellee, SEALAND TERMINAL CORPORATION, Third Party Defendant. James W. JONES, Plaintiff-Appellant, v. FRUCHTREEDEREI HARALD, SCHULDT & CO., Defendant-Appellee. Nos. 72-2999, 72-3474 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 27, 1973. Robert O. Homes, Jr., Bruce C. Waltzer, George F. Riess, New Orleans, La., for J. R. Davis. Michael K. Clann, Ronald A. Johnson, J. Barbee Winston, New Orleans, La., for W. Bruns & Co. Robert O. Homes, Jr., Bruce C. Waltzer, New Orleans, La., for James W. Jones. Ronald A. Johnson, J. Barbee Winston, Terriberry, Carroll, Yancey & Farrell, New Orleans, La., for Fruchtreederei Harald, Schuldt & Co. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I. GOLDBERG, Circuit Judge: This is a consolidated appeal from the dismissals by summary judgment of two admiralty actions on the ground that federal jurisdiction was lacking in both cases. The parties have stipulated that the operative facts in the two cases are so nearly identical that the appeals may be disposed of together on common briefs. Those facts are not seriously disputed, and the courts below found that the “locality rule” of admiralty law barred the action, i. e., that federal maritime jurisdiction does not reach a longshoreman who was injured while working on a pier unloading bananas where the injury resulted from a defect in or negligent operation of shore-based equipment only temporarily and tenuously “attached” to the ship. Guided by the beacon light of recent Supreme Court pronouncements in this area of the law, we agree that federal jurisdiction is wanting and we affirm. The facts in Jones v. Fruchtreederei Harald, Schuldt & Co. D.C., 347 F.Supp. 853, were found by the trial judge to be as follows: “[A]t the time of the accident, Jones was employed as a longshoreman by a stevedore, Sea-Land Terminal Corporation, at the Port of Gulf-port, Mississippi. The banana unloading facility, which is owned by the port authority, consists of a number of gantries and a series of conveyor belts. The conveyor belts are moved on rollers affixed beneath them. “To unload bananas from a ship, gentries are placed in the holds of the ship and used to lift banana boxes onto a conveyor belt. The boxes then travel along a series of three or four conveyor belts into areas called pier fingers, where they are ultimately loaded into trucks or railroad cars. Control switches, capable of starting or stopping the conveyor belts, are located both on the gantries in the holds and at the pier fingers. On the pier fingers and alongside the conveyor belts there are ‘stands,’ on which certain longshoremen are stationed. They are assigned to turn banana boxes from the conveyor belts onto a set of rollers over which the boxes moved immediately into the awaiting vehicles. This was Jones’ duty when he was injured. “Some of the banana boxes became jammed on the conveyor belt. The belt was stopped by one of the control switchmen on the pier acting on orders from Young, Jones’ immediate supervisor. Jones’ arm became entangled in the rollers under the belt. When the boxes were freed, the pier switchman, again on orders of Young, who did not know that Jones’ arm had been caught between the rollers in the interim, started the conveyor belts, causing severe injuries to his arm.” E.D.La.1972, 347 F.Supp. 853, 854. The facts in cause no. 72-2999, Davis v. W. Bruns & Co., are very similar. Davis was also employed by the Sea-Land Terminal Corporation, and at the time of his injury Davis was working at the very same banana-unloading facility. The manner in which his injury occurred, however, was somewhat different — Davis was injured when he was struck by boxes of bananas that fell from the conveyor belts. One particularly unusual aspect of this appeal is that throughout this litigation the opposing parties have relied upon precisely the same authority to support their antipodal conclusions regarding the existence of federal maritime jurisdiction. In Victory Carriers, Inc. v. Law, 1971, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, noted in 50 Texas L.Rev. 1428 (1972), 47 Tulane L.Rev. 183 (1972), the Supreme Court held that federal admiralty jurisdiction does not extend to pier-side accidents caused by a stevedore’s pier-based equipment. In so holding, the Court stated, “[T]he amphibious nature of the longshoreman’s occupation creates frequent taxonomic problems. In the present case, however, the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment that was part of the ship’s usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the [equipment that injured him] was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank.” 402 U.S. at 213-214, 92 S.Ct. at 426, 30 L.Ed.2d at 392. Appellants cite this language as approving a finding of federal jurisdiction on the facts before us; appellees urge that this language forecloses a finding of federal jurisdiction. The courts below agreed with appellees and therefore dismissed the actions. Appellants’ basic argument is that Victory Carriers, Inc. v. Law, supra, supports federal admiralty jurisdiction whenever any one of the four “typical elements of a maritime cause of action” are found to exist and that here appellants can show the existence of two of these elements. See, e. g., Gutierrez v. Waterman S. S. Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (injury caused by ship’s equipment, i. e., defective cargo containers); Alaska S. S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct 601, 98 L.Ed. 798 (injury aboard ship); Seas Shipping Co. v. Sieracki, 1945, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (injury aboard ship due to defective equipment belonging to ship). Cf. Chagois v. Lykes Bros. S. S. Co., 5 Cir. 1972, 457 F.2d 343 (no maritime jurisdiction where none of the four elements are present). We need not and do not determine which of the factors discussed by the Supreme Court in Victory Carriers, Inc. v. Law, supra, are necessary or sufficient to give a longshoreman a maritime cause of action because we find that none of the factors are present here. Thus, we hold only that federal maritime jurisdiction does not reach a longshoreman injured on the land by shore-based equipment when none of the elements relevant to the locality rule of Victory Carriers, Inc. v. Law are present. See Wagner v. Delta S. S. Lines, Inc., 5 Cir. 1972, 465 F.2d 387; Chagois v. Lykes Bros. S. S. Co., supra. The first “element” that appellants insist is present is “attachment” to the ship of the equipment that caused the injury. This conclusion rests on appellants’ assertion that “the banana handling facility was attached to the vessel by two lines running from the end of the facility to eyebolts on the floor of the vessel.” Appellees argue that no attachment whatsoever was present, but even assuming that the two guy wires connected the entire unloading facility to the ship, we are unwilling to say that the sort of attachment contemplated by Victory Carriers, Inc. v. Law is present. We think that the Supreme Court obviously intended “attachment” to mean something more than the temporary affixing of steadying wires. ' The facility here was permanently affixed to the shore, it was not an appurtenance of the ship, and it was never disconnected from the shore. Nor is appellants’ argument that a second “element” is present persuasive. Appellants argue that because an electric on-off switch was located on the marine leg of the gantry in the hold of the vessel, the facility was “under the control of the ship or its crew.” Again, we are compelled to disagree. The belts here were in every meaningful sense of the word “controlled” only from the shore. Although one switch was indeed aboard the vessel, the control that switch could have exercised over the facility was never utilized, it had no possible connection with the injury under all the allegations, and it remained but a mere potential for control. The rest of appellants’ arguments are fully answered by Judge Rubin’s well-reasoned opinion below, 347 F.Supp. 853, and we affirm both cases on the basis of that opinion. As the Supreme Court held in Victory Carriers, Inc. v. Law, supra, 404 U.S. at 204, 92 S.Ct. at 420, 30 L.Ed.2d 386-387: “[T]he threshold issue is whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. We hold that under the controlling precedents, federal maritime jurisdiction does not govern this accident. Nor, in the absence of congressional guidance, are we now inclined to depart from prior law and extend the reach of federal law to pier-side accidents caused by a stevedore’s pier-based equipment.” The waters on which pier-side injury actions are required to sail were once troubled and stormy. Indeed, the writer of this opinion originally thought, when writing this Circuit’s decision in Victory Carriers, Inc. v. Law, 5 Cir. 1970, 432 F.2d 376, reversed, 1971, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, that the federal maritime jurisdiction would reach pier-side injuries such as those now before us. The Supreme Court disagreed and declared that view to be off-course, and it cannot be repeated too often that the Supreme Court’s decisional pronouncements constitute the law of the land. The Supreme Court’s holding in Victory Carriers, Inc. v. Law spread a pacifying oil that put to rest the argument that the locality of the injury is to be given less than nearly controlling weight. That case must now serve as our compass and our sextant, and its navigational guidance as to the cases before us is clear: Absent any of the enumerated elements that would convert it into a maritime cause of action, the on-land location of the accidents erects a blockade against maritime jurisdiction. Appellants would have us return to our holding in Victory Carriers, Inc. v. Law, but our decision there was surveyed from above, and the metes and bounds of similar equipment were found to be landward of maritimé jurisdiction, which corrected the error of our prior judicial transit. Federal admiralty jurisdiction does not extend to pier-side accidents caused by a stevedore’s pier-based equipment, and appellants must seek shelter in some port other than that established by the maritime jurisdiction. Affirmed. . Appellees insist that there is no physical connection between the banana handling facility and the ship other than a single line that extends from the gantry to a pad eye in the bottom of the vessel. None of the conveyor belts are admitted to be attached to the ship or the maritime portion of the facility; rather, appellees state that there is an open space of approximately three feet between the maritime portion of the facility and the belts that actually injured appellants. The cargo is said to be elevated from the holds and then ejected across this open space. Appellees thus urge that the conveyor belts themselves are entirely affixed to the land and in no way actually attached to the vessel. . In addition to tracing the troubled and sometimes conflicting development of the case law prior to Victory Carriers, Note, 50 Texas L.Rev. 1428 (1972), compiles various arguments “in defense of the locality rule as applied in Victory Carriers."

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Caselaw Access Project

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UNITED STATES of America, Plaintiff-Appellee, v. Claude JACKSON, Defendant-Appellant. No. 72-1572. United States Court of Appeals, Seventh Circuit. Argued Jan. 10, 1973. Decided March 13, 1973. Frederick H. Miller, Madison, Wis., for defendant-appellant. John O. Olson, U. S. Atty., James M. Bablitch, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee. Before PELL, STEVENS and SPRECHER, Circuit Judges. SPRECHER, Circuit Judge. The principal issue raised by this appeal is whether a prosecutor may comment on a marked change in the defendant’s physical appearance shortly prior to his prospective identification by eyewitnesses. Defendant Claude Jackson was convicted after a jury trial of transporting in interstate commerce a person who had been kidnapped and held as a hostage in violation of 18 U.S.C. § 1201. He was sentenced to five years, to become eligible for parole at such time as the Board of Parole may determine. In the evening of April 15, 1971, two persons entered the lobby of the Albert Pick Motel in Rockford, Illinois, herded several employees into the office, and at gunpoint took several thousand dollars from the motel safe. They drove their automobile a short distance and abandoned it. After running around a parking lot trying to get into another car, they encountered John G. Hooley, an insurance underwriter, on his way from his home to his office to complete his income tax return. They forced Hooley at gunpoint to drive them to Madison, Wisconsin, where they pushed him out of his automobile. The two persons then drove off in Hooley’s car. Defendant was arrested in Atlanta, Georgia, on September 17, 1971, and after a removal hearing was returned to the Western District of Wisconsin on October 26, 1971. I Defendant contended that the trial court erred in receiving plaintiff’s exhibit 18, a blow-up of two fingerprints —one of the defendant and the other taken from Hooley’s brief case, which, stuffed with his income tax data, was lying in the back seat of his car when the person identified by him as the defendant climbed in the back seat in Rockford and nervously fingered the case during the trip to Madison. The foundation laid by the prosecution for the introduction of the exhibit was extensive. First, Charles O. Eastman, a deputy United States Marshal, testified that he took defendant’s fingerprints on October 26, 1971, when defendant arrived back in Wisconsin. He identified plaintiff’s exhibit 15 as the fingerprint card containing a full set of defendant’s fingerprints. Second, Dexter Haney, an employee of the Wisconsin State Crime Laboratory, testified that on December 17, 1971, he photographed a single fingerprint from exhibit 15, enlarged the photograph and mounted it on a large card, which he delivered to Daniel Dowd, director of the State Crime Laboratory. Third, Daniel Dowd testified that at about 1:30 in the early morning of April 16, 1971, the Hooley automobile was delivered to him by the Madison Police Department. The automobile was sealed and locked in the Crime Laboratory garage, where later in the morning Dowd removed from the rear seat Hooley’s brief case or attaché case and dusted it for fingerprints. Dowd testified that he “developed rigid detail” of latent fingerprints on the lock of the case. He then called in Kenneth Sundberg, photographer and analyst for the Crime Laboratory, to photograph the fingerprint found on the lock. Fourth, Kenneth Sundberg testified that on April 16, 1971, he photographed the latent print on the latch of the case and then enlarged the photograph. The enlargement was delivered to Daniel Dowd. Finally, Dowd testified that he received the fingerprint card (exhibit 15) from Marshal Eastman. He compared the rigid detail developed from the attaché case with the inked impressions on the fingerprint card. He then requested Haney to photograph and enlarge the right middle fingerprint of defendant, which Haney did and delivered to him. He requested Sundberg to photograph and enlarge the attaché case fingerprint, which Sundberg did and delivered to him. Dowd testified that he taped and marked to two enlargements as they appeared on exhibit 18. He also testified that the work of Haney and Sundberg was done under his supervision and control; that the photograph from the case was taken in his presence; and before the jury he identified the enlarged fingerprint of defendant as being the same as the right middle finger of defendant from the fingerprint card (exhibit 15). Dowd then testified that there were fifteen points of identification between defendant’s right middle finger and the fingerprint taken from Hooley’s ease. He concluded that “the rigid detail appearing on the photograph taken from the attaché case and the inked fingerprint impression appearing on the fingerprint card, Exhibit 15, were made by the same finger.” We conclude that the government laid a complete foundation for the introduction of plaintiff’s exhibit 18 and for Dowd’s opinion. Dowd, of course, was also qualified as a fingerprint expert. II Defendant was indicted on May 25,1971. On March 15,1972, defendant’s attorney moved for the entry of an order compelling the prosecution to conduct a pre-trial lineup identification of the defendant by witnesses whom the government intended to call at the trial. In the alternative, defendant requested that he be allowed to sit in the courtroom at the trial among several individuals of “similar complexion and build.” The trial judge ordered that the Dane County Sheriff’s Department in conjunction with the Federal Marshal’s Office conduct a lineup identification by all government witnesses. That lineup took place outside of court shortly after the trial commenced. Some government witnesses in statements prior to, and in testimony at, the trial, identified the supposed criminal as having an Afro haircut and a mustache but no beard. Prior to the lineup and trial, the defendant had cropped his hair short, shaved off his mustache and sideburns, and had grown a goatee. Defendant’s counsel located as many persons fitting the prior description of the defendant as he could find on the street and offered to pay them to appear in the lineup. The lineup consisted of eight black males including defendant. Defendant was six feet tall and weighed 150 pounds. The other seven persons were all from five feet eight inches to six feet tall and weighed from 147 to 175 pounds. Six of them (not including defendant) had mustaches. Four (not including defendant) had Afro haircuts and sideburns longer than defendant then wore. Despite all of this, the kidnap victim, John G. Hooley, and one of the two female clerks who were working at the motel desk in Rockford when the robbery occurred, identified defendant out of the defendant’s carefully manufactured lineup. In view of the positive fingerprint identification linking the defendant to the kidnapping, the result of the lineup identification is not significant in itself. However, defendant complained that the prosecutor’s following comments to the jury in his opening statement violated defendant’s privilege against self-incrimination contrary to the Fifth Amendment: “[W]e will show the extremely difficult and adverse conditions in which that line-up was taken because it wasn’t mine — it was Mr. Miller’s [defendant’s counsel] line-up * * * * [W]e intend to prove to you and I think the court will give us the opportunity to prove that the defendant, between the time this line-up was discussed and the time that the line-up was held, took an Afro haircut off, took off a mustache, and between the time he was booked until now, wore a goatee.” The government also called as witnesses an employee of the Dane County Sheriff’s Office who testified that defendant changed his appearance just before the trial, and the trustee barber who cut his hair and shaved him prior to the trial. The district judge, in his opinion denying defendant’s motions for a judgment, of acquittal and for a new trial, said that in a pre-trial conference “I stated that my intention was to advise the jury myself that the defendant had altered his appearance radically just pri- or to the trial and just prior to the line-up.” When the prosecutor mentioned the subject in his opening statement, however, “I became persuaded that there was no practical way to bottle up the subject thereafter, even had it appeared best that it be bottled up; and that there was no feasible compromise procedure between the alternative of prohibiting any further references to the matter, on the one hand, or permitting complete freedom of action on the matter, on the other. Accordingly, the latter alternative was chosen and counsel were advised that both the plaintiff and defendant were free thereafter to go into the matter of the defendant’s alteration of his appearance.” The trial judge, comparing the comments on the change of appearance with the introduction of evidence of flight, said: “I conclude that this was not unfair. [A]n innocent man is quite free to decide to fly, and to fly to South America the morning after a murder, but a jury is free to consider the decision to fly and the flight as some evidence of guilt. Similarly, an innocent man is free to change his appearance at any time, but a decision to change it and an actual alteration made a few days before the opening of the trial and a line-up may be considered as some evidence of guilt.” We agree with the district judge under the circumstances of this case. At common law no one accused of crime could be compelled to testify against himself nor was he permitted to testify in his own behalf. In 1878, Congress enacted what is presently 18 U.S.C. § 3481, permitting the defendant in a criminal action to appear as a witness in his own behalf at his own request but providing that “[h]is failure to make such request shall not create any presumption against him.” In Wilson v. United States, 149 U.S. 60, 65, 13 S.Ct. 765, 766, 37 L.Ed. 650 (1893), the Supreme Court interpreted the statute .to require that in order “[t]o prevent such presumption being created, comment, especially hostile comment, upon such failure must necessarily be excluded from the jury.” The statute was further interpreted in Bruno v. United States, 308 U.S. 287, 292-293, 60 S.Ct. 198, 84 L.Ed. 257 (1939), to conclude that a defendant in a federal court is entitled as a matter of right upon his own request to have the jury instructed that he need not testify and that no presumption arises from his failure to do so. In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), involving a state court trial, the Court held that “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” In the present case, there is no statute which can be interpreted to prevent commenting upon a defendant’s self-wrought change of appearance. From a constitutional standpoint, it is well-established that a person may lawfully be compelled to exhibit or demonstrate physical characteristics. In Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), a witness testified that the defendant had put on a blouse and it fit him. The defendant argued that this testimony violated his Fifth Amendment privilege because he had put on the blouse under duress. Mr. Justice Holmes dismissed the argument by saying that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Id. at 252-253, 31 S.Ct. at 6. Compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report are not compulsion prohibited by the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Compelling a person to speak within hearing distance of the witnesses and even to utter words purportedly uttered by a bank robber are not prohibited compulsion. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Nor is the compelled production of recorded voice exemplars constitutionally prohibited. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L. Ed.2d 67 (1973). Nor is the compelled production of handwriting exemplars within the Fifth Amendment protection. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); United States v. Rogers, 475 F.2d 821 (7th Cir. 1973). This authority would seem to support a requirement that defendant appear in court for identification as he appeared at the occurrence or at least as he appeared before he changed his physical appearance. But we need not go that far in this case because the court made no such requirement. The eases undoubtedly support the lesser tool for the prosecution, that is, commenting upon the change of appearance and introducing evidence that such change actually occurred and when it took place, in combating what is apparently becoming a popular defense tactic. We have considered defendant’s other arguments and find them to be without merit. The conviction is affirmed. Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. William Walter NELSON, Defendant-Appellant. No. 72-2383. United States Court of Appeals, Ninth Circuit. April 12, 1973. John Herbert (argued), San Francisco, Cal., for defendant-appellant. James H. Daffer, Asst. U. S. Atty. (argued), James L. Browning, John Cooney, F. Steele Langford, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee. Before BROWNING and DUNIWAY, Circuit Judges, and BURNS, District Judge. Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation. PER CURIAM: Nelson appeals his conviction under 50 U.S.C. App. § 462(a) for refusal to submit to induction in the armed services. We reverse. Nelson filed his request for classification as a conscientious objector on December 4, 1968. On December 16 his local board classified him I-A. On January 20, 1969, Nelson appeared personally before the board. The board refused to reopen on the ground that Nelson’s claim was not based on religious grounds but “on a personal moral code.” Nelson appealed. The appeal board classified him I-A. In September 1970, however, the State Director ordered the local board to reconsider, stating, “Our review of the selective service file of the registrant fails to disclose sufficient grounds to overcome a basis in fact in the claim of the registrant under the Welsh decision.” Pursuant to the State Director’s order, the local board met on November 20, 1970, and, without requesting that Nelson appear before them, again denied his claim. The board stated: “After review, considering the registrant’s demeanor and responses to questions asked at the personal appearance of January 20, 1969, the local board finds the registrant insincere.” Nelson did not appeal. In the course of these criminal proceedings, the government stipulated that no member of the panel who participated in the November 1970 classification had been present when Nelson made his personal appearance before the board in January 1969. Thus, no member of the panel that found Nelson insincere on the basis of his demeanor had ever seen or spoken to him. Nelson challenges the rejection of his C.O. claim on two grounds: (1) that the board’s action was without basis in fact; and (2) that the board denied him due process. The government argues that Nelson cannot attack the November 1970 classification because he did not take an administrative appeal. The district court held that Nelson’s basis-in-fact defense was barred by his failure to exhaust administrative remedies, but that his due process claim was not barred. We agree. For the reasons spelled out in McGee v. United States, 402 U.S. 479, 486, 489-490, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), the policies served by the exhaustion requirement are “decisively implicated” when a registrant challenges the denial of a conscientious objection claim as without basis in fact. Those policies would not be served, however, by denying judicial review of Nelson’s due process defense. No administrative discretion or expertise is involved in determining whether it was a violation of due process for the members of the local board to base their decision upon Nelson’s “demeanor” in an appearance 22 months earlier before other persons, rather than requiring him to appear before them, as they had a right to do. 32 C.F.R. § 1625.1(c). The government does not suggest that an administrative appeal would have resulted in a fuller factual record on the due process issue. Allowing those few who are “similarly situated” to Nelson to bypass administrative appeals could hardly “seriously impair the Selective Service System’s ability to perform its functions.” McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 1665, 23 L.Ed.2d 194 (1969). Finally, the exhaustion doctrine is not to be applied merely because the appeal board might have granted appellant relief on some ground and thus have obviated the need for prosecution. See McKart v. United States, supra. The lower federal courts have held the exhaustion requirement inapplicable to claims analogous to Nelson’s due process claim. In United States v. Collins, 339 F.Supp. 767 (W.D.Mich.1972), the local board terminated Collins’ III-A (hardship) deferment and classified him I-A. He did not appeal. In a subsequent criminal prosecution he contended that he had been denied due process because the board relied upon anonymous information of which he had no notice. The government responded that Collins had not exhausted his administrative remedies. The court held that Collins’ due process claim was not barred, stating: “Regardless of its merits, this claim is a purely procedural one, not turning on the resolution of any disputed facts which could better have been left to the experienced expertise of the administrative system and not directly contesting the factual, or even legal, basis of the reclassification decision itself. Hence, the exhaustion doctrine is not applicable.” 339 F.Supp. at 772. Accord, Wills v. United States, 384 F.2d 943, 945 (9th Cir. 1967); United States v. Weaver, 336 F.Supp. 558, 562 (E.D.Pa.1972); United States v. Mallory, 305 F.Supp. 915, 920 (N.D.Calif.1969). Turning to the merits, we conclude that Nelson’s due process claim is well taken. The evidence that none of the board members who decided that Nelson was insincere because of his “demeanor” actually observed him was sufficient to rebut the presumption of administrative regularity and require the government to prove that due process was not violated. The government offers three theories in justification: (1) “demeanor” doesn’t mean “demeanor”; (2) the board members who finally rejected Nelson’s C.O. claim may have consulted with the persons who did observe Nelson at his personal appearance 22 months earlier; or (3) they may have relied on Nelson’s written summary of what went on at that appearance. We reject the first suggestion because we must assume the board means what it says if judicial review is to have meaning. We reject the remaining suggestions because we cannot accept their premise that appellant’s demeanor could be appraised by any method other than personal observation. Nelson was entitled to the judgment of the members who composed the board when his 1-0 application was finally rejected, not the “borrowed” judgment of the earlier board. The new members could easily have called Nelson in and made their own decision as to the significance of his appearance. The judgment of the district court is reversed. . The case was tried on two separate days some two and one-half weeks apart. Between trial days, appellant’s counsel learned that the two panels had been composed of completely different board members. The government then stipulated to the fact on the second trial day. . For definitions of “demeanor,” see Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952); Rains v. Rains, 17 N.J. Misc. 310, 8 A.2d 715, 717 (1939).

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Robert G. McCRAY, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee. No. 72-3543 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 27, 1973. Richard H. Dorrough, Montgomery, Ala. (Court-Appointed), for petitioner-appellant. William J. Baxley, Atty. Gen., Don C. Dickert, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: Robert G. McCray, a prisoner incarcerated by the State of Alabama under two convictions for robbery, appeals from the denial of his latest petition for a writ of habeas corpus. We affirm. In 1964 an Alabama grand jury returned three indictments against McCray, two charging robbery and a third charging grand larceny in the theft of an automobile. At arraignment, counsel was appointed and McCray pled not guilty to each indictment. Subsequently, in the presence of the trial court, McCray changed his plea on both robbery counts to guilty. A sentencing jury affixed the punishment at life imprisonment on one robbery indictment, and a second sentencing jury affixed punishment of ten years imprisonment on the other robbery charge. The third indictment for grand larceny was marked nolle prosequi by State officials. McCray now alleges that one of his guilty pleas — the one which led to the life sentence — is constitutionally infirm since he was the hapless victim of an unkept plea bargain. Specifically, McCray claims that both of his guilty pleas were entered on advice of his attorney who informed him of an agreement with the state solicitor under which, in exchange for his agreement to enter these two pleas, the State would recommend to the separate sentencing juries ten-year sentences on each robbery count. He alleges that not only did the State fail to carry out its side of the bargain to recommend the minimum ten-year sentence to each jury, but also that the trial judge informed the sentencing jury which rendered the verdict of life imprisonment that he had entered a guilty plea to the other robbery charge, thereby prejudicing that jury against him. McCray contends that these events made his guilty plea and resulting life sentence constitutionally infirm. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1971), and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). This is McCray’s third petition for habeas relief in federal court. His first petition in 1966 was denied for failure to exhaust state remedies. In 1968 he filed a second habeas petition in the district court for the Southern District of Alabama alleging essentially the same facts as those presented in the present petition. That district court, having considered the full record developed in two coram nobis proceedings, in Alabama state courts, found that McCray’s guilty pleas were freely, voluntarily, and understandingly made. McCray v. Hale, [No. 4942-68-P] (S.D.Ala., June 14, 1968). The record from the 1965 coram nobis hearing contains not only the testimony of McCray but also that of his wife and of the attorney who represented him at the time of his conviction. At this hearing the state solicitor who had originally prosecuted McCray acknowledged that he had recommended to the trial judge and to the sentencing juries life imprisonment on one indictment and ten years on the other, and took the adamant stance that this was the true and only bargain offered to and accepted by McCray and his counsel. On cross-examination McCray denied that he had been informed that a life-and-ten, rather than a ten-and-ten recommendation by the State’s attorney was part of the bargain for his guilty plea, but he admitted that he and his counsel did not object during the pro-which the recommendations were made, ceedings before the sentencing juries in McCray and his counsel further sat mute when the juries returned the respective sentences as recommended. Indeed, McCray’s trial attorney testified that he had told McCray of the solicitor’s promise to recommend life-and-ten and that his client had freely accepted the offer of life-and-ten in order to avoid the possibility of a death sentence. In light of the records developed in the state coram nobis hearing, we find no factual basis for McCray’s present allegations that his guilty pleas were made in exchange for an unkept bargain to recommend ten-and-ten. Thus, the appellant fails to bring his case within the ambit of Santobello or Machibroda. The petitioner also contends that his pleas were involuntary since they were coerced by fear of the death penalty. The claim that he would not have pled guilty but for the threat of a death sentence does not require a finding that his guilty plea was involuntary, especially where the appellant was represented by experienced counsel upon whose advice he relied. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970). We find Alford in no way affected by the subsequent decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), insofar as the present case is concerned. McCray asserts numerous defects in the proceedings prior to his guilty pleas. Each of these claims is non jurisdictional and was therefore waived by his voluntary guilty plea. Zales v. Henderson, 433 F.2d 20 (5th Cir. 1970); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966). The denial of the writ of habeas corpus is Affirmed. . Ala. Code tit. 14, § 415, provides that “any person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.” Under Alabama law, a jury must fix the sentence in any capital case, including those cases in which the defendant enters a guilty plea. Ala. Code tit. 30, § 70. This duty is mandatory and the trial judge cannot relieve the jury of its exclusive prerogative. See, e. g., Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955). . McCray’s present petition suggests that the proceedings in regard to indictment #1673, for which he received ten years, preceded the proceedings in regard to indictment #1672, in which punishment was affixed at life. This alleged chronology is contrary to the certified records of the circuit court for Montgomery, Alabama and contrary to McCray’s own testimony at his 1965 cornm nobis hearing discussed below. . McCray filed ins first petition for writ of coram nobis in 1965. The circuit court for Montgomery County denied relief after a full evidentiary hearing concerning the voluntariness of his guilty pleas, the plea bargain, and the effectiveness of his trial counsel. In 1966, McCray filed a second coram nobis petition in the state circuit court, which was dismissed after another evidentiary hearing. The dismissal was affirmed, 282 Ala. 315, 211 So.2d 450 (1968). . The district court denied a certificate of probable cause, 28 U.S.C. § 2253, and this court likewise denied the petitioner’s application for a certificate and leave to ajjpeal in forma pauperis. McCray v. Hale, Misc. No. 1406 (5th Cir., July 23, 1969). This second appeal by McCray comes here on a certification of probable cause by the third district judge to consider his petitions. . The habeas petition alleges the following constitutional infirmities: (1) that the members of the sentencing jury were selected in his absence; (2) that he was denied counsel at his preliminary hearing ; (3) that he was not served with a copy of the indictment and the jury list; (4) that he was exposed to direct confrontation with the alleged victims of the robbery rather than in “a legal line-up; ” (5) that there was prejudicial pre-trial publieity; (6) that police officers made false statements to prospective witnesses in order to prejudice them against the defendant; (7) that the alleged victims of the robberies attempted to “trick” him into a confession on the representation that charges would not be prosecuted; and (8) that police officers identified the defendant to the victims of the alleged robberies as “the man that robbed them”.

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BOB JONES UNIVERSITY, Appellee, v. John B. CONNALLY, Secretary of the Treasury of the United States and Johnnie M. Walters, Commissioner of Internal Revenue, Appellant. No. 72-1075. United States Court of Appeals, Fourth Circuit. Submitted Feb. 5, 1973. Decided March 21, 1973. Before BOREMAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges. PER CURIAM: Bob Jones University (Jones University) petitions for rehearing and suggests rehearing in banc on the ground, inter alia, that our decision, 4 Cir., 472 F.2d 903, is in conflict with the decision of the District of Columbia Circuit in “Americans United” Inc. v. Walters, 477 F.2d 1169 (D.C. Cir. 1973). Of course we were unaware of Americans United in deciding our case, but we see no conflict between the two. In Americans United, the District of Columbia Circuit held that the taxpayer was not barred by § 7421 from seeking to have declared unconstitutional, and to enjoin the enforcement of, the provision of § 501(c)(3), I.R.C. of 1954, which denies tax-exempt status to an organization, otherwise exempt under that statute, which engages substantially in activities to influence legislation or participates in political campaigns. An examination of the opinion discloses that Americans United was exempt from taxation on its own income by both §§ 501(c)(3) and 501(c)(4), I.R.C. 1954. By virtue of its exemption under § 501(c)(3), contributions were deductible by donors. Only the 501(c)(3) exemption was revoked. As a consequence, only the deductibility of contributions by donors was removed; the exemption from taxation of its other income was not removed from Americans United. The Court ruled that individual donors could not litigate the deductibility of their contribution; and as a result, the only way in which the question of deductibility of contributions could be litigated was by Americans United in the suit which it filed. In a literal sense, such a suit by Americans United was not a suit for the purpose of restraining the assessment or collection of any tax as proscribed by § 7421 since no revenues taxable to Americans United could be affected. The same is not true with respect to Jones University. In our case, the sole exemption lay in § 501(c)(3) and this exemption was the one sought to be revoked on the ground of racially discriminatory policies. If the. revocation was proper, not only would contributors to Jones University not be entitled to a deduction for their contributions, but Jones University would be taxable on its other income. Because of the latter, the suit was one literally within § 7421, i. e., a suit to restrain the assessment or collection of a tax. Thus, we think that the cases are distinguishable. Jones University’s other grounds for granting the petition also do not persuade us. Therefore, with Judge Boreman dissenting, we deny rehearing. No judge eligible to do so has requested a poll on the suggestion for rehearing in banc. Petition denied.

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UNITED STATES of America, Plaintiff-Appellee, v. William C. DOUGLASS, Defendant-Appellant. No. 72-3136 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 6, 1973. Larry Helm Spalding, Sarasota, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. JOHN R. BROWN, Chief Judge: In this direct criminal appeal of a misdemeanor conviction under 26 U.S.C.A. § 7203 for failing to supply proper information to the Internal Revenue Service, we are asked to determine (i) if the Appellant’s intentional refusal to file IRS Form 1040 can be equated with the element of willfulness required by that penal statute and (ii) if the assessment of a prison term for violation of § 7203 actually is an unconstitutional imprisonment for debt. Seeing no distinction between an intentional act and a willful one for the purpose of this statute, and finding no element of a debt involved in this particular statute, we affirm the conviction. Criminal Disobedience William Campbell Douglass, a medical doctor with a practice in Sarasota, Florida, was and is a self-styled American Patriot — a super-patriot by some standards. So patriotic, in fact, is he, that he conscientiously conceives it to be his duty to resist in all ways the declaration, assessment, and payment of his income taxes. To his credit, the record affirmatively reflects that Dr. Douglass is both undeniably mentally competent and deadly serious. Thus, there has never been any question that the acts complained of in the government’s information were those of an individual acting intentionally and rationally. Indeed, the heart of the matter is that Dr. Douglass believes the Internal Revenue System is unconstitutional and that the voluntary payment of any taxes constitutes treason against the United States. While it would consume much space to fully detail the beliefs which provoke this conclusion, we can attempt to summarize. For many years, William C. Douglass has participated in the activities of organizations and groups which oppose communism through education and propaganda. Among Dr. Douglass’ most notable associations are his involvement with the Liberty Amendment Committee, an educational group which seeks repeal of the 16th Amendment, and the organization known as “Let Freedom Ring.” The latter group sponsors tape-recorded messages on various topics of public interest which individuals may hear by calling a telephone answering device in various cities. Spurred by his activities in these and other such groups, Dr. Douglass evidently began to evolve a philosophy about the Internal Revenue System and the payment of income taxes. Reduced to its essentials, this philosophy is (i) the federal government, because of the influence of certain communists or communist sympathizers, has given monetary and other forms of aid to enemies of the United States, (ii) to contribute to this aid by paying taxes would be treason, and (iii) the income tax is itself unconstitutional or at least is being illegally administered because it is not levied equally on all citizens. Accordingly, for the tax year 1966 and 1967 Dr. Douglass filed IRS Form 1040 with only his name, address, signature, and the words “UNDER PROTEST” written in bold letters across the face of the report. No financial information or data of any other sort was given on these reports. As a consequence, Dr. Douglass was convicted by a jury of the two violations of § 7203, note 1, supra, and was sentenced to a jail term and period of probation. A Red Flag It takes no great mental gymnastics to sidestep the questions of who is or is not a communist, which actions of the federal government were or were not legitimate, and which of its officers are traitors. These are political questions which a citizen may air as he thinks best. Ordinarily, the forum for Dr. Douglass to urge his charges of mismanagement, skulduggery and treason would be the public arena, i. e., the halls of Congress, the newspapers, and such. This time he chose not one of these but the courts. The Court turns out to be a poor forum, not because the judiciary fails to credit his claims, but because it holds that these beliefs afford no defense. Willfulness Having unburdened the issues in this case of all excess baggage, we proceed to determine the narrow question of whether on this record the element of willfulness required by 26 U.S.C.A. § 7203 can be properly attributed to Dr. William Campbell Douglass. There does not seem to be any contention that Appellant acted involuntarily or from some uncontrollable compulsion. His only contention is that the government failed to show he acted with a “bad purpose,” and that the following portion of the Court’s charge to the jury was erroneous: “I have permitted to come before you without limiting testimony of the defendant bearing on his political philosophy with regard to the United States Government. It is not a defense that the failure to furnish tax information required by the Internal Revenue law was done for the purpose of protesting Government policies, even if such protest is with good motive.” We think this was a correct statement of the law. The “bad purpose” or “evil motive” principle on which Appellant so heavily relies, is not the appropriate test for this statute. Although “willful” or “intentional” can have many meanings, for a statute of this kind (see note 1, supra), it only requires that the act be purposefully done with an awareness of the action and not just negligently or inadvertently. Rather, this concept is simply one which excuses a negligent failure to file the information required by the statute. Dr. Douglass gets no comfort from United States v. Murdock, 1933, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, which he so strongly urges. There the Supreme Court spelled out one test for willfulness: “The word often denotes an act which is intentional, or knowing, or voluntary as distinguished from accidental. But, when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful, or conduct marked by a careless disregard whether or not one has the rights so to act.” 290 U.S. at 394, 54 S.Ct. at 225, 78 L. Ed. at 385. (Citations by the Court omitted). Douglass took the stand in his own defense and acknowledged he was aware of his obligation to declare and pay taxes. He advanced no excuse for the dereliction save that of political protest. Clearly the jury was entitled to conclude that this total omission was intentional, deliberate and voluntary. To say it was these but it was not willful is a mere game of semantics. The word may not be twisted to the point of meaninglessness. Indeed, Appellant’s brief tells us that “negligence and willfulness are of necessity mutually exclusive terms.” Since we think it is clear enough that one may not pick and choose which laws he will obey and which he will disregard, regardless of how conscientious may be his beliefs, we give to the words of the statute the traditional meaning and reject the notion urged upon us by Dr. Douglass. Debt The contention that Dr. Douglass’ prison sentence constitutes imprisonment for debt borders on the frivolous. It is evident that there is nothing in the information charging Dr. Douglass with a failure to pay income taxes. At trial, the testimony which related to the taxes owing by Douglass was introduced for the purpose of establishing that the defendant was one who was obligated to file a return and declare data respecting his income, not to prove the fact of the debt itself. Accordingly, we need not look behind the words of the statute to find something that is not there. Douglass only stands convicted of a failure to file a return in compliance with 26 U.S.C.A. § 7203. Affirmed. . “§ 7203.. Willful Failure To File Return, Supply Information, or Pay Tax. Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of Section 6015), keep records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor, and upon conviction thereof, shall be fined not more than $10,000 or imprisoned not more than 1 year, or both, together with the costs of prosecution.” (emphasis supplied). . As an appendix to the briefs submitted in this appeal, Dr. Douglass included a 76-page booklet, The William, Campbell Douglass Letters, which details some of his quixotic jousts against IRS. Reprinted there are some of Appellant’s letters to the Secretary of the Treasury. A partial list of the many jiersons named therein as communists and their sympathizers are: the late Presidents of the United States, Dwight D. Eisenhower, Lyndon B. Johnson, and Franklin D. Roosevelt; former Vice-President Hubert Humphrey; former Chief Justice Earl Warren, the late Justice Hugo L. Black, and Justice William O. Douglas; former Secretary of State Dean Rusk; United States Senators Bayli, Brewster, Móndale, Proxmire, Church, and others ; former Attorney General Nicholas Katzenbach ; and many, many others. . Testimony in the record indicates that Dr. Douglass did not pay his taxes for those years, and that for the subsequent years of 1968-1970, he has filed only a similar Form 1040 “under protest.” . The record amply supports the jury’s implied conclusion, as the following excerpts from direct and cross-examination of Appellant show: Q [By Appellant’s Counsel] Would you state to the Ladies and Gentlemen of the Jury, Dr. Douglass, what you mean and what you meant by the words “Under Protest,” sir? A * * * . . . I made a decision and it was an irrevocable one, that I would not again contribute to a tax system that is being used to destroy your country, my children’s country and my country. * * * Q [By the Government Prosecutor] Doctor would you admit that you failed to provide this information or pay taxes only after a considerable amount of thought and soul-searching? A Yes, that is certainly true. . See Roe v. United States, 5 Cir., 1961, 287 F.2d 435, at 441-442 and note 11, and United States v. DeWitt, 5 Cir., 1959, 265 F.2d 393, 402-404 (dissenting opinion), which catalogue many of the cases for both positions urged here: for the appellant, United States v. Kemble, 3 Cir., 1952, 197 F.2d 316; Hargrove v. United States, 5 Cir., 1933, 67 F.2d 820, 90 A.L. R. 1276; Bloch v. United States, 9 Cir., 1955, 221 F.2d 786; St. Johnsbury Trucking Co. v. United States, 1 Cir., 1955, 220 F.2d 393; Boyce Motor Lines, Inc. v. United States, 1952, 342 U.S. 337, 72 S. Ct. 329, 96 L.Ed.2d 367; Automatic Canteen Co. of America v. F.T.C., 1953, 346 U.S. 61, 73 S.Ct. 1017, 97 L.Ed. 1454; for the government, United States v. Dotterweich, 1943, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; United States v. Balint, 1922, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Behrman, 1922, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619. The cases are discussed at length in Morissette v. United States, 1952, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. . Trial Record page 394. . See United States v. Moylan, 4 Cir., 1969, 417 F.2d 1002, (the so-called “Catonsville Nine” trial) where the several defendants motivated by a sincere commitment against the war in Southeast Asia had entered a local draft board office to remove and destroy draft records. Although defendant undertakes to factually distinguish the crime there from the instant appeal, we think the principle is much the same. There, as here, “defense counsel urged upon the court a more expansive interpretation of the word ‘willful’ as used in the statutes, namely that no violation occurred unless defendants performed the admitted acts with a bad purpose or motive.” 417 F.2d at 1004. In rejecting this approach, the court went on to say: The defendants’ motivation in the instant case — the fact that they engaged in a protest in the sincere belief that they were breaking the law in a good cause— cannot be acceptable legal defense or justification. Their sincerity is beyond question. It implies no disparagement of their idealism to say that society will not tolerate the means they chose to register their opposition to the war. If these defendants were to be absolved from guilt because of their moral certainty that the war in Vietnam is wrong, would not others who might commit breaches of the law to demonstrate their sincere belief that the country is not prosecuting the war vigorously enough be entitled to acquittal? Both must answer for their nets. 417 F.2d at 1009. . See United States v. Acker, 6 Cir., 1969, 415 F.2d 328; United States v. Matosky, 7 Cir., 1970, 421 F.2d 410, cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62. . The remaining cases which Douglass cites for the notion that a “good faith political protest” negates the element of willfulness are factually distinguishable and in every case, inapposite. E. g., Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, stands for the proposition that the combination of misdemeanors of failure to file and failure to pay the tax do not make out the felony crime of willful evasion, even though the two lesser acts were done intentionally. Haner v. United States, 5 Cir., 1963, 315 F.2d 792, was a case where this court reversed (one Judge dissenting) a conviction where the court’s charge seemingly allowed the jury to convict for a “careless or inadvertent” failure to file. Nevertheless, we emphasized that “ ‘willful’ generally means intentional, knowing, or purposeful, as opposed to careless, thoughtless, heedless, or inadvertent, and it means nothing less as used in Section 7203.” 315 F.2d at 794. (Emphasis omitted).

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UNITED STATES of America, Plaintiff-Appellant, v. KELSEY-HAYES COMPANY et al., Defendants-Appellees. No. 72-1036. United States Court of Appeals, Sixth Circuit. Argued Oct. 17, 1972. Decided April 3, 1973. Ralph B. Guy, U. S. Atty., Detroit, Mich., Irwin A. Seibel, Atty., Dept, of Justice, Washington, D.C., for plaintiff-appellant; Walker B. Comegys, Acting Asst. Atty. Gen., Howard E. Shapiro, George Edelstein, Attys., Dept. of Justice, Washington, D. C., on brief. Victor W. Klein, Detroit, Mich., for plaintiff s-appellees; (Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., on brief for Kelsey-Hayes Co., and Gerald E. Doherty [Robert M. Klein, Reuben M. Waterman, Jr., Detroit, Mich., of counsel]; Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, on brief for Motor Wheel Corp. and Anson D. Grimes [David R. Hyde, Allen S. Joslyn, New York City, of counsel]; Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., on brief for The Budd Co. [Ralph W. Brenner, Sheldon S. Toll, Philadelphia, Pa., of counsel]). Before PHILLIPS, Chief Judge, and WEICK and KENT, Circuit Judges. KENT, Circuit Judge. This appeal relates to a criminal contempt proceeding instituted in the United States District Court for the Eastern District of Michigan on October 20, 1969. An order to show cause was issued by the late Judge Theodore Levin. The contempt proceeding relates to alleged violations of certain provisions of a consent decree entered in an anti-trust case on July 1, 1955. After the contempt proceeding was instituted pretrial conferences were held by the late Judge Levin, as a result of which the Government was directed to produce documents and to enter into conferences with counsel for the respondents in an effort to define and narrow the issues and to ascertain the claims and theories of the Government for the purpose of apprising the respondents of the claims against them and expediting the proceedings upon trial of the contempt action. For a period of months Judge Levin complained about the reluctance of the Government to comply with his directions and orders relating to discovery and as to the narrowing of issues and definition of the Government’s claims. After much preliminary skirmishing the respondents filed a motion to dismiss the proceedings. In the motion the respondents’ allegations were that “(1) The statement of the claims and the admissions and definitions of issues made by the Government * * * are such that said petition and claims fail to state or constitute a cause of action of criminal contempt * * *. (2) The statement of the claims and the admissions and definitions of issues * * * clearly show that there is a lack of probable cause * * *. (3) The petition, as construed by admissions and definitions of issues * * * is * * * equally consistent with innocence as with guilt * *. (4) The exercise of appropriate judicial discretion, authority and power * * * should impel the Court at this time to dismiss this action of alleged criminal contempt * * After considering the briefs and arguments of counsel, the District Judge, who took the case over from the late Judge Levin, dismissed the proceedings after rendering a lengthy opinion reciting the theories of the parties, the concessions of the Government, and an analysis of the facts as the trial court considered them to be demonstrated by the pretrial proceedings, and concluded: “[I]t is manifest to the Court as a matter of law that there was no wilful contumacious violation of the Consent Decree by respondents and that, at all events, there is a lack of probable cause or that further prosecution will not serve the public interest and is unnecessary to safeguard or preserve the ‘authority or dignity of the Court’ or its orders.” At the time this case was argued this Court was of the opinion that the order dismissing the action, from which this appeal was taken, was an appealable order within the meaning of the Criminal Appeals Act, 18 U.S.C. § 3731, prior to its amendment by Public Law 91-644. Clearly, a criminal contempt action is a criminal case within the meaning of the Act. United States v. Sanders, 196 F.2d 895, 897 (10th Cir. 1952), cert. denied 344 U.S. 829, 73 S.Ct. 33, 97 L.Ed. 645 (1952). “An application to show cause why defendant should not be prosecuted for criminal contempt is equivalent to an information charging criminal contempt, under Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C. and a criminal contempt proceeding is a criminal ease within the meaning of 18 U.S.C. § 3731. An order dismissing a criminal contempt proceeding is appealable under the Criminal Appeals Act.” Even more persuasive is the language of the Supreme Court in Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968): “Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes: ‘These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.’ Gompers v. United States, 233 U.S. 604, 610 [34 S.Ct. 693, 695, 58 L.Ed. 1115] (1914). “Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates.” (footnote omitted)'. See also United States v. Goldman, 277 U.S. 229, 235, 236, 48 S.Ct. 486, 72 L.Ed. 862 (1928); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972). A motion to dismiss is in effect a demurrer to the indictment, the information or in this case the petition. It has long been the law that matters outside the indictment are not to be considered on a demurrer. Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799 (1897); United States v. Comyns, 248 U.S. 349, 39 S.Ct. 98, 63 L.Ed. 287 (1919). Some erosion of this rule may be found in United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), and see also United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959), noted with approval in United States v. Sisson, 399 U.S. 267, 293 n. 22, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). We consider, however, that the issue has been put to rest in United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). In the opinion of the Court, speaking through Mr. Chief Justice Burger, we find the following at page 506, 92 S.Ct. at page 2534: “Under United States v. Sisson, 399 U.S. 267 [90 S.Ct. 2117, 26 L.Ed.2d 608] (1970), an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available. See United States v. Findley, 439 F.2d 970 (CA1 1971).” Clearly, the District Judge in the instant case relied upon matters outside the petition for an order to show cause and the order pursuant thereto. There can be no doubt that the District Judge relied upon the statement of the claims, the admissions and definitions of issues elicited from the Government during the course of the discovery proceedings. For the reasons herein stated and on authority of Brewster we conclude that the order in question is not an appeal-able order. The appeal will be dismissed.

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UNITED STATES of America, Plaintiff-Appellee, v. Stephen Wade BLACK, Defendant-Appellant. No. 72-3179 Summary Calendar. United States Court of Appeals. Fifth Circuit. April 11, 1973. Albert M. Horn, Atlanta, Ga., for defendant-appellant. John W. Stokes, Jr., U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta', Ga., for plaintiff-appellee. Before GEWIN, COLEMAN and MORGAN, 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: Stephen Wade Black appeals from his one count conviction for knowingly and intentionally possessing 32 pounds of marijuana in violation of 21 U.S.C. § 841 (a)(1), D.C., 344 F.Supp. 537. He contends that the search and seizure which yielded the marijuana introduced into evidence against him was illegal because of a constitutionally defective search warrant. We find this contention to be without merit and affirm. While searching for a lost invoice, a Delta Airlines employee in San Diego observed several brick shaped packages lodged inside a crate containing a heavy wooden beam table. These packages emitted the odor of marijuana. The San Diego police were called and Officer Hamlin came to the airport where he likewise observed the packages. He determined that they contained marijuana and immediately relayed this information to officials of the Bureau of Narcotics and Dangerous Drugs in San Diego. Subsequently, the decision was made to send the table on to Atlanta, its intended destination. In the meantime, all of the foregoing information was communicated by telephone to Special Agent Goodowens of the Bureau of Narcotics and Dangerous Drugs in Atlanta. In reliance thereon he swore out a search warrant before a federal magistrate. When Black, the addressee of the shipment, arrived at the airport to pick it up, Goodowens observed the crate as described to him, executed the warrant and confiscated the bricks of marijuana which were later introduced into evidence against the defendant. Black asserts that the search warrant was constitutionally defective because the supporting affidavit failed to allege specific underlying facts from which the magistrate could determine how Officer Hamlin in San Diego was able to conclude that the brick shaped packages were marijuana. Black suggests that there were only two possible ways for Hamlin to have made this finding, both of which would raise fourth amendment problems. He could have forced the crate open to gain access to the packages in which case his conclusion would be the fruit of a warrantless search; or he could have made his judgment by smelling the packages in which case it would be based on pure conjecture. There is no dispute that a search warrant can be based on hearsay information, but where that is the case, the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) must be met. The magistrate must be informed of some of the underlying circumstances on which the informant’s conclusions were based and also some of the circumstances which lead the affiant to decide that the informant was reliable. If the Aguilar test is not met, yet the informant’s report is corroborated by independent sources, then under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968), a search warrant may still issue. The magistrate, however, must first determine that the informant’s report and the independent corroborative sources taken together result in information equally as trustworthy as that attainable by strict adherence to the Aguilar standard. The report of the unidentified Delta Airlines employee clearly did not meet the second part of the Aguilar test. It was corroborated, however, by Officer Hamlin’s on-the-spot inspection of the packages. The affidavit indicates that he observed them directly and found them to contain marijuana. There is no basis in the record to conclude that his determination was based on conjecture or a warrantless intrusion into the crate. We think that the magistrate’s reliance on these facts to have been justified even though they were communicated across the continent, Brooks v. United States, 416 F.2d 1044, 1049 (5th Cir. 1969). We hold that there was ample cause for the issuance of the search warrant consistent with the Spinelli-Aguilar requirements. Judgment affirmed.

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UNITED STATES of America, Plaintiff-Appellant, v. Agop KISMETOGLU, Defendant-Appellee. No. 72-1413. United States Court of Appeals, Ninth Circuit. March 5, 1973. Larry L. Dier, Asst. U. S. Atty. (argued), 'Frederick M. Brosio, Jr., Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellant. Robert N. Harris, Jr. (argued), Los Angeles, Cal., for defendant-appellee. Before BROWNING and GOODWIN, Circuit Judges, and PLUMMER, District Judge. Honorable Raymond E. Plummer, United States District Judge, District of Alaska, sitting by designation. PER CURIAM: Relying on the court’s opinion in United States v. One 1967 Cadillac El Dorado, 453 F.2d 396 (9th Cir. 1971), a per curiam opinion was filed on October 30, 1972, in United States v. Kismetoglu, 468 F.2d 1386 (9th Cir. 1972), affirming the judgment of the district court in United States v. Kismetoglu, 350 F.Supp. 333 (C.D.Cal.1971). In doing so, this court held that in a criminal case where a judgment of acquittal had been ordered after a verdict of guilty by jury, the district court could enjoin the United States and its agents from filing a forfeiture action for an alleged violation of the custom laws. Subsequently and after due consideration, an order was entered granting appellant’s motion for leave to file a petition for rehearing and recall mandate. This’ order also afforded appellee ten days in which to file a response to the petition to supplement his opposition thereto previously filed. No response has been filed. Appellant’s petition for rehearing is based on a per curiam opinion of the United States Supreme Court, One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438, filed on December 11, 1972, 42 days after the filing of this court’s opinion in Kismetoglu, supra. In the Emerald Cut Stones case the Supreme Court granted certiorari to resolve a conflict among the Circuits as to whether a forfeiture is barred under the circumstances presented in this case. In doing so, the Supreme Court resolved the conflict adversely to this court’s opinion in United States v. One 1967 Cadillac El Dorado, supra. We are bound to follow the opinion of the Supreme Court. Accordingly, the per curiam opinion filed October 30, 1972, in United States v. Kismetoglu, 468 F.2d 1386 (9th Cir. 1972), is hereby withdrawn. The order of the district court entered October 22, 1971 [conditionally granting defendant-appellee’s motion for return of property and enjoining the agents of the United States from performing their functions under 19 U.S. C.A. §§ 1497 and 1592], is reversed, vacated and set aside. It is so ordered. . Although incorporated in a judgment in a criminal proceeding, the injunction appealed from is civil in nature and the government’s • appeal is therefore timely. Fed.R.App.P. 4(a).

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Rhelda KULL et al., Plaintiffs-Appellants, v. MID-AMERICA PIPELINE CO., and Chevron Oil Co., et al., Defendants-Appellees. No. 72-2672. United States Court of Appeals, Fifth Circuit. March 29, 1973. Bob Hoblit, Odessa, Tex., for plaintiffs-appellants. John E. Gunter, Midland, Tex., (rep. Mid-America) Perry Davis, Jr., Odessa, Tex., for defendants-appellees. Before BELL, INGRAHAM and RONEY, Circuit Judges. PER CURIAM: In this Texas diversity case, two employees of the independent contractor hired by Chevron Oil Co. to excavate for a new pipeline were killed when the digging machine operated by them struck and exploded an underground pipeline carrying flammable gas. Their widows brought this survival action against Chevron, among others, alleging that Chevron had failed to provide the men a safe place to work, had failed to provide their employer with information about existing pipelines buried along the right-of-way of the proposed line, and had failed to make a proper investigation to determine the location of existing lines. The District Court granted summary judgment for Chevron and sanctioned this appeal by making the requisite certification under Rule 54(b), F.R.Civ.P. We agree with the District Court that, on the uncontradicted facts, Chevron is not liable for the injuries to these two workers employed by its independent contractor. As to the status of the independent contractor, the Contract, designating Chevron as “Company” and the independent contractor as “Contractor,” provides: 202. Contractor’s Status — Contractor shall perform the work as an independent contractor (controlling all ways and means incident to the proper performance and completion of the work) and not as an employee of the Company (ivhich shall have no right to control the methods of operation). (Emphasis added) As to existing lines along the proposed right-of-way, the Contract provides: 503. Existing Lines — Contractor shall locate and stake the position of the existing lines at such intervals as circumstances may require and to the satisfaction of Company to insure that proper care is exercised so that no damage is incurred to the existing line. Contractor shall not operate equipment over existing pipelines when ground is soft and wet or otherwise incapable of supporting equipment without damaging the pipeline. The existing lines on the surface shall be lowered and cov-ered with sufficient soil that equipment may pass over them without damaging the pipe. In case Contractor damages or breaks any of the existing pipelines or facilities, Contractor shall be liable for all damages or losses, including product losses, and shall fully indemnify and hold Company harmless from any attendant personal injury or property damage claims. Although Company shall provide Contractor with such information as Company has available as to location of existing pipelines and facilities not otherwise apparent, nevertheless, Contractor shall be solely responsible for locating them before ditching or doing other ivork, notwithstanding the fact that Company furnishes or fails to furnish such information accurately. (Emphasis added) The uncontradicted testimony of the foreman of the independent contractor showed that it undertook sole responsibility to locate underground pipelines. He testified that he knew of a sign in the area indicating the pipeline struck by the digging machine. There is no evidence that Chevron withheld any information in its possession. Contrary to appellants’ argument, under Texas law Chevron owed no duty to the contractor’s employees to locate existing pipelines, having no actual control of the operation and having reserved no right of control more than that deemed necessary to secure satisfactory completion of the work. Texaco, Inc. v. Roscoe, 290 F.2d 389 (5th Cir. 1961); Hurst v. Gulf Oil Corp., 251 F.2d 836 (5th Cir.), cert. denied, 358 U.S. 827, 79 S.Ct. 44, 3 L.Ed.2d 66 (1958); Sword v. Gulf Oil Corp., 251 F.2d 829 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 41, 3 L.Ed.2d 65 (1958). Affirmed.

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UNITED STATES of America, Appellee, v. Carl Turner MOCK et al., Appellants. UNITED STATES of America, Appellant, v. 1,472.0 ACRES OF LAND, etc., et al., Appellees. Nos. 72-2068, 72-2069. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1973. Decided April 5, 1973. Prof. Eugene F. Mooney, University of Ky. School of Law, Lexington, Ky., for appellants in No. 72-2068 and for apin No. 72-2069. Robert L. Klarquist, Atty., U. S. Dept, of Justice (Kent Frizzell,. Asst. Atty. Gen., Leigh B. Hanes, Jr., U. S. Atty., Birg E. Sergent, Asst. U. S. Atty., and George R. Hyde, Atty., U. S. Dept, of Justice, on brief), for appellee in No. 72-2068 and for appellant in No. 72-2069. Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge. DONALD RUSSELL, Circuit Judge: On July 23, 1969, the United States filed a Declaration of Taking for, and paid into the District Court the estimated value of, certain lands in Washington County, Virginia, which were being acquired as a part of the Mount Rogers National Recreation Area. At the time of the taking, Eunice B. Mock and Annette B. Mock each owned an undivided one-half interest in the land being taken. On August 29, 1969, Annette B. Mock executed deeds to a portion of her share of the lands in favor of the appellees. The appellees were then permitted by the District Court, over the objection of the Government, to intervene in the condemnation proceedings. It was the position of the appellees in their petition to intervene that the Declaration of Taking was ineffective and title in the property did not pass to the Government until it took actual possession, which was subsequent to the time Annette B. Mock had executed her deeds to the appellees. The appellees accordingly asserted that as owners of an interest in the land at the time the Government acquired title by possession, they were entitled to receive fair value for their interest in the property being taken. The District Court sustained their right to compensation for their interest and referred to Commissioners under the terms of Rule 71A, Federal Rules of Civil Procedure, 28 U.S.C., the fixing of fair compensation for the appellees. The District Court, however, reduced on subsequent hearing the compensation found due the appellees as the fair value of their interests as fixed by the Commissioners, and gave judgment for the amount determined by it to be fair value in favor of the appellees. Both the Government and the appellees-intervenors have appealed. The Government appeals from the order allowing the appellees to intervene and the order granting them judgment in the proceedings; the appellees assail the District Court’s reduction in the award as made them by the Commissioners. We reverse. The vital issue in the appeal is the validity of the Declaration of Taking. It is well settled — and the appellees do not seriously argue otherwise — that, if the Declaration was valid under the provisions of Section 258a, 40 U.S.C., title to the property in question passed to the Government on July 23, 1969 (Travis v. United States, Ct.Cls.1961, 287 F.2d 916, 919, 152 Ct.Cl. 739, cert. denied 368 U.S. 824, 82 S.Ct. 42, 7 L.Ed.2d 28; United States v. 12 Tracts of Land, Comprising 50.07 Acres, D.C.N.C.1967, 268 F. Supp. 125, 143), and the deeds thereafter executed by Annette B. Mock to the appellees were ineffective either as conveyances (since the grantor no longer was the owner) or as a partial assignment of the claim of Annette B. Mock to compensation, because in violation of the Assignment of Claims Act (United States v. Dow, 1958, 357 U.S. 17, 20-21, 78 S.Ct. 1039, 2 L.Ed.2d 1109). The ground on which the appellees predicate their attack on the Declaration is that it does not comply with the requirement, as stated in Section 258a, that the Declaration shall contain “a statement of the authority under which and the public use for which said lands are taken.” Specifically, they contend the lands were taken for inclusion in the Mount Rogers National Park, and that, though they concede the Government had the statutory power to condemn for inclusion in such Park, the Declaration did not identify the Act creating the Park as its authority for the taking. On the other hand, the Declaration did identify as its authority both the Appropriations Act providing the funds for the acquisition of property for inclusion in the Park, and other Acts related to but not directly identified with the Park. We are of the opinion that the attack on the Declaration is without merit. It has been uniformly held that “the statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire.” Poison Logging Co. v. United States (9th Cir. 1947) 160 F.2d 712, 714. See also, United States v. Kennedy (9th Cir. 1960) 278 F.2d 121, 122. Moreover, the fact that the Declaration, though based on the correct legislative appropriation authority, referred to inaccurate substantive enabling legislative authorization would be unimportant, if there was in fact valid substantive enabling statutory authority for the taking. United States v. Certain Lands in the County of Fairfax (1953) 345 U.S. 344, 348, 73 S.Ct. 693, 97 L.Ed. 1061; United States v. Catlin (7th Cir. 1953) 204 F.2d 661, 663, aff’d. 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911. As we have already observed, the appellees concede there is valid enabling legislative authority in the Government to acquire land for the purpose intended here. Since the Declaration of Taking was valid, the District Court was in error in allowing intervention by the appellees and in making any award in their favor. The order allowing intervention and the judgment awarded the appellees should be vacated. Reversed and x-emanded with instructions. . See United States v. Dow (1958), 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1100. . 31 U.S.C. § 203. . Mount Rogers National Recreation Area Act of 1966, Public Law 89-438, 80 Stat. 180, 16 U.S.C. §§ 460r to 460r5.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 42, INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, Respondent. No. 72-1145. United States Court of Appeals, Third Circuit. Feb. 21, 1973. OPINION SUR PETITION FOR REHEARING IN BANC Before SEITZ, Chief Judge, and HASTIE, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges. SEITZ, Chief Judge. The petition for rehearing, filed by respondent Local No. 42, asserts several grounds for rehearing in banc; but we need address ourselves only to the attack on the validity of our Local Rule 12(6) which provides in pertinent part that: “Ox’al argument may be dispensed with, or shortened, by an unanimous order of the panel to which the case has been assigned.” The petitioner first contends that the panel’s denial of oral argument pursuant to the local rule violates Rule 34 of the Federal Rules of Appellate Procedure. Rule 34(b) seems most pertinent to petitioner’s contention: (b) Time Allowed for Argument. Unless otherwise provided by rule for all cases or for classes of cases, each side will be allowed 30 minutes for argument. If counsel is of the opinion that additional time is necessary for the adequate presentation of his argument, he may request such additional time as he deems necessary. Requests may be made by letter addressed to the clerk reasonably in advance of the date fixed for the argument and shall be liberally granted if cause therefor is shown. A party is not obliged to use all of the time allowed, and the court may terminate the argument whenever in its judgment further argument is unnecessary. In our view, the quoted language of Rule 34(b) neither explicitly nor by implication mandates oral argument. Nor does the Advisory Committee’s Note on Rule 34 speak to our precise issue. Against this background, we reject petitioner’s contention and refuse to construe Rule 34 to require oral argument in every case. Such a rigid requirement would be incompatible with the need of the judiciary to husband its time by limiting argument to those cases in which the court believes it will aid in the quality of the decision-making process. Rather, we hold the rule merely establishes certain procedures in the event oral argument is granted. Our construction of Rule 34 renders it unnecessary to decide whether the “[ujnless otherwise provided by rule for all cases or for classes of cases” language of Rule 34(b) authorizes our Local Rule 12(6). See In re Amendment of Rule 3, 440 F.2d 847, 849 (9th Cir. 1970). The petitioner next argues that the denial of oral argument pursuant to Local Rule 12(6) violated the Due Process Clause of the Fifth Amendment. It will be recalled that Local Rule 12(6) permits dispensation with oral argument only when the panel which is to decide the case unanimously agrees. Thus, any one member of the panel may require oral argument. Furthermore, the vote as to whether to have oral argument comes only after the panel has received the briefs and appendix in the case. Thus, each member of the panel which is to decide the case is in a particularly knowledgeable position to determine whether he thinks oral argument may be helpful to him in reaching his decision. Given the manner in which our rule operates, we are unwilling to say that a denial of oral argument pursuant to our local rule constitutes a violation of the Fifth Amendment. In an administrative law context, the Supreme Court said in FCC v. WJR, The Goodwill Station, 337 U.S. 265, 276, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353 (1949): “Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.” We see no reason why the same principle does not apply to judicial proceedings. See Huth v. Southern Pacific Co., 417 F.2d 526 (5th Cir. 1969). The petition for rehearing in banc will be denied. HASTIE, J., concurs in the result.

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2024-08-24T03:29:51.129235

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UNITED STATES of America, Appellant, v. Ben F. BOONE, Appellee. No. 72-1484. United States Court of Appeals, Tenth Circuit. April 9, 1973. Dirk D. Snel, Atty., Dept, of Justice (Kent Frizzell, Asst. Atty. Gen., James L. Treece, U. S. Atty., Charles W. Johnson, Asst. U. S. Atty., George R. Hyde and Jacques B. Gelin, Attys., Dept, of Justice, with him on the brief), for appellant. Robert W. Hansen, Denver, Colo., for appellee. Before SETH, McWILLIAMS and BARRETT, Circuit Judges. SETH, Circuit Judge. The United States brought this damage action against Ben F. Boone to recover the cost incurred in suppressing a forest fire which spread from the defendant’s land, where he was burning brush, to a National Forest. The suit was tried to a jury which found for the defendant, and the United States has taken this appeal. The issue on appeal centers on the dismissal of one of the two causes of action in the complaint. The first cause asserted negligence in setting on fire a pile of brush by defendant on his property. The cause went to the jury. The second cause of action, which was dismissed by the trial judge before submission to the jury, was based on a Colorado statute which the Government asserts creates an absolute liability and is applicable. This statute (C.R.S.1963 § 41-2-5) reads in part: “If any person shall set on fire any woods or prairie, so as to damage any other person, such person shall make satisfaction for the damage to the party injured, to be recovered in an action before any court of competent jurisdiction.” The facts are not in dispute. The record shows that the defendant Boone and an employee of the United States Soil Conservation Service were on Boone’s ranch to survey and stake out a damsite for a livestock pond. There was a pile of brush on the proposed site, and Boone struck a match and set it on fire. A few minutes later a sudden wind came up, the fire burned out of control and spread on to the lands of the San Juan National Forest which adjoined Boone’s property. The fire burned approximately 315 acres of national forest land, and thereafter the United States brought suit to recover the monies expended by it in suppressing the fire, in restoring the watershed, and for timber and other resource damage in the amount of $31,475.11. The United States on this appeal asserts that the District Court committed error in holding that state law was not available to the United States as a ground for recovery, and that the second cause based on C.R.S.1963 § 41-2-5 should not have been dismissed. Appellee Boone urges us to hold that even if C.R.S.1963 § 41-2-5 is applicable, which it is not, it sets forth no basis for liability other than negligence which was submitted to the jury and resolved in his favor. The trial court apparently dismissed the second cause of action of the complaint on the ground that damages to the forest were governed exclusively by federal law. There appears to be little authority that is helpful on the application of a state statutory standard of liability or remedy for damages to the national forest under these circumstances. The damage asserted was to the plaintiff’s lands in Colorado. These lands were part of the San Juan National Forest created by proclamation in 1905 out of lands formerly public domain. The statutory authority for the forest is in 16 U.S.C. §§ 471 and 480. These provide generally for the preservation of state civil and criminal jurisdiction within the forest. There is no other statutory provision putting the area within any special category of federal jurisdiction, and there is no authority demonstrating why this tract should be treated differently than any other land in Colorado for these purposes. Colorado statutes on other subjects govern the actions of individuals in this forest, and no reason appears why the United States as a landowner should not avail itself of Colorado statutory provisions which are available to other landowners under like circumstances. See Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793; Texas Oil & Gas Corp. v. Phillips Petroleum Co., 406 F.2d 1303 (10th Cir.); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087. The Fifth Circuit in United States v. Williams, 441 F.2d 637 (5th Cir.), considered a boundary dispute which presents some different aspects, but it held that suits by the United States to protect its proprietary interest are local in nature. The same rationale is applicable here. Thus we hold that the trial court was in error in dismissing the second cause of action in the absence of any contravening federal statute or policy. Whether a violation of C.R.S.1963 § 41-2-5 subjects Boone to absolute liability or would merit an instruction on negligence per se, whether it refers to deliberate attempt to damage, or whether it sets forth merely a negligence theory on which the jury has already considered the first count, we express no opinion as this is a matter for the trial judge on remand. The Colorado courts have apparently not construed the statute. The appellee raises an issue on appeal concerning contributory negligence arising from the presence of a Government employee, but we find no merit in this issue. Reversed and remanded for further proceedings.

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Harry L. WASHBURN, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. No. 72-3670 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 12, 1973. James E. Maggard, Jr., Staff Counsel for Inmates, TDC, Ramsey Unit # 1, Rosharon, Tex., for petitioner-appellant. John L. Hill, Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before BELL, COLEMAN and GODBOLD, 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: Appellant, a Texas state prisoner serving life for murder with malice aforethought (killing by attaching dynamite to the automobile of the victim) complains of the denial to him of federal habeas relief. The original conviction was appealed and reversed. Washburn v. Texas, 164 Tex.Cr.R. 448, 299 S.W.2d 706 (1957). His subsequent conviction was affirmed. Washburn v. Texas, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958), cert. denied, 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 834. He was then denied state habeas relief and that denial was affirmed. Ex parte Washburn, 383 S.W.2d 592 (Tex.Cr.App. 1965). Federal habeas relief involving the same contentions of error was then denied by the United States District Court for the Southern District of Texas, and later by the United States District Court for the Northern District of Texas. Additional grounds had been included in the habeas petition in the latter court, and the decision of the court was partially on the ground of failure to exhaust available state remedies. Appellant then repaired to the state habeas court with new grounds, relief was denied, and that judgment was affirmed without written order. Washburn v. Beto, May 10, 1971. Appellant thereupon returned to the federal forum on the same grounds, relief was denied, and this appeal followed. We are presented with two assignments of error by appellant through his counsel, the many other claims asserted in past litigation having apparently been abandoned. The first of these assignments is that the jury was exposed to the sight of a jar containing the flesh of the deceased, although the trial court ruled it inadmissible. There is no support whatever in the record that this exhibit was called to the attention of the jury. The record shows no more than that it was on the table of counsel at some point in the trial. This matter was thoroughly considered in the Texas Court of Criminal Appeals on the direct appeal. 318 S.W.2d at 635, 638. It is a recurring point in the subsequent habeas proceedings. As the Court of Criminal Appeals pointed out, p. 635, supra, there was a basis for the evidence even though the trial court ruled it inadmissible. We have carefully considered this claimed error and conclude that it is not a “federally reversible” error if error at all. Moore v. State of Illinois, 1972, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. The other assignment of error is that there was an illegal search of appellant’s garage through which prejudicial evidence was uncovered. The product of this search was wire of the type used to wire the automobile in question. We are unable to find any basis in the record for this claim. Appellant raised this same claim in habeas corpus proceedings in the state court. He was given a full and fair opportunity to present evidence in support of it there, and he presented none. He proffers none here. That is the end of the matter. Affirmed.