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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Robert W. SIMMONS, Plaintiff-Appellee, v. W. M. JONES and Ernest Walker et al., Jury Commissioners for Long County, Georgia, Defendants-Appellants. No. 71-1092. United States Court of Appeals, Fifth Circuit. May 14, 1973. R. L. Dawson, Richard D. Phillips, Ludowici, Ga., for defendants-appellants. Frank W. Seiler, Walter C. Hartridge, II, Charles H. Wessels, Savannah, Ga., for plaintiff-appellee. Before GODBOLD, SIMPSON and CLARK, Circuit Judges. SIMPSON, Circuit Judge: Robert W. Simmons, the defendant in a pending state court damage action, brought this suit in the federal district court below to compel the jury commissioners of Long County, Georgia, to perform their official duties in accordance with Section 59-106, Georgia Code Annotated. The court below, after a non-jury trial, ordered the defendants to recompile the Long County list of traverse jurors and to accomplish such a recompilation in partial disregard of the provisions of Section 59-112 of the Georgia Code. We have concluded that the district court improperly intervened in the administration of Georgia’s juror selection system in this case. For the reasons given below, the judgment of the lower court is reversed and remanded with direction to dismiss the complaint. THE FACTS The plaintiff-appellee is a white male resident of Long County, Georgia. On February 17, 1967, Simmons was involved in an automobile collision in Long County with J. Clyde Gordon, likewise a white male resident of Long County. Gordon brought suit against Simmons for damages in the Superior Court for Long County. When the ease was called for trial, Simmons attacked the constitutionality of a state law of local application governing the selection of jury commissioners. His challenge to the array was denied by the trial judge, who then continued the case and signed a certificate for immediate review. While the matter was pending before the Supreme Court of Georgia, that state’s legislature repealed the local law (Georgia Laws, 1970, pp. 10-12), thereby making the general juror selection statutes applicable to Long County. As a consequence of the legislature’s action, the Supreme Court of Georgia dismissed the appeal from the Long County Superior Court on the ground of mootness. Simmons v. Gordon, 1970, 226 Ga. 162, 173 S.E.2d 223. The state damage action was rescheduled for trial at the August, 1970, term of the Long County Superior Court. Before the ease was reached, Simmons, on August 13, 1970, filed his complaint in the United States District Court for the Southern District of Georgia, naming the Long County jury commissioners as defendants and praying for relief from the manner in which Sections 59-106 and 59-112, Georgia Code Annotated, were allegedly being administered within that county. THE COMPLAINT Invoking the jurisdiction of the district court under 28 U.S.C. Secs. 1343(3), 1343(4), 2201, and 2202; 42 U.S.C. Secs. 1983 and 1988; and the Fourteenth Amendment to the United States Constitution (equal protection and due process clauses), the complaint charged: 8. Despite the clear mandate of Ga.Code Ann. § 59-106 to select as a jury a representative cross-section of the intelligent and upright citizens of the county from the registered voters’ list which was used in the last preceding general election and to supplement such list as necessary by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county, the Jury Commissioners of Long County assembled a traverse jury box for the August Term of Long County Superior Court and any subsequent adjourned term thereof containing the names of only 420 persons. These said 420 persons comprise only 15 of the registered voters in Long County, Georgia. 9. The Jury Commissioners of Long County have failed to inquire into the eligibility of Sii/2% of the registered voters of Long County to serve as jurors in order to comply with the statutes to insure that the jury list is fairly representative of a cross-section of the county’s intelligent and upright citizens. Moreover, the Jury Commissioners have eliminated from consideration for jury service a substantial percentage of the population of the entire County of Long. 10. In composing the list of jurors, defendants did not, pursuant to Georgia Code § 59-106, employ the official registered voters’ list used in the last preceding general election. This is demonstrated by the fact that persons whose names appear on the list of jurors do not appear on the applicable voters’ lists. Moreover, the names of persons listed as jurors appear in a large number of instances on the jury list in a different form than the form in which said names appear on the applicable voters’ list. Evidence in support of these allegations is supplied in the form of the affidavits of Eugene S. Caison and Joseph M. Murray which are attached hereto and made a part hereof as Exhibits 1 and 2, respectively. 11. Plaintiff avers on information and belief that it is not possible to have a civil action fairly tried in Long County because for at least the past eight years, no verdict in any case tried in Long County has ever been returned in an amount substantially less than the amount of damages sought in petitions and complaints filed by Ralph Dawson or his nephew, Richard Dawson Phillips, or either or both of them. 12. Plaintiff’s counsel have prepared an affidavit which is attached hereto and made a part hereof as Exhibit 3 stating their experience in Long County, Georgia. Plaintiff’s counsel can recall no instances in which a jury verdict was ever returned for substantially less than the full amount sought. Plaintiff’s counsel has obtained from a number of practitioners throughout South Georgia affidavits setting forth their experiences in Long County, Georgia, which experiences are identical to that of plaintiff’s counsel. These affidavits are attached hereto and made a part hereof as Exhibits 4 through 8. 13. Plaintiff alleges as a result of defendants’ conduct he has been placed in imminent danger of being deprived of his property without due process of law. 14. Unless this Court, exercising equitable powers, restrains the aforesaid illegal and unconstitutional application of Ga.Code Ann. § 59-106, defendant will be deprived of his property without due process of law at the August Term of the Superior Court of Long County, Georgia, which commences on Monday, August 17, 1970. The complaint concluded with prayers for the following relief: (a) An injunction barring the prosecution of all jury actions, civil and criminal, in Long County until elimination of the allegedly unconstitutional method of selecting traverse jurors ; (b) A declaration that the method utilized by the defendants in selecting traverse jurors is unconstitutional, null and void; (c) An order requiring the defendants to carry out the provisions of Section 59-106, Georgia Code Annotated, in a manner which will guarantee the protection of all the constitutional rights of litigants in Long County, Georgia; (d) An order directing the United States Marshal to impound the Long County voters’ and jurors’ lists for the purpose of copying at Savannah, Georgia; and (e) An order directing the defendants to show cause why they should not be compelled to comply with the provisions of Section 59-106 and the United States Constitution. On August 14, 1970, the district court ordered the United States Marshal to impound the voters’ and jurors’ lists of Long County for the purpose of copying at Savannah, Georgia, and ordered the defendants to show cause why the relief sought in the complaint should not be granted. The district court declined to enjoin the prosecution of all jury actions in Long County. It appears, however, that the Judge of the Atlantic Circuit, State of Georgia, (which includes Long County) has honored the district court’s informal request that all jury proceedings pending in Long County be held in abeyance pending the adjudication of the constitutional issues in the federal court. THE ANSWER The defendants appeared and answered the complaint through their counsel, Ralph L. Dawson and Richard Dawson Phillips, both of Ludowici, Georgia, the county seat of Long County. They asserted that the complaint failed to state a claim upon which relief against the defendants could be granted. In addition, the defendants denied plaintiff’s allegations that the Long County jury commissioners had failed to comply with the provisions of Section 59-106, Georgia Code Annotated, in the selection of traverse jurors for the August, 1970, term of the Long County Superior Court. THE DECISION BELOW Following a trial on the merits, the lower court found for the plaintiff. Simmons v. Jones, S.D.Ga.1970, 317 F.Supp. 397. The district court determined that the plaintiff had a federal constitutional right to a state court civil trial “before a jury drawn from a list constituting a fairly representative cross-section of the community.” 317 F.Supp. at 403. It then found that the defendants in selecting the Long County traverse jurors had deprived plaintiff of that right: “I hold that the jury list in Long County as presently composed falls short of constitutional requirements. The practice of putting the names of several members of the same family in the box (though ordinarily permissible) tends in the case of a small county to unduly weight the rights and power of that group of jurors. The over representation in the class of office holders, public employees and persons above sixty-five years of age dilutes the rights of persons eligible for jury duty but who are not on the list.” 317 F.Supp. at 404. The district court discounted the possibility of the plaintiff obtaining meaningful relief from the courts of the State of Georgia: “As I earlier pointed out, efforts to obtain relief from the method of appointing jury commissioners in Long County have been made in the past in the state court. The first such challenge of the palpably unconstitutional Act of 1962 failed on both the trial and appellate court level. Similar litigation by the present plaintiff in 1969 indirectly brought about repeal of the special law. New jury commissioners were appointed by the Judge. Their revision of the list does not meet federal constitutional standards. Under the circumstances, I see no reasonable prospect of relief from state courts, certainly no prompt relief.” 317 F.Supp. at 405. Citing Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the court below observed that exhaustion of state remedies was not required in this 42 U.S.C. Sec. 1983 action as a prerequisite to suit in federal court to vindicate a federal right. 317 F.Supp. at 405. The final matter taken up by the district court was that of an appropriate remedy: “Having concluded that the methods used by the Commissioners and the results thereof are a violation of plaintiff’s due process and equal protection rights, it becomes our task to try to bring the present list within constitutional bounds. One thing is clear. The Jury Commissioners must start over. Their job which is of high importance should be approached with an eye single to compiling a list of intelligent and upright citizens which reflects a true cross-section of the community. In accomplishing that object the voters’ list for the 1970 General Election will be used.” 317 F.Supp. at 405. To insure that the recompilation of the Long County jurors’ list would not be a meaningless exercise, the district court directed the defendants to abide by the following guidelines in performing their duties: “(a) The Commissioners should consider the elimination of all persons in the present list who were called for jury duty between 1960 and 1964 This does not mean that these citizens cannot be reconsidered for service in any subsequent revision of the list. For the time being, however, I think that jurors who have served over ten years are well entitled to a respite from jury duty. (b) Multiple family representation should be eliminated whenever jurors are related by blood or marriage and reside under the same roof or on the same property or farm. Unless valid reasons exist, there should be not more than one member of such families on the jury list. (c) Names of law enforcement officers should be stricken. They have enough work already. Where office holders and public employees are over-weighted as a class the Commissioners should take stock. (d) Jurors over sixty-five years of age should be deleted in most cases. In fact, low priority should be given all classes of persons exempted from duty by Ga.Code, Supp. § 59-112. Waivers of exemption should be carefully scrutinized and not recognized where solicited. (e) The percentage of women on the present jury list is less than 25% of the total number of jurors. Whether that percentage produces a fair cross-section of females eligible for service as jurors is a matter for determination by the Commissioners. There is no constitutional mandate as to mathematical proportion or identifiable groups or classes of prospective jurors. (f) Names of non-residents, aliens, infirm or deceased persons and citizens who are not registered voters should be removed from the box. (g) Race and color must, of course, not be a factor in the revision of the list. Nor shall political affiliation be.” 317 F.Supp. at 405-406. THE BASIC ISSUE Boiled down to its essentials, Simmons’ complaint alleged that the defendants, in compiling the Long County traverse jurors’ list for the August, 1970, term of the Superior Court, had failed to comply with the mandate of Georgia statutory law. The federal district court was asked to police the manner in which the defendants, officials of the State of Georgia, performed their duties to insure compliance with state law. Because the lower court was requested to assume the function of the Georgia state courts, we base our decision to reverse on alternative grounds; (a) the federal abstention doctrine and (b) the failure of the complaint to state a claim upon which relief could be granted. THE FEDERAL ABSTENTION DOCTRINE As already noted the district court held that the plaintiff was not required to exhaust his state remedies before pursuing his remedies in federal court under 42 U.S.C. Sec. 1983. This holding is supported by clear precedent. The United States Supreme Court, however, on several occasions has indicated that a federal court, in an appropriate case, should abstain from deciding certain questions in order to avoid unnecessary friction between a state and the federal government. This appears to us to be precisely such a case. In Alabama Public Service Commission v. Southern Railway Company, 1951, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002, a three-judge federal district court had granted the railroad’s petition for injunctive relief against a state commission order prohibiting the discontinuance of railroad passenger service. Speaking through Mr. Chief Justice Vinson, the Court ruled that the railroad should have pursued its state judicial remedies, which were clearly delineated by an Alabama statute, rather than bringing suit in the federal court under its diversity and federal question jurisdictions : “As adequate state court review of an administrative order based upon predominantly local factors is available to appellee, intervention of a federal court is not necessary for the protection of federal rights. Equitable relief may be granted only when the District Court, in its sound discretion exercised with a “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,” is convinced that the asserted federal right cannot be preserved except by granting the “extraordinary relief of an injunction in the federal courts.” Considering that “[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies,” the usual rule of comity must govern the exercise of equitable jurisdiction by the District Court in this case. Whatever rights appellee may have are to be pursued through the state courts.” (footnotes and citations omitted) 341 U.S. at 349-350, 71 S.Ct. at 768, 95 L.Ed. at 1008-1009. No reason suggests itself to us for departing here from the doctrine of Alabama Public Service Commission. Stripped of its flimsy federal constitutional trappings Simmons’ complaint basically was an effort to enlist a federal court in a campaign to achieve a more faithful application in a single small Georgia county of Georgia’s statutory scheme for the selection of traverse jurors. We must assume that the Georgia court system is capable of enforcing Section 59-106 of the Georgia Code. As a matter of comity, the district court should have afforded the Georgia courts the opportunity to rectify alleged deviations from the requirements of Georgia law regarding the selection of travese jurors in Long County. Sound principles of federalism dictate this result. FAILURE OF THE COMPLAINT TO STATE A CLAIM Our decision in McDowell v. State of Texas, 5 Cir., 1971, 465 F.2d 1342, adopted as the opinion of the court en banc, 1972, 465 F.2d 1349, which was not available to the district court when this case was decided below leads us to hold alternatively that the complaint should have been dismissed for failure to state a claim upon which relief could be granted. McDowell was a suit based upon 42 U.S.C. Sec. 1983 by a discharged state employee against his former employer, the Texas Board of Mental Health and Mental Retardation, seeking damages for an allegedly wrongful termination of his employment. The essential nature of McDowell’s complaint was that the state officials involved had fired him in disregard of applicable Texas law for political reasons. Judge Clark, writing for the panel in McDowell, discussed the federal aspect of that claim in the following manner: “The termination of Dr. McDowell’s status as a State employee rests solely on a claim that his employers violated State statutes and local policies in effecting his termination. The right to employment by a State, in itself, is not a right secured by the Constitution or by the Laws of the United States; thus, even an invalid or improper discharge from such an office, unaccompanied by some more precise claim of federal right than a general claim of lack of due process, is not the sort of deprivation of a right, privilege or immunity which is secured by the Constitution of the United States or an Act of Congress providing for equal rights of citizens within the meaning of 28 U. S.C.A. § 1343(3). Cf. Johnson v. Hood, 430 F.2d 610 (5th Cir., 1970). Cases of this genre constitute uniquely State causes of action. As such they are peculiarly within the realm of State courts. “A right to have state (or city) laws obeyed is a state, not a federal right.” Love v. Navarro, 262 F.Supp. 520 (D.C.Cal.1967). “Mere violation of a State statute does not infringe the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944) ; cf. Gentry v. Howard, 288 F.Supp. 495 (E.D.Tenn.1968). Even though it is patent that the amorphous and protean contours of substantive due process under the Fourteenth Amendment extend to all citizens in all sorts of conditions and circumstances, it is equally axiomatic that federal jurisdiction under § 1343 and 42 U.S.C.A. § 1983 cannot be extended to that purely local squabble by the mere invocation of the generalized protection which these words of the amendment confer. “The Constitution’s deeply embedded concepts of federalism demand that we refuse a procedure of statutory construction that would put such a literal gloss on the words of §§ 1343 and 1983 as would kill the spirit the founding fathers quickened when the people of the sovereign states ceded sufficient government power to form a sovereign union. National Woodwork Manufacturers Ass’n. v. N. L. R. B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). If we were to distort §§ 1343 and 1983 to vest federal courts with jurisdiction over the uniquely local substantive matters which this case presents, we would not only impair our ability to consider the vast array of cases that properly belong in federal forums but, as surely as sunrise, we create yet another and an unnecessary interference with orderly State processes.” 465 F.2d at 1345, 1346. McDowell was a state employment case while this appeal concerns the selection of jurors in a state court. But we believe that the rationale of McDowell is applicable here. The alleged failure of the defendants to comply with Section 59-106, Georgia Code Annotated, without a showing of systematic exclusion on the basis of race or some other ground forbidden by national policy, does not give rise to a federal cause of action under the federal civil rights statutes. CONCLUSION In recent years. federal courts have been thrust into the policing of numerous areas once considered outside their province of governmental control. They labor under mounting caseloads increased by expanding concepts of federal constitutional imperatives. McDowell teaches that the complaint here did not state grounds for federal relief. Alternatively, the district court should have heeded established comity principles and abstained from voluntarily assuming the function of state courts in the supervision of state juror selection process. Without a conclusive showing — which was absent — that the courts of Georgia are either unwilling or unable to enforce Georgia laws governing the jury selection process of Long County, Georgia, it was error to entertain this action. The judgment below is reversed. The district court upon remand is directed to vacate its decree of October 1, 1970 and to dismiss the complaint. Reversed and remanded, with directions. . Section 59-106, Georgia Code Annotated, reads: 59-106. (816, 819 P.C.) Revision of jury lists. Selection of grand and traverse jurors. — At least biennially, or, if the judge of the superior court shall direct, at least annually, on the first Monday in August, or within 60 days thereafter, the board of jury commissioners shall compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as jurors. In composing such list the commissioners shall select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters’ list which was used in the last preceding general election. If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly representative thereon. After selecting the citizens to serve as jurors, the jury commissioners shall select from the jury list a sufficient number of the most experienced, intelligent and upright citizens, not exceeding two-fifths of the whole number, to serve as grand jurors. The entire number first selected, including those afterwards selected as grand jurors, shall constitute the body of traverse jurors for the county, [except] as otherwise provided herein, and no new names shall be added until those names originally selected have been completely exhausted, except when a name which has already been drawn for the same term as a grand juror shall also be drawn as a traverse juror, such name shall be returned to the box and another drawn in its stead. . Section 59-112, Georgia Code Annotated, reads: 59-112. (871 P.C.) Persons exempt from jury duty.- — (a) The following persons are exempt from all jury duty, civil or criminal; the name of any such person shall not be included or continued in the jury box unless such person shall make a request therefor in writing to the board of jury commissioners or its clerk : 1. Police and other law enforcement officers employed or appointed on a full-time basis, but not part-time or honorary peace officers. 2. Officers and personnel of any court employed or appointed on a full-time basis, including attorneys at law who are active members of the State Bar of Georgia and regularly engaged in the practice of law in this State. 3. Officers, firemen and other personnel of any fire department employed or appointed on a full-time basis, except that exemption hereunder shall also apply to those members of a volunteer fire department, certified to the board of jury commissioners by the administrative head thereof as indispensable to the effective operation of such department. 4. Physicians, surgeons, medical interns, and medical technicians actively engaged as such, except that exemption hereunder shall also apply to other personnel of a hospital certified to the board of jury commissioners by the administrative head thereof as indispensable to the effective operation of such hospital. 5. Dentists and pharmacists, duly licensed, who are actively engaged in the practice of their profession. 6. Persons who are 05 yeai’S of age or older. (b) Any other person summoned to jury duty may be excused therefrom by the judge of the court to which he has been summoned upon a showing that he will be engaged during the term of his required service in work necessary to the public health, safety or good order, or that she is a housewife with children 14 years of age or younger. (c) The exemption hereunder shall not apply to attorneys at law or physicians summoned to serve on commissions or juries pursuant to any of the provisions of Title 88 of the Code of Georgia known as “The Health Code,” as now in effect or hereafter amended. (d) Any woman, teacher or principal of this State who does not desire to serve upon juries shall notify the jury commissioners of the county in which she resides in writing to that effect, and thereupon the jury commissioners shall not place the name of such woman, teacher or principal in the jury box for said county. . Also questioned by appellant is the propriety of the remedy fashioned by the district court. The decree’s directions to the defendants required that in recompiling the jury list, they disregard portions of Sec. 59-112, Georgia Code Annotated note 2, supra, even though those portions had not been subjected to constitutional challenge. The mandate to strike the names of law enforcement officers and persons over 65 from the jury list, and the directive to give lowest priority to persons exempted under Sec. 59-112 went beyond the issues and are challenged as unwarranted and in excess of the lower court’s authority, relying upon Fay v. New York, 1947, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, which upheld the constitutionality of New York’s “blue ribbon” jury system. Because of the disposition we make of the appeal we do not reach and refrain from commenting on these issues. . Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492. See further McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Damico v. California, 1967, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647; Moreno v. Henckel, 5 Cir. 1970, 431 F.2d 1299; Hall v. Garson, 5 Cir. 1970, 430 F.2d 430; Harkless v. Sweeny Independent School District, 5 Cir. 1970, 427 F.2d 319. . Professor Charles Alan Wright notes in his treatise “Law of Federal Courts”, Wright, 2d Edition, 1970; p. 196, that “In the last three decades there has been considerable recognition of circumstances under which a federal court may decline to proceed though it has jurisdiction under the Constitution and the Statutes.” He points out that rather than referring to all as “the abstention doctrine”, it is more precise to refer to “abstention doctrines”, since “there are at least four distinguishable lines of cases, involving different factual situations, different procedural consequences, different support in the decisions of the Supreme Court, and different arguments for and against their validity.” The four categories are recognized as (1) to avoid decision of a federal constitutional question where the case may be disposed of on questions of state law: (2) to avoid needless conflict with the administration by a state of its own affairs ; (3) to leave to a state the resolution of an unsettled state law question; and (4) to ease the congestion of the federal court docket. The case we discuss in the text, infra, Alabama Public Service Commission v. Southern Railway Company, is perhaps the leading exponent of the second of the Wright subdivisions. See also Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Hawks v. Hamill, 1933, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610. Professor Wright states, op. eit. 200, that in this type abstention normally appropriate procedure is dismissal of the action rather than retention of jurisdiction pending a state determination, noting that redress of any federal right prejudiced by action of the state court to which deference is thus shown, is available by United States Supreme Court review of the state decision. . Accepting the allegation of paragraph eight of the complaint, (text p. 4 supra) that 420 names represented 15%% of the total number of registered voters that total would be about 2700 names. The 1970 U. S. Census listed the population of Long County, Georgia at 3746. World Almanac, 1972. . For recent applications of this type of federal abstention doctrine by this Court, see Romero v. Coldwell, 5 Cir. 1972, 455 F.2d 1163, a class action to determine whether one-man one-vote concept applied to elected Justice of the Peace in El Paso County, Texas; Harris v. Samuels, 5 Cir. 1971, 440 F.2d 748, class suit by college students seeking to register as voters in the state in which the college was located ; Hill v. City of El Paso, Texas, 5 Cir. 1971, 437 F.2d 352, 356, involving an attack upon the constitutionality of a city ordinance regulating junk yards. . Our panel decision in McDowell, May 8, 1971, as well of course as our adoption en banc of that opinion, August 29, 1972, occurred long after the decision below, October 1, 1970. Application for en banc in McDowell was pending when this case was argued before us and this decision was withheld awaiting the en banc court’s disposition. . We are not unaware of tlie district court’s prognostication, quoted at pages 8 and 9 of the text from 317 F.Supp. at page 405, to the effect that “under the circumstances, I see no reasonable prospect of relief from state courts, certainly no prompt relief”. We view this as simply an articulation of a “judicial hunch”, not to be equated with the type of showing we think should be made before a federal district court should undertake to police the enforcement of state laws.

f2d_478/html/0330-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Helen MATYA, Appellant, v. UNITED STATES of America, Appellee. No. 72-1495. United States Court of Appeals, Eighth Circuit. Submitted Feb. 14, 1973. Decided April 19, 1973. Dennis Martin, Omaha, Neb., for appellant. Leonard J. Henzke, Jr., Atty., Tax Div., Dept of Justice, Washington, D. C., for appellee. Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge. Sitting by designation. LAY, Circuit Judge. Plaintiff Helen Matya brings this appeal from the denial of a preliminary injunction sought against the United States to prevent the Internal Revenue Service from seizing and selling her retail liquor business to satisfy a tax lien filed against herself and her husband, Charles J. Matya, for wagering taxes. The tax lien was based on a jeopardy assessment issued by the government against the plaintiff and her husband in the amount of $793,703.95. Plaintiff urges that any obligation for wagering taxes is solely her husband’s and she cannot be held legally liable for her husband’s debts under 26 U.S.C. § 4401(a) and (c). She asserts that she is the exclusive owner and operator of the liquor store business. Plaintiff contends, inter alia, that the jeopardy assessment procedure is unconstitutional insofar as it allows an ex parte summary attachment, without a hearing, against the taxpayer’s property. Plaintiff argues that the court has jurisdiction to enjoin the assessment against her property, notwithstanding the prohibition in 26 U.S.C. § 7421, because the exceptional circumstances discussed in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), prevail here. The government denies that the case presents any constitutional issues and urges the applicability of Section 7421, and it further moves, as it did in the district court, for a dismissal on the ground of sovereign immunity. The fundamental difficulty with the plaintiff’s case is that she has sued the wrong party. The United States, as sovereign, is immune from suit without its consent. Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 141-142, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); United States v. Sherwood, 312 U.S. 584, 586-587, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Gnotta v. United States, 415 F.2d 1271, 1276-1277 (8 Cir. 1969). No statute, regulation or order has been cited which shows that the United States has consented to being sued in the situation presented here. In Buck v. United States, 466 F.2d 481, 483 (10 Cir. 1972), the Tenth Circuit dismissed a similar cause of action for lack of jurisdiction saying: “The United States, as sovereign, may not be sued without its consent and the terms of its consent define the court’s jurisdiction. . . . Taxpayers present no claim that any assessment has been paid or that any application for refund has been filed. “Taxpayers argue that if relief is not granted they will be unable to contest the validity of the penalties and will suffer irreparable harm in violation of their Fifth Amendment rights. We need not explore what remedies the taxpayers might have had or now have because we are concerned with sovereign immunity. Whatever actions the taxpayers might have maintained against the Collector of Internal Revenue . . . are unimportant because we have a suit against the United States, not against a collector.” We vacate the judgment of the district court and remand the same with directions to enter a judgment in the district court dismissing the complaint on the grounds of sovereign immunity. . See 26 U.S.C. §§ 6862, 6331. Plaintiff relies on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). . Section 7421 provides in part: “(a) Tax. — Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” . The Supreme Court in Mnoohs held that Section 7421 prohibits judicial intervention in the assessment and collection of federal taxes unless “it is clear that under no circumstances could the Government ultimately prevail” and “equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ ” Enochs v. Williams Packing & Navigation Co., 370 U.S. at 7, 82 S.Ct. at 1129. . At this late date the government in a post-trial suggestion has indicated it would consent to a substitution of the proper party in order to permit the court to pass on the merits of the appeal. We decline the government’s suggestion. Plaintiff has made no motion to substitute parties, and additionally we feel that, under the circumstances existing here, the government’s suggestion is untimely made.

f2d_478/html/0332-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Essick McKinley BENDER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 72-2513. United States Court of Appeals, Ninth Circuit. May 2, 1973. Essick McKinley Bender, in pro. per. William D. Keller, U. S. Atty., William John Rathje, Vincent J. Marella, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for defendant-appellee. Before DUNIWAY, HUFSTEDLER, and CHOY, Circuit Judges. CHOY, Circuit Judge: Bender appeals the denial without a hearing of his post-conviction petition for relief under 28 U.S.C. § 2255. We affirm. On November 6, 1967 he pled guilty to violating 18 U.S.C. § 2113(a) and (d), robbery of a savings and loan association with a dangerous weapon. The trial judge fully complied with the requirements of Rule 11, F.R.Crim.P. to ensure voluntariness of the plea, except that he did not explicitly tell appellant that his federal sentence would not commence until his pending state sentences ran their course. The trial judge did tell him immediately after his plea was accepted that the court was powerless to impose a federal sentence to run concurrently with any state confinement. On November 27, 1967 the trial judge sentenced appellant to fifteen years imprisonment pursuant to 18 U.S.C. § 4208 (a)(2). The commencement of his federal sentence was delayed by one hundred and four days. On April 25, 1972 appellant filed his § 2255 petition on the ground that his guilty plea was not made with full understanding of its consequences because he was not advised, prior to pleading, of the delay in the start of his federal sentence. He relies on United States v. Myers, 451 F.2d 402 (9th Cir. 1972). The district court held that Myers was not retroactively applicable, but as a matter of grace it reduced appellant’s sentence by one hundred and four days. We agree that Myers should not be retroactively applied. The two eases which initiated the prophylactic interpretation of Rule 11 were not applied retroactively. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) was held not retroactive in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). Heiden v. United States, 353 F.2d 53 (9th Cir. 1965) was held not retroactive in Castro v. United States, 396 F.2d 345 (9th Cir. 1968). See also Myers, supra at 405 of 451 F.2d. This Court also held that the admonishment of unavailability of parole required by Munich v. U. S., 337 F.2d 356 (9th Cir. 1964) was not required to be applied retroactively. Fong v. U. S., 411 F.2d 1181, 1182 (9th Cir.) cert. denied, 396 U.S. 968, 90 S.Ct. 450, 24 L.Ed.2d 434 (1969). The rationale for the Myers and Munich decisions was quite similar, with Myers relying upon Munich. As to the district court’s act of grace in reducing appellant’s sentence by one hundred and four days: While that act is of dubious validity, we do not disturb it since the government does not object thereto. Affirmed. . See U. S. v. Marchese, 341 F.2d 782, 788 (9th Cir. 1965).

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Michael F. ELEEY, Appellant, v. Thomas M. VOLATILE, Commanding Officer, and Secretary of Defense, Appellees. No. 71-1355. United States Court of Appeals, Third Circuit. Submitted Dec. 16, 1971. Submitted for Reconsideration En Banc Jan. 3, 1973. Decided May 3, 1973. Sanford Kahn, Philadelphia, Pa., for appellant. Barry W. Kerchner, Asst. U. S. Atty., Philadelphia, Pa., for appellees. Submitted Dec. 16, 1971. Before BIGGS, VAN DUSEN and HUNTER, Circuit Judges. Submitted for Reconsideration En Banc Jan. 3, 1973. Before SEITZ, Chief Judge, and BIGGS, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges. OPINION OF THE COURT PER CURIAM: Appellant submitted to induction into the armed forces on November 25, 1970. He then filed a petition for a writ of ha-Pa.1971). Because of the well-written beas corpus which was denied by the district court on February 16, 1971. Eleey v. Volatile, 339 F.Supp. 57 (E.D. opinion of the district court, we need not delve into the facts. In 1968 appellant was classified II-A (occupational deferment). His board classified him II-A again in 1969. In 1970, however, the local board received notice from the Pennsylvania Scientific Advisory Committee that it considered appellant’s work “nonessential.” The board then classified appellant I-A without giving him any reason for that action. He exhausted his administrative remedies, submitted to induction, and brought the present action. The sole issue for us to consider is whether it was a-violation of appellant’s right to due process for his draft board not to give reasons for its refusal to renew appellant’s II-A classification when (1) appellant did not request such a statement, and (2) the draft board had in its file a statement from the National Scientific Advisory Board that appellant’s job was not essential to national security. In Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), this circuit held that a local board was required to state reasons when it refused to grant classification as a conscientious objector to an applicant who had made out a prima facie claim for such classification. The district court held that Scott was limited to conscientious objector claims. Whatever the correctness of that interpretation of Scott at that time, our recent decision in Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972) makes it clear that when an applicant has presented a prima facie case for occupational deferment, his board must state its reasons for denying that claim. Cede, however, did retain the requirement that the applicant present a prima facie case of entitlement. The district court did not determine whether appellant had presented such a ease. It held that even assuming he had done so, he was not entitled to a statement of reasons from the board. We conclude that appellant did present a prima facie case for an occupational deferment. “In selective service cases, a prima fa-cie case is present ‘if a registrant has presented facts which, if true and un-contradieted by other information contained in the file, would be sufficient under the regulations to warrant granting his requested classification.’ .” (Citation omitted.) Cale v. Volatile, supra, at footnote 3. Appellant had been granted an occupational deferment for two previous years on basically the same facts as he presented this time. In a similar situation we held that a registrant had presented a prima facie case. United States ex rel. Kameshka v. Neff, 446 F.2d 1164 (3d Cir. 1971). Although the board did have the conclusion of the Scientific Advisory Board before it, we do not feel that in this situation it was sufficient information to excuse the board from presenting reasons for its action. In this situation it was particularly appropriate and fair for a local board to inform a registrant of the reasons for its actions. The judgment of the district court will be reversed and this case remanded to that court for it to grant the writ of habeas corpus. VAN DUSEN, Circuit Judge, (dissenting): I dissent, respectfully, from the conclusion of the majority opinion, because the finding of the Pennsylvania Scientific Advisory Committee that petitioner’s occupation was nonessential contradicted the other information in the file indicating a prima facie case. Since this finding had not been present in the file during the two previous years, this record is substantially different from that before the court in United States ex rel. Kameshka v. Neff, 446 F.2d 1164 (3d Cir. 1971). As stated by the district court, “Assuming, arguendo, that petitioner did establish a prima facie claim to II-A classification, it is obvious that petitioner’s file contains an objective fact which detracts from his claim; i. e., the recommendation of the Scientific Advisory Committee.” [p. 68 of 339 F.Supp.] I would enter an order vacating the district court order and remanding the case to that court so that it may determine what effect these cases, which have been decided since its opinion and order, may have on this matter: Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972); Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972); United States ex rel. Bent v. Laird, 453 F.2d 625 (3d Cir. 1971); Kameshka v. Neff, 446 F.2d 1164 (3rd Cir. 1971); and Joseph v. United States, 438 F.2d 1233 (3d Cir. 1971), vacated and remanded, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972). . This case makes no determination as to whether appellant could have been considered to have made out a prima facie case had he been presenting his claim for the first time in 1970.

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PLAYER PIANETTE, INC., an Iowa corporation, Plaintiff and Appellant, v. DALE ELECTRONICS, INC., Defendant and Appellee. No. 72-1632. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided May 7, 1973. Gregory M. Schatz, Omaha, Neb., for plaintiff and appellant. Ephraim L. Marks, Omaha, Neb., for defendant and appellee. Before GIBSON, BRIGHT and ROSS, Circuit Judges. PER CURIAM. Plaintiff-appellant, Player Pianette, Inc., an Iowa corporation, brought this diversity action in the Nebraska federal district court, charging Dale Electronics, Inc., of Columbus, Nebraska, with breach of a contract dated in late 1963. In an unreported opinion, the late Judge Dier granted summary judgment for the defendant because the action had not been brought within the five-year statute of limitations specified by Nebraska law. Appellant contends that since the substantive law of Iowa would apply to this case, so also should the Iowa Statute of Limitations which permits actions for breach of contract to be brought within ten years of the accrual of the action. The crux of appellant’s argument is that the statute of limitations should be regarded as substantive law as opposed to the traditional view that such statute is procedural in nature. Judge Dier in rejecting this contention correctly noted that he was required to apply the conflict of laws rules of Nebraska and that although Nebraska courts had not spoken on the precise question presented, courts generally have applied the statute of limitations of the forum state to determine whether an action is barred. He deemed that the Nebraska Supreme Court would apply this general rule. Judge Dier also noted that in Fischer v. Wilhelm, 139 Neb. 583, 298 N.W. 126 (1941), the Nebraska Supreme Court had held that statutes of limitations do not create or detroy rights but pertain only to the remedy. Appellant has cited no case supporting its theory that a statute of limitations should be characterized as substantive rather than procedural. We believe the district court was entirely correct in applying the Nebraska (five-year) statute to this controversy and in ruling that such statute barred appellant’s suit. Thus we affirm on the basis of Judge Dier’s opinion. Affirmed. . Neb.Rev.Stat. § 25-205 (1943) provides: * * * * S¡S An action upon a specialty, or any agreement, contract or promise in writing, or foreign judgment, can only be brought within five years; * * * * * . Iowa Code Ann. § 614.1 (Cum.gupp. 1973) provides: Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specifically declared: :¡s # * * * 5. Written contracts — judgments of courts not of record — recovery of real property. Those founded on written contracts, or on judgments of any courts except those provided for in the next subsection, and those brought for the recovery of real property, within ten years.

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Jeanne H. BERSON et al., Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Third-Party Plaintiffs-Appellees, v. ROYAL GLOBE INSURANCE CO. (Globe Indemnity Company) et al., Third-Party Defendants-Appellants. No. 73-1282 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 20, 1973. Rehearing Denied May 21, 1973. Robert N. Ryan, New Orleans, La, for Royal Globe Ins. Co. & Walker. W. P. Macmurdo, Baton Rouge, La, Arthur B. Haack, Baton Rouge, La, for Walker. Robert E. Leake, Jr, New Orleans La, for Gov’t Employees Ins. Co. and others. Russ M. Herman, New Orleans, La, for Berson. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir, 1970, 431 F.2d 409. PER CURIAM: The present case is an action for contribution brought by Government Employees Insurance Company (GEICO) against Royal Globe Insurance Company. The suit arose from vehicular collision in New Orleans in which GEICO’s insured, a Mrs. Keenan, struck a vehicle driven by a Mr. Lloyd Walker. The Walker automobile was insured by Royal Globe. On the day of trial GEICO settled the personal injury claims arising from the accident. The case proceeded to trial on GEICO’s third party complaint for contribution. The jury found both drivers guilty of negligence which proximately caused the subject accident. The trial judge rendered judgment enforcing contribution. Royal Globe urges three grounds for reversal. It is first contended that the trial court erred in not directing a verdict in its favor, and secondly in failing to enter judgment notwithstanding the verdict in its behalf. Specifically, Royal Globe alleges that there was no evidence to indicate that its insured, Mr. Walker, was guilty of any negligence and, therefore, the question should not have been submitted to the jury. Guided by the standard of Boeing v. Shipman, 411 F.2d 365 (5th Cir., 1969), the trial court properly denied the motions. A substantial issue regarding Walker’s negligence had been raised by the evidence and was properly submitted to and decided by the jury. Appellants’ remaining contentions relate to alleged errors in the court’s instructions to the jury. After careful consideration, we find appellants’ claims to be without merit. The judgment of the district court is affirmed.

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UNITED STATES of America, Appellee, v. Robert L. REISS, Appellant. No. 783, Docket 73-1053. United States Court of Appeals, Second Circuit. Argued April 18, 1973. Decided April 20, 1973. John E. LeMoult, Marvin M. Karpat-kin, New York City, for appellant. George E. Wilson, Richard J. Davis, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee. Before CLARK, Associate Justice, WATERMAN and FEINBERG, Circuit Judges. Retired Associate Justice of the United States Supreme Court, sitting by designation. PER CURIAM: Appellant, convicted of having unlawfully refused to register with the Selective Service System, a requirement of the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq., seeks reversal of the judgment of conviction. Appellant became 18 years of age on June 30, 1969. Two days later he wrote a letter addressed to the Selective Service System in New York, informing Selective Service that he had turned 18, but that because of his sincere religious and moral beliefs, he could not participate in the registration process. The only defense appellant wished to present at his trial was the defense that he was not required to register because the constitutional principles of equal protection and freedom of religion shielded him. The Court below permitted appellant to introduce evidence demonstrating the sincerity of appellant’s beliefs, but held that the uniform requirement that all conscientious objectors to military service present their claims after registration violated none of his constitutional rights. In United States v. Toussie, 410 F.2d 1156, 1161 (2 Cir. 1969), rev’d on other grounds, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), we have previously considered the question of whether one required by law to register with a Selective Service System Board may decline to do so for reasons of conscience without incurring criminal liability for the failure. We there held contrary to appellant’s claims here, and we are bound by the precedent there established. Accord United States v. Bigman, 429 F.2d 13, 15 (9 Cir.) (per curiam), cert. denied, 400 U.S. 910, 91 S.Ct. 141, 27 L.Ed.2d 150 (1970); United States v. Palmer, 223 F.2d 893, 895-897 (3 Cir.) (en banc), cert. denied, 350 U.S. 873, 76 S.Ct. 116, 100 L.Ed. 772 (1955). Judgment of conviction affirmed.

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Sidney O. SAMPSON, Plaintiff-Appellant, v. AMPEX CORPORATION, Defendant-Appellee. No. 455, Docket 72-2168. United States Court of Appeals, Second Circuit. Argued March 21, 1973. Decided May 23, 1973. John F. Flannery, Fitch, Even, Tabin & Luedeka, Chicago, 111., and George I. Harris, Burke & Burke, New York City, on the brief, for defendant-appellee. William T. Hough, Polachek, Sauls-bury & Hough, New York City (Sidney O. Sampson, appellant pro se, on the brief), for plaintiff-appellant. Before SMITH, FEINBERG and MANSFIELD, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: This appeal presents us, apparently for the first time, with issues involving the application in patent infringement litigation of the estoppel rule of Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Judge Charles M. Metzner of the Southern District of New York found the Blonder-Tongue doctrine applicable to this suit, and ordered Sidney O. Sampson’s patent infringement complaint dismissed. For the reasons given below, we affirm. I. In any case involving a claim of estop-pel, the prior history takes on some importance, and it is to that history which we first turn. On April 18, 1967, Sampson was granted Patent No. 3,315,041 (hereinafter ’041) for “Track Selection Control Means for Magnetic Signal Recording and Reproducing Systems.” In May of 1967, Sampson filed suit in the Southern District of New York against the Radio Corporation of America (RCA), charging infringement of the ’041 patent. A second such suit was commenced in September of that year, naming Sony Corporation of America (Sony) as defendant. The present action, filed against Ampex Corporation (Ampex), was commenced in October of 1968. On May 9, 1968, RCA moved for summary judgment in its suit, alleging that the ’041 patent was invalid under 35 U.S.C. § 102(b) because of Sampson’s own publication of the invention more than one year prior to the earliest effective application date. The late Judge Edward C. McLean granted the motion in an unreported decision dated October 25, 1968, holding that the invention was disclosed in a “Five-Titled Brochure” published by Sampson in July of 1959. Sampson did not contest the fact of publication, but argued that the ’041 patent was entitled to the benefit of a March 5, 1959 filing date, the date upon which he had filed Patent Application No. 797,412 (’412), which he later abandoned. Judge McLean considered this argument, which was based upon 35 U.S.C. § 120, and rejected it, finding the earliest effective filing date in this case to be that of Patent Application No. 267,881, or March 18, 1963. A motion to reargue the RCA case was filed on November 1, 1968. While the motion was pending, Sampson filed a notice of appeal, but on December 31, 1968 that appeal was abandoned, pursuant to a stipulation of the parties, when a settlement was reached between RCA and Sampson concerning ’041 and eight other patents. On that same day, December 31, Judge McLean denied the motion to reargue. Sampson next moved to vacate the RCA judgment. That motion was denied by Judge Ryan on January 14, 1970. We affirmed, 434 F.2d 315 (1970), holding that the failure to vacate was not an abuse of the trial court’s discretion. Meanwhile, in the Sony suit, the parties entered into a stipulation on September 26, 1968, agreeing to be bound by whatever result Judge McLean reached in the RCA case. Judge Ryan dismissed the Sony complaint, on the basis of the stipulation, after Judge McLean’s RCA decision was rendered. Sampson appealed Judge Ryan’s order and we affirmed, 434 F.2d 312 (1970). In the meantime, the Ampex litigation had been stayed by the district court pending the outcome of the RCA and Sony appeals. See 434 F.2d at 314 n. 1 and id. at 317 n. 2. On May 31, 1971 while the Ampex litigation was still pending, the Supreme Court decided Blonder-Tongue, which for the first time made available the defense of estoppel in patent infringement suits. Consequently, Ampex moved to amend its answer to include an estoppel defense, based upon the RCA holding that the ’041 patent was invalid. At the same time, Ampex moved for judgment on the amended pleadings. Judge Bonsai gave Sampson thirty days in which to amend his pleadings and supplement the record with evidence showing why the estoppel doctrine should not be imposed. Sampson did file an amended complaint, and included a number of supplemental exhibits in the record. Both sides fully briefed the estoppel issue. On June 6, 1972, Judge Metzner granted Ampex’ motion to dismiss the complaint, holding that Sampson had not pleaded sufficient facts to avoid the estoppel defense. It is from this order that Sampson now appeals. II. Since Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936), it had been the rule that a determination of patent invalidity did not act as res judi-cata in a subsequent suit involving the patentee and a different defendant. This rule, however, was overturned by Blonder-Tongue, which abandoned the traditional absolute reliance upon mutuality in such situations. But while the Blonder-Tongue court did make the plea of estoppel available to a defendant in subsequent patent litigation, it noted that the plea need not “automatically be accepted once the defendant in support of his plea identifies the issue in suit as the identical [issue] finally decided against the patentee or one of his privies in previous litigation.” 402 U.S. at 333, 91 S.Ct. at 1445. Rather, the question, as in the traditional estoppel situation, is whether the patentee had both fair opportunity and incentive to litigate the validity issue in the first litigation. The Court identified such considerations as the convenience of the initial forum to the patentee, and the related issue of whether the patentee was plaintiff or defendant in the original action as bearing upon the question of “whether a pat-entee has had a full and fair chance to litigate the validity of his patent in an earlier case.” Moreover, the Court noted that the estoppel doctrine should not be applied where the opinions filed by the District Court and the reviewing court, if any, indicate that the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit. . . . ” Id. U But, in the end, no single “automatic formula” was seen applicable, and the final decision on whether to apply the estoppel doctrine was left to the lower court’s “sense of justice and equity.” Id. at 334, 91 S.Ct. 1434. Under the general Blonder-Tongue criteria, this case presents few compelling reasons for circumventing the es-toppel doctrine. Not only are the issues here identical to those in the RCA litigation, but Sampson was the plaintiff in that suit, with every incentive to litigate the merits, and the suit was pursued in the precise forum which Sampson chose. And, Sampson voluntarily chose not to seek review of Judge McLean’s order in this court, a course that might well have settled several years ago the substantive arguments he presents here. Nonetheless, Sampson argues that he was deprived of a fair opportunity to litigate the issue of patent invalidity in the RCA suit, claiming that Judge McLean wholly “failed to grasp” the § 120 argument which, if accepted, would have entitled to '041 patent to an earlier effective filing date and avoided the § 102(b) publication problem. But the record indicates that the arguments which Sampson presses upon us are precisely those which he urged upon Judge McLean, and to which both parties directed their attention at that time. Judge McLean fully considered those arguments and held against Sampson, a decision that Sampson decided not to appeal. Ordinarily, that would end our inquiry on the estoppel issue, particularly since the underlying issue, the applicability of § 120, involves statutory construction and not the kind of technical considerations common to other patent litigation, such as that involving non-obviousness. However, noting the Blonder-Tongue admonition that “justice and equity” control the final decision, and mindful of Judge McLean’s remarks that the result in the first case was “unfortunate,” we have, perhaps in an excess of caution, asked the parties here to brief the question of the correctness of the original RCA decision. Were we convinced that Judge McLean committed egregious error on the § 120 issue, we might possibly be able to say that this case fits within the “relatively rare” Blonder-Tongue exception, where a trial judge “wholly failed to grasp the . . . issues in suit.” But such is not the case here. Sampson’s chief claim is that the hiatus between the March 5, 1959 filing date of the ’412 application and the March 18, 1963 filing date of application 267,881, which Judge McLean found applicable, was “bridged” by four intervening applications, and that § 120 thus gives him benefit of the earlier date. We have considered this argument with some care, and have examined the voluminous record before us in light of it. Having done so, we find ourselves unable to conclude that application of the Blonder-Tongue estoppel rule in this case would not be in the interests of “justice and equity.” To be sure, Sampson did file at least four applications in the period between March 5, 1959 and March 18, 1963, and each of those applications seems to deal with the same general subject matter. But this is not enough to invoke the § 120 copendeney doctrine. Former Patent Office Rule 78(a) (now codified without substantial change as 37 C.F.R. § 1.78(a)) specifically provided “When an applicant files an application claiming an invention disclosed in a prior filed eopending application of the same applicant, the second application must contain or be amended to contain a reference in the specification to the prior application, identifying it by serial number and filing date of the prior applications, if the benefit of the filing date of the prior application is claimed; if no such reference is made the prior application must be referred to in a separate paper filed in the later application.” Ampex argues to us, as it did to Judge McLean, that Sampson’s later applications did not sufficiently comply with the identification provisions of this rule. Our independent examination of the record suggests that there is merit in Am-pex’ position. In light of our quite serious doubts as to the sufficiency of Sampson’s compliance with Rule 78(a), and hence his ability to claim an earlier filing date under § 120, we simply cannot conclude that Judge McLean’s decision in this case constitutes such egregious error or failure to grasp the essential issues in suit as to invoke the “relatively rare” Blonder-Tongue exception. Cf. Sampson v. Ampex Corp., 463 F.2d 1042 (2d Cir. 1972). We pause to note that we are not today affirming — or finding error with— Judge McLean’s RCA judgment. Such a full-scale review is not our function under the estoppel doctrine. If Sampson wanted full review of the RCA decision, he should have not abandoned his original appeal. Rather, we have examined the merits in the RCA case only to satisfy ourselves that the decision was not based on such a blatant misunderstanding of the relevant legal principles as to make application of the estoppel doctrine inequitable. We find it quite clear that no such situation is presented by this case, and conclude that the district court correctly applied the Blonder-Tongue rule. Affirmed. . In relevant part, 35 U.S.C. § 102(b) provides : “A person shall be entitled to a patent unless' — ■ (b) the invention was patented in or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” . 35 U.S.C. § 120 provides: “An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application.” . Mr. Justice White noted in Blonder-Tongue that many “nontechnical” patent issues — among which § 120 questions are presumably included — “are more often than not no more difficult than those encountered in the usual nonpatent case.” 402 U.S. at 332 and n. 23, 91 S.Ct. at 1444. While we have no quarrel with the Court’s eventual conclusion that modern estoppel rules should thus apply to patent litigation, we do note in passing that the Court which so described “nontechnical” patent questions did not have before it the prolix papers in this case.

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Ove SKOU, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 72-3216. United States Court of Appeals, Fifth Circuit. May 17, 1973. John L. Briggs, U. S. Atty., Tampa, Fla., Alfred H. O. Boudreau, Jr., Walter H. Fleischer, Eric Chaikin, Admiralty & Shipping Section, Dept, of Justice, Washington, D. C., for defendant-appellant. Nathaniel G. W. Pieper, Tampa, Fla., for plaintiff-appellee. Before WISDOM, GEWIN and COLEMAN, Circuit Judges. WISDOM, Circuit Judge: In this suit a shipowner seeks damages for the loss of use of its ship while undergoing repairs. The United States admits that it negligently damaged the ship M/V MADS SKOU. As a result, the ship was out of service for ten and five-twelfths days. The district court awarded the shipowner damages equal to the amount a charterer would have paid in rental for the days the ship was laid up for repairs. On appeal, the United States alleges two errors in this award. First, the court did not require the shipowner to prove that he could have subsequently chartered his vessel had it not been for the detention. Second, even if detention per se justifies damages, without proof of actual loss of a charter, the district court erred in making an award of the full rental value of the ship rather than subtracting operating expenses to determine a net profit award. We reverse the district court’s award of damages for detention and remand to allow the shipowner to prove actual loss of profits or that profits may be reasonably supposed to have been lost because the vessel was active in a ready market. We conclude that once actual loss has been proved, the operating expenses which have been saved by the shipowner must be deducted from the rental value of the ship to determine damages. I. On May 10, 1969, while the M/V MADS SKOU was being maneuvered away from its dock site, a United States Army tug assisting the maneuver negligently struck and damaged the MADS SKOU. Ten and five-twelfths days were required to repair the ship. Afterwards the ship completed its interrupted charter voyage and the shipowner was paid the full contract price by the charterer. The ship was not employed until fourteen days after completion of that charter. The ship was valued at approximately two and a half million dollars. At the time of the accident it was under charter to Harrison Lines at a per diem rate of $1750. By the terms of the charter, payment of the per diem rate was suspended while the ship was in repair. The shipowner was reimbursed in full for the cost of the repairs and for services incidental to completing the repairs. For the ten and five-twelfths days that the vessel was out of service, the shipowner was awarded $1750 per day for a total of $18,229. This was exactly the gross charter hire being paid by Harrison Lines. The court concluded that this amount was the “market price for the use of the vessel” during “May and June 1970”. Because that was the charter price at the time of the collision, the district court held that it was “reasonable evidence of the market value and the shipowner’s expected return on its capital investment.” There were no deductions made for the ordinary expenses that the shipowner would incur during a charter. During charter periods, the shipowner ordinarily bore the expenses of wages and provisions for the crew, though the cost of fuel was borne by the charterer. Because the ship was damaged while in mid-performance of a charter the ship maintained a crew during the repairs. II. The United States argues that the district court erroneously awarded $18,229 to the shipowner without requiring any proof of actual loss. The shipowner introduced no evidence that a specific charter had been lost because of the ten day delay, nor did he offer proof that the ship would probably have been chartered had it arrived on schedule at its destination port. The government contends that to justify an award of damages for loss of use the shipowner must introduce some evidence that profits actually have been, or reasonably have been, lost. The shipowner contends that evidence of the market price of the vessel is sufficient proof of loss, and that he is entitled to a fair return on his capital investment. Demurrage, loss of profits from the loss of use of a vessel, has traditionally been an item of damages in admiralty. Demurrage, “will only be allowed when profits have actually been, or may be reasonably supposed to have been, lost, and the amount of such profits is proved with reasonable certainty.” The Conqueror, 1898, 166 U.S. 110, 115, 17 S.Ct. 510, 512, 41 L.Ed. 937, 944; The Nicolaou Maria, 5 Cir. 1944, 143 F.2d 406; The Wolsum, 5 Cir. 1926, 15 F.2d 371, 377. “The damages must not be merely speculative, and something else must be shown than the simple fact that the vessel was laid up for repairs.” The Conqueror, 166 U.S. at 127, 17 S.Ct. at 517. Navigazione Libera T.S.A. v. Newton Creek Towing Co., 2 Cir. 1938, 98 F.2d 694. The burden of establishing that profits were lost is upon the shipowner. The Nicolaou Maria; Newton Creek Towing Co. v. City of New York, 2 Cir. 1928, 23 F.2d 486. In the Nicolaou Maria because no evidence was introduced of the demand for similar vessels and because the vessel was not chartered in the succeeding three weeks, the court concluded that an award of demur-rage would rest only upon surmise and speculation. Damages for demurrage have been awarded where actual loss has been proven. In the Steamboat Potomac v. Cannon, 1882, 105 U.S. 630, 26 L.Ed. 1194, the vessel was a steamboat “engaged in a certain, permanent, and lucrative trade, making weekly trips on the Mississippi River. . . . ” Because the vessel was engaged in a “regular established line”, the shipowner was awarded her average net profits for the period during repairs. In the City of Miami v. Western Shipping and Trading Co., 5 Cir. 1956, 232 F.2d 847, where the necessity for repairs caused the vessel to breach existing charter commitments, unlike the situation with the MADS SKOU, damages were also awarded for the actual loss. There, however, the court stated; “Quite a bit of evidence was received touching this item of damage.” Id. at 851. In the Hygrade No. 24 v. The Dynamic, 2 Cir. 1956, 233 F.2d 444, a barge was inoperative for nineteen days. The court awarded the owner the net profits it would have earned for each of those days after finding that the barge was booked continuously for the entire season and that the evidence was sufficient to conclude that the barge would have worked every day had it not been damaged. Id. at 448. Similarly, in Atkins v. Alabama Drydock & Shipbuilding Co., 1960, S.D.Ala., 195 F.Supp. 944, an award of demurrage was based on a finding that the vessel was engaged in routine repeated runs from British Honduras with a banana cargo. The dearth of evidence here prevents our concluding whether, during the market of May and June 1969, vessels of the Skou’s tonnage and design were customarily under charter every day of the year, whether there were lengthy inactive periods between charters, or whether actual experience was somewhere in between. The ship in question arrived at its destination ten days late and was not rechartered until fourteen days later, or 24 days from its original scheduled arrival date. There is no evidence that a subsequent charter commitment was breached, or that the shipowner, knowing the approximate length of the repair period, made any attempt to arrange for a subsequent charter. If the ship was in fact idle for only a customary period, then compensation of the shipowner for these inactive days would be a windfall to him. He would be in a better position because of the collision than had it not occurred. To profit by one’s loss goes against the purposes of compensatory awards in tort and exceeds the doctrine of restitutio in inte-grum. The requirement that a shipowner offer proof of- loss is not equivalent to a requirement that he prove the loss of a specific charter at a definite time and place. Other courts have demanded only that the vessel be “active in a ready market”, Moore-McCormack Lines v. The Esso Camden, 2 Cir. 1957, 244 F.2d 198, 201, or that there be a “steady demand in the market.” The Conqueror, 166 U.S. at 134, 17 S.Ct. 510. In The North Star, 2 Cir. 1907, 151 F. 168, 175, the court discussed the burden of proof in the following terms: In ascertaining whether earnings have been lost by the owner, the inquiry is not whether they could possibly have been made, but is whether they would have been made. As it cannot be proved that they would have been certainly made, it suffices if the fact [of lost profits] is proved circumstantially and with a reasonable degree of certainty. . . It is not necessary for him to show by direct evidence that he would have employed his vessel . . during the period in such a way that earnings would have accrued to him. ... It suffices if he shows a state of facts from which a court or jury can find that there was an opportunity for him to do so, and that he would have availed himself of it. But if it appears affirmatively, or if the reasonable inference from the facts established is that there was no opportunity . . ., it is impossible for a court or jury to find legitimately that he has sustained actual loss.” The shipowner commended this test to us but even the burden of proof as set forth in The North Star has not been met. The sole evidence introduced was the per diem rate at the time of the detention. That evidence does not reflect upon the existence of a market, only upon the price when a market is found. Every commodity has its cost, but the mere quotation of a market price in no way informs us of the quantity or with what frequency the commodity is being purchased. Demand is not always constant for all suppliers available. Without proof of actual loss the legal liability imposed upon the defendant is in the nature of damages for a technical legal invasion, similar to punitive damages awarded in conjunction with nominal damages. The burden of proof on the shipowner is not excessive. He need prove only that profits “have actually been or may be reasonably supposed to have been lost.” The Conqueror, 166 U.S. at 125, 17 S.Ct. at 516. Counsel for the plaintiff admitted on oral argument that he could have introduced expert evidence of the ship’s marketability. We remand this case to the district court to give the plaintiff an opportunity to introduce evidence of actual loss, and we leave to the district court the factual determination whether such evidence is sufficient to satisfy the shipowner’s burden of proof. Cf. Brooklyn Eastern District Terminal v. United States of America, 1932, 287 U.S. 170, 53 S.Ct. 103, 77 L.Ed. 240. This Court’s decisions in Continental Oil Co. v. S.S. Electra, 5 Cir. 1970, 431 F.2d 391, and Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, 454 F.2d 128, are not contrary to the rule we have adopted. In both of those cases the plaintiff was employed to perform work under a continuing contract of indefinite duration at a daily rate. The facts there are analogous to the regularly scheduled voyages of the THE POTOMAC. See The Steamboat Potomac v. Cannon, 105 U.S. 630, 26 L.Ed. 1194. The drilling platform in Continental Oil and the drilling barge in Delta Marine were not engaged in irregular unscheduled short term contracts such as the MADS SKOU. Their contracts were for continuous long term performance. III. The appellant next contends that the trial court erroneously awarded the shipowner the full charter price for the ten day detention without deducting the operating expenses ordinarily expended by the shipowner during a charter. The United States argues that the shipowner is entitled to a net profit award only; the appellee’s position is that it has in fact received only a net profit. The ap-pellee argues that the shipowner’s normal operating expenses of wages and provisions did not cease during the repair period because the full crew was maintained on board. The general measure of the economic loss of a vessel during detention is net profit. The contract rate for rental of the vessel is a proper guide for measuring the lost income of the shipowner. Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, 454 F.2d 128. From a gross charter price must be subtracted the ordinary expenses the shipowner would incur in earning that gross fee. The Steamboat Potomac v. Cannon; The Umbria, 1897, 166 U.S. 404, 421, 17 S.Ct. 610, 617, 41 L.Ed. 1053. The burden is upon the shipowner to prove the extent of damages actually sustained by him. The Steamboat Potomac, 105 U.S. at 630; Bue, Admiralty Law in the Fifth Circuit — II, 5 Houst.L.Rev. 772, 915-20 (1968). “If the vessel is under charter and is off-hire as a result of the collision, damage to the owner can be computed by calculating the lost charter hire and deducting any savings to the owner attributable to the ship’s being out of service. In other words, the ordinary operating expenses can be deducted from the charter hire and out of pocket expenses during the layup added in when arriving at proper damages.” Bue, at 917; Moore McCormack Lines v. The Esso Camden, 2 Cir. 1957, 244 F.2d 198; The Hygrade NO. 24 v. The Dynamic, 2 Cir. 1956, 233 F.2d 444. Where the shipowner makes no savings of operating expenses during repairs the charter price is an adequate measure of damage. See Isthmian S.S.Co. v. Jarka Corp., 1951, D.Md., 100 F.Supp. 856; The Belgenland, 1888, S.D.N.Y., 36 F. 504. Here, there were no savings to the shipowner for the cost of fuel because the charterer would bear the cost of fuel during the charter. Here also, though the shipowner bears the cost of wages, food, provisions, insurance, depreciation, and tax during a charter, none of those expenses were saved since the accident occurred in mid-charter and the crew was maintained throughout the ten day repair period. Thus, though the defendant would be entitled for a deduction for any savings by the shipowner, none have been shown on the record before us. Reversed and remanded for further proceedings not inconsistent with this opinion. . The shipowner received a total award of $51,885.12 plus 4% interest, of which only $18,229 is in dispute here. Uncontested awards include expenses for steve-doring, pilotage, repairs, harbor fees, local agent fees, crew overtime, and fuel during the detention. . The Nicolaou Maria:arrived in port seven days late. A subsequent charter was frustrated by the German invasion of Denmark. After three weeks without a charter, the vessel returned to the United States without cargo. No evidence was introduced to show that the Danish charter could have been completed had the vessel arrived timely. . See also Charles Zubik and Sons, Inc. v. The Ohio River Co., 1962, W.D.Penn., 208 F.Supp. 71, where the court concluded: “Nor is there any evidence . . . that there was any market for the M/V James Zubik during the three days she remained idle.” Id. at 76. . With respect to subsequent charter opportunities the trial court remarked: “But if [the MADS SKOU] had gotten there on time I don’t know what would have happened.” Trial transcript, p. 281. . Cf. 5 Corbin on Contracts § 1002, p. 35 (1964) : “Just compensation requires that the plaintiff should be given judgment for the full value of what was promised to him, diminished only by the amount of saving in cost to him that the breach of the defendant has made reasonably possible.”

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Willie McLAURIN et al., Plaintiffs-Appellants, v. The COLUMBIA MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees. No. 71-3022. United States Court of Appeals, Fifth Circuit. April 11, 1973. Rehearing and Rehearing En Banc Granted May 24, 1973. Nausead Stewart, Fred L. Banks, Jr., Melvyn R. Leventhal, Jackson, Miss., for plaintiffs-appellants. Maurice Dantin, Columbia, Miss., for defendants-appellees. Before GOLDBERG, DYER and SIMPSON, Circuit Judges. SIMPSON, Circuit Judge: This Court’s en banc decision in Singleton v. Jackson Municipal Separate School District, 1970, 419 F.2d 1211, cert. denied, 1970, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530, prescribed detailed procedures for the effectuation of staff reductions resulting from the judicially-ordered desegregation of formerly dual public educational systems: “If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion of any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. In addition if there is any such dismissal or demotion, no staff vacancy may be filled through recruitment of a person of a race, color, or national origin different from that of the individual dismissed or demoted, until each displaced staff member who is qualified has had an opportunity to fill the vacancy and has failed to accept an offer to do so. Prior to such a reduction, the school board will develop or require the development of nonracial objective criteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. The school district also shall record and preserve the evaluation of staff members under the criteria. Such evaluation shall be made available upon request to the dismissed or demoted employee. “Demotion” as used above includes any reassignment (1) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (2) which requires a lesser degree of skill than did the assignment he held previously, or (3) under which the staff member is asked to teach a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonably current period. In general and depending upon the subject matter involved, five years is such a reasonable period.” 419 F.2d at 1218. The district court ruled that the failure of the Columbia, Mississippi, Municipal Separate School District to renew the teaching contracts of five black staff members for the 1970-1971 academic year was not required to be evaluated pursuant to the Singleton procedures governing staff reductions. Accordingly, he rejected the claims for reinstatement lodged by four of the five teachers and dismissed all claims for awards of back pay. We believe that the district judge misconstrued the scope of our Singleton decision as applied to the facts of this case and therefore reverse the judgment rendered below with directions to grant the relief requested. THE DESEGREGATION LITIGATION Desegregation of the Columbia Municipal Separate School District was accomplished by means of a lawsuit instituted by the United States. That action was consolidated with 24 other Mississippi school desegregation cases in the Hinds County School Board litigation which received concentrated attention from this Court in 1969. In United States v. Hinds County School Board, 5 Cir., July 3, 1969, 417 F.2d 852, cert. denied, 1970, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 531, we held that freedom-of-choice public school desegregation plans were no longer constitutionally adequate. We directed the defendant school districts to implement workable desegregation plans by the start of the 1969-1970 school year. On August 28, 1969, upon the motion of the United States Department of Justice and the recommendation of the Secretary of Health, Education and Welfare, we suspended the July 3, 1969, order and postponed the date for the submission of new plans until December 1, 1969. On October 29, 1969, sub nomine Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed. 2d 19, the Supreme Court held that we had erred in delaying the implementation of our July 3, 1969 order. The Supreme Court vacated our order of August 28, 1969, and directed that the defendant school districts were to operate unitary educational systems effective immediately. This Court, on November 7, 1969, directed the defendant school districts to implement permanent desegregation plans devised by the Office of Education, Department of Health, Education, and Welfare, no later than December 31, 1969. United States v. Hinds County School Board, 5 Cir., 1969, 423 F.2d 1264, cert. denied, 1970, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 531. COMPLIANCE ON THE PART OF THE COLUMBIA DISTRICT The Columbia Municipal Separate School District responded to our November 7, 1969, order by moving classes, with their teachers, intact from one building to another for the second semester of the 1969-1970 school year. As a result, black teachers in the employ of the District continued to instruct their all-black classes and white teachers continued to instruct their all-white classes. The only difference was that the school buildings were no longer racially segregated. The situation lasted until the end of the 1969-70 academic year. A true merger of the faculties and student bodies was not effectuated until the start of the 1970-1971 school year. THE REDUCTION IN THE INSTRUCTIONAL STAFF On March 26, 1970, the five plaintiffs in this action W. S. McLaurin, Mrs. Alberta Collins, Shirley Johnson, Mrs. Rose Johnson, and Joe Reddix, all instructional personnel in the school system, were given notice that their contracts would not be renewed for the 1970-1971 school year. The notices failed to state specific reasons for the non-renewals and requests for explanations proved unavailing. During the 1969-1970 school year, the Columbia Municipal Separate School District employed 129 teachers; that figure was reduced to 116 teachers for the following year. For the 1970-1971 academic year, the District employed twelve new teachers, all but one of them white. None of the five plaintiffs was offered an opportunity to fill any of the apparent vacancies. It is undisputed that at the time the plaintiffs were notified that their contracts were not to be renewed, no objective criteria for the selection of teachers to be demoted or dismissed had been adopted by the District. In addition, no systematic comparisons of the five plaintiffs with the District’s other faculty members were made prior to the non-renewals of the contracts and the District’s evaluations of the plaintiffs were formulated only after suit was brought in the district court. PROCEEDINGS IN THE DISTRICT COURT On August 4, 1970, the plaintiffs filed their complaint in the district court and alleged jurisdiction under the First, Thirteenth, and Fourteenth Amendments to the United States Constitution; Title VI of the Civil Rights Act of 1964, Sec. 601, 42 U.S.C. Sec. 2000d; and 42 U.S.C. Secs. 1981 and 1983. They sought temporary and permanent injunctive relief in the form of teaching contracts for the 1970-1971 school year, back pay awards, and counsel and litigation costs and fees. The complaint alleged the following Singleton violations: “Upon information and belief defendants have violated the above cited order: (1) plaintiffs and members of the plaintiff class are as qualified or more qualified than many of the white teachers who have obtained contracts for the 1970-1971 school year; (2) defendants have failed and refused to consider the qualifications of all teachers in the defendant school districts as a basis for determining which teachers were to be dismissed prior to the dismissal of plaintiffs and members of the plaintiff class; (3) defendants will hire and have hired white teachers with qualifications and experience equivalent to or inferior to that possessed by plaintiffs and members of the plaintiff class; (4) defendants have recruited and employed teachers new to the system for alleged vacancies without first considering the qualifications of plaintiffs and members of the plaintiff class; (5) defendants have failed to develop objective criteria to be used in selecting staff members to be dismissed or demoted.” The Columbia Municipal Separate School District answered by denying that it had committed the Singleton violations enumerated in the complaint. After extensive discovery was had, a two day trial before the district judge began on July 15, 1971. In an opinion dated August 24, 1971, the trial judge found against the plaintiffs (with the exception of Mrs. Rose Johnson, whose non-renewal was directed to be reconsidered on the basis that she had been evaluated for her performance at a grade level other than the one for which she was certified) for the following reasons: 1. The Singleton criteria were not applicable to this case, thereby rendering non-compliance with those criteria irrelevant. ' 2. Each plaintiff (except for Mrs. Johnson) was dismissed for legitimate cause based upon his or her performance while employed by the District. 3. None of the five plaintiffs was entitled to awards of back pay because they had permitted their suit to remain dormant until well into the second semester of the 1970-1971 school year. THE APPLICABILITY OF THE SINGLETON CRITERIA The district court addressed itself to the applicability of the Singleton standards as follows: “One of the plaintiffs’ allegations is that the board, in the implementation of its desegregation plan, failed to adopt objective nonracial criteria in the ‘dismissal or demotion’ of any staff member, and to make these criteria available for public inspection and evaluations made thereunder available to any dismissed or demoted employee. The Court finds this partially true in that within the two months’ time this board had to implement its plan prior to the time teacher recommendations were statutorily required, it had not made such criteria public. This is not to say that- such criteria were not considered by the board with regard to plaintiffs herein. Moreover, the Court finds that objective nonra-eial criteria have been developed and adopted by the board since the filing of the suit. Further full and complete evaluations of plaintiffs’ teaching performances were furnished plaintiffs in defendants’ answers to interrogatories, months prior to the trial. The board’s position with regard to plaintiffs is that they were not dismissed due to a ‘reduction’ in teaching staff to which the HEW provisions are applicable. Following integration in January 1970, only 1 teaching station was lost to the system. No reduction in staff was necessary, attrition having taken care of any reduction due to loss of enrollment. Eight faculty members were not rehired, including the black assistant principal and four teachers, plaintiffs herein. These faculty members were not re-hired for cause . . .” We believe that the district judge erred in holding the Singleton criteria inapplicable for two reasons: (1) full compliance with the desegregation directives of this Court was not achieved until the start of the 1970-1971 school year, when classes were first conducted on an integrated basis; and (2) there was in fact a reduction in the number of teaching personnel of the District between the 1969-1970 school year and the 1970-1971 school year. Once it is determined that the Singleton standards were applicable to the non-renewals of these five plaintiffs, it is clear that those standards were violated when the District decided not to renew the plaintiffs’ contracts for the 1970-1971 school year. No objective criteria had been promulgated prior to the decisions not to renew; the displaced black faculty members were not given first consideration for subsequent vacancies on the District’s staff; and the evaluations of the plaintiffs’ performances were not made until long after their employment relationships had been terminated. DISMISSALS FOR CAUSE Before summarizing the evidence adduced at trial dealing with the alleged deficiencies in the performances of the plaintiffs, the district court observed: “The State of Mississippi has no tenure for its public school teachers. By statute, the principal of each school recommends to the superintendent on or before April 1st of each year those teachers to be employed for the school involved. If such recommendations meet with the approval of the superintendent, the statute then provides that he shall recommend the employment of such teachers to the board of trustees of the district, and, unless good reason to the contrary exists, the board of trustees shall elect the teachers so recommended. There are no statutes providing for notice or hearing procedures for teachers not recommended for reemployment ...” Having concluded that the plaintiffs were without tenure or the right to notice or hearing procedures prior to the non-renewals of their employment contracts, the trial court found that each non-renewal was based upon valid grounds (with the exception of Mrs. Johnson, supra). In Sparks v. Griffin, 5 Cir., 1972, 460 F.2d 433, we held that a Texas school district had unconstitutionally refused to renew the employment contracts of two black teachers while the process of disestablishment of the dual educational system was taking place. We there stated: “The district court ruled that neither plaintiff-appellant had any legitimate expectancy of continued employment by the Union Hill Independent School District because neither one had tenure and it had long been the custom to reconsider the contract of every teacher in the district on an annual basis. While the expectancy of continued employment has been an important issue in several decisions of this Court dealing with public educational institutions, see, e. g. Sinderman v. Perry, 5 Cir., 1970, 430 F.2d 939, cert. granted, 1971, 403 U.S. 917, 91 S.Ct. 2226, 29 L.Ed.2d 694 (alleged refusal to renew teaching contract because of teacher’s exercise of First Amendment rights), we have never recognized the relevancy of this concept to school desegregation proceedings. The plaintiffs-appellants in this case, both blacks, have charged that their contracts were not renewed for the 1968-1969 academic year for racially discriminatory reasons. The mere fact that they were not offered new contracts for the following year rather than being dismissed outright does not limit their right to seek relief under the controlling decisions of this Court.” 460 F.2d at 442. We are not at all persuaded that each plaintiff was denied employment for the 1970-1971 academic year for valid, objective, nonracial reasons. As the district court noted, “ . . . all plaintiffs had numerous years of teaching experience, at least four years in the Columbia schools, except Rose Johnson who had only one year, but had five years’ teaching experience elsewhere.” It is difficult to believe that the District’s level of tolerance of the plaintiffs’ alleged deficiencies in the performance of their duties was coincidentally reached and exceeded during the period meaningful desegregation was being achieved. Guided by Singleton standards, we conclude that the district court’s finding that all the plaintiffs were dismissed for valid cause is clearly erroneous, Rule 52(a), Federal Rules of Civil Procedure, and not binding on this Court. THE PROPRIETY OF BACK PAY AWARDS Because we have decided that the plaintiffs were improperly denied re-employment by the Columbia Municipal Separate School District for the 1970-1971 academic year, we must now inquire into their eligibility for awards of back pay. As noted earlier, the district court ruled that the plaintiffs were not entitled to awards of back pay because they had permitted their suit to remain dormant well into the second semester of the 1970-1971 school year. The following chronology is taken verbatim from the district court’s opinion in this case: “The complaint and motion for preliminary injunction was filed on August 4, 1970, nearly six months after plaintiffs were terminated. On August 26, 1970, defendants promptly filed answers and a motion for severance as to the separate school boards. On September 1, 1970, plaintiffs propounded interrogatories to defendants requiring voluminous answers which were promptly filed on September 21, 1970. On February 17, 1971, present counsel for plaintiffs entered an appearance and on the same date filed a motion for an early hearing noticing same for a time to be designated by the Court, but with no notice being given to the Court. On March 4, 1971, plaintiffs’ counsel for the first time notified the Court of the pending action and motions. On March 26, 1971, the Court acknowledged counsel’s letter advising that after holding court in Hat-tiesburg during the middle two weeks of March, the Court, for the first time, had an opportunity to review the pleadings. In the same letter, the Court advised counsel that it was denying the motion for preliminary injunction for relief as to the 1970-1971 school year as moot, but would hear all other pending motions on April 5, 1971, including the Court’s own motion to dismiss for lack of prosecution. On April 5, 1971, at a hearing in chambers, the Court approved defendants’ motion for severance and reaffirmed its position that plaintiffs’ motion for preliminary relief for the 1970-1971 school year had become moot. An order to this effect was entered on April 29, 1971. Following unsuccessful conferences between counsel for both sides to agree on a pre-trial order pertaining to those plaintiffs not offered reemployment by the Columbia Municipal Separate School District, a two day trial on the merits was held, beginning July 15, 1971. As to that portion of the case, pertaining to the Marion County Board of Education, it has been settled and is not before the Court.” We hold that awards of back pay should have been made by the district court. The sequence of events related in the district court’s opinion does not reveal such an inordinate delay in the prosecution of this case as to justify denial of back pay. As the district court noted, the responses to interrogatories were “voluminous”. In addition, the Columbia Municipal Separate School District did not help to expedite matters by its denial of any Singleton violations. Finally, as we noted in Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319, back pay awards are closely related to grants of injunctive relief in matters pertaining to the desegregation of public schools: “Section 1983 was designed to provide a comprehensive remedy for the deprivation of federal constitutional and statutory rights. The prayer for back pay is not a claim for damages, but is an integral part of the equitable remedy of injunctive reinstatement. Reinstatement involves a return of the plaintiffs to the positions they held before the alleged unconstitutional failure to renew their contracts. An inextricable part of the restoration to prior status is the payment of back wages properly owing to the plaintiffs, diminished by their earnings, if any, in the interim. Back pay is merely an element of the equitable remedy of reinstatement.” 427 F.2d at 324. PLAINTIFFS’ ENTITLEMENT TO COUNSEL FEES The plaintiffs have moved this Court for an award of reasonable attorney’s fees to be taxed as costs against the Columbia Municipal Separate School District. The leading decision in the area of attorney’s fee awards pertaining to public school desegregation actions is the Fourth Circuit’s en bane ruling in Bradley v. School Board of the City of Richmond, Virginia, 4 Cir., 1965, 345 F.2d 310, wherein it was stated: “Finally, the attorneys for the appellants ask an award of attorneys’ fees. They asked for such fees in the District Court and were awarded a nominal fee because of their representation of the two additional plaintiffs whose entry into the school of their choice was ordered by the District Judge, despite the fact that their applications were belated. While the District Court’s order was otherwise generally unfavorable to the plaintiffs, and we affirm it here, the plaintiffs’ attorneys say that as a result of their efforts in the first trial the plaintiffs obtained very substantial relief. It is true that the original plaintiffs did obtain substantial relief in the District Court in the first trial, and it is true also that we directed an award of attorneys’ fees in Bell v. School Board of Powhatan County, 4 Cir., 321 F.2d 494. It is only in the extraordinary case that such an award of attorneys’ fees is requisite. In school cases throughout the country, plaintiffs have been obtaining very substantial relief, but the only ease in which an appellate court has directed an award of attorneys’ fees is the Bell case In this Circuit. Such an award is not commanded by the fact that substantial relief is obtained. Attorneys’ fees are appropriate only when it is found that the bringing of an action should have been unnecessary and was compelled by the school board’s unreasonable, obdurate obstinacy . . .” 345 F.2d 321. See, also, Monroe v. Board of Commissioners of City of Jackson, Tennessee, 6 Cir., 1972, 453 F.2d 259, 263 where the district court’s award of attorneys’ fees to prevailing plaintiffs in a school desegregation proceeding was upheld on appeal. The Fourth Circuit has recently relaxed its test for assessing the propriety of an award of attorneys’ fees in school desegregation matters. In Brewer v. Norfolk School Board, 4 Cir., 1972 (en banc), 456 F.2d 943, cert. denied, 1972, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136, it was held that parents who secured the right of free bus transportation for students assigned to public schools far from their homes were entitled to an allowance for attorneys’ fees under a quasi-application of the “common fund” doctrine. This Court has recognized that an award of attorneys’ fees in favor of prevailing plaintiffs in a school desegregation proceeding may be appropriate. In Horton v. Lawrence County Board of Education, 5 Cir., 1971, 449 F.2d 793, we stated: “It is settled law in this circuit that federal district courts may, at their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were ‘unreasonable and obdurately obstinate.’ Lee v. Southern Home Sites Corporation, 5 Cir., 1970, 429 F.2d 290; Williams v. Kimbrough, 5 Cir., 1969, 415 F.2d 874. Nevertheless, as appellants conceded on oral argument before this court, the district judge in the case at bar has never ruled on their demand "for attorneys’ fees. Since this court is not empowered to make an initial adjudication of such a claim, we remand this issue to the district court for its determination without even the slightest intimation as to whether the Board did or did not engage in such conduct as would merit an award of reasonable attorneys’ fees to appellants.” 449 F.2d at 794. We believe that in this case it is appropriate to follow the course of action taken in Horton. The district court should make the initial determination as to whether to compel the District to underwrite the plaintiffs’ attorneys’ fees under either of the theories discussed above. Either party will be able to seek review in this Court of the district court’s disposition of the claim for attorneys’ fees. CONCLUSION The judgment of the district court is reversed and the cause is remanded with directions to require the defendant Columbia Municipal Separate School District to offer • employment contracts to the appellants effectively reinstating them in the positions which they occupied prior to their dismissals at the end of the 1969-1970 school year or equivalent positions. In addition, the district court is directed to enter judgment in favor of each of the plaintiffs for back pay in the amount of compensation lost by each plaintiff as a result of the District’s unlawful refusal to renew their contracts for the 1970-1971 school year, less the amounts which each has earned, if any, during the interim period. Finally, the district court is directed to conduct further proceedings and to make findings of fact and conclusions of law concerning the right of the plaintiffs in this action to an award of attorneys’ fees for services rendered to them in this Court and in the district court. Reversed and remanded. DYER, Circuit Judge (dissenting): The trial court’s determination that the Singleton principle is inapplicable to this case is the only contested issue in this appeal. In Singleton, we held that the Equal Protection and Due Process Clauses of the Fourteenth Amendment required that if there was to be an absolute reduction in the number of principals, teachers, or professional staff employed by a school district as a result of court-ordered desegregation consolidation, then the staff member or teacher to be dismissed or demoted as a result must be selected on the basis of a comparative evaluation of all the employees of the district at the same level on the basis of objective and reasonable nondiscriminatory standards to be developed and promulgated by the Board prior to the evaluation. Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, 419 F.2d 1211, 1218 (en banc), cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 530. Singleton is inapplicable because the court-spawned faculty reduction at the heart of that case is not present here. While there was reduction in number of six teacher stations in the school system between the 1969-70 and 1970-71 school terms, it is perfectly clear that the reduction cannot be traced to court-ordered school consolidation in furtherance of desegregation. At the time the Board failed to renew appellants’ contracts there had been no instructions or suggestions to the principals or superintendent to reduce the size of the faculty. Furthermore, it is undisputed that new personnel had to be employed for the 1970-71 term in the fields of those not rehired and thus there was no need for reduction by discharge. In short, I must conclude, as did the trial court, that the non-renewal of appellants’ contracts was not required because of a decrease in enrollment or reduction in personnel. With Singleton inapplicable, nothing exists here to condition the discretionary right of local school authorities in Mississippi to supervise the conduct of their teachers and refuse to renew their contracts. The trial court found and the record is replete with illustrations of unfitness to teach and professional incompetency which the Trustees relied upon in making their evaluations. Under section 6282-26 of the Mississippi Code of 1942, as amended, the superintendents of county and municipal school districts in the state are authorized to remove or suspend teachers, upon proper notice and hearing, for incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment, or other reasons determined to be good cause. As did the district court, I find substantial evidence that the conduct of these teacher-appellants created disciplinary problems and discord among their fellow teachers, reflected in some instances intemperance, indicated fiscal irresponsibility with respect to public funds, and disrupted the orderly administration of the school system. Under these circumstances the district court’s finding of good cause for the dismissals was not clearly erroneous. See Jennings v. Meridian Municipal Separate School District, 5 Cir. 1971, 453 F.2d 413; Moore v. Winfield City Board of Education, 5 Cir., 1971, 452 F.2d 726. Assuming arguendo that Singleton is applicable I would have to disagree with the majority that appellants Johnson and Reddix are entitled to relief. It is not suggested, nor could it be, that the district court’s findings that Johnson, who was teaching driver education, had an alcohol problem, and that Reddix, an instructor for educable mentally retarded children, struck a girl across the hand with a board with such force that it drew blood, are clearly erroneous. In my view, no pre-established objective criteria were necessary to justify the non-renewal of these two teachers. See Thompson v. Madison County Board of Education, 5 Cir., 1973, 476 F.2d 676. I respectfully dissent. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges. BY THE COURT: A member of the Court in active service having requested a poll on the application 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. . The record contains some disparities as to the number of teaching positions reduced, but App. 312 indicates a stipulation was reached that between school years the number of black teachers decreased by ten and the number of white teachers by three, a total of thirteen. This is the figure we use in the text, 129 reduced to 116, although other cal-culatious may show a different total number for each year. . The complaint also named the Marion County Board of Education as a defendant. A settlement was reached in the Marion County matter as a result of which only the actions of the Columbia Municipal Separate School District are now before us.

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2024-08-24T03:29:51.129235

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UNITED STATES of America, Plaintiff-Appellee, v. Sterling Brooks HUNT, a/k/a James Booker Reed, Defendant-Appellant. No. 73-1012. United States Court of Appeals, Ninth Circuit. May 16, 1973. James F. Hewitt, Federal Public Defender, William A. Brockett, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellant. James L. Browning, Jr., U. S. Atty., F. .Steele Langford, Michael W. Field, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee. Before DUNIWAY and WRIGHT, Circuit Judges, and SMITH, District Judge. The Honorable Russell B. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation. OPINION RUSSELL E. SMITH, District Judge: Here and below defendant conceded that he committed an armed bank robbery. The only defense was insanity. The government’s case-in-chief was devoted to the proof of the robbery. In his case defendant called a clinical psychologist who testified that defendant lacked capacity to commit crime under the test established by Wade v. United States, 426 F.2d 64 (9th Cir. 1970). In rebuttal the government called Dr. Rapa-port, a psychiatrist, who testified to the contrary. Dr. Rapaport had been appointed at defendant’s request to make an examination as to competency to stand trial under 18 U.S.C. § 4244. In the early stages of the trial defendant moved to exclude the testimony of Dr. Rapaport for the reason that he was appointed only to determine defendant’s competency to stand trial. In United States v. Mattson, 469 F.2d 1234 (9th Cir. 1972) this court said: . Rather, this case is within the general rule that a psychiatrist appointed to make a § 4244 examination may give his opinion of the sanity of the accused at the time of the alleged offense. Mattson establishes the law in this circuit. United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973). The facts in Mattson differ from the facts here in that the order in Mattson did appoint the doctor for both purposes although neither defendant nor his lawyer was aware of the fact that the order did include directions to examine for capacity to commit crime. This fact difference is not in our opinion sufficient to distinguish Mattson. The facts in United States v. Driscoll, 399 F.2d 135 (2nd Cir. 1968) were identical to the facts here in that the order appointing was limited to a Section 4244 examination. In Driscoll the court reversed the conviction on the grounds asserted here but this court in Mattson accepted the views presented in the dissent in Dris-coll. See United States v. Malcolm, supra. We note a problem raised by United States v. Malcolm, supra. In that case (decided after this case was tried) the court said that the restrictive language of Section 4244, . . . No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceedings . . ., applies to an examination made for the purpose of determining the capacity to commit crime and also that the words “on the issue of guilt’’ relate not only to the facts constituting the crime but also to mental state of the defendant. In this case Dr. Rapaport did testify as to statements made to him by the accused. The error was harmless in view of the record in this case. The testimony of Dr. Rapaport as to defendant’s statements is set out in Appendix A. Defendant’s admission of the crime normally would be damaging, as would be the statements that defendant knew it was wrong to rob a bank, but the psychologist called by the defendant had previously said the same things. On cross-examination defendant elicited similar statements from Dr. Rapaport. The remainder of the statements attributed to defendant on direct examination tended to confirm the thesis of defendant’s witness, i. e., that defendant felt pressures and that the crime was a reaction to them. The contention that the defendant’s cross-examination of Dr. Rapaport was unduly limited is without merit. The judgment is affirmed. Appendix A Direct Examination I questioned him regarding the offense. He told me about it in detail He knew — he told me he knew, and I was of the opinion that he did know, that it was wrongful and unlawful and punishable to commit the offense of bank robbery and he was conscious of what he was doing and conscious of the fact that it was against the law. That is, the law as is set up by the states and the Federal Government. He — he told me that since an experience which he had some few years ago, he had a lot of time to think and he felt he had developed some very pronounced ideas concerning treatment of human beings by human beings and of a racist quality, so I asked him, in particular, whether he meant that it was the whites against the blacks. He said no, he says, “You know, there are black racists too, and where I came from, most of my association was with blacks and I found that they also were intolerant and prejudiced, but then California was more.” He came here shortly before his arrest. He said here he always found the same situation between the whites and the blacks and that he felt, in his own mind, his reasoning, that he had to do something even though he knew it was wrong in order to get even with the element which were (sic) abusive. * -X- -x- -x- * * Cross-Examination Q. Did Mr. Hunt appear to be repelled by or horrified at his actions in holding up the bank? A. No, he — he had done it, he knew it was wrong and expected what was going to happen, right or wrong. He knew what could happen and he didn’t believe he was being framed or that there was any organization or group that forced him into this position in order to get him out of the way. He made a mistake, that’s all. Q. Did he indicate to you that he was resolved to not repeat this kind of mistake? A. Would he repeat it? Q. Yes. A. He indicated to me that he would not. He would now — what he wants to do now is, whenever it’s possible, is return to school and improve his general life situation and be back with his family, and I think it’s in Illinois.

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Barbara B. SACK et al., Plaintiffs-Appellants, v. V. T. LOW, et al., doing business as a partnership under the name of Bear, Stearns & Co., and Richard W. Silverman, Defendants-Appellees. Docket 72-2327. United States Court of Appeals, Second Circuit. Argued Feb. 13, 1973. Decided April 13, 1973. Gordon T. Walker, Boston, Mass. (Hale & Dorr, Boston, Mass., and Kurtz & Vassallo, New York City, of counsel), for plaintiffs-appellants. Arnold S. Anderson, New York City (A. Edward Grashof, and Winthrop, Stimson, Putnam & Roberts, New York City, of counsel), for defendants-appel-lees. Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge. Of the United States Court of Claims, sitting by¡ designation. FRIENDLY, Chief Judge: The plaintiffs, Barbara B. Sack, a resident of Massachusetts, and three other residents of that state, acting as trustees of a Massachusetts profit sharing trust, brought this action in the District Court for the Southern District of New York in March 1972 against the partners of Bear, Stearns & Co., a brokerage firm which has its principal place of business in New York City, and Richard W. Silverman, an employee having the title of Vice President, alleging that defendants had committed various violations of federal securities laws. .Defendants immediately moved for summary judgment on the ground that a previous action between the same parties on the identical claim had been dismissed by the District Court for Massachusetts because of the running of the statute of limitations; defendants argued that this was a dismissal “on the merits” which barred relitigation here under the principle of res judicata. The late Judge McLean granted summary judgment, and plaintiffs appealed. For an understanding of the issues, we must set out the procedural history of this litigation in some detail. In July 1969 the Bay State Smelting Co., a Massachusetts corporation, brought an action in the District Court for Massachusetts against the same defendants alleging essentially the same violations of the securities laws on the basis of the same course of conduct as is involved here. Bay State moved in December 1970 for leave to join the Sack plaintiffs, who were represented by the same counsel as Bay State, as additional plaintiffs in its action and to file a “consolidated, substitute bill of complaint.” These motions were denied by Judge Murray in September 1971. Shortly thereafter, on October 13, 1971, the Sack plaintiffs filed a separate complaint in the District Court for Massachusetts. After stating that “the acts and transactions complained of occurred in-substantial part within the District of Massachusetts,” the complaint alleged that in February 1969 defendants had purchased shares of Armour & Co. common stock for plaintiffs’ accounts; that defendants had failed to sell these shares when payment had not been received within a week, as required by § 4(c) of Regulation T of the Board of Governors of the Federal Reserve System, 12 C.F.R. § 220.4(c), although Barbara Sack was six days and the Trust was four days late in making payment; that, also in violation of said Regulation, defendants purchased the Armour shares with the intent to exchange them for debentures and warrants of General Host Corporation, pursuant to a tender offer then outstanding, before payment was received from the plaintiffs, and in fact did so; that the General Host securities subsequently declined in value; and that some of the General Host securities were sold at a substantial loss and others are still being held with a market value lower than the amount paid. The complaint also alleged that Silverman had falsely represented in a telephone call from New York City to the plaintiffs in Massachusetts that the purchase was a riskless arbitrage transaction since the General Host securities, which were selling at a higher price than the Armour shares, would be sold promptly, and that defendants failed to reveal they were making a market in the Armour and General Host securities and were trading in them for their own account, in violation of sections 9, 10, and 15 of the Securities Exchange Act and Rules 10b-5 and 15c-l through 7. The complaint further alleged that defendants’ failure to sell the General Host securities promptly was a breach of their agreement with plaintiffs. Somewhat inconsistently with the allegations that the purchases were made on the basis of Silverman’s misrepresentations and an agreement, the complaint also alleged that the purchases were made by Silver-man in the exercise of a discretionary power which, in violation of Rule 408 of the New York Stock Exchange, was not in writing. Defendants then moved for summary judgment dismissing the complaint on the ground that it sounded in tort and was barred by the two-year Massachusetts statute of limitations, Mass.Gen. Laws ch. 260, § 2A, which had run while the motion to intervene in the Bay State action had been pending, since the last transactions in plaintiffs’ accounts took place prior to March 31, 1969 and the last of the General Host securities were sent to the plaintiffs not later than April 15, 1969. Not disputing the facts, the plaintiffs asserted that the six-year contract statute of limitations applied. On January 4, 1972, Judge Murray held that the tort statute of limitations applied, and granted summary judgment for the defendants. On March 22, 1972, the plaintiffs filed the instant action in the Southern District of New York. The complaint was substantially identical with that filed in Massachusetts except for an allegation that “the acts and transactions complained of occurred in substantial part within the Southern District of New York.” On April 14, defendants moved for summary judgment, claiming that the Massachusetts judgment was a bar. Judge McLean granted the motion on September 28, on the authority of Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833, 840 (2 Cir. 1957), cert. denied, 356 U.S. 936, 78 S.Ct. 777, 2 L.Ed.2d 811 (1958), which, relying on the provisions of F.R.Civ.P, 41(b), stated that dismissal of a complaint on the basis of the statute of limitations “operates as an adjudication upon the merits” unless the district judge specifies otherwise, and Murphy v. A/S Sobral, 187 F.Supp. 163 (S.D.N.Y.1960), which applied this reasoning to bar on grounds of res judicata an action brought here if a previous action in another forum had been dismissed on the basis of the statute of limitations. Plaintiffs appealed to this court. At the same time, they also moved before Judge Murray in the District of Massachusetts for an amendment of his order of January 14, 1972. On January 9, 1973, Judge Murray entered the following order: Summary judgment for defendants ordered on January 14, 1972 is not an adjudication upon the merits and is without prejudice to plaintiffs’ rights to bring another action in another jurisdiction based upon the transactions or occurrences which are the subject matters of their claims herein subject to the appropriate statute of limitations of such other jurisdiction. Plaintiffs thereupon moved that we remand to the District Court to enable it to vacate its order of September 28, 1972, on the basis of the subsequent Massachusetts order. Defendants moved for summary affirmance, claiming that the amendment of the Massachusetts order was without legal effect in the Southern District of New York and that in any event the action was barred by the New York “borrowing statute,” C.P.L.R. § 202, which reads as follows: An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. . I. Prior to the Bertha Building decision, the law in this circuit, as set out by Judge A. N. Hand for our court’s “first team” in Warner v. Buffalo Drydock Co., 67 F.2d 540 (2 Cir. 1933), cert. denied, 291 U.S. 678, 54 S.Ct. 529, 78 L.Ed. 1066 (1934), was that dismissal of a complaint in another forum on the ground that the statute of limitations had run was not an adjudication on the merits and did not bar a subsequent action on the same claim here. The court adopted the traditional reasoning that unless the statute of limitations was intended to extinguish the right (i. e., if it were an integral part of the statute which created the right), a defense on the basis of the statute was a procedural question on which each forum state would apply its own law and therefore dismissal on that ground represented only a determination that the particular remedy the plaintiff had sought to pursue was unavailable, leaving him free to seek to enforce the right in another forum if the limitations of that forum allowed. This is still the general rule. See IB Moore, Federal Practice fí 0.409 [6], at 1035-36 (1965). The Restatement of Judgments § 49, comment (a) (1942), explains that dismissal on the ground of the statute of limitations operates as a bar to the extent that it will prevent a future action in the state where the judgment was rendered, but not so far as other states are concerned. The issue in Bertha Building concerning the effect of a dismissal on the basis of the statute of limitations arose in a rather peculiar way. The precise question, as stated by the court, was whether, in a treble damage action brought in the Eastern District of New York under the antitrust laws for an injury suffered in California, it was “proper for the judge instead of a jury to decide whether the defendant could have been sued in the Southern District of California between July 20, 1935 and July 20, 1938,” 248 F.2d 833, at 834. This was important because if the defendant could have been so sued, the California statute of limitations would not have been tolled and the action would be barred under the New York borrowing statute, then § 13 of the Civil Practice Act. In stressing the importance of holding that the action was thus barred in New York and what was held to be the consequent need for a jury trial on the factual issue critical to the defense, the court went on to say, 248 F.2d at 835: A determination of this defense has a reach and a finality not inhering in any decision as to venue. For if the defense of the statutory bar is sustained, the resulting judgment of dismissal operates as a final adjudication of the merits of the controversy; a decision as to venue, however, of course leaves the plaintiff free thereafter to seek an adjudication on the merits of his claim. Fed.Rules Civ'. Proc. rule 41(b), 28 U.S.C.A. When the defendant petitioned for rehearing, the court said this, 248 F.2d at 840: We are unmoved by the petitioner’s contention that we were wrong in asserting that a dismissal based upon a defense of the statute of limitations is an adjudication on the merits. Warner v. Buffalo Drydock Co., 2 Cir., 67 F.2d 540, which is cited in support of that contention, we think is distinguishable. And moreover, it has been superseded by the clear mandate of Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. which in its last sentence directly contradicts the holding of the Warner case. Although under the rule in a proper situation the District Judge may specify that his order be without prejudice, Judge Galston did not so qualify his order of dismissal. These remarks have been taken to establish the rule in this circuit that a dismissal on the ground of the statute of limitations would bar a second action on the same claim in a different forum. See Murphy v. A/S Sobral, supra, 187 F.Supp. 163; IB Moore, supra, at 1035 & n.13. We must own to some discomfort with these statements in Bertha Building; they seem to go either too far or not far enough. While the statements cannot properly be characterized as dicta, they may have gone beyond the necessities of the case. In addition to the possibility of holding that a plaintiff in an action which would formerly have been “at law” was entitled to a jury trial on an issue of fact relevant to the defense of the statute in the forum of his choice, it might very well have been true in Bertha Building that, with the long lapse of time between September, 1951, when the New York action was brought, and the district court’s decision in 1956 dismissing the action as time-barred, it would have been too late to sue elsewhere, quite apart from the effect in another forum of a judgment of the district court sustaining the New York statute of limitations as a defense. The opinion on rehearing says that Warner is distinguishable but not why. The provision in F.R.Civ.P. 41(b) permitting a judge to specify that dismissal is without prejudice would seem to have been designed for cases in which the judge has discretion whether to dismiss, e. g., for want of prosecution, where his decision might be affected by determination whether dismissal should be with or without prejudice, not for cases which he must dismiss as a matter of law. Indeed, it would be possible to read the district judge’s power to specify that dismissal be without prejudice under the “unless” clause in the final sentence of Rule 41(b) as limited to “a dismissal under this subdivision,” with the result that all other dismissals save the three mentioned — lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — and particularly a dismissal on limitations grounds, would necessarily be with prejudice. Finally, we have some doubt whether the last sentence of Rule 41(b) was intended to authorize a judge to dictate to another forum that a dismissal should have a different effect there than in his own court. However, Bertha Building said he could do exactly that. So long as that decision stands, we are thus obliged to hold that Judge Murray’s later order undercut the basis for Judge McLean’s grant of summary judgment for the defendants. II. Defendants argue that Judge McLean’s dismissal of the complaint was in any event correct because the action is barred by the New York borrowing statute. Plaintiffs do not dispute that the reference to New York limitations law required in the absence of a statute of limitations in the federal securities laws, Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2 Cir. 1951), includes the borrowing statute, see Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). They contend, however, that New York’s borrowing statute does not apply here because their action was not “based upon a cause of action accruing without the state,” but rather on one accruing within it. Defendants’ first response is that, in light of the allegations in the Massachusetts complaint, plaintiffs may not now be heard to say that the cause of action accrued in New York. We disagree. The doctrine of collateral estoppel is not applicable here. Clearly the District Court for Massachusetts did not decide that the cause of action arose there. The rule in Massachusetts, as in most jurisdictions, is that a general statute of limitations applies to all actions brought in the forum, regardless of where the cause of action accrued. Clarke v. Pierce, 215 Mass. 552, 102 N.E. 1094 (1913); Bonsant v. Rugo, 190 F.Supp. 958 (D.Mass.1961); see generally Restatement (Second) of the Conflict, of Laws § 142 (1971). We also do not see any reason why plaintiffs’ allegation in the Massachusetts complaint that “the acts and transactions complained of occurred in substantial part within the District of Massachusetts” should bar their contentions here. Although this allegation may be available to the defendants as an admission, it is not necessarily inconsistent with plaintiffs’ present assertion that defendants’ acts and transactions also took place in substantial part in New York or their claim that the cause of action arose within New York. We therefore turn to consideration of where the New York courts would hold this cause of action to have accrued. The traditional view has been that a cause of action for tort arises when and where “the last event necessary to make an actor liable . . . takes place.” Restatement of the Conflict of Laws § 377 (1934). Since a tort action traditionally has not been viewed as complete until the plaintiff suffers injury or loss, the cause of action has been considered to arise at the place where this damage was sustained. As applied to a cause of action for fraud or deceit, the closest common law analogy to an action under Rule 10b-5, see Klein v. Auchincloss, Parker & Redpath, 436 F.2d 339, 341 (2 Cir. 1971); 3 Loss, Securities Regulation 1774 (2d ed. 1961); 6 id. 3901-02 (1969), and eases there cited, this reasoning leads in the direction of the rule of the First Restatement of Conflicts, § 377, note 4, that “when a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations are made.” This rule is followed by an illustration quite pertinent to this ease: 6. A, in state X, owns shares in the M company. B, in state Y, fraudulently persuades A not to sell the shares. The value of the shares falls. The place of wrong is X. While we have found no New York decision directly in point, we believe that the New York courts would follow this traditional approach. This prediction follows almost inevitably from New York’s long held view, Hibernia Nat’l Bank v. Lacombe, 84 N.Y. 367, 384 (1881), that “the time when the cause of action arises determines, also, the place where it arises, for when that occurs which is the cause of action the place where it occurs is the place where the cause of action arises.” See Tandoc v. Luckenbach S. S. Co., 5 App.Div.2d 857, 171 N.Y.S.2d 381 (1st Dep’t), leave to appeal denied, 5 App.Div.2d 989, 173 N.Y.S.2d 992 (1958); Lowell Wiper Supply Co. v. Helen Shop, Inc., 235 F.Supp. 640, 644 (S.D.N.Y.1964) (Weinfeld, J.) (“Claims accrue in New York when the plaintiff first acquires the right to seek a judicial remedy.”). This reasoning has led to the view in personal injury tort actions that “It is only the injury to persons or property . which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong,” Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300, 200 N.E. 824, 827 (1936), and therefore that the cause of action accrues for purposes of the borrowing statute in the state where the injury is suffered rather than where the defendant committed the wrongful acts. Myers v. Dunlop Tire & Rubber Corp., 40 App.Div.2d 599, 335 N.Y.S.2d 961 (1st Dep’t 1972). Clearly a cause of action for fraud does not arise until loss is suffered; we have every reason to believe that the New York courts would therefore hold that the cause of action accrues where the loss is suffered. *****8 This view is strengthened by the weight of authority in other jurisdictions, which generally adopts the view of the First Restatement of Conflicts that a cause of action for fraud arises where the loss is sustained and that loss from fraud is deemed to be suffered where its economic impact is felt, normally the plaintiff’s residence. Trussell v. United Underwriters, Ltd., 236 F.Supp. 801, 803 (D.Colo.1964) (application of borrowing statute in litigation under Rule 10b-5); Smith v. New York Life Ins. Co., 208 F.Supp. 240 (S.D.Iowa 1962) (choice of law); Strand v. Librascope, Inc., 197 F.Supp. 743 (E.D.Mich.1961) (choice of law); Boulevard Airport, Inc. v. Consolidated Vultee Aircraft Corp., 85 F.Supp. 876 (E.D.Pa.1949) (liability to service of process); Geller v. Transamerica Corp., 53 F.Supp. 625, 629-630 (D.Del. 1943), aff’d, 151 F.2d 534 (3 Cir. 1945) (choice of law). Contra, Smyth Sales, Inc. v. Petroleum Heat & Power Co., 128 F.2d 697 (3 Cir. 1942) (choice of law). Some added support for the view that plaintiffs’ loss would be considered to have been suffered where they lived and conducted their investment activities is furnished by holdings that private antitrust claims “arise”, for borrowing statute purposes, where the plaintiff’s business is located. Seaboard Terminals Corp. v. Standard Oil Co., 24 F.Supp. 1018 (S.D.N.Y.1938), aff’d, 104 F.2d 659 (2 Cir. 1939); Electric Theater Co. v. Twentieth Century Fox Film Corp., 113 F.Supp. 937 (W.D.Mo.1953); Aero Sales Co. v. Columbia Steel Co., 119 F.Supp. 693 (N.D.Cal.1954). We recognize that the rigid rules of the First Restatement have been largely discredited as a sensible approach to solving choice of law problems; it may well be that if this were a common law action for fraud rather than one based on federal law, New York, under the principles of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), and the Second Restatement of the Conflict of Laws § 148, would apply its own law, rather than that of Massachusetts, in determining defendants’ culpability. See also Ehrenzweig, Conflict of Laws 558-59 (1962); Ehrenzweig, The Place of Acting in Intentional Multistate Torts: Law and Reason versus the Restatement, 36 Minn.L.Rev. 1, 37-43 (1951); Rheinstein, The Place of Wrong: A Study in the Method of Case Law, 19 Tulane L.Rev. 165 (1944). But, with all respect to the contrary view of a commentator, Siegel, Conflict of Laws, 19 Syracuse L.Rev. 235, 254-56 (1968), we do not think the likelihood of such a holding would justify the further prediction that New York would rule that the state whose law is chosen to govern a defendant’s conduct is necessarily the state where the cause of action accrued for purposes of its borrowing statute. One of the policies behind Babcock and many of its harbingers, such as Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), and descendants, such as Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877 (1968), was to afford New York residents the protection of those rules of substantive law underlying which New York had significant policies or as to which New York had important interests. In sharp contrast, the policy behind the borrowing statute is to protect New York resident-defendants from suits in New York that would be barred by shorter statutes of limitations in other states where non-resident-plaintiffs could have brought suit. See National Surety Co. v. Ruffin, 242 N.Y. 413, 417, 152 N.E. 246 (1926); George v. Douglas Aircraft Co., 332 F.2d 73, 77 (2 Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177 (1964); Fullmer v. Sloan’s Sporting Goods Co., 277 F.Supp. 995 (S.D.N.Y.1967). The few borrowing statute cases since Babcock afford no inkling that the New York courts are applying its sophisticated teachings, rather than the rigid approach of the First Restatement of Conflicts, to the problem of where a cause of action arose under the borrowing statute. Quite to the contrary, they take a rather simplistic approach, adhering to the mechanical question where the cause of action arose or, in the words of the borrowing statute, whether the “cause of action aecru [ed] without the state . . . . ” Cellura v. Cellura, 24 App.Div.2d 59, 263 N.Y.S.2d 843 (4th Dep’t 1965); Myers v. Dunlop Tire & Rubber Corp., supra, 40 App.Div.2d 599, 335 N.Y.S.2d 961; Daigle v. Leavitt, 54 Misc.2d 651, 283 N.Y.S.2d 328 (Sup.Ct.1967). A recent note, Choice of Law and the New York Borrowing Statute: A Conflict of Rationales, 35 Albany L.Rev. 754, 762 (1971), concludes, although with some regret: The impact of the conflict of laws decisions discussed above [i. e., Bab-cock v. Jackson, et al.] on the New York State “borrowing statute” has been non-existent. Except for a few commentaries to the effect that these decisions should affect the borrowing statute, there has been no actual impact on the statute by these decisions. The result which we thus reach in our interpretation of the New York borrowing statute is neither wholly unexpected nor unique. In George v. Douglas Aircraft Co., supra, 332 F.2d at 78, we perceived “no obstacle to predicting that the New York Court of Appeals would consider a cause of action as ‘arising’ for the purposes of the borrowing statute in a state different from the one whose substantive law would determine liability.” And the Third Circuit has reached the same result as we do here, predicting that, despite Pennsylvania’s recent adoption of the interest analysis approach to determining the proper choice of substantive law, see Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), it would apply “the final significant event” test in determining when and where a cause of action arose under its borrowing statute. Mack Trucks, Inc. v. Bendix-Westinghouse Automatic Air Brake Co., 372 F.2d 18 (3 Cir. 1966), cert. denied, 387 U.S. 930, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967). However, even with these general principles as to where the New York courts would hold the cause of action to accrue established, we cannot properly affirm Judge McLean’s order on the ground that the cause of action here accrued in Massachusetts. The problem is that the record does not contain sufficient facts to enable us to apply our prediction of New York law with complete confidence. We do not know exactly how plaintiffs paid for the securities— whether by check sent from Massachusetts or in some other fashion; perhaps if the plaintiffs maintained an open account at defendant’s New York offices, and the loss was reflected in that account, this might make some difference. Similarly, we do not know the details as to how the securities were handled. Although on what is now before us, it seems unlikely that plaintiffs can demonstrate that the cause of action arose in New York under the traditional test, they should not be foreclosed from an opportunity to do so. We add a reference to a point that the district court will have to consider if it should conclude the cause of action accrued in New York under the traditional test. In an effort to escape from the collateral estoppel effect that plaintiffs feared would attach to Judge Murray’s decision if we held it to include a determination that their cause of action accrued in Massachusetts, plaintiffs suggested at oral argument that the cause of action could be deemed to have “arisen” both in New York and in Massachusetts. The conclusion the plaintiffs would apparently have had us draw is that since the cause of action could be said to have accrued in both states, the borrowing statute would not apply. However, application of the statute depends on whether it can be said that the cause of action accrues “without the state,” and if it could fairly be said that the cause of action arose in both New York and Massachusetts, then, under the letter of the borrowing statute, the action would be barred. Indeed, several states have held, in applying their borrowing statutes, that notwithstanding that the traditional rules would indicate that the cause of action accrued in the forum state, the borrowing statute would bar the action if it could be said that the action also arose in a second state where the statute of limitations had run. The courts of Minnesota, which have a statute virtually identical to New York’s, have held this. Pattridge v. Palmer, 201 Minn. 387, 277 N.W. 18 (1937). The Illinois courts have apparently gone further and held that a cause of action arises in any jurisdiction where suit could have been brought on the claim. Strong v. Lewis, 204 Ill. 35, 68 N.E. 556 (1903). See Vernon, Statutes of Limitation in the Conflict of Laws: Borrowing Statutes, 32 Rocky Mt.L.Rev. 287, 302-04 (1960). There is much to be said for thus recognizing that a cause of action can arise in more than one place and, under an appropriate borrowing statute, is barred if the statute of limitations has run in one where the defendant was available for suit, at least when the one is the state of plaintiff’s residence. Such a rule avoids the mechanical nature of the single place of arising theory, allows the defendant to ascertain the applicable time period with certainty while affording the plaintiff a fair opportunity to sue in a convenient forum, and prevents local courts from being cluttered with actions that could have been brought elsewhere but are now time-barred there —particularly actions by out-of-state plaintiffs who had a fair opportunity to sue in their home state but delayed too long, as was the case here. Compare Fullmer v. Sloan’s Sporting Goods Co., supra, 277 F.Supp. 995. We refrain from now deciding the case on this basis only because the problem does not seem to have been considered by the New York courts and the chances are that, on full development of the facts, the same result will be reached on grounds that would not carry us so far into the field of prophecy. If that should not occur, the district court must address itself to this point. The order dismissing the complaint is vacated and the cause remanded for further proceedings consistent with this opinion. . Defendants have not questioned the timeliness of plaintiffs’ application for the amendatory order, but since the question is jurisdictional, we must consider it. The motion purported to be made under F.R. Civ.P. 60(b), of which the most pertinent subdivision seems to be (6), and, if properly so made, it was timely. On the other band, if the motion were in fact one under F.R.Civ.P. 59(e) “to alter or amend the judgment,” which was what in fact was asked, the ten-day limit of that rule had long since expired. The Advisory Committee notes make it plain that a principal purpose of Rule 59(e), which was added in 1946, was to make clear that a district court had power to amend a judgment dismissing without prejudice so that the dismissal should be with prejudice, as held in Boaz v. Mutual Life Ins. Co., 146 F.2d 321 (8 Cir. 1944), and vice versa, but at the same time place a short time limit on such motions since these tolled the time limits for the taking of appeals under then F.R.Civ.P. 73(a), now FRAP 4(a). However, the short time limit also implies that the respect in which alteration or amendment is needed should be readily apparent. Here, as will appear from the subsequent discussion, the law of judgments as generally applied would not have required that the judgment be amended in order to permit an action to be maintained on the same claim in a state where the statute of limitations had not run. The importance of an amendment to the judgment became fully apparent only after Judge McLean’s decision. We therefore hold that, under the unusual circumstances here presented, the motion was properly made under F.R.Civ.P. 60 (b) (6). Cf. Klapprott v. United States, 335 U.S. 601, 614-615, 69 S.Ct. 384, 93 L.Ed. 1099 (1949) ; Menier v. United States, 405 F.2d 245 (5 Cir. 1968), and authorities there cited; 7 Moore, Federal Practice 1f 60.27 [1], at 341-43 (2d ed. 1972). . The same considerations would support a prediction that New York would hold that plaintiffs’ claims for violations of Regulation T arose where the loss was suffered rather than where the wrongful conduct occurred, even though fraud is not an ingredient of an action for violation of § 7 of the Securities Exchange Act of 1934. See Junger v. Hertz, Neumark & Warner, 426 F.2d 805, 806 n. 1 (2 Cir.), cert. denied, 400 U.S. 880, 91 S.Ct. 125, 27 L.Ed.2d 118 (1970) ; Klein v. Bower, 421 F.2d 338, 343-344 (2 Cir. 1970).

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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. Gene Arlyn WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Robert Brice ELLIOTT, Sr., Appellant. Nos. 72-1828, 72-1829. United States Court of Appeals, Fourth Circuit. Submitted Jan. 9, 1973. Decided May 7, 1973. Frank Patton Cooke, Gastonia, N. C., (on brief) for appellant in No. 72-1828. Arthur Goodman, Jr., Charlotte, N. C., (on brief) for appellant in No. 72-1829. Keith S. Snyder, U. S. Atty., and David B. Sentelle, Asst. U. S. Atty. (on brief) for appellee in Nos. 72-1828 and 72-1829. Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges. PER CURIAM: These appellants were tried together by a jury in the United States District Court for the Western District of North Carolina. They were found guilty of the first five counts of a seven count indictment charging them with embezzling, abstracting and purloining the moneys, funds and credits of a federally insured bank, in violation of 18 U.S.C. §§ 656 and 2. Count six was dismissed during trial and the jury found them not guilty as to count seven. They allege that various errors were committed during the course of their trial and seek reversal of their convictions and an acquittal or, alternatively, a new trial. For reasons that will be set forth in this opinion, we agree that the appellants are entitled to a new trial. I Appellant Williams was employed as a Vice-President of the Security Bank and Trust Company of Salisbury, North Carolina. He was also the branch manager of Security’s Belmont, North Carolina branch bank. This was a small branch and was operated by Williams, two cashiers, and perhaps a bookkeeper. Appellant Elliott was the managing officer of Shoreline Provision Company, a refrigerated trucking company that specialized in transporting refrigerated products from the' East to the West Coast. In May, 1969, Elliott opened an account, in the name of Shoreline, at Security Bank and Trust Company.' Shoreline had other accounts at the Citizens National Bank in Cramerton, North Carolina. Elliott also had established an account in the name of MEW Brokerage Company at the Mechanics and Farmers Bank in Charlotte, North Carolina. MEW Brokerage was a factoring corporation, founded by Elliott, whose purpose was to finance the Shoreline Company. Subsequent to the opening of the Shoreline account with Security in May, 1969, the Belmont branch of Security issued numerous cashier’s checks to Shoreline. Williams, as branch manager, had to approve these checks. The indictments against the appellants arose from certain of these transactions. The first five counts involved situations where Williams would deliver a Security cashier’s check to Elliott, which check was made payable to Shoreline. The consideration to Security for these cashier’s checks were checks, at least equal in amount to the appropriate cashier’s checks, delivered by Elliott and drawn on Shoreline’s various accounts or on the new account of MEW Brokerage. It seems that the checks Elliott gave to Security ■ for which Shoreline received cashier’s checks were drawn on insufficient accounts and that Security has never received payment for them. The above events occurred during the period of October 14 to October 21, 1969. Counts six and seven are not involved in this appeal since count six was dismissed during trial and the appellants were found not guilty as to count seven. II During the course of the trial, the government called Mrs. Peggy Farris Byrd, a Security employee at the Belmont branch, as one of its witnesses. Her testimony related to the cashier’s check referred to in count two of the indictment. It showed that the cashier’s check in issue, number 826, had been issued for $57,000 on Friday, October 17, 1969, but was not recorded on her work sheet until Monday, October 20, 1969. She had no independent reeollee-lection of the transaction. She further testified that, under normal banking procedure, the check would have appeared on her work sheet either on Friday, October 17, or Saturday, October 18, 1969. The inference the government sought to show from this was that Williams had issued the check on the 17th, and then held it out until the 20th, causing a false entry of the transaction on Peggy Byrd’s work sheet, so Elliott could cover the bad check he had given Williams in consideration of the cashier’s check. The object obviously was to show Williams’ bad intent from this testimony, as well as the facts concerning the specific transaction. The defense attorneys sought to test Peggy Byrd’s recollection by cross-examining her as to how well she remembered the physical layout and other details of the operation of the Belmont branch bank. The government objected to such questions, and the trial court sustained the objections, refusing to allow the defense the opportunity to test the recollection of the witness except as to matters precisely covered on direct examination. The right to cross-examine the prosecution’s witnesses is a fundamental constitutional right under the Sixth Amendment. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Although the scope of cross-examination is within the discretion of the trial court and usually limited to matters brought out on direct, there are exceptions. One of these exceptions is where the cross-examiner challenges the credibility of a witness by testing the individual’s memory. United States v. Hoffman, 415 F.2d 14 (7th Cir. 1969), cert. den. 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969); 3A Wigmore on Evidence (1970) § 995. See also Loesch v. Federal Trade Commission, 257 F.2d 882, 885 (4th Cir. 1958), cert. den. 358 U.S. 883, 79 S.Ct. 125, 3 L.Ed.2d 112 (1958). While the scope of the questioning concerning a witness’ credibility may be within the discretion of the trial court, we believe that a denial of all such cross-examination designed to test the recollection of a witness is improper. In our opinion, the questions posed to Peggy Byrd by the appellants’ attorneys were pertinent to her credibility and the disallowance of them by the trial court was erroneous. “ . . . [T]he range of evidence that may be elicited for any purpose of discrediting is to be very liberal. . . . ” 3A Wigmore on Evidence (1970) § 944. Ill Toward the end of the trial, the government called Leonard V. Dahl, an FBI agent, as a witness. His testimony revealed that he had gone to Williams’ house on November 17, 1969 to talk to him about the matters involved in these cases. Dahl testified that he advised Williams of his constitutional rights and that Williams signed a waiver. He further testified that he questioned Williams about the cases and that Williams answered his questions. The prosecutor then asked Dahl if Williams told him what experience he had had in banking prior to working for Security. Dahl said that Williams had told him he had fourteen years prior experience in banking. Then, on cross-examination, Williams’ counsel asked Dahl to read the rest of his notes as to the content of the conversation. The prosecutor objected and the court sustained the objection, refusing to allow any part of the notes to be read except that which may have touched on the questions asked on direct examination. Although the statement was proffered into evidence and ordered filed by the trial judge, it does not appear with the record. In Banning v. United States, 130 F.2d 330 (6th Cir. 1942), cert. den. 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556 (1943), the court said: “It frequently happens that on direct examination of a witness as to a conversation, transaction or other matter, counsel will bring out only such parts as are favorable to the party he represents. When this occurs, it is the right of the cross-examiner to put the trial court in possession of the full details respecting the matters within the scope of the direct examination.” 130 F.2d at 338. Dahl’s testimony, of course, by showing Williams’ experience in the banking business, sought inferentially to prove intent and bad purpose. Any statement of Williams’ made to Dahl at the time going to show lack of intent or bad purpose should have been admitted, and Williams was entitled to show it by the witness Dahl. VII Wigmore on Evidence (1940) § 2115. The denial of the right of the defendant to show statements from which innocence could be inferred along with those which tended to show guilt was error. IV In the present cases, the appellants were indicted for embezzling, abstracting and purloining money from Security in violation of 18 U.S.C. §§ 656 and 2. The trial court instructed the jury on the charge of embezzling. The court charged the jury that they could find the defendants guilty if they found that Williams “knew or should have known by understanding the affairs of the banking world and familiarizing himself with the accounts on deposit, that he issued a cashier’s check and, by so doing, embezzled . . .” [Emphasis added]. Another part of this instruction said: “. . .; fourth, that he, knowing that it was not his own, converted it to his own use or to the use of some third person, not the true owner.” [Emphasis added]. Although no objections were made to these instructions, they are obviously erroneous. It is true that criminal intent must be inferred from the facts and circumstances of the case. Hall v. United States, 286 F.2d 676 (5th Cir. 1961), cert. den. 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961). However, we are of opinion that, since intent is an essential element under § 656, the trial court misled the jury by using the phrase “should have known” in its instructions on intent. By giving effect to such a phrase, the jury could have convicted appellants if they found that Williams was guilty of nothing more than negligence in the handling of the bank’s affairs. This will not support an embezzlement conviction under the statute. The government must show that the acts were done willfully and intentionally, not by inadvertence or carelessness. We are further of opinion that the embezzlement charge given by the trial court was too broad. One of the elements of the crime of embezzlement as used in the statute is that the money or property embezzled be converted to the embezzler’s own use or benefit. United States v. Northway, infra; 120 U.S. 327, 333, 7 S.Ct. 580, 30 L.Ed. 664 ; Black’s Law Dictionary 4th Ed. p. 614. Thus, the definition of embezzlement used by the trial court was erroneous in that it permitted conviction for embezzlement although the funds may have been put to the use of a third person. While the court did not instruct the jury as to the meaning of abstracting under the statute, unless it may be inferred from the charge which was given, we note that United States v. Northway, 120 U.S. 327, 7 S.Ct. 580, 30 L.Ed. 664 (1887), defines the word abstract to mean “ . . . to, take or withdraw from so that to abstract the funds of the bank, or a portion of them, is to take and withdraw from the possession and control of the bank the moneys and funds alleged to be so abstracted.” 120 U.S. 327, 334, 7 S.Ct. 580, 584. Of course, it is not unlawful to merely take or withdraw the funds of a bank by a person having the authority so to do. What is unlawful is to take and withdraw from the possession and control of the bank moneys in the bank’s possession and control without its knowledge and consent and which will deprive the bank of its lawful possession and control of such moneys. A mere negligent act would not be enough under the statute to convict for abstracting. The act would have to be done willfully and intentionally, secretly or dishonestly, and with the knowledge of the person causing the withdrawal of the funds that he was without authority so to do. See Northway, supra; Webster’s New International Dictionary, 2nd Ed., Unabridged. V On retrial, we trust the jury will be instructed with the elements of the offense charged. The attorneys, of course, have a right to submit suggested jury charges to the court. Judges Bryan and Field are of opinion a new trial is required by Part IV of the opinion, believing it to be plain error, especially insofar as the submission to the jury allowed them to convict for Williams’ carelessness. F.R.Cr.P. 52(b). They believe the error mentioned in parts II and III of the opinion is harmless. F.R.Cr.P. 42(a). Judge Widener believes a new trial is required because of parts II and III of the opinion. He believes the error mentioned in Part IV should not be noticed because not objected to in the trial court. F.R.Cr.P. 30. Since we are of opinion that a new trial is required, we do not reach the other assignments of error, including the challenge to the favor of a juror. Reversed and remanded for a new trial. . Williams was indicted as principal; Elliott for aiding. 18 U.S.C. § 656 reads as follows: Theft, embezzlement or misapplication by bank officer or employee, Title 18 U.S.C. § 656 “Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $.100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. As used in this section, the term ‘national bank’ is synonymous with ‘national banking association’; ‘member bank’ means and includes any national bank, state bank, or bank and trust company which has become a member of one of the Federal Reserve banks; and ‘insured bank’ includes any bank, banking association, trust company, savings bank, or other banking institution, the deposits of which are insured by the Federal Deposit Insurance Corporation. June 25, 1948, c. 645, 62 Stat. 729.” 18 U.S.C. § 2 reads as follows: “§ 2. Principals (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States is punishable as a principal.” . See Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1950), cert. den. 340 U.S. 930, 71 S.Ct. 492, 95 L.Ed. 671 (1951) ; Smith v. Illinois, supra; Carpenter v. United States, 264 F.2d 565 (4th Cir. 1959), cert. den. 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959) ; 3A Wig-more on Evidence § 944. . Northway was decided under Rev.Stat. § 5209, a predecessor of § 656.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

In the Matter of the Arbitration of the TYPO-PUBLISHERS OUTSIDE TAPE FUND. Thomas G. S. CHRISTENSEN, Petitioner-Appellant, New York Typographical Union No. 6 et al., Union, Union-Trustees-Appellants, v. NEW YORK TIMES COMPANY et al., Employers, Employers-Trustees-Appellees. Nos. 514, 515, Docket 72-2118, 72-2183. United States Court of Appeals, Second Circuit. Argued March 6, 1973. Decided May 15, 1973. Constantine P. Lambos, New York City (Lorenz, Finn, Giardino & Lambos and Jacob Silverman, New York City, on the brief), for petitioner-appellant. Gerhard P. Van Arkel, Washington, D. C. (Van Arkel & Kaiser, Washington, D. C., Stephen C. Vladeck and Vladeck, Elias, Vladeck & Lewis, New York City, on the brief), for appellants New York Typographical Union No. 6 and Bertram Powers and David Crockett. John J. Stanton, Jr., New York City, for New York Times Co. and John Bogart, employer trustee. Sidney Orenstein, New York City, for New York Post Corporation and Leonard Arnold, employer trustee. Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge. Of the District of Massachusetts, sitting by designation. PER CURIAM: These are consolidated appeals from a judgment of the Southern District, 344 F.Supp. 194 (1972), denying arbitrator Thomas G. S. Christensen’s petition for a declaratory judgment that certain payments from the jointly administered “Typo-Publishers Outside Tape Fund” (the “Fund”) did not violate section 302 of the Labor Management Relations Act of 1947, 29 U.S.C. § 186. In 1970 the trustees representing the New York Typographical Union Local No. 6 (the “Union”) proposed the payment of benefits from the Fund to employees of any employer having a collective bargaining contract with the Union, irrespective of whether the employer had made contributions to the outside tape fund. The trustees representing the New York Times and the New York Post opposed this plan, arguing that under the collective bargaining agreements, the trust agreement, and section 302 of the Labor Management Relations Act only former or present employees of the Times and the Post could receive benefits from the Fund. Under the terms of the trust agreement the dispute was submitted to arbitration before Thomas G. S. Christensen, who determined that the collective bargaining agreements and the trust agreement authorized payments from the Fund to employees of non-contributing employers. The arbitrator, pursuant to the submission, then petitioned the district court for a ruling as to the legality of such payments under section 302(c) (5). From the district court’s denial of the petition the arbitrator and the Union, together with Bertram Powers and David Crockett, the two Union-trustees, have appealed. The factual background of the dispute is fully set out in the opinion below and need not be repeated here. The only question on appeal is the narrow one of whether the district court erred in its determination that section 302(c)(5) of the Labor Management Relations Act of 1947 prohibits the payment of benefits from the Fund to employees of noncontributing employers. We agree with the district court that section 302 does prohibit such payments. Section 302(a), 29 U.S.C. § 186(a) makes it “unlawful for any employer . to pay, ... or agree to pay, . . . any money or other thing of value— (1) to any representative of any of his employees who are employed in an industry affecting commerce; . . ” Section 302(c)(5) excepts from the prohibition of section 302(a) payments by employers to trust funds established for certain specified purposes if the trust is “for the sole and exclusive benefit of the employees of such employer . . ” Appellee newspaper publishers and employer-trustees contend that the clear import of this language is that only employees whose employers contribute to a qualified section 302(c)(5) trust can lawfully receive benefits from the trust. Appellants, citing Bey v. Muldoon, 223 F.Supp. 489 (E.D.Pa.1963), aff’d, 354 F.2d 1005 (3 Cir.), cert. denied, 384 U.S. 987, 86 S.Ct. 1888, 16 L.Ed.2d 1004 (1966), argue that “any employee in the newspaper industry whose employer is a signatory to a collective bargaining agreement with the Union is an employee within the meaning of section 302(c)(5), and eligible to receive benefits under the [plan].” They assert that the purpose of section 302 was not to eliminate the type of payments at issue here, but to prevent employers from tampering with the loyalties of union officials and to assure that the money deducted from an employee’s wages for payment to a union trust fund would not become unrestricted property of the Union, but would be used to benefit the employees whose labor was responsible for the employer contributions. See, e. g., Bey v. Muldoon, supra; I Legislative History of Labor Management Relations Act of 1947, 458; II Legislative History of Labor Management Relations Act of 1947, 1311, 1498. But see Copra v. Sure, 236 F.2d 107, 115 (1 Cir. 1956). While it may be that Congress in enacting section 302 did not intend to prohibit the type of trust fund at issue here, this court is bound, nonetheless, by the express statutory language that only payments by an employer to a “trust fund . . . for the sole and exclusive benefit of the employees of such employer . . . ” are exempt from the general prohibitions of section 302. Where several employers have agreed in negotiations with a union to set up a section 302 trust for the benefit of union members, it is clear beyond cavil that “[o]nly employees and former employees of employers who are lawfully contributing to [the] union . . . trust fund may qualify as beneficiaries.” Moglia v. Geoghegan, 403 F.2d 110, 116 (2 Cir. 1968), cert. denied 394 U.S. 919, 89 S.Ct. 1193, 22 L.Ed.2d 453 (1969). Accord Rittenberry v. Lewis, 238 F.Supp. 506 (E.D.Tenn.1965); Bolgar v. Lewis, 238 F.Supp. 595 (W.D.Pa.1960). Appellants nevertheless urge that the term “employer” in section 302(c)(5) should be taken to refer to all those newspaper publishers having collective bargaining contracts with the Union. Their argument is based in large measure on the decision of Judge Lord in Bey v. Muldoon, supra. Judge Tyler dealt fully with this contention and no purpose would be served in repeating the district court’s analysis here. It suffices to point out that the result in Bey rested on the peculiar nature of the use of longshoremen on the Philadelphia waterfront; the longshoremen worked for the “waterfront” rather than for any particular stevedoring company. It is apparent from the record developed here that, unlike the Philadelphia longshoremen, the vast majority of typographical workers at the Times and the Post are employees of one newspaper employer. Thus Bey is not persuasive authority for the contention of appellants. Affirmed. WYZANSKI, Senior District Judge (dissenting): The majority opinion and the opinion of District Judge Tyler have a strong basis for their conclusions. Literally, the statute is plainly, unambiguously opposed to the trust fund at issue. But it is equally clear that the Congressional purpose was solely to prevent an employer from paying funds into a union welfare fund, or the like. The Congressional reports and the Congressional Record are replete with references to abuses, or at least plans, involving payments to funds which union leaders could manage for a variety of different purposes and not necessarily for the immediate and exclusive use of those with whom employees chose to be in a common fund of mutual support. See, for example, S.Rep. No. 105, on S. 1126, 80 Cong. 1st Sess. (1947); H.R.Rep. No. 245, on H.R. 3020, 80th Cong., 1st Sess. (1947); House Conf. Rep. No. 510 on H.R. 3020 (1947); 93 Cong.Rec. 4157, 4679-4680, 4746-4747, 4875-4884, 5494-5496, 7501 (1947). However, a careful reading of the primary and other sources by counsel and the court has not uncovered any expressions of opinion, hostile or otherwise, by Senators, Congressmen, witnesses, or others with respect to the type of plan here involved. We have no ground to suppose that, in general, Congress has been unsympathetic with pooling of employees’ unemployment, pension, and like funds which treat all employees in an industry, or section thereof, as having such a common interest that they become, by their own free choice, mutual self-insurers. Moreover, such a mutual support system has particular relevance to an industry, 'or section thereof, where the pattern of collective bargaining is as wide as the industry or a geographical or other broadly drawn section and where there is, if not identity of interest, a least a strong common bond against a common danger which may manifest itself almost haphazardly against some but not against others, and without any predictability. Nor is it easy to discern what could be a public objection to allowing employers and employees who on a wholly voluntary basis, as in the case at bar, wished to enter into such a bargain, to execute their purpose. No one is the loser if all want to pool risks under such a self-insurance scheme. Thus the question is whether to disregard the letter of the statute, and to hold it inapplicable because the challenged conduct is not within the reason of the statute. This raises a familiar issue. Theoretically little can be added to the classic authorities on the subject. United States v. Carbone, 327 U.S. 633, 66 S.Ct. 734, 90 L.Ed. 904; see Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226. Lynch v. Overholser, 369 U.S. 705, 710, 82 S.Ct. 1063, 8 L.Ed.2d 211. In my view those authorities point to the desirability in this case of disregarding the letter of the prohibition and allowing the parties to carry out their agreement to which, so far as we are informed, there is no objection founded on declared or undeclared, discoverable or undiscoverable, alleged or implied, public policy. . Brief of appellant Christensen at page 16.

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UNITED STATES of America, Plaintiff-Appellee, v. Larry CARLOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Steven BAKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry CARLOS and Charles Steven Baker, Defendants-Appellants. Nos. 72-2652, 72-2653 and 72-3071. United States Court of Appeals, Ninth Circuit. May 7, 1973. Rehearing Denied June 8, 1973. J. Benedict Zderic (argued), Tacoma, Wash., for appellant Carlos. Ronald J. Meltzer (argued), Seattle, Wash., for appellant Baker. Michael R. Alfieri (argued), Moschet-to & Alfieri, Seattle, Wash., J. Benedict Zderic, Tacoma, Wash., for appellants Baker and Carlos. Irwin Schwartz, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee. Before HUFSTEDLER and CHOY, Circuit Judges, and HARRIS, District Judge. The Honorable George B. Harris, Senior United States District Judge for the Northern District of California, sitting by designation. CHOY, Circuit Judge: This is an appeal from criminal convictions, after a jury trial, for distributing narcotics. Baker and Carlos both contend that they were denied a fair trial because of prejudicial comments made by the district court. We affirm. The charges against Baker and Carlos stemmed from two separate undercover investigations by federal agents. Two agents testified at trial that they purchased heroin and cocaine from Carlos on two occasions. They also testified that, during one of these sales, heroin was delivered to Carlos by Baker. In addition, the evidence showed that a search of Baker’s apartment uncovered narcotics and other paraphernalia, and when Baker was arrested he was caught in the process of manicuring heroin. The only controverted issue at trial related to the identification of Baker in regard to the delivery of heroin to Carlos, Baker’s defense being mistaken identity and alibi. Baker claimed that at the time of the transaction he was vacationing in Hawaii under an assumed name. Baker produced three alibi witnesses who supported his claim, but the witnesses tended to contradict each other and they did not agree on the date he was supposed to have returned from Hawaii. Moreover, the two government agents were positive that Baker had participated in the sale during the time he claimed to be in Hawaii. This apparent contradiction led the trial court to admonish the jury in the instructions that there had been perjury in the testimony presented. The propriety of this comment is the only issue raised on appeal. The entire passage relating to witness credibility was as follows: You, members of the jury, are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each. In determining what credit is to be given any witness you may take into account his ability and opportunity to observe, his memory, his manner and appearance while testifying, any interest, bias or prejudice he may have, the reasonableness of his testimony considered in the light of all the evidence, and any other factors that bear on believability and weight. Members of the jury, I would be remiss in my duty if I did not inform you that I believe there has been substantial perjury in this case. In my long tenure as a judge of this court seldom have I encountered what I believe to be perjury from so many witnesses. For this reason and in the interest of justice I suggest that you consider and weigh the testimony most carefully. In this connection I desire to emphasize, however, as I indicated earlier, that you are the sole judges of the facts. In ascertaining the facts you are the sole judges of the credibility of the witnesses and of what weight is to be given the testimony of each. As the sole and exclusive arbiters of the facts you are at liberty to believe or disbelieve a witness irrespective of any remark the court has made or which you think the court has made during the trial, and irrespective of any opinion you may have as to whether the court believes or disbelieves the witnesses. (emphasis added.) Baker and Carlos object to the portion of the charge italicized above. Although the court did not indicate which witnesses had given the perjured testimony, the appellants claim that it was clear in context that its alibi witnesses were being criticized. “In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.” Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1932). This assistance to the jury may include a general appraisal of the credibility of witnesses, or the singling out of a specific witness. Smith v. United States, 305 F.2d 197, 203-205 (9th Cir. 1962); United States v. Jones, 148 U.S.App.D.C. 201, 459 F.2d 1225, 1227 (1972). But this privilege of the judge to comment on the credibility of witnesses has its inherent limitations. “His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office.” Quercia,, supra 289 U.S. at 470, 53 S.Ct. at 699. The trial judge must carefully explain to the jury that it is their duty to determine the facts and he must not leave the jury with the impression that they are bound by his comments. Normally, if the appropriate cautionary instructions are given it is made clear to the jury that they are the final arbiters of the credibility of witnesses ■and there will be no reversible error. Fletcher v. United States, 313 F.2d 137, 139 (9th Cir.), cert. denied, 374 U.S. 812, 83 S.Ct. 1704, 10 L.Ed.2d 1035 (1963); United States v. Blair, 456 F.2d 514, 519 (3rd Cir. 1972). However, there are some situations where the comments by the court are so prejudicial that they cannot be cured by the appropriate instructions. For example, in Quercia, supra the trial judge told the jury that he noticed that the defendant wiped his hands while he was testifying. The court stated that this was almost always an indication of lying and therefore he believed his testimony was a lie. The Supreme Court considered this comment improper and the error was not cured by the statement of the trial judge that his opinion of the evidence was not binding on the jury. The rationale behind this decision was that the comments were of a sort most likely to remain firmly lodged in the memory of the jury. Thus, comments which leave the jury with the impression that they are not free to perform their traditional fact-finding function are improper even if curative instructions are given. In the present case, the proper cautionary instructions were given. The court repeatedly informed the jury that they were not bound by any of his comments and that they were the sole judges of credibility. As we stated earlier, the presence of these instructions normally precludes a finding of prejudicial error. United States v. Gaines, 450 F.2d 186, 191 (3rd Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972). However, appellants contend that we are presented with a situation, like Quercia, where the comments were so prejudicial that they could not be cured. We disagree. An -examination of the disputed comment, viewed in the light of the complete charge, compels us to conclude that although the comments were unnecessary and inadvisable, they do not fall under the condemnation of Quercia. Further, unlike United States v. Persico, 349 F.2d 6 (2nd Cir. 1965) and United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968) on which appellants rely heavily, the comments here did not preclude dispassionate consideration of the evidence by the jury. Nor did the court preclude the jury from fairly evaluating appellants’ defense. The court’s comment did not expressly single out any particular witness or group of witnesses. It was inevitable that the jury would conclude that the agents or the alibi witnesses were not telling the truth since they directly contradicted each other. We doubt that the judge’s remark had any prejudicial tendency, but even if it did “the warnings here were given carefully and often and were sufficient to overcome the prejudicial tendency . . .” United States v. Carrion, 463 F.2d 704, 709 (9th Cir. 1972). Affirmed. . Three months after judgment, Carlos and Baker moved for a new trial based on newly discovered evidence. This motion was denied and a separate appeal was filed. Appellants now concede that there is no merit to that appeal. We, therefore, affirm the judgment in No. 72-8071 without further comment. . United States v. Dopf, 434 F.2d 205 (5th Cir. 1970), and United States v. Dunmore, 446 F.2d 1214 (8th Cir. 1971), cert. denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972) are other examples of situations where the trial court’s comments have been held to be improper despite the presence of cautionary instructions.. In each of those cases, the comments effectively deprived the jury of its exclusive right to determine credibility because the comments came close to directing a verdict against the defendant, or there was a constant emphatic repetition that there was ample evidence to convict. In the instant case we are not presented with such egregiously prejudicial situations.

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Shelby STEELE, Plaintiff-Appellee, v. TITLE REALTY COMPANY and Frank Sawatzki, Defendants-Appellants. No. 72-1175. United States Court of Appeals, Tenth Circuit. May 16, 1973. William J. Lockhart, Salt Lake City, Utah (Ronald N. Boyce, Salt Lake City, Utah, with him on the brief), for plaintiff-appellee. Richard L. Bird, Jr., of Richards, Bird & Kump, Salt Lake City, Utah, for def endants-appellants. Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges. PICKETT, Circuit Judge. Appellant Sawatzki, a real estate broker doing business in Salt Lake City, Utah, as Title Realty Company, appeals from a judgment awarding appellee Steele a total of $4,450 compensatory and punitive damages, together with attorney fees for violation of the Fair Housing Act, 42 U.S.C. §§ 3604 and 3612 (1970). In addition, the court required Sawatzki to offer the property in question to Steele at a fixed rental and permanently enjoined him from refusing to rent or sell real property on account of a person’s race, and ordered him, for a period of one year, to place in every advertisement or notice offering properties for rent or sale a statement that such property was available to all persons without regard to race. The issues of substance presented here relate to the sufficiency of the evidence to sustain the findings that Sawatzki violated the Fair Housing Act and to sustain the awards for compensatory and punitive damages and attorney fees. Early in 1971 Steele, a black man who lived in St. Louis, Missouri, accepted a teaching position at the University of Utah. In anticipation of his move to Salt Lake City, Steele authorized Lester Standiford of that city to negotiate for suitable housing for Steele and his family upon arrival. Standiford learned that an apartment occupied by Richard Baum would be vacated at about the time Steele would arrive in Salt Lake City. Baum referred Standiford to his landlord, Sawatzki, and also advised Sawatzki that Steele was interested in the property and that Standiford would contact him. Sawatzki learned from Baum that Steele was a Negro. When Standiford advised Sawatzki that Steele desired to rent the property he was told that a rental agreement would not be made with a prospective tenant’s agent but only with a tenant in person, even though Standiford tendered one month’s rent and offered to supply Sawatzki with recommendations from Steele’s personal friends and from his present landlord and employer. In his conversations with Baum and Standiford, Sawatzki explained to them the economic difficulties encountered with other renters if any of the property were rented to a Negro. As a result of Sawatzki’s refusal to! enter into a rental agreement before Steele’s arrival this action was brought. An injunction was obtained preventing Sawatzki from leasing the property until Steele either accepted or rejected a lease within a specified time. Steele arrived in Salt Lake City during the early part of July 1971 and after one inspection declined to rent the property. In a trial on the merits Steele sought monetary and punitive damages together with attorney fees under 42 U.S.C. § 3612(c) (1970). Throughout his testimony Sawatzki maintained that he advised Baum and Standiford that he had no personal prejudice toward black people but reiterated the problems arising with other renters if he permitted any of them to move into the area. The policy of not renting to an agent was not mentioned until after Sawatzki knew that Steele was a Negro. The trial court found: Mr. Sawatzki’s claim of a “policy” of not renting until he has “seen” the tenant is not credible under the circumstances of this case and in light of the clearly discriminatory motives reflected in the testimony of all of the witnesses herein, including that of Mr. Sawatzki. Further, from Mr. Sa-watzki’s own testimony as set forth hereafter, it is clear that this policy was mingled with, and at least in part based upon, racial motives. The finding is not clearly erroneous. Accepting the existence of a policy of not renting to a prospective tenant’s agent, if racial discrimination was a part of the determination not to rent, the statute was violated. Haythe v. Decker Realty Co., 468 F.2d 336 (7th Cir. 1972); Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970); Hall v. Freitas, 343 F.Supp. 1099 (N.D.Cal.1972); Williamson v. Hampton Management Co., 339 F.Supp. 1146 (N.D.Ill. 1972). It is urged that the award of $1,000 compensatory damages was excessive. The $1,000 was composed of $13.-25 in telephone expense, $125 in moving and storage expense, and $861.75 for emotional distress and humiliation. The telephone expense was stipulated. Steele claims that the $125 moving expense to store his belongings in Chicago with his parents was necessary because he did not know he would have a place to live when he got to Salt Lake City. The trial court found that the expense was “necessitated by the unavailability of the property in Salt Lake City at the time he [Steele] vacated his apartment in St. Louis.” Steele testified that he arrived in Salt Lake City around July 1, 1971. According to Sawatzki’s testimony, the property would not have been available to Steele until after he arrived in Salt Lake City and inspected the property. Sawatzki had previously refused to accept a one month advance rental. Under these circumstances the cost of storage was an element of damage. Damages in cases of this kind are not limited to out-of-pocket losses but may include an award for emotional distress and humiliation. Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970); Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970); Rhoads v. Horvat, 270 F.Supp. 307 (D.Colo.1967); Massachusetts Commission Against Discrimination v. Franzaroli, 357 Mass. 112, 256 N.E.2d 311 (1970); cf. Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972), cert. denied 409 U.S. 876, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972). See also Duda, Damages for Mental Suffering in Discrimination Cases, 15 Clev.Mar.L.Rev. 1 (1966); Annot., 40 A.L.R.3d 1290 (1971). Even though the discrimination here was perpetrated in a courteous manner and was not vindictive or abusive, the right to recover for the humiliation and emotional distress suffered exists nevertheless. Temperate conduct may, however, be considered as a mitigating circumstance in determining damages. Browning v. Slenderella Systems of Seattle, 54 Wash.2d 440, 341 P.2d 859 (1959). Sawatzki’s contention that since he dealt only with Steele’s agent he cannot be held liable for emotional distress is without merit. His discriminatory acts were directed against Steele. Steele suffered the consequences and can recover. Sawatzki’s conduct, however, whil’e discriminatory, could not be classed as wanton, reckless or malicious, or with intent to injure Steele whom he did not know. Steele was not a stranger to this situation. He testified that in the past on a number of occasions “in college towns across the country” he and his family had been denied housing facilities. It is understandable that he “was very tired of it” and “upset” over such' treatment and was determined to do something about it. Although it is difficult to measure what amount is sufficient “to ease one’s feelings” for injuries of this nature, the $1,000 award is not unreasonable. Section 3612(c) of the Fair Housing Act of 1968 provides that for a voliation the court in appropriate cases may grant injunctive relief, “actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.” The statutory provisions relating to punitive damages do not create a new right and are designed to limit the amount of recovery to $1,000 where punitive damages are found to be appropriate under the general rules regarding the award thereof. We are convinced that Congress did not intend punitive damages to be allowed for every violation of the statute. Sawatzki did not own the property in question, but was the sole managing agent for the owner. His duty to his principal was to manage the property for the best interest of that principal. The record is replete with evidence that Sawatzki had no personal bias or prejudice toward Steele or anyone else of the black race, and regretted that all white people did not feel the same way. His reluctance to rent to black people, while not a legal excuse, was the result of objections by other renters of his principal’s property. There was no evidence that the refusal to rent to Steele was motivated by ill will, malice, or a desire to injure him. The evidence was to the contrary. As indicated by the court in its findings, racial discrimination was only one of the reasons for the refusal to rent. On the record as a whole we conclude that the allowance of punitive damages is not appropriate. See Newman v. Nelson, 350 F.2d 602 (10th Cir. 1965); Annot., 14 A.L.R.Fed. 608 ¶ 9 (1973). The court allowed a total of $2,450 attorney fees for the preparation and presentation of the case in the trial court. The statute permits the recovery of attorney fees when the plaintiff is “not financially able” to assume such fees. The test is not limited to present ability of the plaintiff to pay but whether he is financially able to assume them. The evidence of Steele’s ability to assume his attorney fees is scanty, but it is sufficient to support the court’s finding that such fees should be allowed. The allowance of attorney’s fees to the successful civil rights plaintiff who is unable to assume them is not to penalize the defendants in such actions, but one of the purposes is “to encourage individuals injured by racial discrimination to seek judicial relief. . . . ” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). After a review of the entire record, however, we are convinced that the allowance of $2,450 for services in the trial court is excessive. This is a simple statutory action requiring a minimum of time. The evidence to a large extent was undisputed and was presented at the trial of the case on its merits in about two hours. The allowance of attorney fees is generally within the sound discretion of the trial court. The amount of the allowance is to be determined by the facts in each case. Featherstone v. Barash, 382 F.2d 641 (10th Cir. 1967); Simler v. Conner, 352 F.2d 138 (10th Cir. 1963); United States v. Anglin & Stevenson, 145 F.2d 622 (10th Cir. 1944), cert. denied, 324 U.S. 844, 65 S.Ct. 678, 89 L.Ed. 1405 (1945). In an appropriate case an appellate court may,' in the interest of justice, exercise its independent judgment in the determination of reasonable attorney fees. Meeks v. State Farm Mutual Insurance Co., 460 F.2d 776 (5th Cir. 1972); B-M-G Investment Co. v. Continental/Moss Gordin, Inc., 437 F.2d 892 (5th Cir.), cert. denied, 402 U.S. 989, 91 S.Ct. 1668, 29 L.Ed.2d 154 (1971). The attorney fees to be allowed are $1,500 for services in the trial court and $500 on appeal. The court permanently enjoined Sawatzki from refusing to rent or sell available property because of a person’s race, and further required that any advertisement made within one year include a notice that such properties were available to all persons without regard to race. The record is devoid of any evidence of the extent of Sawatzki’s operations or that he advertised in any particular manner, or that he had ever before refused to rent to a person because of his race. He complied with the court’s order by offering the property to Steele. This is not a class action and the injunctive relief is unnecessary and inappropriate. It is urged that the court erred in permitting the reception in evidence through the cross examination of Sawatzki of testimony given in a prior injunction proceeding by an absent witness. The cross examination complained of referred to the former testimony of Sawatzki concerning a conversation he had with the absent witness about Sawatzki’s attitude toward renting to black people. It was proper cross examination. The court’s findings are replete with reproduction of testimony, some of which was produced at the preliminary hearings but not at the trial on the merits. If there was any error in including reference to this testimony, it was inconsequential and did not result in prejudice. We find no merit in the contention that the conduct of the trial judge displayed such bias and prejudice as to deny fair trial. The injunction is dissolved and the judgment modified to disallow punitive damages, and to allow total attorney fees in the sum of $2,000 including services on appeal. As modified, the judgment is affirmed.

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UNITED STATES of America, Appellant, v. Joseph A. PIERRO, Appellee. No. 917, Docket 73-1494. United States Court of Appeals, Second Circuit. Argued April 27, 1973. Decided May 9, 1973. L. Kevin Sheridan, Stephen M. Behar, Asst. U. S. Attys., Brooklyn, New York (Robert' A. Morse, U. S. Atty., for the E.D.N.Y., on the brief), for appellant. Jerome Lewis, New York City, for ap-pellee. Before BREITENSTEIN, KAUFMAN and MANSFIELD, Circuit Judges. United States Court of Appeals, Tenth Circuit, sitting by designation. IRVING R. KAUFMAN, Circuit Judge: We are called upon to interpret a portion of Rule 4 of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (Rules), now superseded by the Circuit’s Plan for Prompt Disposition of Criminal Cases under Rule 50 (b), F.R.Crim.P., which took effect on April 1, 1973. Rule 4 states: In all [criminal] cases the government must be ready for trial within six months from the date of arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed. Judge Costantino, in the district court, held that on the facts of this case the Government had failed to comply with the mandate of Rule 4. Accordingly, upon application of the defendant, Joseph Pierro, he dismissed the indictment. For the reasons given below, we reverse. The facts relevant to this appeal are quite simple. On December 29, 1971, Pierro was arrested by Special Agents of the Federal Bureau of Investigation and charged with possession of goods stolen from interstate commerce. Pierro was released on bond and waived a preliminary hearing. Subsequently, on May 9, 1972 he was formally indicted for knowing possession of 171 cases of cigarettes stolen from a trailer moving in interstate commerce, in violation of 18 U.S.C. § 659. Pierro was arraigned on May 23, 1972, before Judge Costantino, and pleaded not guilty. According to Stephen M. Behar, the Assistant United States Attorney in charge of the prosecution, a notice of readiness for trial was prepared by the Assistant and his secretary on the same date, May 23, 1972. Mr. Behar also advised the district judge that one copy remained in the Government’s case file, a second copy was filed with the Administrative office of the United States Attorney for the Eastern District of New York and the original, (which subsequently was found in Judge Costantino’s chambers), bore an affidavit stating that a copy of the notice had been mailed to Pierro’s counsel, Jerome Lewis, Esq. Although the Government’s records indicate that a notice of readiness had been filed on May 23, 1972 — approximately five months subsequent to Pier-ro’s arrest and, thus, within the six-month period provided by Rule 4 — the prosecution remained in limbo for some ten months. The parties did not appear in court again until March 16, 1973, when Judge Costantino, on his own initiative and after being informed that the matter had been pending in excess of six months, placed the case on the calendar. On that day, it was learned • during discussion in open court that neither Pierro nor his counsel had received a copy of the Government’s notice of readiness, and that apparently no such notice had been filed with the Clerk’s office for the United States District Court for the Eastern District. Accordingly, Pierro’s counsel moved for dismissal of the indictment for failure of the Government to file a notice of readiness. On March 23, 1973, when the parties reappeared before Judge Costantino, the judge advised Mr. Lewis and Mr. Behar that a search of chambers had been conducted and the original notice of readiness, dated May 23, 1972, and an attached affidavit of mailing dated the same day, had been found in his files. The docket sheet of the Court, however, did not indicate that a notice of readiness had been filed in the Clerk’s office and Mr. Lewis asserted under oath that he had not received a copy of the notice of readiness. In its findings of fact, the court concluded that neither Pierro nor his counsel had been informed of the Government’s readiness for trial. Moreover, although Judge Costantino noted that the original notice of readiness, dated May 23, 1972, had been found in his files (with no determination as to how it got there), he decided that the notice had never been filed with the court clerk. The court also observed that it had not seen a copy of the monthly reports filed by the United States Attorney with the Chief Judge listing cases pending in excess of six months from the date of arrest. Since the delay between date of arrest and “receipt by the defendant of notice that the government was ready for trial was approximately 15 months,” and since the delay was not excused by any “exceptional circumstances,” see Rule 5(h), Judge Costantino dismissed the indictment under Rule 4. ******This appeal followed. The Government advances a two-pronged argument. It is first suggested that nothing in Rule 4, or in any other provision of the Rules Regarding Prompt Disposition of Criminal Cases, explicitly requires the United States Attorney to indicate its readiness for trial. All that Rule 4 compels, we are told, is that “[i]n all cases the government must be ready for trial within six months. . ” (emphasis supplied). Although the Government’s assertion as to the literal language of Rule 4 is true enough, we reject the invitation to adopt its wooden construction of the Rules. It would be inconsistent with the intent of the Circuit Council which drafted the Rules, and with sound public policy, to free the Government from the responsibility of communicating its readiness for trial to the court. The purpose of the Rules, as announced in the Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, is to protect “the interest of the public and the rights of defendants . . . , through a firm control of criminal prosecutions by the district courts. . . . ” (emphasis supplied). As the Government notes in its brief, under the Individual Assignment and Calendar Rules of the Eastern District, it is the responsibility of the district court to manage the court’s calendar. If the judge is to exercise effective control of his cases, he must be informed of the Government’s readiness to proceed. The fact that the Government knows it is ready for trial will be of little significance to the court if it is not given that information. Rule 4 intimates as much in providing that “upon application of the defendant or upon motion of the district court, the charge shall be dismissed,” if the Government is not ready for trial (emphasis supplied). A judge will best be able to exercise his authority under the Rule if the Government bears the burden of informing the judge of its state of readiness in the pending cases. If neither defendant nor the court were so informed, it is likely that a motion to dismiss under Rule 4 would be made in each criminal case as soon as the six-month period had passed. And, in each case the court would be required to hold an evidentiary hearing to determine, retroactively, whether the Government was ready for trial within six months. We may state with confidence that a desire for such a wasteful procedure could not possibly have motivated the drafters of the Prompt Disposition Rules when a simpler and more efficient device was readily available. The United States Attorney’s Office for the Eastern District has sensibly adopted the practice of issuing a written notice of readiness in virtually all cases and we have been assured that this practice will be continued in the future. We conclude that under Rule 4 the Government must communicate its readiness for trial to the court in some fashion within the six-month period, as extended pursuant to Rule 5. The better practice, in those districts with heavy calendars, is to file a written notice with the clerk of the court for the judge’s attention, and to serve a copy on the defendant. The Government also argues that its conduct in this case is consistent with a requirement that it communicate its readiness within the six-month period. We agree. The Second Circuit Rules Regarding Prompt Disposition of Criminal Cases were not intended to straightjacket the administration of criminal justice in the federal courts, nor were they designed to place obstacles in the path of legitimate law enforcement efforts and thus thwart the compelling public interest in criminal prosecutions. It was never intended that technicalities would carry the day. Some flexibility may be required in individual cases, particularly when the Government demonstrates that its normal practice comports with the letter and spirit of the Rules, that it proceeded in good faith in the case under consideration and that the defendant has suffered no prejudice as a result of his failure to be informed of the Government’s readiness for trial. Pierro’s counsel candidly conceded that his client was not prejudiced and we see no purpose to be served by dismissing this indictment. The critical factor here is the discovery of the Government’s notice of readiness in Judge Costantino’s files. Although clearly the better practice is for the Government to file its notice with the court clerk, the purpose of the notice of readiness, as we have already intimated, is to inform the court that the case is ready for trial. That purpose was served in this case. Although Judge Costantino does not indicate when the notice of readiness was delivered to his chambers, we conclude that the only reasonable inference to be drawn from the concededly extraordinary circumstances here involved is that the notice was received on or about May 23, 1972, the date which appears on the original notice of readiness and on the affidavit of service. Thus the Government had every reason to believe that it had discharged its obligation — -under Rule 4 — albeit not in the best manner — to communicate its readiness to the court. Although we conclude that the Government’s failure to inform the defendant of its readiness for trial does not justify dismissal of the charges against him, nothing we say today remotely implies that the Government should alter its policy of providing such notice to defendants in all cases. Nor do we wish to suggest our approval of the procedure followed here. We have shown in the past that where the overriding interest in prompt disposition of criminal cases is threatened, the Court will not hesitate to impose the sanction of dismissal with prejudice, see Hilbert v. Dooling, 476 F.2d 355 (2d Cir. March 12, 1973). We are of the view, however, that the Rules do not warrant such a result under the circumstances presented here. Accordingly, the order of the district court is vacated and the case is remanded with instructions that the indictment be reinstated. . Rule 4 of the Circuit’s Rule 50(b) Plan provides that even when the court does not find a basis for tolling any portion of the six-month period (under Rule 5) the indictment may be finally dismissed only if the court does not find “that the government’s neglect is excusable.” Upon such a finding “the dismissal shall not be effective if the government is ready to proceed to trial within ten days.” Under the old Rules, Judge Costantino was not required to determine whether the facts presented an instance of “excusable neglect,” but the new Rules would compel such an inquiry. . The filing of a notice of readiness by the Government within the six-month period does not, in all cases, foreclose defendants from asserting that the Government was not, in fact, ready within six months, see e. g., United States v. Pollack, 474 F.2d 828 (2d Cir. February 27, 1973). But the fact that defendants may, where appropriate, attempt to show that the Government’s notice of readiness was “meaningless”, United States v. Pollack, supra, slip opinion, at 2045, does not suggest that the court should be required to determine whether, in fact, the Government was ready in every case. . The commendable practice of filing a written notice of readiness is followed as well by the United States Attorneys’ Offices for the Southern and Western Districts of New York. The Government’s practice in the Northern District of New York, and in the Districts of Connecticut and Vermont, where the caseload is relatively less burdensome, is, for the most part, to give oral notice of readiness to the court and to the defendant at the time of arraignment. In any event, all United States Attorneys’ Offices in the Circuit indicate that their policy is to communicate readiness to the court in some fashion, within the six-month period. Nothing less is permitted by the Rules. . Since a defendant’s interests are guarded by counsel we believe that on those rare occasions when the Government fails to inform a defendant of its readiness counsel would, upon expiration of the six-month period and in the interest of his client, inquire whether indeed the Government has filed a notice of readiness with the court, if only to prepare the ground for a motion to dismiss under Rule 4. The court, concerned as it is with all cases, cannot be expected to make similar inquiries in particular cases in which the Government has failed to communicate its readiness. Thus, although we have indicated that the better practice for the Government is to inform both the court and the defendant of its readiness, an inference of non-readiness arises only if the Government fails to inform the court of its readiness within six months.

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2024-08-24T03:29:51.129235

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Raymond R. STONE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, etc., Respondent-Appellant. Eugene P. HUFFMAN, Petitioner-Appellee, v. James F. TOMPKINS, Respondent-Appellant. No. 72-3738 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 19, 1973. Robert L. Shevin, Atty. Gen., William E. Whitlock, III, Andrew W. Lindsey, Asst. Attys. Gen., William E. Whitlock, III, Tallahassee, Fla., for respondents-appellants. Lynn E. Wagner, Director, Prisoner Assistance Project, Legal Aid & Defender Clinic, University of Fla., College of Law, Gainesville, Fla., for petitioners-appellees. 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 an appeal by the State of Florida from the granting of federal habeas relief to two men who had been convicted of violating Florida’s “felony sodomy statute,” Fla.Stat.Ann. § 800.01. Subsequent to the trials at which petitioners were convicted, the Supreme Court of Florida held Section 800.01 to be “void on its face as unconstitutional for vagueness and uncertainty in its language.” The Florida Supreme Court went on in that case, however, to say that its decision was “not retroactive, but prospective only,” and the State now insists that that determination is binding upon the federal courts. We cannot agree. It is always the duty of a federal court to grant habeas relief whenever it independently determines that a person is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.A. § 2254. We hold that relief under the Great Writ was properly granted when the United States District Court independently and correctly found that the statute under which petitioners were convicted and imprisoned was void. I. HISTORY OF THE INSTANT CASES Petitioner Stone was tried and convicted in 1970 on two counts of violating Section 800.01, Fla.Stat.Ann., and was sentenced to serve consecutive five-year terms of imprisonment. His conviction was affirmed on direct appeal, Stone v. State, 245 So.2d 91 (Fla.Dist.Ct.App. 1970), and the state court’s denial of his subsequent motion for post-conviction relief was also affirmed. Stone v. State, 264 So.2d 81 (Fla.Dist.Ct.App.1972), cert. denied, 267 So.2d 329 (Fla.Sup.Ct. 1972). Petitioner Huffman was tried and convicted in 1968 on one count of violating Section 800.01 and was sentenced to serve from six months to ten years imprisonment. Huffman did not appeal from his conviction, but it is not argued that he has failed to exhaust any available state remedies. The statute under which petitioners were convicted reads as follows: “800.01 Crime against nature; punishment “Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years.” Fla.Stat.Ann. § 800.01. As recently as 1966, the Florida Supreme Court was continuing to adhere to its long line of cases upholding the constitutionality of this statute in the face of repeated challenges urging that it was impermissibly vague and failed to afford persons in Florida notice of precisely what acts constituted violations of the statute. See, e. g., Delaney v. State, 190 So.2d 578 (Fla.Sup.Ct.1966); Lason v. State, 152 Fla. 440, 12 So.2d 305 (Fla.Sup.Ct. 1943). Thus, at the time petitioners were convicted, the State of Florida considered its statute to be free of constitutional infirmity. After the dates on which petitioners were convicted and before petitioners filed these consolidated actions, the Florida Supreme Court rendered its decision in Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971), declaring the statute void for vagueness. The Florida Supreme Court explicitly limited its decision to prospective application, and as a result, the State has subsequently denied one of the instant petitioners any relief under Franklin. Petitioners thereafter filed the instant habeas actions in the United States District Court. Although the wording of their pro se petitions was somewhat imprecise, petitioners were clearly seeking relief on allegations that their confinement was in contravention of the United States Constitution. *****The United States District Judge agreed that the statute was too vague in its wording to withstand constitutional scrutiny: “On the merits, it is clear that § 800.-01, which makes it a felony to commit ‘the abominable and detestable crime against nature,’ suffers from the constitutional defect of vagueness in violation of due process. Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970); Franklin v. State, supra.’’ Habeas relief was accordingly granted by the court below, and the question now before us is whether that action was proper. II. “SODOMY STATUTES” UNDER THE CONSTITUTION Statutes prohibiting consensual sodomy have increasingly come under constitutional attack in recent years. The challenges that have been brought fall into a wide variety of imaginative theories that can be categorized in two general groups. The first grouping is premised on the theory that the state is without power to regulate consensual sodomy and other sexual activities between or among consenting adults. Specific arguments that have been advanced include allegations that such statutes unconstitutionally (1) invade a penumbral right to privacy, (2) establish a religion by promoting nonsecular religious morals, (3) impose cruel and unusual punishment by penalizing a condition (homosexuality), (4) impinge First Amendment expressional freedoms, and (5) violate due process standards by criminalizing conduct absent either a “rational basis” or a “compelling state interest.” The second general category of attacks against sodomy statutes consists of arguments that admit that the state may permissibly regulate some instances of consensual sodomy but argue that the particular statute involved is constitutionally defective. Perhaps the most common example of this argument is the theory that marital privacy is protected by the Constitution and that therefore any statute that could be or is used to prosecute married persons is unconstitutionally overbroad. Another example is the attack based on the vagueness with which the acts sought to be proscribed are often defined. The term “sodomy” originated in the Bible and appears in the common law, but the various states have, perhaps for euphemistic reasons, selected terms even more arcane than “sodomy,” such as “buggery” or “the crime against nature.” Thus, when the common citizen is faced with prosecution under a statute employing such indefinite phraseology, he may argue that due process is violated inasmuch as the statute is so vague and lacking in ascertainable standards of guilty conduct as to be incapable of giving a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. See Palmer v. City of Euclid, 1971, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98; United States v. Harriss, 1954, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The application of these arguments and theories to specific factual situations is often difficult and confusing, involving considerable overlapping and duplication. We think it clear beyond peradventure, however, that the instant appeal presents only an attack on the vagueness found by the District Court to be present in Section 800.01. III. THE FEDERAL DISTRICT COURT’S DETERMINATION THAT SECTION 800.01 IS UNCONSTITUTIONALLY VAGUE Almost fifty years have passed since the Supreme Court of the United States penned the classic statement regarding the level of linguistical vagueness that a criminal statute must exceed if it is to satisfy due process standards: “[That the words of a criminal statute] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328. In subsequent years, the Supreme Court has many times had occasion to restate the rule, as when it said: “It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, supra, 306 U.S. at 453, 59 S.Ct. at 619, 83 L.Ed. at 890 (citations omitted). See also Palmer v. City of Euclid, supra; United States v. Harriss, supra. The standard by which the Constitution requires criminal statutes to be judged is clear. Here, the United States District Judge considered the language of section 800.01 and found it to be fatally vague. In making this determination, Judge McRae’s independent federal finding that the statute fails to advise those who may be convicted under it of precisely what behavior is proscribed was neither new or unsupported. In fact, the Supreme Court of Florida had previously found that this precise statute’s terminology is impermissibly indefinite. In a thoughtful and well-reasoned opinion, the Florida high court stated as follows: * “We have over a long period of time upheld the statute despite earlier constitutional challenges. We are persuaded that these holdings and this statute require our reconsideration. One reason which makes this apparent is the transition of language over the span of the past 100 years of this law’s existence. The change and upheaval of modern times are of drastic proportions. People’s understandings of subjects, expressions and experiences are different than they were even a decade ago. The fact of these changes in the land must be taken into account and appraised. Their effect and the reasonable reaction and understanding of people today relate to statutory language. “The blindfold upon our Lady of Justice is symbolic of impartiality, as being blind to all outside influences which would divert from the material facts and law applicable to the case in which justice is being sought upon its merits. Her blindfold in no wise suggests that justice should be blind to the facts of life and of the times in which it functions; for the law, to be vibrant, must be a living thing, responsive to the society which it serves, and to which that society looks as the last true depository of truth and jus-ticej “A further reason dictating our reexamination here is the expansion of constitutional rulings on the invasion of private rights by state intrusion which must be taken into account in the consideration of this statute’s continuing validity. The language in this statute could entrap unsuspecting citizens and subject them to.20-year sentences for which the statute provides. Such a sentence is equal to that for manslaughter and would no doubt be a shocking revelation to persons who do not have an understanding of the meaning of the statute.” Franklin v. State, 257 So.2d 21, 23 (Fla.Sup.Ct.1971) (citations omitted). As did the District Court, we agree with the Florida Supreme Court that the words “abominable and detestable crime against nature” are” fatally vague. Convictions obtained under this statute, rendered void by its vagueness, are repugnant to the Constitution and cannot stand. We hold that the United States District Court properly reached an independent conclusion that the language of this particular statute is fatally vague and that imprisonment pursuant to a conviction under Section 800.-01 contravenes the Constitution’s guarantee of due process. IV. INDEPENDENCE OF THE FEDERAL HABEAS POWER Although this appeal is disposed of and affirmed by what we have thusfar stated, the vigor with which the briefs filed on behalf of the State of Florida argue certain other issues said to be present in this appeal justifies a few additional words. We have carefully considered the three remaining arguments that the State weaves throughout its briefs, and we conclude that each is without legal merit. The essential difficulty with these issues is that each misconceives the precise nature of the trial court’s holding. First, the State argues that it is improper for a federal court to “apply” that part of the Franklin decision that holds Section 800.01 unconstitutional while “ignoring” that portion of the Florida opinion that states the holding is prospective only. We do not find that this is what the federal habeas court actually did; rather, we view the action below as being an independent federal determination that Section 800.01 is void for vagueness. The federal judge was guided and buoyed in his resolution of this question by the sagacious words of the Florida Supreme Court, but the decision was nonetheless a federal judge’s independent determination of a question under the federal Constitution. Second, the State presents the unusual argument that because the Florida Supreme Court has already “voided” the statute, “there was nothing for the District Court to hold unconstitutional . an unconstitutional statute in a criminal area is to be considered no statute at all.” This argument misconceives the nature of a petition for a writ of habeas corpus. Petitioners were not asking for a “second” declaratory judgment that Section 800.01 was fatally vague — they sought release from confinement in prison, a confinement that rested solely on violations of what the State says is “no statute at all.” The District Court did not order relief because petitioners were held under a statute that was voided by the Florida courts; rather, the court below ordered petitioners released because they were being held in physical custody pursuant to convictions of violating a statute that the federal court found to be repugnant to the Fourteenth Amendment. Third, the State argues that the federal courts are “bound” by state court decisions regarding the retroactivity of state court holdings. We find that none of the cases cited by the State on this issue are relevant to the case before us. The cases sought to be relied upon involve either questions of non-constitutional dimension or instances where the relief sought is retrial under the new decisional pronouncement. Here, however, petitioners assert a constitutional right to be totally free from prosecution under a void criminal statute. The usual considerations present in retroactivity cases, such as the degree the state will be burdened by a requirement that it re-conduct a host of trials, are simply not present. Under our decision the State of Florida is not prevented from re-enacting a “sodomy statute” that meets the Constitution’s demand for terminological specificity — but Section 800.01 being void, the State may not retry petitioners. Indeed, the instant ease is little more than a situation where persons are currently confined pursuant to convictions obtained under a statute that has been determined by the federal court to have been void at the time petitioners performed the acts said to have violated it. Cast in those terms, there can be little question that relief was surely appropriate. Finally, underlying the State’s position in this appeal is the implicit argument that although the federal court could grant habeas relief upon finding that the statute offends the Constitution if the Florida courts had found no constitutional infirmity in the statute, the federal court is somehow divested of its habeas power by the State court’s decision that the statute is unconstitutional. To support this implication, the State makes repeated reference to the Franklin case being nothing but a “matter of procedure.” Such an argument cannot prevail: “[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal ha-beas statute.” Fay v. Noia, 1963, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837, 845. Fay v. Noia reached the Supreme Court in a different posture than that in which the instant appeal comes before us, but Fay v. Noia speaks so thoroughly to the independence of the federal habeas power that we are much guided by it. The Supreme Court has removed from the jurisprudence any notion that a state court’s determination of federal constitutional rights must be given binding weight. Florida thus cannot argue that its determination regarding retroactivity of the Franklin holding ousts federal habeas jurisdiction. “The jurisdictional prerequisite is . detention simpliciter.” Fay v. Noia, swpra, 372 U.S. at 430, 83 S.Ct. at 844, 9 L.Ed.2d at 864. The Great Writ is one of the most precious creations of our Anglo-American heritage. As guardians of the rights that the Constitution secures to every person, regardless of his station in life, we must be ever vigilant that the availability of the Writ is never diminished. The propriety of its use in the' instant case is indisputable: “[Behind the seemingly extravagant expressions regarding the Great Writ] may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth • century, but also in America from our very beginnings, and today. Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office.” Fay v. Noia, 372 U.S. at 401-402, 83 S.Ct. at 829, 9 L.Ed.2d at 846-847. With all due deference to the sovereignty of states, the power is not given unto any state to suspend, limit, or condition with prospectivity a constitutional right such as that before us. As was said long ago, it is a federal Constitution we are expounding. See McCulloch v. Maryland, 1819, 17 U.S. [4 Wheat.] 316, 407, 4 L.Ed. 579, 602. Florida cannot veto, nullify, or suspend a right that the Constitution grants to all persons, and the revered Writ is ever at the ready to answer the distress calls of its wards. Affirmed. RONEY, Circuit Judge, (specially concurring) : I concur in the disposition of this case on our Summary Calendar only because the Supreme Court of Florida has held that the statute under which the defendants were convicted is constitutionally void on Us face. The statute, § 800.01, is void on its face as unconstitutional for vagueness and uncertainty in its language, violating constitutional due process to the defendants. Franklin v. State, 257 So.2d 21, 24 (Fla.1971). The State has not argued in its brief that the statute can withstand the due process requirements of the United States Constitution. Nor, as pointed out by Judge Goldberg, has the State cited any authority which could support a denial of habeas corpus relief by the District Court to defendants who have been convicted under a statute which has been determined to be too vague and uncertain on its face to charge any crime. . Franklin v. State, 257 So.2d 21, 24 (Fla. Sup.Ct.1971). . M. . Apparently acting in the light of Florida’s refusal to apply Franklin v. State, supra note 1, the case finding § 800.01 void, retroactively, see Stone v. State, 264 So.2d 81 (Fla.Dist.Ct.App.1972), the United States District Court specifically found that both Huffman and Stone have exhausted all available state remedies. . See note 3 supra. . Petitioner Stone alleged, inter alia: “Florida Statutes, chapter 800.01 et seq., applied or on its face is unconstitutional because of being too overly vague, indefinite, indistinct, etc., as to not apprise one of the nature and cause of accusation as well as ‘fails to give a person of ordinary intelligence [notice] that his contemplated conduct is forbidden by the statute,’ United States v. Harriss, 347 U.S. 612, 617 [, 74 S.Ct. 808, 98 L.Ed. 989] (1942) (sic, 1954]; Lanzetta v. New Jersey, 306 U.S. 451, 453 [, 59 S.Ct. 618, 83 L.Ed. 888] (1939), constituting a violation of due process under Fourteenth Amendment. Florida Supreme Court voided the statute but refused to hold it retroactive. See Franklin v. State . But in Ex parte Siebold, 100 U.S. 371, 376-377 [25 L.Ed. 717,] U. S. Supreme Court held: ‘An unconstitutional law is void, and is as no law. An offense created by it is not a crime.’ There is no legal cause for petitioner’s imprisonment under this void law.” Petitioner Huffman alleged, inter alia: “Florida Statute, chapter 800.01, is unconstitutional for vagueness and over-breadth inasmuch as it fails to inform the average person of common intelligence as to what is prohibited so that one need not speculate as to the statutory meaning. See Franklin v. State, 257 So.2d 21 (Fla.1971).” . See generally, Note, 49 Texas L.Rev. 400 (1971). . E. g., Buchanan v. Batchelor, N.D.Tex. 1970, 308 F.Supp. 729, vacated sub nom. Wade v. Buchanan, 401 U.S. 989, 91 S.Ct. 1221, 28 L.Ed.2d 526, noted in 49 Texas L.Rev. 400 (1971) ; Cotner v. Henry, 7 Cir. 1968, 394 F.2d 873 (dictum), cert. denied, 393 U.S. 847, 89 S.Ct. 132, 21 L.Ed.2d 118; Towler v. Peyton, W.D.Va.1969, 303 F.Supp. 581 (right to privacy issue not reached because conviction was for forceful sodomy) . . Note, 49 Texas L.Rev. 400, 405 (1971). . Perkins v. North Carolina, W.D.N.C. 1964, 234 F.Supp. 333, 336-337 (dictum). . Raphael v. Hogan, S.D.N.Y.1969, 305 F.Supp. 749 (on-stage acts of sodomy during a performance of the play “Che!”). . This argument was advanced in Buchanan v. Batchelor, supra note 7, and Dawson v. Vance, S.D.Tex.1971, 329 F.Supp. 1320. . See, e. g., Comment, The Bedroom Should Not Be Within the Province of the Law, 4 Cal.W.L.Rev. 115 (1968). . The specific holding of the lower court in Buchanan v. Batchelor, supra note 7, was that the Texas statute prohibiting sodomy is unconstitutionally overbroad in proscribing private, consensual acts of married couples. The prosecutions in both Cotner v. Henry, supra note 7, and Towler v. Peyton, supra note 7, involved marital sodomy. . E. g., Genesis 13:13; id. 18:20. See also Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”). . E. g., Regina v. Jacobs, R. & R. C. C. 331 (1817). Por a concise history of early British law regarding sodomy see Comment, supra note 12, at 115-16. . The terms employed by the various states are compiled at Comment, supra note 12, at 116. . The State does not dispute that more precise and understandable words are available. See, e. g., Note, supra note 8, at 400 n. 10. See also Vernon’s Tex. Penal Code Ann. art. 524 (1952). . E. g., Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971). . Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Great Northern Ry. v. Sunburst Oil & Refining Co., 1932, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360; Smith v. Maryland, 4 Cir. 1966, 362 F.2d 763; Redd v. Decker, 5 Cir. 1971, 447 F.2d 1346; Smith v. Brough, D.Md.1965, 248 F.Supp. 435. . Great Northern Ry. v. Sunburst Oil & Refining Co., supra note 19 (a state’s non-constitutional decisions may constitutionally be denied retroactive application) ; Redd v. Decker, supra note 19 (non-constitutional evidentiary decisions may be denied retroactive application). . Linkletter v. Walker, supra note 19 (one species of the exclusionary rule may be denied retroactive application) ; Smith v. Maryland, supra note 19 (requirement that non-believers not be excluded from jury service may be denied retroactive application) ; Smith v. Brough, supra note 19 (Smith v. Maryland in District Court). . See generally Vacarro v. United States, 5 Cir. 1972, 461 F.2d 626 (1972), where Chief Judge Brown wrote a scholarly and probing opinion analyzing the state of the law regarding retroactivity. Surveying the entire body of the relevant law, particularly as developed in the Supreme Court, Chief Judge Brown concluded : “We distill from this whole body of cases the Court’s value judgment that people are not to be punished for the same offense twice, are not to be punished at all for actions which are constitutionally immune from punishment, and are not to be punished by procedures which present ‘a serious risk that the issue of guilt or innocence may not have been reliably determined,’ or which produce a ‘clear danger of convicting the innocent.’ Practices, procedures or statutes which present the probability or risk of such consequences must be eradicated and the surest way is to prescribe retroactivity.” 461 F.2d at 633 (emphasis added, footnotes omitted). . Fay v. Noia, supra, at §§ II, III.

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2024-08-24T03:29:51.129235

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Dr. Clayton H. SMITH and Doris Jean Smith, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 72-3519 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 2, 1973. Dougal C. Pope, Houston, Tex., for plaintiff s-appellants. Michael D. Cropper, U. S. Dept, of Justice, Tex. Div., Dallas, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-wacks, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Shreveport, La., for defendant-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. RONEY, Circuit Judge: In this taxpayer refund suit, plaintiffs’ complaint was dismissed by the District Court because it was not filed within the statutory period of limitations governing' such suits. On appeal, taxpayers contend that the notices of disallowance were insufficient to start the running of the period of limitations. We disagree and affirm. Taxpayers, husband and wife, timely filed joint federal income tax returns for the years 1948 through 1954 and for 1956. On November 23, 1965, following an audit of those returns, the Commissioner of Internal Revenue and taxpayers agreed, on a Treasury Form 870-AD, to an assessment and collection of deficiencies and penalties totaling $30,825.52. The taxpayers also agreed not to claim a refund for the years in question. This settlement was agreed to by the Commissioner on November 23, 1965, and the agreed amounts were paid. Almost two years later, on November 13, 1967, taxpayers filed with the District Director of Internal Revenue timely claims for refunds totaling $30,825.52, plus interest. On March 18, 1968, notices of disallowance of the refund claims were sent to taxpayers by certified mail and were received by them. On April 10, 1970, two years and twenty-three days after the mailing of the notices, taxpayers filed their complaint in the District Court seeking a refund of the deficiencies and penalties collected by the Commissioner. The District Court dismissed the complaint for lack of jurisdiction, finding that taxpayers had failed to file suit within two years from the date of the mailing of the notice of disallowance, as required by the Internal Revenue Code. 26 U.S.C.A. § 6532(a)(1). From that ruling and dismissal, taxpayers appeal. Under Section 6532(a) (1), No suit or proceeding . . . for the recovery of any internal revenue tax, penalty, or other sum shall be begun . . . after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary or his delegate to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates. Taxpayers concede that they received the notices of disallowance, but they argue that these notices were ineffective and incapable of beginning the running of the two-year period of limitations because (1) the notices themselves were vague and indefinite, (2) copies of the notices were not sent to taxpayers’ “recognized representative” in accordance with a power of attorney filed with the Internal Revenue Service, and (3) the Commissioner failed to send a “30-day letter” to taxpayers prior to issuing the notices of disallowance. We see no merit in any of these contentions. Taxpayers received the statutory notices of disallowance, failed to file their complaint within the prescribed two-year period, and are now barred from asserting those claims. (D As to the sufficiency of the notices themselves, the purpose of a notice of disallowance is to provide the taxpayer with official notification of the Commissioner’s adverse action. So long as the taxpayer receives adequate notice of the Commissioner’s disallowance, no particular form of notice is necessary to start the running of the period of limitations. A. G. Reeves Steel Const. Co. v. Weiss, 119 F.2d 472 (6th Cir.), cert. denied, 314 U.S. 677, 62 S.Ct. 181, 86 L.Ed. 541 (1941). In the case before us, taxpayers received adequate notice. A separate notice of disallowance was sent to taxpayers for each of the taxable years in question. Each notice clearly stated the tax year involved, the type of tax, the exact amount of the refund sought, and the disallowance. Taxpayers contend that the notices did not state the tax year involved with sufficient specificity, arguing that “Period Ending: 1948” should have stated “Period Ending: December 31, 1948.” We cannot agree. Taxpayers reported their annual income as calculated on a calendar year basis, so no ambiguity whatsoever inhered in these notices. (2) As to taxpayers’ contention that the notices were ineffective because copies were not sent to their “recognized representative” in accordance with a power of attorney filed with the Internal Revenue Service, we find that this Court’s opinion in Gallion v. United States, 389 F.2d 522 (1968), is dispositive of the question. In Gallion, the taxpayer filed with the Internal Revenue Service a power of attorney requesting that all correspondence be sent to him in care of his attorney. Contrary to taxpayer’s instructions, the Internal Revenue Service sent the notice of disallowance directly to him and not to his attorney. Affirming the District Court’s dismissal of the taxpayer’s refund suit filed more than two years after receipt of the disallowance notice, Judge Coleman wrote that there was no “valid room for this Court, in effect, to amend the specific command of the statute by judicially adding the words ‘or other person designated by him’ immediately following ‘taxpayer’ in the next to last line of the statute.” 389 F.2d at 524. Taxpayers here received the disallowance notices, so they had the benefit of exactly what Section 6532(a) (1) provides. Taxpayers argue that Section 601.-506(a) of the Internal Revenue Service’s Statement of Procedural Rules, 26 C.F. R. § 601.506(a), entitled them, as a matter of right, to have copies of all correspondence sent to their “recognized representative.” They cite that portion of Section 601.506(a) that states: “Any notice or other written communication (or a copy thereof) required or permitted to be given to a taxpayer in any matter before the Revenue Service shall be given to the taxpayer’s recognized representative.” When read in its entirety, however, Section 601.506(a) plainly rejects taxpayers’ contention by further providing that “In no event will failure to give notice or other written communication to a taxpayer’s representative affect its validity which is to be determined solely under the provisions of the Internal Revenue Code.” (3) Finally, taxpayers argue that the Commissioner’s failure to send a “30-day letter” to them prevents the running of the two-year period of limitations. We hold otherwise. First, according to Section 601.105(d) (iv) of the Internal Revenue Service’s Statement of Procedural Rules, 26 C.F.R. § 601.-105(d) (iv), a “30-day letter” is sent out only in unagreed cases, to encourage settlements. Here, however, taxpayers had made a binding agreement on Form 870-AD, Gaynes v. United States, 454 F.2d 1142 (5th Cir. 1972), and, as an agreed case, a “30-day letter” was not required. Second, the provisions of the Statement of Procedural Rules are merely directory, and not mandatory. Rosenberg v. Commissioner, 450 F.2d 529 (10th Cir. 1971); Cleveland Trust Co. v. United States, 421 F.2d 475 (6th Cir.), cert. denied, 400 U.S. 819 (1970); Luhring v. Glotzbach, 304 F.2d 560 (4th Cir. 1962). Since the complaint in this case was filed two years and twenty-three days after the mailing of the notice of disal-lowance, the District Court correctly dismissed the suit for failure to comply with Section 6532(a) (1). Affirmed.

f2d_478/html/0401-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. JIT SUN LOO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. AH CHENG LOO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. AH SOOI WONG, Defendant-Appellant. Nos. 72-3077 to 72-3079. United States Court of Appeals, Ninth Circuit. April 27, 1973. Dennis W. Potts (argued), Honolulu, Hawaii, for defendant-appellant, Jit Sun Loo. Joseph A. Kinoshita (argued), Honolulu, Hawaii, for defendant-appellant, Ah Cheng Loo. Jason F. Oliver (argued), Honolulu, Hawaii, for defendant-appellant, Ah Sooi Wong. Thomas P. Young, Asst. U. S. Atty. (argued), Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Before BROWNING and GOODWIN, Circuit Judges, and TAYLOR, District Judge. The Honorable Fred M. Taylor, Senior United States District Judge, District of Idaho, sitting by designation. FRED M. TAYLOR, District Judge: The appellants, Jit Sun Loo, Ah Cheng Loo and Ah Sooi Wong, and five other persons, were charged in an indictment with conspiracy to import approximately 17.5 pounds of heroin into the United States in violation of Title 21, United States Code, Sections 952 (a) and 963. Three of the co-defendants, Chee Kong Lee, Heng Hang Loo and Hwa Eng Teh (hereinafter referred to as the Honolulu defendants) were tried together and convicted of the illegal importation of heroin into the United States in violation of Title 21, U.S.C. § 952(a). These defendants were not tried on the conspiracy charge. Co-defendants Kan Tsoi Tai and Kay Lim Young were tried together which resulted in a mistrial and the government dismissed the indictment as to them. The appellants were tried separately and each convicted on the conspiracy charge. The appellants filed separate appeals which were consolidated for argument and disposition. In considering these appeals we shall do so in two Parts. The appeals of appellants Jit Sun Loo and Ah Sooi Wong will be designated as Part One and the appeal of Ah Cheng Loo as Part Two. Part 1 The Honolulu defendants, Chee Kong Lee, Heng Hang Loo and Hwa Eng Teh, of Malaysian descent and citizenship, were arrested on January 26, 1972, by United States Customs agents at the Honolulu International Airport for the importation of 17.5 pounds of heroin. Their airline tickets disclosed their destination to be San Francisco via Philippine Air Lines, Flight 100. Customs agents learned from the Honolulu defendants that they were to be met in San Francisco by a person or persons whose identity or identities were unknown to them. This information was immediately reported by the agents in Honolulu to customs officials in San Francisco who placed the area where Flight 100 was scheduled to arrive under surveillance on the evening of January 26, 1972. During the unloading of passengers from Flight 100, customs agents observed two male persons of Asiatic extraction, later identified as appellants Jit Sun Loo and Ah Sooi Wong, at the arrival gate. They did not meet anyone departing from the plane. The customs officials observed that all passengers, some of whom were of Oriental extraction, were met by other persons. The appellants were then observed going down to the baggage claim area for Flight 100 and waiting until all baggage from that flight had been claimed. Appellants then left the airport and proceeded to the Hilton Airport Inn located a short distance from the airport. Upon checking at the registration desk, the customs agents learned that the appellants had arrived at the Hilton Inn on the 24th of January, 1972 and planned to depart on January 26, 1972, the day on which, according to the information forwarded from customs officials in Honolulu, the Honolulu defendants were to arrive at San Francisco. The customs agents also learned from the hotel registration card the names of the appellants and that their place of residence was Malaysia. A special surveillance was conducted by agents of the San Francisco Customs Office of the appellants at this time and they were under constant surveillance by customs agents on the evening of January 26, 1972, and during the day and early evening hours of January 27th. They were observed eating breakfast at the hotel and proceeding to the San Francisco International Airport in the morning and again in the early evening of January 27th, watching the incoming flights at the overseas area. They did not meet anyone departing from any flight at the airport while under surveillance. While the above mentioned surveillance was being conducted in San Francisco, the three Honolulu defendants were placed on Philippine Airlines Flight 100 at Honolulu, accompanied by customs agents, and they arrived at the San Francisco International Airport on the evening of January 27th. On debarking from the plane the Honolulu defendants went to the baggage area for Flight 100 and seated themselves on a couch in the area. During the time when the Honolulu defendants arrived at the airport, the appellants were observed watching everyone who debarked from Flight 100 and after all passengers deplaned, they proceeded to the baggage area where they were observed standing by the National Car Rental counter, approximately 60 feet from where the Honolulu defendants were seated. Appellants remained in the area of the National Car Rental counter until all passengers from Flight 100 had picked up their luggage and departed. During this time, appellant Ah Sooi Wong was observed walking to within three to five feet of where the Honolulu defendants were seated and then turning around and returning to the area of the car rental counter. By the time appellants left the baggage area, the only people remaining were the Honolulu defendants, the customs agents and themselves. The appellants then left the airport and returned to their room at the Hilton Inn where they were arrested by customs agents without an arrest warrant. During the entire sequence of events at the baggage area, no words, gestures or other forms of communication were observed by the customs agents between appellants and the Honolulu defendants. Immediately following the arrest of the appellants, they were handcuffed and seated on a bed. On entering the room the agents commenced a search thereof and no weapons, contraband or illegal substances of any nature were found. A briefcase, located at the foot of the bed on which appellants were seated, was searched and plane tickets, passports and identification cards were seized and later introduced over the objections of appellants at trial. These appellants have presented several issues for consideration of this court, each of which they contend require the reversal of their convictions. We believe the most crucial questions presented are whether the warrantless arrest of the appellants in their room at the Hilton Inn was lawful under the circumstances hereinabove related, and whether the search and seizure conducted by the agents, incident to said arrest, was unreasonable and unlawful. ' Title 26 U.S.C. § 7607, as amended, provides that officers of the customs may make arrests without a warrant for violation of any law of the United States relating to narcotic drugs where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation. In Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the Supreme Court stated that “reasonable grounds” as used in the aforesaid statute, and “probable cause” as used in the Fourth Amendment, are substantial equivalents of the same meaning. In United States v. McDowell, 475 F.2d 1037 (9th Cir. 1973), this court reiterated the standard necessary to authorize a valid arrest without a warrant: “Whether a warrantless arrest, made by a state or federal officer, is constitutionally valid depends upon whether, at the moment of arrest, the officers had probable cause to make it. Arresting officers have probable cause if, at the moment of arrest, ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the . . . (arrested person) . . . had committed or was committing an offense.’ [citation omitted] In applying that test, the facts as they appeared to the arresting officer must be fudged against an objective standard, the subjective good faith of the officer is not dispositive.’’ [emphasis added] See also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ; U. S. v. Tramontana, 460 F.2d 464, 467 (2nd Cir. 1972), and United States v. Rivera, 321 F.2d 704, 708 (2nd Cir. 1963). United States v. Rivera, supra, at 707 states: “The test of probable cause is designed to strike a reasonable and proper balance between the protection of the rights of the individual citizen against ‘unreasonable interferences with privacy and from unfounded charges of crime,’ on the one hand, and the countervailing reasonable necessities of law enforcement for the protection of the community at large on the other, [citation omitted] The test is plainly a practical compromise and the probabilities with which it deals must be viewed in the light of ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [citation omitted] ‘The quantum of information which constitutes probable cause * * * must be measured by the facts of the particular case.’ ” Applying the above stated standards to the facts of this case, this court cannot find that the customs officers had “reasonable grounds” or “probable cause” to make the arrest of appellants Jit Sun Loo and Ah Sooi Wong in their room at the Hilton Inn on the evening of January 27, 1972. The circumstances of this case could raise a suspicion in the minds of the customs agents that appellants had or were about to have some connection with the Honolulu defendants, but it is axiomatic that mere suspicion will not justify an arrest without a warrant. It is doubtful that the information which the agents had, in regard to these appellants, would have been sufficient to justify the issuance of a warrant for their arrest. The only information the agents had was that the Honolulu defendants were going to be met in San Francisco. They did not have a description of the person or persons, they did not know the name or names, and they did not know why such person or persons might be meeting the Honolulu defendants. Because of the activities of these appellants, the most that the agents had was a suspicion that they were in some way connected with the importation of heroin. In conclusion, this court is of the opinion that the following language from Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963) appropriately sums up our position: “It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion. . The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause could ‘leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ ” It follows that since the agents did not have “reasonable grounds” or “probable grounds” to make the warrantless arrest of these appellants, the search for and seizure of evidence incident to said arrest was unreasonable and unlawful. The admission at trial of the evidence thus obtained was erroneous. Since we are constrained to conclude that the evidence, obtained as a result of the unlawful arrest and the search and seizure incident thereto was inadmissible, the conviction of each of appellants must be reversed and it is unnecessary for us to consider the remaining issues presented on their appeals. Part II Appellant Ah Cheng Loo has raised several issues on his appeal, the most critical being whether he was entitled to a judgment of acquittal on the charge of conspiracy at the close of the government’s case. The basic facts on which he was convicted are as follows: Customs agents first focused on Ah Cheng Loo through a telephone call placed from the room of appellants Jit Sun Loo and Ah Sooi Wong at the Hilton Inn to Room 1018 of the Prince George Hotel in New York, which room was registered to Ah Cheng Loo. At this time Ah Cheng Loo was placed under surveillance by customs agents. Following his arrest in San Francisco, Jit Sun Loo agreed to permit customs agents to monitor two telephone calls which he placed to Room 1018, Prince George Hotel. The actual monitoring was accomplished by attaching a tape recorder to the telephone used by Jit Sun Loo. A government interpreter also listened in on the conversation and later translated the tape into English since parts of the conversations were conducted in the Malaysian language At the time each of the telephone calls was placed to Room 1018 at the Prince George Hotel, customs agents, located in a room across from 1018, knew Ah Cheng Loo was the only occupant in that room and they were able to hear the telephone ring and a man’s voice answer. Ah Cheng Loo was next observed leaving Room 1018 at approximately 1:30 PM on January 28, 1972 and taking a subway to 77th Street and Lexington Avenue where he had a cup of coffee. He then proceeded by taxi to the Queens, New York area where he entered an apartment house, stayed approximately 10 minutes and then traveled by train to Grand Central Station where contact with him was lost by customs agents at approximately 3:00 PM. Ah Cheng Loo was next seen at approximately 5:00 PM on the same day at the John F. Kennedy International Airport where he was observed meeting Hwa Eng Teh (one of the Honolulu defendants) and appellant Ah Sooi Wong, both of whom had just arrived on a flight from San Francisco accompanied by customs agents. The record reveals that the three Malaysians shook hands and spoke briefly, although none of the conversation was overheard. Ah Cheng Loo then left the airport in what is described as a “hurried fashion” and was arrested while attempting to get into a taxi. In considering this evidence, this court is bound by the well established rule that once a verdict of guilty has been rendered by a jury, an appellate court must view the evidence in the light most favorable to the government. See United States v. Eskridge, 456 F.2d 1202, 1205 (9th Cir. 1972). We are also compelled on review to apply the following standard articulated by the Supreme Court in American Tobacco Co. v. United States, 328 U.S. 781, 787 N. 4, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946): “The verdict in a criminal case is sustained only when there is ‘relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt,’ that the accused is guilty.” [emphasis added] See also United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). The burden which the government has in a conspiracy case is well stated in United States v. De Cavalcante, 440 F.2d 1264, 1272 (3rd Cir. 1971): “Under the teaching of Glasser v. United States . . . the prosecution must establish by substantial evidence, restricted to proof aliunde, the fact that a conspiracy existed. ‘Once the existence of a conspiracy is clearly estdblished, slight evidence may be sufficient to connect a defendant jvitb it.’ ’.’ [emphasis added] The essential elements necessary to establish a conspiracy are: (1) an agreement by two or more persons to combine for an illegal purpose, and (2) an overt act by one member in furtherance of the agreement. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). Further, there must be present at least the same degree of criminal intent necessary for the substantive offense itself, i. e. importation of heroin into the United States. See Jefferson v. United States, 340 F.2d 193 (9th Cir. 1965). In assessing the evidence presented in this case, we find the record void of “substantial evidence” that Ah Cheng Loo conspired with anyone to import heroin into the United States. At trial, evidence was introduced showing the importation of approximately 17.5 pounds of heroin by the Honolulu defendants and the activities of the San Francisco appellants, as described in Part I of this opinion. The two telephone calls from Jit Sun Loo to Ah Cheng Loo and the meeting at the Kennedy Airport only indicate at most a. suspicion that Ah Cheng Loo was implicated in the enterprise, which is essentially devoid of any substantial foundation in fact to establish the elements necessary to show the existence of a conspiracy. The record does not reveal any other competent evidence upon which the government may rely to establish that Ah Cheng Loo was a party to the alleged conspiracy. In United States v. Borelli, 336 F.2d 376, 384 (2nd Cir. 1964), Judge Friendly has stated the applicable principle as follows: “Although it is usual and often necessary in conspiracy cases for the agreement to be proved by inference from acts, the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.” The gravamen of a conspiracy charge being the agreement, this court cannot find that the evidence which the government had in this case is the kind of circumstantial evidence which can supply the requisite foundation for a conspiracy conviction. See United States v. Gardner & Le Boulanger, 475 F.2d 1273 (9th Cir. 1973). Accordingly, the conviction of Ah Cheng Loo is reversed. Having reversed on this issue, it is not necessary to decide the remaining issues presented on the appeal. The judgment of conviction in each of the above entitled cases is reversed. . Transcription of Tape of Telephone Conversation Placed from the Hilton Inn San Francisco International Airport, January 27, 1972, Interpreted by Joseph Ng “Operator: This is the operator. Chen: [customs agent] Yeah. This is Room 322. The name is Handy. May I have Area Code 212. The number is 532-7800. Operator: And you’re Mr. Handy ? Chen: Right. Operator: H-a-n-d-y? Chen: Umm hmm. Operator: OK. Thank you. Operator: Prince George. J. Loo: [Jit Sun Loo] Hello? Operator: Yes? J. Loo: Is this the Prince George? Operator: That’s right. J. Loo: Please give me Room 1018 please. Operator: 1018? J. Loo: Yes. Operator: Thank you. A. Loo: [Ah Cheng Loo] (response inaudible) J. Loo: Hello? A. Loo: Is Tin there? J. Loo: He has gone. A. Loo: Tomorrow what time do they come? J. Loo: They have bought the ticket. A. Loo: Don’t make it too clear. J. Loo: I will phone you again tomorrow. Tomorrow I will tell you what time the plane will leave here and also the flight number. A. Loo : Don’t make it too clear. J. Loo: Nothing else to say. That’s all.” Transcription of Tape of Telephone Conversation Placed from the Hilton Inn, San Francisco International Airport, January 28, 1972, Interpreted by Joseph Ng “J. Loo: Hello? Cameron: This is Mr. Cameron at the front desk. Is Mr. Handy there? J. Loo: Hold on a minute. Handy: Yes, Mr. Cameron. Operator: Your name and room number? Handy: OK. Just a second . (part of conversation inaudible). Are you going to do the registration under his name? (part of conversation inaudible) Well, if he calls back. OK, you do it. Hang on a second. Operator: OK. J. Loo: Hello? Operator: Hello. Yes, I need the registered last name and the room number. J. Loo: You mean my room number? Uh, Mr. Loo, L double O, Room 323. Operator: How do you spell your last name? J. Loo: L. double O. Operator: Thank you. J. Loo: This is the right number, isn’t it? Operator: Good afternoon. J. Loo: Prince George? Operator: Yes. J. Loo: Please give me Room 1018 please. Operator: Thank you. Excuse me, that’s 1018? J. Loo: 1018. Operator: 1018. Thank you. A. Loo: Hello? J. Loo: Cheng? They all have gone there. They left after 9. A. Loo: What is the number? J. Loo: 800. They will arrive there after 5. A. Loo: When everything’s all right, I will phone you again tonight. J. Loo: OK. A. Loo: Goodbye.”

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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. Nelson CRUZ et al., Defendants-Appellants. No. 72-1301. United States Court of Appeals, Fifth Circuit. May 4, 1973. Rehearing and Rehearing En Banc Denied June 21, 1973. Denis Dean, Miami, Fla. (Court-Appointed), Daniel S. Pearson, Miami, Fla., for Julio Fuentes. Melvyn Kessler, Miami, Fla., for Luis Lara. Donald I. Bierman, Miami, Fla., for Felix Aleman and Pedro Manuel Noriega. Robert W. Rust, U. S. Atty., Jerome B. Ullman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before AINSWORTH, GODBOLD and CLARK, Circuit Judges. CLARK, Circuit Judge: This case involves a large-scale car theft ring which conducted operations in New Jersey and Florida. Challenges are raised to (1) indictment solely on the basis of hearsay, (2) destruction of investigators’ notes assertedly designed to thwart the Jencks Act, (3) alleged prejudice resulting from variance between the indictment and proof, misjoinder, and failure to sever, and (4) arrangements between the prosecution and government witnesses. Concluding that the appellants received a fair trial free of prejudice and reversible error, we affirm all convictions challenged on this appeal. Originally there were forty defendants variously charged in thirty-nine substantive counts of interstate car theft and one overall conspiracy count. Sixteen of these defendants pled guilty, charges against seven others were dismissed, two were acquitted in separate trials, and one remains a fugitive from justice. Fourteen others were tried before the United States District Court sitting without a jury. Eight of the fourteen who went to trial were acquitted. The instant appeal is by five of those found guilty. Three appellants, Cruz, Noriega, and Aleman, were found guilty of conspiracy and on one or more substantive counts; appellant Lara was found guilty of conspiracy but acquitted on four substantive counts; appellant Fuentes was acquitted of conspiracy but found guilty on two substantive counts. Grand Jury Hearsay The appellants contend that their grand jury indictment was invalid because it was based on the hearsay testimony of one investigating FBI officer rather than on direct testimony of informant-witnesses whom the government could have summoned to testify. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Court considered and rejected the contention that an indictment based exclusively on hearsay evidence is constitutionally invalid. This reasoning has been followed on many occasions by this court. See, e. g., United States v. Bird, 456 F.2d 1023 (5th Cir. 1972); United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972); United States v. Howard, 433 F.2d 1 (5th Cir. 1970), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). Recognizing the piercing precedent of Costello, the appellants would avoid its thrust by distinguishing the facts of this case. First, they refer us to opinions of the Second Circuit which they contend establish the rule that an indictment based on hearsay is invalid where (1) non-hearsay evidence is readily available; (2) the grand jury is misled into believing it was hearing direct testimony rather than hearsay; and (3) there is a high probability that had the grand jury heard the eye witnesses it would not have indicted. See United States v. Umans, 368 F.2d 725 (2d Cir. 1966) (dicta), cert. granted, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872, cert. dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967); United States v. Malofsky, 388 F.2d 288 (2d Cir.) (dicta), cert. denied, 390 U.S. 1017, 88 S.Ct. 1273, 20 L.Ed.2d 168 (1968), United States v. Leibowitz, 420 F.2d 39, 41-42 (2d Cir. 1969), However, this “best evidence” rule has never been considered, even by that circuit, as a constitutional requirement. United States v. Callahan, 439 F.2d 852, 859-860 (2d Cir.) cert. denied 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971). Rather, it serves simply as a supervisory guideline to be employed by courts within their sound discretion to protect potentially innocent citizens from possible prosecutorial manipulation of grand jury proceedings. United States v. Estepa, 471 F.2d 1132, 1136-1137 (2d Cir. 1972). See also United States v. Gramolini, 301 F.2d 39 (D.R.I.1969); United States v. Arcuri, 282 F.Supp. 347 (S.D.N.Y.) aff’d 405 F.2d 691 (2d Cir. 1968) cert. denied 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). While the presentation of hearsay testimony of an investigating officer in lieu of readily available testimony by direct witnesses is by no means a preferred procedure, it is neither unconstitutional nor inherently wrong. In the absence of some showing that the integrity of grand jury proceedings has been impaired, an indictment even if based exclusively on such testimony will not be overturned on appeal. Second, the appellants argue that the 1970 amendment to the Jencks Act, contained in the Organized Crime Control Act, P.L. 91-452, § 102, codified as 18 U.S.C. § 3500(e)(3), which expressly placed grand jury testimony within the definition of statements subject to discovery for the purposes of impeachment, undermines the continuing validity of Costello. They contend that since criminal defendants now have the right to obtain grand jury minutes containing testimony of government witnesses who later appear at trial, refusal of the government to call before the grand jury available witnesses who can testify directly to the facts of the alleged offense and whom the government plans to call at trial unfairly denies the defense potential Jencks Act material. The appellants suggest that, in order to effectuate the Congressional policy reflected in the 1970 amendment, the courts should overturn indictments obtained through hearsay testimony. This suggestion misreads the legislative purpose for these amendments which is to undergird the truth finding process of criminal trials by making any existing prior statements made by a witness used by the government equally available to the defense and prosecution. However, no part of the Jencks Act has ever been construed to require the government to develop potential Jencks Act statements so that such materials can be combed in the hopes of obtaining impeaching inconsistencies. Indeed, we have held “[t]he right [of] discovery of statements is not a guarantee that the statement is complete in all respects.” Castillo v. United States, 409 F.2d 762, 765 (5th Cir. 1969). In an analogous area, we have also unequivocally refused to require the holding of preliminary examination under Fed.R.Crim.P. 5(c) in the face of assertions by defendants that it would benefit the development of their defense to have this pretrial insight to the government’s proof and that the government had deliberately aborted such an examination by continuance until an indictment was obtained. United States v. Coley, 5 Cir., 441 F.2d 1299, cert. denied, 404 U.S. 867, 92 S.Ct. 85, 30 L.Ed.2d 111 (1971). We conclude that Costello is unaffected by the recent amendment to the Jencks Act. Taking a different approach, the appellants argue that their indictments were invalid because the grand jury did not have before it any probative evidence, either hearsay or direct, upon which to base the indictments. However, the majority opinion in Costello also squarely rejected the contention that appellate courts may review the sufficiency of evidence supporting an indictment. 350 U.S. at 363, 76 S.Ct. at 408-409. The appellants’ reliance on the concurring opinion of Mr. Justice Burton in Costello and on dicta in the preCostello opinion of this court, Friscia v. United States, 5 Cir., 63 F.2d 977, 980, cert. denied, 289 U.S. 762, 53 S.Ct. 797, 77 L.Ed. 1505 (1933), is misplaced We will not review the sufficiency of the evidence, if any, supporting the grand jury indictments in this case. See Cohen v. United States, 436 F.2d 586 (5th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2215, 29 L.Ed.2d 684 (1971); United States v. Gower, 447 F.2d 187 (5th Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88 (1971). Witness Interviews and the Jencks Act The appellants further contend that their rights under the Jencks Act were violated by the failure of the government to produce copies of statements made by government witnesses. As part of pre-trial investigation, FBI agents interviewed a number of persons involved in the car theft ring. During these interviews the agent took notes which were routinely destroyed after the agent had recorded his summary of the interview on a standard Form 302 report. The appellants assert that the now destroyed notes contained substantially verbatim recitals of oral statements by prosecution witnesses and therefore that the government violated the Jencks Act by failing to preserve and produce such notes at trial. This claim is based on statements made by the government’s witnesses during cross-examination that they observed investigating officers make extensive verbatim notes during the pretrial interviews. Since the inspection of the original notes was impossible, the court and defense counsel conducted voir dire examination of the investigating agents and the witnesses who had been interviewed to determine whether the notes were such “statements” as would have been required to be produced under the Jencks Act. In contradiction to testimony of the witnesses, the investigating officers testified that they did not take verbatim notes and, at the most, jotted down occasional key words and phrases used by the informants. The court thereupon found that “the notes that were made were not substantially verbatim recitals,” and therefore were not “statements” within the meaning of 18U.S.C. § 3500(e)(2). The fact that investigators’ notes contained occasional verbatim recitation of phrases used by the person interviewed did not make such notes Jencks Act material. United States v. Augenblick, 393 U.S. 348, 354-355, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969) ; Palermo v. United States, 360 U.S. 343, 351-353, 79 S.Ct. 1217, 1224-1225, 3 L.Ed.2d 1287 (1959); United States v. Graves, 428 F.2d 196 (5th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970). Whether the investigators’ notes in the present ease contained more extensive recitations was a matter of fact to be decided by the court on the basis of conflicting testimony. Findings of fact in regard to the Jencks character of investigators’ notes like other trial court findings of fact may not be disturbed unless they are clearly erroneous. See, e. g., Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963); United States v. Bell, 457 F.2d 1231 (5th Cir. 1972). No error, let alone clear error, appears here. Procedural Prejudice a. Variance — Single vs. Multiple Conspiracies. Count I of the indictment charged that the numerous defendants were members of a single auto theft conspiracy. In a comment made at the time of passing judgment, the trial court stated that the proof showed that two conspiracies existed within the offense charged. The court stated that it found appellants Cruz, Noriega, and Ale-man to be members of one conspiracy-operating primarily in the Miami area and appellants Cruz and Lara to be members of a similar and interrelated conspiracy centered in New Jersey. The appellants argue that these statements demonstrate a variance between the indictment and proof which requires reversal. In Berger v. United States, the Supreme Court rejected the contention that proof of multiple conspiracies automatically constitutes a fatal variance from a single offense as charged in the indictment: The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). An additional function of the variance rule is to avoid the danger of a “transference of guilt from one to another across the line separating conspiracies.” Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). Even in a jury trial, however, “prejudice is not assumed” simply from the fact that the proof shows multiple conspiracies, rather than a single conspiracy. Grissette v. United States, 313 F.2d 187, 188 (5th Cir. 1963). In the present case, which was tried before the court without a jury, not only is there absolutely no evidence that the defendants were taken by surprise or that their substantial rights were otherwise prejudiced by proof which showed two separate but closely related conspiracies, but also the record makes it crystal clear from the opening remarks to the final judgments the trial court weighed and considered the evidence against each defendant on its merits without regard to any evidence against any other co-defendant. There is nothing in this case remotely similar to Kotteakos where confusion and error concerning the proof of plural conspiracies permeated the entirety of a jury trial for a single conspiracy. This case is controlled by the principles announced in Berger. See, e. g., Robinson v. United States, 333 F.2d 950 (5th Cir.), cert. denied, 379 U.S. 921, 85 S.Ct. 277, 13 L.Ed.2d 335 (1964); Jolley v. United States, 232 F.2d 83 (5th Cir. 1956). b. Joinder and Severance. In a closely related argument the appellants contend that the finding of two conspiracies and the separate character of some of the substantive counts made their initial joinder in the same indictment improper. This contention is also without merit. Defendants may be joined in a single indictment and trial together if “they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Fed.R.Crim.P. 8(b). Once these conditions are satisfied, as they certainly were in the present indictment, it is “within the sound discretion of the trial judge as to whether the defendants should be tried together or separately.” Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 S.Ct. 101 (1954); United States v. Lane, 465 F.2d 408, 413 (5th Cir. 1972); Tillman v. United States, 406 F.2d 930 (5th Cir.), vacated in part, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). The threshold for finding such discretion to have been abused by proceeding with a joint trial is especially high when the trial is to be to the court rather than a jury. The picture reflected by this record is one of a patient, perceptive, careful trier of fact who was fully aware of and zealously protected the individual rights of each and all of the parties. Appellant Fuentes asserts that he should have been granted a severance after his partial directed verdict of acquittal at the conclusion of the government’s case. Under Fed.R.Crim.P. 14 the court has a continuing duty during all stages of the trial to grant a severance if it becomes clear that continued joinder will result in prejudice to the defendant. Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed. 2d 921 (1960). The fact that Fuentes, who was charged on only two substantive counts involving a single vehicle, was kept in the case along with eleven other defendants accused of large-scale conspiracy continuing over a three-year period, does not automatically constitute grounds for reversal. As with the defendants acquitted of conspiracy in Schaffer, Fuentes has failed to demonstrate any prejudice which resulted from the denial of his motion for severance. Overall Fair Trial Finally, appellants contend that the proceedings against them taken as a whole were unfair and constituted overreaching by federal prosecutorial authorities. The only individual point raised which has not been discussed above is the allegation that testimony of key government witnesses was procured by the payment of money, offers of immunity, and in one case an agreement not to revoke parole. In cases involving well-organized criminal conspiracies the use of informant testimony by a co-conspirator is oft-times a necessity. There is, of course, a recognized danger that a witness whose continued liberty depends upon cooperation with authorities may be overly responsive. However, where there is no suggestion of entrapment, the relationship between the witness and the prosecution goes only to the weight and credibility to be attributed to that witness’ testimony and not to its admissibility. In the present case, the government fully revealed its arrangements with the informants in a Brady statement. Thus informed of the arrangements between the government and its key witnesses, the court found the appellants guilty. There is no basis for differing with the court’s judgment of the credibility of testimony presented to it. The suggestion that the prosecution of the appellants was inherently unfair since other guilty parties escaped prosecution by cooperation is equally without merit. Assuming solely for the sake of argument that the government could be faulted by this court for making a testimonial bargain in a case such as this, we would find not the slightest reason to quibble with the agreements made here. The final result is that leaders of a large-scale auto theft ring have been convicted, either after guilty pleas or trial. The only party involved on this appeal who could claim to be a fringe party, Julio Fuentes, was fairly convicted for his role as a knowing retailer of stolen vehicles. The relatively light sentence imposed on him reflects the court’s proper evaluation of the culpability of his offense. We have separately and severally considered the various errors asserted and find them individually and collectively to be without merit. The judgment of the trial court is Affirmed. . Separate violations of 18 U.S.C. § 2312 and 18 U.S.C. § 2313 were charged in regard to 19 vehicles, and a violation of 18 U.S.C. § 2313 in regard to a twentieth. . 18 U.S.C. § 371. . See also United States v. Beltram, 388 F.2d 449, 451 (2d Cir.) (Medina, J., dissenting), cert. denied, 390 U.S. 1017, 88 S.Ct. 1273, 20 L.Ed.2d 168, and 391 U.S. 955, 88 S.Ct. 1860, 20 L.Ed.2d 869 (1968) ; United States v. Payton, 363 F.2d 996, 999 (2d Cir.) (Friendly, J., dissenting), cert. denied, 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966). . The present case would not qualify even under the Second Circuit’s “best evidence” rule. While it is undisputed that the government could have produced before the grand jury the same informant-witnesses who appeared at trial, it is clear that the grand jury was fully aware that the FBI agent who testified was relating, not personal experiences, but evidence which he had received second-hand from informants, and there is little doubt that if the informant-witnesses had appeared in person, the grand jury would have indicted these appellants. . Cf. United States v. Payton, 363 F.2d 996, 999 (2d Cir.), cert. denied, 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966), which rejected an identical contention in respect to the limited right of discovery of grand jury minutes established in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). . See 18 U.S.C. § 3060(e). . There is no suggestion that the failure to call informant-witnesses before the grand jury amounted to an intentional suppression of favorable evidence. Compare Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 . To the extent that language in Friscia and other decisions of this court, e.g., Grace v. United States, 4 F.2d 658, 660 (5th Cir.), cert. denied, 268 U.S. 702, 45 S.Ct. 637, 69 L.Ed. 1165 (1925) ; Shushan v. United States, 117 F.2d 110, 113 (5th Cir.), cert. denied, 313 U.S. 574, 61 S.Ct. 1085-1086, 85 L.Ed. 1531-1532 (1941), is inconsistent with the majority opinion in Costello, it, of course, stands overruled. . The government voluntarily gave defense counsel 124 pages of Form 302 reports relating to testimony adduced against the fourteen defendants then on trial. . This fact-finding procedure was approved by this court in United States v. Blackburn, 446 F.2d 1089, 1090 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679 30 L.Ed.2d 665 (1972); Matthews v. United States, 407 F.2d 1371, 1376 (5th Cir. 1969), cert. denied, 398 U.S. 968, 90 S.Ct. 2177-2178, 26 L.Ed.2d 554 (1970). . Appellant Cruz, of course, was found guilty as a member of both conspiracies and would not have been entitled to a severance in any event. Cf. United States v. Walker, 453 F.2d 1205 (5th Cir. 1972). . The evidence against Fuentes was presented in a relatively short period and was easily isolatable. There is simply no merit to the suggestion that the court as the trier of fact was unable to segregate this evidence from that presented against the other defendants. Indeed, the acquittal of Fuentes’ business partner, Mario Ferrer, demonstrates that the court was well able to keep the evidence against the various defendants in perspective. . Compare Williamson v. United States, 311 F.2d 441 (5th Cir. 1962). . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The terms of the agreement were that the informers would testify for the government in return for immunity from prosecution for past criminal activity. However, this immunity was conditional and could be removed if the informants committed perjury or if the government learned that the witnesses had committed crimes other than those which they disclosed to investigators. The government also revealed that it liad paid two of the informants a total of 1,450 dollars. However, these payments were made during the period of investigation, ostensibly to replace wages lost while assisting the government, and were not contingent on trial performance nor on conviction of the appellants.

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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. Earthia B. WILEY, Appellant. No. 72-1516. United States Court of Appeals, Eighth Circuit. Submitted March 14, 1973. Decided April 20, 1973. Stewart R. Perry, Minneapolis, Minn., for appellant. Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges. ROSS, Circuit Judge. Earthia B. Wiley was originally indicted for knowingly receiving and possessing a firearm, after having been convicted of a felony, under 18 App. U.S.C. § 1202(a)(1). No allegation was made that the firearm was “in or affecting commerce.” He appealed his conviction to this Court, and we affirmed, holding that no nexus with interstate commerce need be shown in cases charging receiving and possessing. United States v. Wiley, 438 F.2d 773 (8th Cir. 1971), vacated, 404 U.S. 1009, 92 S.Ct. 686, 30 L.Ed.2d 657 (1972). The case was then appealed to the Supreme Court, and after its decision in the case of United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1972), the Wiley case was vacated because of the Government’s failure to plead and prove a nexus with interstate commerce. This Court then remanded with directions to dismiss. The United States later reindict-ed Wiley for the same offense, alleging that Wiley received “a firearm, in and affecting commerce . . . . ” Wiley was again tried and convicted after which he perfected this appeal. On this appeal Wiley does not challenge the sufficiency of the evidence to prove that he received a gun which at one time had been transported in interstate commerce or that he, at the time of such receipt, was a convicted felon. He does claim that the reindictment violates the double jeopardy provisions of the fifth amendment; that the mandate of this Court in the first ease required dismissal with prejudice; that the statute under which he was charged is unconstitutional in that it fails to require knowledge or intent; that the evidence was insufficient in that there was no showing that Wiley knew or should have known that the gun had theretofore traveled in interstate commerce; that the trial court erred in admitting the gun into evidence; and that the trial court erred in instructing the jury that it was not necessary to show knowledge by Wiley that the firearm was in commerce. We have carefully considered each of the alleged errors and for the reasons hereinafter set forth reject them and affirm the judgment of conviction. Double Jeopardy Wiley claims that since he was once tried and convicted on an identical charge, and since he appealed without asking for a new trial and the conviction was reversed on the basis of insuffieent evidence, that double jeopardy attaches. The Government claims that because the prior conviction rested upon an invalid indictment that failed to allege an essential element of the crime and since Wiley appealed and was successful on that issue, the retrial upon a correct indictment did not constitute double jeopardy, citing United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). We agree with the Government’s position and hold that double jeopardy did not attach to the trial on a new indictment. In Tateo the Supreme Court restated the law on this subject as follows: “The Fifth Amendment provides that no ‘person [shall] be subject for the same offence to be twice put in jeopardy of life or limb . ’ The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. In this respect we differ from the practice obtaining in England. The rule in this country was explicitly stated in United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, a case in which defendants were reindicted after this Court had found the original indictment to be defective. It has been followed in a variety of circumstances ; see, e. g., Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (after conviction reversed because of confession of error); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (after conviction reversed because of insufficient evidence); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (after original conviction reversed for error in instructions to the jux-y). “If a case is reversed because of coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. . . . ” Id. at 465-467, 84 S.Ct. at 1589. United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896), cited by the Supreme Court in Tateo, is just as explicit in its holding: “ [I]t is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted.” Clearly the reindictment and retrial were not barred by the fifth amendment in this case. Wiley’s argument that the remand from this Court required a dismissal of the indictment with prejudice is likewise without merit. In the absence of instructions to dismiss with prejudice, the Government was free to decide whether to x-eindict or not. No such instructions were included in the remand, directly or by inference. Knowledge or Intent Wiley claims that the statute under which he was charged “is unconstitutional in that it fails to require knowledge or intent.” Presumably the claim is that knowledge of the prior interstate transportation of the gun and intent to violate the statute are essential to the constitutionality of the statute. In United States v. Freed, 401 U.S. 601, 607-610, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), the Supreme Court held that there was no requirement of specific intent or knowledge in cases charging the defendant with receiving or possessing a firearm not registered to him. See also Bryant v. United States, 462 F.2d 433, 435 (8th Cir. 1972). Recently, the Ninth Circuit has applied this rationale to the section of the statute under which Wiley was indicted. In United States v. Crow, 439 F.2d 1193, 1195 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972), Judge Duniway concluded that possession of a firearm by one convicted of a felony does not require knowledge or intent except as the word “possession” imparts a knowing possession. In other words, the defendant must be shown to knowingly possess a gun, but it need not be shown that he knew the gun had traveled in interstate commerce or that he intended to violate the statute. We agree with this interpretation and holding. The fourth and sixth assignments of error relate to the knowledge and intent issue and are disposed of by our determination that knowledge and intent were not essential elements of the statute or of the proof, except to show knowing possession of the gun. The fifth assignment of error relating to admission of the gun into evidence is clearly without merit and need not be discussed, especially in view of our recent decision in United States v. Man-cino, 474 F.2d 1240 (8th Cir., 1973). The judgment of conviction is therefore affirmed.

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2024-08-24T03:29:51.129235

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UNITED STATES of America, Plaintiff-Appellee, v. JOSEPH G. MORETTI, INC., and Joseph G. Moretti, Jr., Defendants-Appellants. No. 71-3137. United States Court of Appeals, Fifth Circuit. May 15, 1973. John Robert Terry, Joseph A. McGowan, Miami, Fla., for defendants-appellants. Robert W. Rust, U. S. Atty., Kenneth G. Oertel, George A. Kokus, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee. Before John R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges. JOHN R. BROWN, Chief Judge: Proving again that legislative intent frequently comes to exceed even the wildest imagination of those responsible for enactment, it is ironic that as a product of a laissez-faire society, a 19th Century act is now once again the effective tool in this decade’s awakening awareness of the importance of man’s environment. The Rivers and Harbors Act of 1899 — itself the product of congressional dissatisfaction with the consequences of the Supreme Court’s Willamette Iron Bridge Co. v. Hatch, 1888, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629, holding that there was no federal common law prohibiting an obstruction to a navigable stream — was at once the source of jurisdiction and the substantive basis for the action of the District Court. Applying § 10 of the Act which forbids the creation of obstructions in, or alteration of the features of the navigable waters of the United States without permission of the Secretary of the Army the Court ordered Joseph G. Moretti, Jr. to undo dredge and fill operations involving 400,000 cubic yards of earth, because of his failure to obtain the required permit, 331 F.Supp. 151. Despite the fact that Moretti violated the Act flagrantly and our settled conviction that mandatory affirmative relief requiring a burdensome performance is statutorily and equitably appropriate on these facts, we modify and remand for completion of administrative action which conceivably could have the effect of validating the work done, thus rendering the issues litigated moot. Moretti owns lands at Hammer Point on Key Largo, one of the Florida Keys curving fingerlike for 120 miles into the Gulf of Mexico off the southern tip of Florida. His property was located about 1 Ys miles from Tavernier on the Florida Bay side of the Key. Tavernier lies to the south of Hammer Point. Hammer Point is in turn about 4% miles southwest of Rock Harbor. Like the developers in our far-reaching opinion of Zabel v. Tabb, he proposed to dredge and fill the land into a network of land fingers and canals for use as a mobile home park. Moretti, unlike his counterpart in Zabel, decided to forego the prerequisite imprimatur of the Corps of Engineers before making his proposed project a reality. Having purchased his land in 1969, Moretti had completed substantial work on his project when paid a fateful visit by two employees of the Environmental Protection Agency in December of 1970. Lee Purkerson and John Hagen, the EPA employees, were not on official business at the time that they noticed the extensive work on the Moretti project. They took some pictures of the drag-line as it was removing soil from the underwater portion of the Bay bottom and adding it to the shoreline thereby moving the shoreline and Moretti’s property bayward. They could also see where channels had been cut or deepened between the fingers. Moretti asked them what they were doing there, a question which they turned back at him. They asked him if he had a Corps of Engineering permit and he said he did not. These facts were reported to the Jacksonville office of the Corps of Engineers. On December 30, 1970, the Corps ordered Moretti to cease from further work below the mean high water mark because this was a violation of Federal law unless properly authorized by the Secretary of the Army. After one or two exchanges with the Corps Moretti stopped working, a cessation which was to last for at least a few months. As authorized under Corps regulations the Moretti Company applied for an after-the-fact permit to dredge part of and fill part of Florida Bay. That is, he sought a permit which would legitimize the work done and to be done. Structure of the Act and Regulations In addition to construction and maintenance of flood-control and other improvements on the navigable waters of the United States, the Secretary of the Army acting through the Corps of Engineers has been charged by Congress with administering the Rivers and Harbors Act of 1899 as well as the other principal laws enacted for the protection of navigation and the integrity of the navigable waters of the United States. The Corps of Engineers — the eyes and ears, and sometimes hand of the Secretary — is headed by the Chief of Engineers who is charged by law with advising the Secretary of the Army of the propriety of issuing permits. The Corps itself is divided into 11 “divisions” which are in turn subdivided into 37 “districts.” As will be seen later, authority to grant permits is in some cases delegated down to the level of the District Engineers. The duties of the Secretary of the Army and the Corps of Engineers under the Act together with the administrative procedures which include the delegation of authority through the Corps are set out at 33 C.F.R. § 209.120 (1972). The Secretary has authorized the Chief of the Corps, at the latter’s option, to delegate authority to issue permits to District Offices of the Corps in any ease in which the application for construction in navigable waters is “entirely routine and * * * involve [s] no difference of opinion * * * nor any opposition or other considerations which should be decided by higher authority.” The regulations specify that this grant is not a delegation of the Secretary’s discretionary powers. By § 209.120(c) (1) (iii) the Chief of Engineers has exercised this authority and commissioned Division and District Engineers with power to grant permits in the name of the Secretary where the matter is routine. *' The Corps’ general policy for issuing the permits require that it take into consideration and evaluate “all relevant factors, including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest * * *.>> More specifically the Corps is required by its regulations, various statutes, executive orders and an accord between the Secretary of the Interior and the Secretary of the Army to consider all applicable data including the views of other federal agencies and the views and objections of state agencies before granting a permit. The watchword of the Corps’ relation with other federal agencies charged with protection of the environment is cooperation. Besides its duty to cooperate and collaborate the Corps is charged by executive order, as are all federal agencies, to improve water quality through prevention control and abatement of water pollution. In its attempt faithfully to carry out this responsibility the Corps has through formal regulations established a policy, in eases where dredging operations may cause pollution problems, of seeking the technical assistance of state and federal pollution control authorities and conditioning the granting of the permit on the establishment of controls which will insure that federal and state water pollution control standards are met. This policy, and other statutorily required policies are summarized in a “memorandum of understanding” between the Secretary of the Army and the Secretary of the Interior signed July 13,1967. The memorandum of understanding was drafted in recognition of the statutory responsibility of the Corps of Engineers and the Department of Interior to interrelate their activities in the area of water pollution control where damage to fish and wildlife is possible as well as in recognition of the agencies responsibilities under Executive Order No. 11288 as discussed above. The memorandum sets forth procedures — given life in the Corps of Engineers permit procedure, infra — for carrying out these policies. These procedures provide that (i) upon receipt of an application for dredging or filing permits the District Engineer shall notify Regional Directors of the Federal Water Pollution Control Administration, Fish and Wildlife Service, National Park Service, and the appropriate state agencies, (ii) The Regional Directors would immediately make such studies and investigations as are necessary and inform the District Engineer whether the quality of the waters will be reduced in violation of applicable standards or the value of natural resources and related environment will be unreasonably impaired, (iii) The District Engineer will hold public hearings when response to a public notice indicates that all parties will not have an opportunity to be heard except at a public hearing, (iv) Besides weighing all factors in granting a permit the District Engineer shall, when advised by the Regional Directors that work proposed will impair water quality or related natural resources encourage the hopeful permittee to take steps to resolve the dispute at the district level and failing this shall refer the case to the Chief of Engineers —his counterpart the Regional Director submitting his views to his agencies “Washington headquarters” — for appropriate action, (v) Finally the Chief of Engineers and the Under Secretary of Interior shall consult and attempt to resolve any differences between their departments and failing this the case shall be submitted to the Secretary of the Army for decision after consultation with the Secretary of the Interior The Corps regulation §§ 209.120(e), (f) and (g) govern the applications for permits and the handling of these applications with regard to public hearings and notices to other agencies of federal and state governments. The regulations place the duty of giving both public notice and notice to the other agencies mentioned above on the District Engineer. The permit application must contain a sketch showing the location and extent of the work proposed. This sketch will accompany the Engineer’s notice. The regulations state flatly that “the public notice is mandatory, and no permit or extention of time in which to complete work authorized by a permit will be granted unless notice has been issued and a reasonable time afforded for a protest * * The period in which the permit is to be kept pending awaiting objections is set at a minimum of ten days after issuance of notice. The regulations further provide that under normal circumstances the period should be not less than 30 days after the actual mailing of notice, and a longer period can be afforded in exceptional or important cases. Public hearings are portant cases, provided for whenever it appears that there is sufficient public interest to justify such action and in case of doubt a public hearing is required. Cited as a specific example are cases in which there is general public opposition to issuance of a permit. Hearings, when held, are to be conducted in an informal manner, presided over by the District Engineer or his delegate with a full opportunity given each side to express their views. Formal adversary proceedings are not contemplated. In a sentence, the regulations-contemplate application, proclamation, coordination, information, argumentation, consideration and then determination. Whatever doubts there might be about the Third Circuit’s reading a permit structure into the related Refuse Act, 33 U.S.C.A. § 407 (§ 13 of the Rivers and Harbors Act of 1899) in United States v. Pennsylvania Industrial Chemical Corp., 3 Cir., 1972, 461 F.2d 468, cert. granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662, it is positive that § 10 (33 U.S.C.A. § 403) is structured on a permit basis. Indeed the Act itself, by its very terms makes it unlawful “to excavate or fill * * * any navigable water of the United States, unless the work has been [i] recommended by the Chief of Engineers and [ii] authorized by the Secretary of the Army * * And the regulations, which are in no wise questioned here, specifically authorize an application for, and the granting of, a permit after the commencement or completion of the work, under appropriate circumstances. After-the-fact permits — so vitally important to whatever chances Moretti has for saving the Hammer Point project— are specifically recognized in the Corps regulations. Read in conjunction with all the regulations, the regulations coneerning after-the-fact permits provide that they be processed in the same manner as other permit applications. These procedures were not followed to full completion of the administrative processing of this application in this case. This is of great import to what we do in this opinion. So long as that regulation stands the Department of the Army was required to respect it. Cf. Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; and see Schatten v. United States, 6 Cir., 1969, 419 F.2d 187; Smith v. Resor, 2 Cir., 1969, 406 F.2d 141; and Elmo Division of Drive-X Company v. Dixon, 1965, 121 U.S.App.D.C. 113, 348 F.2d 342. Moretti had a right to file the application and have it processed in accordance with those regulations. Conversely, the Corps of Engineers as the delegated agent of the Secretary of the Army had the duty to process Moretti’s application. But as it was, somewhere during administrative gestation the permit application was aborted, an event provoked by the mandatory injunction of the District Judge. The Buck Stopped Where? The record reflects without dispute that the resident engineer in the Miami Beach office of the Corps forwarded the after-the-fact permit application to the Jacksonville District Engineer’s office without objection. Both he and the responsible employee in the District Engineer’s office testified that in practice if the permit were a “routine case” in which no likely objection could be foreseen the District Engineer would grant or deny the permit. If controversy seemed likely or in fact developed regulations prescribed that the decision should be made by “higher authority.” Likewise, in practice, in approving the permit under usual circumstances the Jacksonville District Engineer committed to Mr. Arthur L. McKnight, Chief of the Operations Division, the authority to act for the District Engineer. That is, if the permit application, before the fact or after-the-fact, were approved by Mr. McKnight and the project was within the authority delegated to the District Engineer, Mr. McKnight would direct the final approval of the application and issuance of the permit in the name of the District Engineer. When Jacksonville received the permit application and found everything in apparent order it issued a public notice and informed the appropriate state and federal agencies as required by the regulations. The Florida authorities, after some indecision, stated that they had no objection to the completion or existence of the project. The Bureau of Sports, Fisheries, and Wildlife of the Department of Interior, however, objected to the granting of the permit and requested that the Corps of Engineers refuse to issue the permit. The Secretary of the Interior — speaking through his regional field representative — has literally adopted the views of the Bureau of Sports, Fisheries, and Wildlife. The Bureau of Sports, Fisheries, and Wildlife objected on the ground that to grant the after-the-fact permit would “provide official sanction to an illegal operation.” At this point the permit granting procedure seems to have ground to a halt and left Moretti’s application in a sort of limbo if not in fact stranded by the ubiquitous “sunken object.” Although standard procedure under the regulations would have been for the Jacksonville office to forward the application to Washington because of the objections of the other government agencies, nothing was done, that is, nothing was done by the Corps of Engineers on the application. Self Help For The Impatient? Despite the unrevoked order of the District Engineer to discontinue dredging, Moretti resumed working below the mean high tide line, apparently in early June 1971. Presumably, he simply decided that he had waited long enough for the Corps of Engineers to act on his permit and that it was time to resume the construction of Hammer Point. The permit application had been forwarded from Miami to Jacksonville on March 4, 1971. Notice had been given by the District Engineer’s office on March 17 stating that objections were due by April 16. Interior, as well as one state agency, requested a delay in the granting of the permit so that it would have time to respond adequately. Interior’s objections, voiced by Bureau of Sports, Fisheries & Wildlife, and echoed by the Regional Director were lodged May 3, and Moretti was informed of the objections. It does not appear that a public hearing was ever scheduled. Rumors that Moretti had resumed work reached the Jacksonville office which instructed engineer Ross of the Miami office to investigate the situation. On July 14, 1971 he found that Moretti had resumed, and substantially completed, work on the Hammer Point project. The Scene Of Action Shifts Pricked by Moretti’s disregard of the permit requirements the government lashed out on several fronts. An information was filed by Engineer Ross charging Moretti with a criminal violation of § 403 which is outlawed by 33 U.S.C.A. § 406 and Moretti was arrested July 15. While Moretti was appearing for arraignment on July 30, originally set before a magistrate but taken over by the trial judge, Moretti was served with the civil complaint seeking preliminary and permanent injunction of further operations below the mean high water mark and for relief in the form of a mandatory injunction forcing Moretti to undo the fruits of his labors, all as authorized by § 406. After a short hearing the trial court issued a preliminary injunction and proceeded to hear the case on the merits three weeks later. The court found, as is evident from the record, that Moretti had done substantial dredging and filling without a Corps of Engineers permit. The Court found the waters navigable, and determined that some of the work was done in the navigable water. The District Court ordered that the government should have all the relief it sought — -namely to have Moretti undo what he had done. Moretti challenged in the District Court and challenges on appeal the proof of a number of necessary elements of the government’s case under 33 U.S.C.A. § 403 and § 406. They are (i) whether the water in question is “navigable water of the United States,” (ii) whether the Mean High Water Mark was adequately proven, (iii) whether any obstruction to navigation had been created, and (iv) whether § 406 of the Act authorized the District Court to order the removal of a land fill as a “structure.” Navigability Florida Bay is located at the southern tip of the Florida peninsula and merges with the Gulf of Mexico on its western boundary. On the east, Florida Bay is adjacent to Biscayne Bay which leads to the Port of Miami. The length of Florida Bay is traversed by the Intra-coastal Waterway which runs from the Gulf and enters Biscayne Bay through Florida Bay. Although the record did not reveal the precise distance of appellant’s property from the Intracoastal Waterway, it is clear that it is in close proximity to this Waterway. The Coast and Geodetic Survey Chart shows that at its nearest point, the Intracoastal Waterway is less than one-half mile from Hammer Point. Navigability, even at a time when its requirements were more stringent, was simply a question of whether the waterway “in its natural and ordinary condition affords a channel for useful commerce.” The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871). Accessible as it is to both the Gulf of Mexico and -Biscayne Bay, and traversed lengthwise by the Intracoastal Waterway, Florida Bay is a natural passage for commerce and easily meets even -the historical-literal test of navigability. Of course, as with most bodies of water, there comes a point where the depth of water is minimal as the bottom slopes up to the bank. But one would hardly contend that the Mississippi is any less navigable simply because a pirogue would go aground at the water’s edge. Questioned directly as to the navigability of Florida Bay the Resident Engineer for the Corps testified unequivocally that Florida Bay is a navigable water. Indeed, if Florida Bay were unnavigable Moretti’s development of his property including finger slips and canals so that his mobile home park would be a “live-in marina” would be incomprehensible and obviously wasteful and a deception to purchasers who expected waterborne access to the sea, not the restricted movement in a short landlocked pond. Obstruction To Navigation Moretti’s argument that there was no showing of an obstruction to navigation, and hence that one element prerequisite to relief was missing from the government’s case, is unavailing. In light of Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 207 and United States v. Perma Paving Co., 2 Cir., 1964, 332 F.2d 754, any argument that the filling of navigable waters does not reduce navigable capacity of the filled waterway and thereby constitute an obstruction within the meaning of § 403 borders on the frivolous. Structures Moretti next contends that § 406 grants to the. District Court only the authority to cause the removal of “structures” from navigable water and that a land fill is not a structure. The meaning of “structures” in this provision has often enough been the subject of litigation that we have no doubt that it encompasses the land fills here in question. As the Supreme Court said in United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, its decision in Sanitary District v. United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352, is enough. In Republic Steel the Supreme Court held that accidental sedimentation which caused the filling of a navigable water constituted a structure within the meaning of § 406. This double-bottomed answer is enough for us. Mean High Tide Line A good deal is urged about Mean High Tide Line (MHTL). Just what bearing it has at this, not the enforcement, stage is not easy to say. Everyone apparently concedes that the mean high tide line is not a precise measurement. And all concede for this case that relief sought depends on the government proving that Moretti dredged or filled bayward of MHTL. For the Corps has no power landward of it to regulate his conduct or force reconstruction of the topography as it existed before he began work. The District Court agreed that that which was landward of MHTL would not, could not, and should not be affected by mandatory injunction. The record proof on location of MHTL took two forms. The first was on the trial. The second, as a part of the plan to be filed by Moretti outlining the method to be followed in restoring the prior condition. On the trial, the government called a civil engineer, Mr. James Glass, employed by Moretti in designing the Hammer Point project and in soliciting the after-the-fact permit from the Corps of Engineers. The MHTL was indicated on the sketch which accompanied the application for the after-the-fact permit. Engineer Glass testified that he placed the MHTL from aerial photographs taken before the project got underway. The District Court accepted this determination as correct, but whether the Corps of Engineers ever did is unknown since the permit application aborted. The Resident Engineer also testified as to the location of the MHTL. He stated that normally the MHTL would be located by visual observation, which, however, would be impossible in an after-the-fact situation. The upshot of his testimony was that he had presumed the location of the MHTL from the permit application supplied by Moretti. Actually, the Court did not undertake to fix MHTL. His final order in a negative sense prohibited further activity bayward of it. And the hotly contested mandatory injunction simply ordered Moretti (i) to restore the prior conditions bayward of MHTL and (ii) to file a formal plan showing in detail how the work was to be carried out. As a part of the formal post-decree plan Moretti included a plat prepared by Mr. Post, an engineer associated with the same firm as Mr. Glass, the engineer who drafted the after-the-fact permit application. Engineer Post’s plat shows, and Moretti cannot seriously dispute, that substantial areas of excavation and refill were bayward of MHTL. If Mor-etti challenges that, there is no mark of it in the record. Since there is no indication whether the District Court approved the plan it is unavoidable that the exact line may still be open to some question either in further proceedings before the Department of the Army, the District Court or both. But no action is yet before us which would call for any modification of MHTL. Court’s Use Of Negative — Affirmative Injunction Putting to one side the drawing of the exact MHTL we have no doubt that the Judge had the right to reach the conclusions that he did both on jurisdiction and the operational facts. It is equally clear that in the posture of the case as it came to him and as he handled it (see notes 30 and 4, supra, the Court had the power to issue appropriate injunctions prohibiting any further work. This authority is drawn not only from the Court’s equitable powers in carrying out the obvious policy of the Act but such relief is expressly authorized by § 406, see note 2, supra. And for the further guidance of the Court and the parties as this case now takes a new twist we have no doubt that the issuance of a mandatory injunction requiring extensive restoration operations at very large expense to the developers is entirely within the Court’s power as expressly mandated by the statute. Section 406 just plainly states, “the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist.” Thus, the statute itself specifically empowers the Court to do just what has been done. We do not mean to say here that in every case involving a violation of the Rivers and Harbors Act where no permit has been obtained and an order to cease operations has been issued the Court must impose such serious sanctions. But clearly the Court has the power to do it and we perceive nothing in this record which would compel us to say that in the Chancellor’s discretion he ought not to have imposed this very substantial burden upon this developer. But while we find ample jurisdiction, and on the record a set of facts which would otherwise authorize the stringent mandatory injunction of restoration, this part of the Court’s order must be vacated to permit the further proceedings on the application for an after-the-fact permit. The Scene Shifts Again Back To The Army As we have pointed out in great detail § 403 and § 406 with their complementary regulations are structured on a permit system. The statute itself is not to be read as prohibiting all such obstructions, but only those not authorized in accordance with the regulations. Those regulations prescribe also the right to seek an after-the-fact permit. Moretti has initiated this application. Through no apparent fault of his own and without his ever having withdrawn it the Corps of Engineers has either ignored the application or reached some undisclosed determination that because the United States Attorney has successfully been importuned to enter the case the Corps and the Department of the Army have no further obligation. We have held above and repeat again that this is simply not so. Since the statute and the regulations recognize that the developer has a right to seek — not necessarily obtain —an after-the-fact permit and Moretti has undertaken to do this in a way not challenged for its procedural or substantive sufficiency, a Federal Judge has no power to cut off this statutory scheme and insert his judgment for that of a successive layer of experts in the Corps of Engineers, the Chief of the Engineer’s office, the Department of the Army, and now, in collaboration with the other departments or agencies under environmental statutes. Whatever difficulties Moretti may face in trying to persuade those authorities that he should have an after-the-fact permit he is entitled to have that application processed fairly and diligently with an opportunity as permitted under the regulations to present supporting data, facts and argument as to why such relief should be granted. Since the application is either still in the Jacksonville office or perhaps has died there, the Army somehow has to revive it, put it back on the tracks and start the machinery as contemplated by all of the regulations and the accord between the Secretary of the Army and the Secretary of the Interior and the application of all of the other environmental statutes and regulations. We do not undertake here to outline the scope and detail of those administrative proceedings. They must go on fairly as permitted by the regulations. As we read them, if there is a disposition to grant the after-the-fact permit by the Chief of Engineers and the Secretary of the Army they must then consult all of the other agencies concerned with environmental factors which as specified in pertinent legislation and regulations must be brought into the picture. We do think, however, that as a matter of primary jurisdiction it is in the administrative process that the MHTL must first be determined. For where the boundary of its authority is this elusive line, it should have the first opportunity to determine whether and to what extent the area is or is not within its jurisdiction. Federal Power Commission v. Louisiana Power & Light Co., 1972, 406 U.S. 621, 647, 92 S.Ct. 1827, 1842, 32 L.Ed.2d 369, 389; J. M. Huber Corp. v. Denman, 5 Cir., 1966, 367 F.2d 104, and Weymouth v. Colorado Interstate Gas Co., 5 Cir., 1966, 367 F.2d 84 (sequeled in Mobil Oil Corp. v. FPC, 1972, 149 U.S.App.D.C. 310, 463 F.2d 256, cert. denied, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676, the D.C. Circuit reversed the FPC). This line limits the jurisdiction of the Corps of Engineers both negatively and affirmatively, and inescapably they must determine this as a part of the application now pending. Whether in the administrative process the agency should rely to a great extent upon the record and findings of the Court below is a matter for initial determination by it. Of course the action or non-action of the Department of the Army is judicially reviewable under the Administrative Procedures Act of 5 U.S.C.A. §§ 702, 704 (Supp. V 1970). This is precisely what occurred in Zabel v. Tabb, supra, and Bankers Life and Casualty Company v. Village of North Palm Beach, 5 Cir., 1972, 469 F.2d 994. The Scene Shifts Again — Back To The Court Below The upshot is that we remand the case for the Court to keep it actively on its docket. The prohibitory injunctions are to remain in full force pending final determination in the administrative proceedings and any appeals, administrative or judicial, therefrom. The mandatory injunction is vacated, subject to being reinstated on a proper showing after completion of the administrative proceedings and any appeal therefrom to the extent that the after-the-fact permit application does not authorize any or all of the work bayward of MHTL. Of course the Court is authorized to grant such interim relief as might be necessary on a proper showing to prevent further incursions into nature’s domain growing out of inaction either in maintenance or in nonrestoration because of the stay which we have heretofore issued. As a tag end, also for the guidance of the parties and the Court on proceedings on remand and after completion of the administrative process, we reject the contention of Moretti that a District Court, as would an administrative agency, is required to obtain an impact statement and go through the procedures set forth in the intricate structure of environmental statutes and regulations where it is otherwise appropriate for an injunction to be issued on equitable principles or because of statutory standards or policies. The Judge should, of course, be conscious of the ecological factors and in many cases it would be appropriate, and in some it might be essential, that he call in the appropriate agencies, state and federal. But the Judge does not have to involve himself in the sometimes impossible task of writing an impact statement that will satisfy all. Vacated in part and remanded. . Rivers and Harbors Act of 1890, 26 Stat. 426, shortly replaced by the Act of 1899, 30 Stat. 1121, now found 33 U.S.C.A. §§ 401-426Í. See Environmental Law: The Rivers and Harbors Act of 1899 — a new remedy for illegal dredge and fill operations, 24 Fla.L.Rev. 795, 796 n. 11 (1972). . Section 10 states : The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited ; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. The statutory authority for the injunction is found in § 406 which states: Every person and every corporation that shall violate any of the provisions of sections 401, 403, and 404 of this title or any rule or regulation made by the Secretary of the Army in pursuance of the provisions of section 404 of this title shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney General of the United States. . Without a doubt the Judge was moved because of ecological not navigational factors. He found that the adverse ecological consequences of the dredging and filling operation included the destruction of habitats of a large number of wading birds (including roseate spoonbills, reddish egrets and herons), removal of peat from the bottom of the bay deleteriously affecting the ability of the shallow water to support marine life, elimination of mangroves which play an important role in the ecology of the area, and significant injury to sport fishing in the area. . Our not reversing the District Court expresses no approval of the cursory pro- ■ cedural aspects of the proceedings below. The haste with which the hearing and rulings were announced might well have been less than acceptable and required a remand, but the appellant expressly waived these objections at oral argument in favor of a ruling on the merits. We would say, however, that the inordinate swiftness probably accounts for the court, presumably on the government’s insistence, paying no attention to the administrative structure built into the Act. . 5 Cir., 1970, 430 F.2d 199, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808. See Environmental Law — Consideration Must Be Given to Ecological Matters in Federal Agency Decisions, 71 Boston College Ind. & Comm.L.Rev. 674 (1971) ; Comment, 50 B.U.L.Rev. 616 (1970) ; Note, 19 Kan.L.Rev. 539 (1970) and Note 16 Vill.L.Rev. 766, 778 (1971) which describes Zabel as “an important innovation in the struggle to preserve the environment of the coastal zone.” Of., The Refuse Act Permit Program: The Corps of Engineers’ Role in Enforcement and Administration, 9 Efouston L.Rev. 683 (1972). . See footnote 1, supra. The sections of the Statute as enacted, e. g., § 10, do not correspond to the Sections of the Statute as codified in 33 U.S.C.A. §§ 401-426Í. Section 10 of the original act is § 403 of 33 U.S.C.A. This is pointed out for no other reason than to save the reader the possible confusion which might be encountered. . See, e. g., § 403 of 33 U.S.C.A., note 2, supra, the Section which defendant Mor-etti failed to heed. In this section Congress has required that certain permits not be issued unless “recommended by the Chief of Engineers and authorized by the Secretary of the Army.” . § 209.120(c) (l)(i). . § 209.120(c) (l)(ii). . § 209.120(c) (1) (iii) : Division and District Engineers. The Chief of Engineers has authorized Division and District Engineers to issue direct from their own offices, in the name of the Secretary of the Army, permits under Sections 10 and 14 of the Act of March 3, 1899, for work and structures in or over navigable waters in cases which are entirely routine and which involve no doubt as to the law, facts or regulations nor any opposition or other consideration which should be decided by higher authority. A case is held to be entirely routine, as determined by the Division Engineer, if the approval of the plans would unquestionably be given were the matter presented to the Chief of Engineers and the Secretary of the Army. The mere fact that proposed work is extensive in scope does not necessarily remove it from the class of routine cases if no possible objection to the work can be foreseen. Applications for permits for works in navigable waters which extend a reasonable distance beyond harbor lines will be considered routine, if they otherwise conform to the foregoing criteria. The after-the-fact permit procedures, discussed in text, infra, so vitally important to appellant, are treated for purposes of delegation of authority to District Engineers just as any other permit. That is, subject to the special restrictions, infra, the District Engineer handles these as he would any other “routine” permit application. . Section 209.120(d) (1). . As to the regulations see, e. g., § 209.120 (d) (3). “Consideration is given to the effect of proposed coastal structures or improvements upon existing navigation projects and upon adjacent shore properties * * *>’ The statutes, executive order, and agreement, are discussed in text, infra. . Executive Order 11288 is transplanted and summarized by.the Secretary of the Army in § 209.120(d) (8). . Id. . See, Fish and Wildlife Coordination Act, 16 U.S.C.A. § 661, et seq., Fish and Wildlife Act of 1956, 16 U.S.C.A. § 742a et seq. Perhaps the largest raptor to be added to the statutory ecological protection aviary is the National Environmental Policy Act of 1969, §§ 101-207, 42 U.S.C.A. §§ 4331-4347. In Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808, we held that the Act’s § 101 has talons meant neither to be ineffectively blunt nor always remaining on the wrist, only mockingly suggesting fierceness of their ever tethered bearer. Rather, with this tool, the Secretary of the Army is empowered— indeed required — to “consult with, consider and receive” information regarding the nature of work sought to be done and to seek out those permit applications which should not be granted and interdict their flight. . The memorandum is set out in its entirety at 33 O.F.R. § 209.120 beginning at page 322 (1972). . Section'209.120 (f)(1). . Section 209.120(f) (5). . Section 209.120(g) (1) and (2). . Section 209.120(g) (4). . See note 2, supra. . Id. . Section 209.120(c) (1) (iv) states: Construction and Other Work Performed Without Prior Authority. (a) District Engineers are authorized to approve plans for structures and work of the classes for which they are authorized to issue permits when the application for approval is submitted after the commencement or completion of the structures or work, subject to the following: (1) Approval will be limited to those cases where the necessary primary authority, State or Federal as the case may be, validly exists, when the work was innocently constructed, and when there is no objection to the work, (2) The applicant will submit the plans in the prescribed form, (3) Notice of the application will be duly issued (4) The approval will be issued in the prescribed form, Eng Form No. 96c, W.D., Eng., (5) The approval will be signed and recorded as prescribed for permits, (6) Application for approval of plans for work which has been completed requiring actions by higher authority will be reported as prescribed for permit applications, and (7) When forwarding approval, the applicant will be informed that the law contemplates prior approval, and that, in the future, plans must be submitted in ample time for their consideration by the Chief of Engineers before construction is started. . It is not clear whether the Resident Engineer made a recommendation that the permit be granted or simply forwarded the permit without objection. In either case his sending the permit to Jacksonville from Miami was in effect an endorsement of the application since he testified that if he had objections to the application he would normally return it to the parties with requests for alteration. . See, § 209.120(c) (1) (iii). . Id. Of course what passing the application to “higher authority” entails is detailed by the applicable statutes and the memorandum of understanding between the two Secretaries, as well as the substantive and procedural requirements of the Corps of Engineers’ regulations, supra. . See note 10, supra. . See notes 15 and 17, supra. . It is at least arguable that this is an insufficient ground for “objection” under a permit structure which allows for after-the-fact permission. However, since the letter of objection from the Bureau of Sports, Fisheries and Wildlife stated that Moretti’s own actions had made it impossible to tell how much damage had been done they would object on this seeming clean hands/policy ground. It is not completely clear whether they were saying (i) Moretti made it impossible to tell how much ecological damage had been done so we will presume that more than a tolerable amount had been done or (ii) Moretti is a bad fellow and should not be given a permit since we would be condoning his actions or (iii) both (i) and (ii). The Environmental Protection Agency did not object to the issuance of the permit. It suggested — without reference to the permit application — that the case be investigated and that legal action be initiated for any damages to the environment. But with the Executive Branch having importuned its Department of Justice to seek court relief on the ground of ecological damage, it is plain that in any Corps proceedings this would have been a significant if not decisive issue. . Perhaps one reason that we are not entirely sure what happened to the permit is’ that Mr. McKnight, the Chief of the Operations Division of the Jacksonville office, retired on May 31, 1971. No one else from the Jacksonville office testified and no effort was made by the government to show what happened to the application after he left. . There was also apparently some problems with the technical adequacy of Moret-ti’s permit application. It was discovered in Jacksonville that the application apparently did not show one of the channels that Moretti had dredged. He ac-knowleged this deficiency in a letter to the Corps and although it appears to have been one of the problems in granting of the permit it was a mere technical imperfection which from all appearances could have been easily corrected. The record does not suggest that it caused the Corps to abandon its standard orderly permit processing procedure. . See note 2, supra. . Id. . Biscayne Bay has long been judicially recognized as “navigable.” See Miami Beach Jockey Club v. Dern, 1936, 65 App.D.C. 369, 83 F.2d 715, cert. denied, 299 U.S. 556, 57 S.Ct. 17, 81 L.Ed. 409. . C&GS, 850, August 1972. What is for mariners to rely on may safely be used by Judges. See, De Bardel-eben Marine Corp. v. United States, 5 Cir., 1971, 451 F.2d 140. The chart shows a depth of 2. feet along the north edge of the key in the Hammer Point area. . “The test laid down in the DANIEL BALL was generally adhered to by the Supreme Court until the decision in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, in which the Court gave the term ‘navigable water’ in the Federal Power Act a broader construction than that laid down in the DANIEL BALL and in the decisions that followed it.” Georgia Power Co. v. Federal Power Commission, 5 Cir., 1946, 152 F.2d 908, 912. The expansion of the concept of “navigability” was to include the capacity for reasonable improvements as an indicia of the ability of the waterway to support commerce — whether presently or potentially. . We hold — disclaiming any novelty for this conclusion — that any filling of navigable waters creates an obstruction to navigation. . See note 2, supra. . See Note, 24 U.Fla.L.Rev. 795 (1971). . Perhaps we should call that which was under water before excavation the “bot-tomography.” . The findings of fact and conclusions of law of the District Court appear at 331 F.Supp. 151 (1971). . Although referred to in testimony these photographs are not part of the record in this case. They apparently were not admitted as exhibits in the District Court. These photographs were also the basis for the restoration plan map. See note 45, infra. Some other photographs, taken in 1947, which one witness testified represented the shoreline in 1969 as well as 1947 were not made a part of the record on appeal, although they were admitted in the District Court. . The negative feature of the order stated that Moretti and his company “are permanently restrained from further violations of Title 33, United States Code, Section 403 and that they are permanently enjoined from conducting any further excavation and alteration of the condition and capacity of Florida Bay at Hammer Point, Key Largo.” . Moretti has been “permanently enjoined and directed to remove all fill, sand, rock, gravel, rip-rap, and material of any other description the defendants caused to be placed at their trailer park development property located at Hammer Point, Key Largo, bayward of the mean high water mark that existed prior to the defendants’ operations in this area, and to restore the navigable capacity of Florida Bay to its original condition as that bay existed at Hammer Point prior to the defendants’ development operations.” . As the Court pointed out, and the order provided, special care had to be exercised during the restoration work to avoid further ecological damage. The order commanded: “And further, the defendants are directed to present to the Court within twenty (20) days of the issuance of this order, adequate plans for the safe removal of this material so as not to interfere with marine or plant life in Florida Bay by the causing of excessive siltation or turbidity. The defendants are directed to outline in this plan the following: (a) The equipment to be used in the removal of said material; (b) The procedures to be taken to safeguard Florida Bay; and (c) The estimated time requested for compliance with this order. Upon approval of this plan by the Court, defendants are directed to immediately begin removal of said fill.” . Moretti filed a plan calling for extensive removal and refilling but then sought supersedeas to the injunction while perfecting his appeal from the outcome below. The Court required supersedeas in the amount of $1,000,000 which Moretti was unable to meet. However, the enforcement of the injunction was stayed by the granting of a temporary emergency stay by this Court, which has remained and is still in effect. . Although we think this is a matter for initial determination in the further administrative proceedings which we require, one of the things which Moretti emphasizes that makes the result so harsh is that his is just one of a number of like projects which had therefore been either approved by the Engineers or to which they raised no objection. This throws in a sharp conflict the claim of equal protection — or perhaps more accurately an equal right to violate the law — a sometime facet of equal protection which is today a very appealing claim, on the one hand, and the incessant demand from environmentalists that what has gone on in the past can no longer be tolerated and the time has come to start cleaning up no matter how much it hurts, on the other. Cf., Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, note 5, supra. . It might be argued that the Army need not consult anyone if after appropriate hearing it decides on its own that no permit should be granted on the theory that there is no “impact” on the environment if it is denied. We have, however, questioned this narrow reading of “impact”, although in quite a different context. See, Hiram Clarke Civic Club, Inc. v. Lynn, 5 Cir., 1973, 476 F.2d 421; and cf; Save Our Ten Acres, et al. v. Kreger, 5 Cir., 1973, 472 F.2d 463. . This Circuit has — we think with wisdom —been cautious not to trample the primary jurisdiction of administrative agencies. See A.T.A. of Texas v. King, 5 Cir., 1965, 349 F.2d 873, 883; and International Paper Co. v. FPC, 5 Cir., 1973, 476 F.2d 121 (Brown, Chief Judge, concurring) ; Bankers Life and Casualty Co., supra. . Since we vacate the mandatory injunction subject to reinstatement the stay heretofore issued is terminated on the issuance of our mandate. . We have done this hundreds of times in school integration cases.

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UNITED STATES of America, Plaintiff-Appellee, v. Oscar SQUELLA-AVENDANO, Defendant-Appellant. No. 72-1798. United States Court of Appeals, Fifth Circuit. April 13, 1973. Rehearing Denied June 1, 1973. Donald I. Bierman, Miami, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Bruce E. Wagner, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Appellate Sec., Crim. Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee. 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: Oscar Squella-Avendano, a Chilean national and owner of a small cargo airplane, was convicted by a jury of the unlawful possession and importation of 202 pounds of cocaine. 21 U.S.C.A. §§ 173, 174 (repealed October 27, 1970); 26 U. S.C.A. §§ 4704(a), 4705(a), 7237. Defendant challenges the sufficiency of the evidence and certain procedural and evi-dentiary rulings, which he claims cumu-late to the level of reversible error. We affirm. I. Sufficiency of the Evidence In July, 1970, Government agents learned of a proposed shipment of cocaine from Chile and commenced a continuous surveillance in the Coral Gables, Florida, area of suspected individuals and an apartment used by co-defendant Rodolfo Quintanilla. On July 26th, a 1970 Ford bearing a rental license plate was placed under surveillance. The following morning, Quintanilla, accompanied by another co-defendant, drove the Ford to Miami International Airport and left it at a nearby parking lot. Several hours later, defendant Squella drove this vehicle into the cargo area of the airport. The Government agents then espied him unloading certain cartons from his airplane, which he had flown to the United States from Chile five days before, and placing them in the trunk of the automobile. The agents’ recollections differed as to whether defendant looked into any of the boxes. Within a few hours, Squella returned the rented ear to the same parking lot; and two hours later, the vehicle was picked up by Quintanilla, who was then lost by the agents for a period of some five to twelve minutes. When found, Quintanilla was observed unloading an unidentified box from the car’s trunk to his apartment, the subject of the surveillance and the site of the arrest. Within a few minutes, the agents searched the apartment and found cocaine and wine bottles in suitcases and in cartons marked “Plinella,” a Chilean brand of wine. Before this incident, Squella’s name had never been brought to the Government’s attention, and throughout the investigation he had never before been observed in association with the co-defendants. His broad defense is that he had taken a spontaneous trip to the Dominican Republic with a load of baby chickens and, upon his return, he thought he was unloading cartons of wine and a box of trash. Defendant challenges the adequacy of the evidence to support the jury’s conclusion that the cocaine found in Quin-tanilla’s apartment came from defendant’s plane, that the narcotics had been in the boxes which defendant unloaded from his plane, and that he was aware of their contents. Although undisputed direct evidence shows that defendant unloaded boxes from the plane, only circumstantial evidence is available to prove that those boxes were the objects subsequently found in the apartment and that he was aware of their contraband contents. Government agents testified that, although they observed him inspect the cartons which he unloaded, they could neither view their contents nor identify markings on the boxes. Sixty yards away, an agent using field glasses faintly recognized some writing — -“Planters,” “Plants,” or “peanuts,” it was thought. There were neither fingerprints, clear markings, nor other direct evidence to show conclusively that the boxes unloaded by Squella were those found in the apartment or that he had knowledge of their contents. As a reviewing court, we must decide whether reasonable jurors could conclude beyond a reasonable doubt that Squella knowingly unloaded from the plane the cocaine found in the apartment. Two basic rules guide our consideration of the sufficiency of the evidence: the evidence must be viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and we must make all reasonable inferences and credibility choices as will support the jury’s verdict of guilty. See Gordon v. United States, 438 F.2d 858 (5th Cir. 1971). Having done this, however, we are at once confronted with the fact that certain events could have occurred which would be consistent with all of the evidence presented to the jury and which would prove the defendant innocent of the crime charged. Among these hypotheses of innocence, for example, are the following scenarios: (1) Squella, thinking the boxes he was unloading from the plane contained wine and trash, did not know that their actual contents were cocaine; (2) the cartons did not contain wine and trash when unloaded into the trunk of Quintanilla’s automobile, but during the lapse in the Government’s surveillance, the original cartons were replaced by similar ones containing cocaine, or their contents were simply changed; or (3) the cocaine found in the apartment came from someplace other than the trunk of Quin-tanilla’s car and was either in boxes other than those Quintanilla unloaded or had been placed in those boxes upon their delivery to the apartment and before arrival of the agents. The question for our determination is whether the jury verdict must be set aside because the Government’s evidence did not entirely refute such hypotheses of innocence. Some early eases held that circumstantial evidence must be inconsistent with every hypothesis of innocence. See, e. g., Barnes v. United States, 341 F.2d 189 (5th Cir. 1965). Under that rule, reversal of Squella’s conviction would be required. Other cases held that the evidence must be inconsistent merely with every reasonable hypothesis of innocence. See, e. g., Cohen v. United States, 363 F.2d 321 (5th Cir. 1966), cert. denied, 385 U.S. 957/ 87 S.Ct. 395, 17 L.Ed.2d 682; Newsom v. United States, 311 F.2d 74 (5th Cir. 1962). Observance of that rule, though, would cast this Court in the role of the jury. If one hypothesis of innocence were to satisfy this Court’s sense of reasonableness, we would then have to reverse the verdict. We have since settled on a standard which requires reversal of a guilty verdict unless the trier of fact “could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt.” United States v. Sidan-Azzam, 457 F.2d 1309, 1310 (5th Cir. 1972); United States v. Garza, 426 F.2d 949 (5th Cir. 1970); Henderson v. United States, 425 F.2d 134 (5th Cir. 1970); Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960). There is some suggestion that the above statement of the rule presents a standard which is different from or stricter than that set forth in United States v. Warner, 441 F.2d 821 (5th Cir. 1971). The Warner opinion dealt with Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), a case concerning requested jury instructions. Holland involved the net worth theory of proving income tax evasion. Contending that the Government’s evidence did not disprove that nontaxable sources might be responsible for the increase in his net worth, the taxpayer argued that the trial judge should have instructed the jury that, where the Government’s evidence is circumstantial, it must exclude every reasonable hypothesis other than that of guilt. Mr. Justice Clark, speaking for the Court, refused to follow such a rule: “Circumstantial evidence in this respect is intrinsically no different from testimonial [direct] evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” 348 U.S. at 140, 75 S.Ct. at 137. In Warner, Judge Wisdom concluded from Holland that “The same test, therefore, for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial.” 441 F.2d at 825. Reconciling the holding in Holland with some earlier Fifth Circuit cases which suggested a special rule for reviewing the sufficiency of circumstantial evidence, Judge Wisdom rephrased the substantial evidence test: “[In] criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. Notwithstanding these differences, which some might term verbalistic, we are in agreement with our brothers in other circuits that where the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt.” 441 F.2d at 825. See United States v. Sutherland, 463 F.2d 641 (5th Cir. 1972) ; 3 L. Orfield, Criminal Procedure Under the Federal Rules, § 26:446, at 778; 2 C. Wright, Federal Practice & Procedure § 467, at 259. In the case at bar, we are concerned with the approach a reviewing court, either on motion at the trial level or on appeal, should take to the consideration of the sufficiency of the evidence to support a jury’s guilty verdict. We are not considering questions regarding special jury instructions on circumstantial evidence, which are controlled by Holland. We have recently reasserted the Holland principal that, when a jury is properly instructed on the standards for reasonable doubt, it is not error to refuse an additional instruction on circumstantial evidence. United States v. Stokes, 471 F.2d 1318 (5th Cir. 1973) . Any conclusion that differing statements of the test for review might lead to different results rests on a futile exercise in linguistics. In both Warner and Sidan-Azzam, as well as the other cases which articulate the rule, the essential element is that, whether the evidence be direct or circumstantial, the matter is for the jury to decide unless the reviewing court concludes that no reasonable mind could find guilt beyond a reasonable doubt. In our view, there is no logical difference between determining whether reasonable minds could conclude that the evidence is inconsistent with, the hypothesis of innocence (Warner) and determining whether reasonable minds could conclude that the evidence excludes every reasonable hypothesis except that of guilt (Sidan-Azzam). However the test is articulated, the result will be the same if the standard is qualified by the minimum requirement that we must affirm any conclusion that could be reached by reasonable minds. It is not by a casuistry of reason that we arrive at this result. A logician may defend the argument that, given our finite understanding of causation, all evidence is necessarily circumstantial, and both direct and circumstantial evidence, therefore, may sometimes point to an incorrect result. But the task of the jury is, in Mr. Justice Clark’s words, to “use its experience with people and events in weighing the probabilities.” 348 U.S. at 140, 75 S.Ct. at 138. The proper function of the reviewing court is merely to consider the reasonableness of the jury’s conclusions. Following this test, we find that reasonable jurors, from their individual and common experience, could have concluded from the evidence, beyond any reasonable doubt, albeit not beyond all doubt, that the boxes taken from the plane did contain cocaine and that Squella was aware of their contents. The jury, by making reasonable assumptions, could have dismissed each of the hypotheses presented earlier in this opinion and traced the cocaine found in Quintanilla’s apartment through the preceding events to establish Squella-Avendano’s knowing possession of the cocaine. First, it is reasonable to assume that there was no explanation for the cocaine to have been placed in the cartons at the apartment. There is no evidence that any cartons, other than those from which the cocaine was being removed, were found. The jury could reasonably infer that these were the same boxes which were being carried into the apartment from the trunk of Quintanilla’s automobile. Second, the lapse in the surveillance of Quintanilla’s automobile between the airport and the apartment was too brief to require, in the minds of reasonable men, any doubt that the cartons and their contents put in the trunk by Squel-la were the same as those unloaded by Quintanilla into the apartment. Third, even if Squella’s owning and piloting the plane would leave any doubt that he knew the nature of his cargo, or that he would unload boxes, the contents of which he did not know, the resulting questions could be resolved by the fact that two agents testified that Squella, while unloading the cargo, looked into one of the boxes. Since boxes of this size which were found in the apartment contained clear plastic bags of cocaine, the jury, having concluded that the cocaine was in the boxes when unloaded by Squella, could conclude beyond reasonable doubt that he had seen the cocaine at that time. Although defendant might proffer many other contrary hypotheses, we find the Government presented sufficient evidence from which the jury could reasonably have concluded that defendant committed the narcotics offenses charged beyond reasonable doubt. II. Procedural and Evidentiary Rulings Defendant alleges that the trial court abused its discretion by the (a) limitation to three of the number of character witnesses; The trial judge is invested with discretion to limit the number of character witnesses. Absent a clear showing of prejudicial abuse of discretion, appellate courts will not disturb rulings of trial courts on this subject. United States v. Jacobs, 451 F.2d 530 (5th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231. Defendant has not demonstrated in this case that the trial judge’s decision to limit the number of character witnesses constituted a prejudicial abuse of this discretion, particularly in view of the fact that there was no contradictory testimony. It was not necessary under these circumstances to inform the jury that the court was limiting the number of character witnesses. (b) denial of an opportunity for defendant to prove that he was financially unable to post bond immediately and, after posting bond, that he never attempted to flee to Chile; In its opening statement, the Government referred to Squella as “the big man” and “the importer.” To refute the possible inferences from these comments that he was the kingpin in a smuggling operation, defendant sought to show that he was required to remain in prison for several months because of his inability to post a bond of $50,000, allegedly not an inordinately large amount for an underworld figure equal to the Government’s inferences. Moreover, defendant maintains that he was entitled to show the jury that, given the opportunity afforded by a visit to Chile while released on bail, he did not attempt to find safe harbor in his home country, with which the United States has no extradition treaty and to which, as the jury was aware, a co-defendant had escaped. The Government opposed the use of this proffered testimony on the grounds that it was not proof of innocence and would necessitate a detailed explanation of complex negotiations with the Chilean government regarding defendant’s return, a subject far afield from the issues at bar. The Court, barring defendant’s proposed line of testimony, reasoned that it would have complicated the trial beyond its worth to defendant’s defense. Such a determination is properly within the trial court’s discretion to refuse attempts to inflate collateral issues and to obscure those which are genuine. See Rule 403, Rules of Evidence for the United States Courts and Magistrates. (c) denial of an opportunity for defendant to demonstrate to the jury that he could not have physically handled the cocaine in the manner described by the agents; Squella wanted to demonstrate to the jury that he was physically unable to lift a box weighing 125 pounds, the approximate weight, defendant asserts, of the large box alleged to have contained four fully-packed wine cartons. There was no proof, though, of the weight of each of the boxes either at the time of either their unloading from the airplane or their seizure, and the Government noted that, if a packing arrangement other than that which defendant presented had been employed, then the large box could have weighed less than 125 pounds. Given these conjectures about the manner of packing, it was not error to refuse the imperfect demonstration. See Pacheco v. United States, 367 F.2d 878 (10th Cir. 1966); Burriss v. Texaco, Inc., 361 F.2d 169 (4th Cir. 1966); C. McCormick, Evidence § 215 (1972); and 2 Wharton’s Criminal Evidence § 682 (12th ed. 1955). (d) granting the Government the permission to introduce as rebuttal testimony the deposition of a co-defendant, Raul DeMaria, who was neither on trial nor present; and Defendant argues that the deposition of co-defendant DeMaria should not have been admitted because (1) the indictment which was outstanding at the time the deposition was taken had been superseded; Squella had not been present at the taking of the deposition and, since DeMaria was not present at the trial, defendant was denied his Sixth Amendment right of confrontation ; (2) (3) the Government should not have been allowed to use a deposition secured by a defendant under Rule 15; and (4) there was insufficient proof of DeMaria’s unavailability. The trial judge correctly ruled that, in the absence of an extradition treaty with Chile, the unavailability of co-defendant DeMaria had been sufficiently established. United States v. Bentvena, 319 F.2d 916 (2nd Cir. 1963), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271. And Rule 15(e), F.R.Crim. P., which governs the use of depositions, is a complete answer to the other objections to the usé of the deposition. Defendant moved to obtain the deposition, and he cannot now object to its use in rebuttal. (e) denial of a motion for a new trial based on the fact that the Government knew and had stated prior to trial that the deposition of DeMaria, which it used at trial, was perjured testimony; It was clear to the jury that the Government was not vouching for the truth of DeMaria’s testimony. Rather, it was introduced in rebuttal to demonstrate that defendant and his co-conspirators made inconsistent explanations on material matters. United States v. Wilson, 439 F.2d 1081 (5th Cir. 1971), cert. denied, 404 U.S. 836, 92 S.Ct. 122, 30 L.Ed.2d 67; United States v. Skillman, 442 F.2d 542 (8th Cir. 1971), cert denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63. We find no basis in the claimed procedural and evidentiary errors for the reversal of defendant’s conviction. Affirmed. . In United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971), this Court held that the arrests, resulting from, an informant’s tip, were made on probable cause, and the consequent search of the apartment and seizure of the cocaine were proper.

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UNITED STATES of America, Appellee, v. Phillip MANUELLA, Appellant. No. 588, Docket 72-2274. United States Court of Appeals, Second Circuit. Argued Feb. 16, 1973. Decided May 2, 1973. Sheila Ginsburg, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant. Liam S. Coonan, Sp. Atty., Dept, of Justice, Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E.D. New York, and Sidney M. Glazer, Atty., Dept, of Justice, Washington, D. C., of counsel), for appellee. Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge. Of the United States Court of Claims, sitting by designation. OAKES, Circuit Judge: This case involves an attempt by a federal district judge to avoid the two month or so delay, usual in his district (and others), in obtaining presentence reports, by sentencing immediately at conviction subject to subsequent revision. While the attempt was laudable in aim, and the statutes and rules of criminal procedure might be amended so as to permit the flexibility here sought, we cannot agree that the sentencing was proper under existing law. Appellant was tried and convicted on November 1, 1972, of dealing in firearms and ammunition without a license, 18 U.S.C. §§ 921, 922, having sold three guns to undercover Treasury agents and indicated a willingness and ability to supply other weapons. During the jury’s deliberations Judge Weinstein instructed appellant’s counsel to inquire into his client’s background as, in the event of a verdict of guilty, he intended to impose sentence immediately, although he said that appellant could move for a reduction of sentence after the “presentence” report was filed. Defense counsel objected to the procedure and the court said: I don’t believe in delaying these cases particularly in a situation where in my opinion the man had perjured himself before me ... If I don’t sentence him, you can’t appeal. I am not going to have these things dragged on for years. It now takes two months for a probation report, it might be different if I could get the probation report within a reasonable time. After the verdict, defense counsel advised the court of appellant’s health situation, including his diabetes and a serious heart condition. He also referred to the hospitalization of appellant’s elderly mother, the pending eviction of the family, appellant’s record of honorable military service and lack of a criminal ree-ord, as well as appellant’s employment as a chef until disabled. The Government advised the court of the seriousness of the crime, that there was “informant information” that appellant was “heavily in the firearm business,” that he had had three arrests, and that he was “a real danger to the public in that he is a funnel and channel for illicit firearms.” After a further statement by defense counsel about the arrests, the court forthwith sentenced appellant to four years’ imprisonment, and advised him to file a motion to reduce his sentence after the appeal contemplated by counsel. The court then said it would consider at that time his cooperation with the Government during the interim up to “the time of the reduction of sentencing” and released appellant on bail in view of his health problem. What we have to say in no way is intended to constitute interference with a district judge’s broad sentencing powers, which still include under the plain language of Fed.R.Crim.P. 32(c)(1) the power in his discretion not to order any presentence report, even in a serious felony case. United States v. Deas, 413 F.2d 1371, 1373 (5th Cir. 1969); King v. United States, 410 F.2d 1127, 1128 (9th Cir. 1969); United States v. Visconti, 261 F.2d 215, 217 (2d Cir. 1958), cert. denied, 359 U.S. 954, 79 S.Ct. 743, 3 L.Ed.2d 762 (1959); United States v. Schwenke, 221 F.2d 356, 358 (2d Cir. 1955). See 2 C. Wright, Federal Practice and Procedure § 522 at 389-90 (1969). Our own United States v. Warren, 453 F.2d 738, 743-744 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972), however, makes it very plain that dispensing with a presentence report should be done very rarely and then only if accompanied with a statement of the reasons therefor. Here there was no order that a presentence report be dispensed with. Thus, the question is whether, subject to revision on an application under Fed.R.Crim. P. 35 for reduction of sentence, the court could properly sentence before the report was received. There are several vices which the judge’s innovative procedure would foster if it became a practice. These we believe outweigh the gain of despatch occurring when sentence is imposed and judgment entered promptly after verdict. First, a given judge’s mind might tend to become intransigent; once having made a sentencing determination in the absence of a presentence report, there would be a tendency, we feel, not to change that determination. In saying this we by no means have particular reference to this judge, who to the contrary is well known for careful consideration of individual circumstances. Second, the sentencing judge might not himself be available at the time the Rule 35 application for reduction is made, for in this vale of tears, death, disability, promotion and retirement are all at the turn of fortune’s wheel. A second judge hearing the motion for reduction out of respect for a fellow judge’s views would be naturally disinclined to alter the sentencing judge’s sentence. Third, were this a practice to be followed the natural inclination would be to impose the larger sentence in the range of possible sentences since subsequently on a motion for reduction sentence could not be increased. In some cases, this may impose unnecessary mental anguish; in others, even the larger sentence may prove not large enough in the light of information disclosed in the presentence report. Fourth, a sentence imposed in what is sometimes the heat at the close of a trial may not carry with it the cool objective reflection that the complex '■ sentencing process, see M. Frankel, Criminal Sentences 26-37 (1973), necessarily must entail to be effective. Indeed, the sentence here was rendered at some time after 6:00 p. m. immediately after the jury returned its verdict. Fifth, this course may lead to a bailable defendant taking an appeal, often at the Government’s expense, that might not otherwise be taken, as apparently was the case here; this is not what is most needed by the courts of appeal. Finally, it should be pointed out, Rule 32 calls for a presentence report, not a report for post-sentence review. Nor are these reasons countered by what the sentencing judge expressed were factors underlying his determination to sentence immediately here — that the appellant had lied in court and that he might cooperate with the Government in connection with weapons sources. These factors may be taken into account upon sentencing at the proper time and there was nothing to prevent the court from speaking to the defendant of cooperation at the close of the case. The Government argues nevertheless that there is no indication of harm to this appellant. Were it our province, we would agree that the sentence does not seem in the least undue under the circumstances set forth to this point in the record. The judge elicited from defense counsel mitigating factors. But we may query whether the same mitigating factors would carry the same weight coming from defense counsel at the conclusion of the case as they would in a report of the probation department. We query also whether a defendant with the emotional strain necessarily present at the immediate conclusion of a criminal trial is fully prepared to inform counsel of all relevant mitigating factors. And in any event, the two months’ delay entailed by the probation department’s preparation of a report in the Eastern District of New York is hardly the kind of discretionary factor that, under United States v. Warren, supra, would warrant non-use of any presentence report. Cf. United States v. Brown, 470 F.2d 285, 288 (2d Cir. 1972) ; United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972). We reverse the judgment below and remand for resentencing in the light of the presentence report which we understand is available now. Reversed and remanded. . We are advised that in at least two other oases, if not as a general rule, Judge Weinstein has initiated this practice of sentencing at the time of verdict subject to revision upon receipt of the presen-tence report. . Rule 32(c)(1) provides: The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty. It is proposed, however, to amend this rule to permit the court to dispense with a presentence report only if the maximum penalty is one year or less, or if the defendant has two or more felony convictions, or if the defendant refuses to be interviewed or requests that sentence be imposed without a report, or if it is impracticable to verify the defendant’s background. Proposed Amendments to the Rules of Criminal Procedure for the United States District Courts, Rule 32.2 (a), 48 P.R.D. 614 (preliminary draft 1970). See also ABA Project of Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1(c) at 206 (1968). . Of course, the exercise of any act of discretion, including this one, may be an abuse in a given situation. United States v. Hazelrigg, 430 F.2d 580, 583 (8th Cir. 1970). Cf. Leach v. United States, 115 U.S.App.D.C. 351, 320 F.2d 670 (1963). See also United States v. Spadoni, 140 U.S.App.D.C. 376, 435 F.2d 448 (1970) ; ABA Project, supra note 1, § 4.1(b) at 204-06 (1968). We generally agree with Judge Frankel’s recent statement that “whatever its defects, the presentence investigation is indispensable in any sentencing scheme that does not treat the infinite varieties of people as entirely fungible. This means . . . that [district judges] could not pretend at all to any measure of sense in sentencing without the basic presentence investigation.” M. Frankel, Criminal Sentences 35 (1973). It may be that, at least by agreement of counsel, in an appropriate case delay in sentencing could be avoided and all necessary information secured for the court, without resort to a full pre-sentence report. The same beneficial result could be accomplished, presumably, by making greater resources available to the probation department. . This Rule provides in pertinent part: The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon af-firmance of the judgment or dismissal of the appeal, or within 120 days after receipt of an order, of the Supreme Court denying an application for a writ of certiorari. . Judgment may not enter until sentence, under Fed.R.Crim.P. 32(b).

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UNITED STATES of America, Plaintiff-Appellee, v. Michael DUNN (aka Mike Dunn), Defendant-Appellant. No. 24380. United States Court of Appeals, Ninth Circuit. March 23, 1973. Rehearing Denied June 22, 1973. Gregory R. Harris (argued), John Carlson, of Duryea, Carpenter & Barnes, Newport Beach, Cal., for defendant-appellant. Dennis M. O’Connell, Atty. (argued), Raymond N. Zagone, Atty., Shiro Kashi-wa, Asst. Atty. Gen., Lands and Natural Resources Division, Dept, of Justice, Washington, D. C., Robert L. Meyer, Thomas H. Coleman, Ernestine Tolin, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee. Before KOELSCH, CARTER and WRIGHT, Circuit Judges. KOELSCH, Circuit Judge. This matter involves a dispute between the government and a group of persons, defendants, below, who are asserting an easement for a road across public lands. It is here on defendant’s appeal from partial summary judgment holding defendants trespassers and the government entitled to immediate possession of the government lands over which defendants were constructing portions of the road at the time this suit was commenced. We conclude the judgment cannot stand. Summary judgment may not be entered unless, in the language of Rule 56(c) Fed.R.Civ.P., “. . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This record discloses several such issues. Defendants asserted the doctrine of easement by implication and necessity as the basis for the road. They relied upon affidavits, etc. which tended to show that they succeeded, through mesne conveyances, to the ownership or control of a number of sections and partial sections of land which had been patented in the year 1906 to the Southern Pacific Railway Company, pursuant to Congressional grant to aid in the construction of railroads (Act of July 27, 1866, 14 Stat. 292; Act of Mar. 3, 1871, 16 Stat. 573); that the lands so patented were and are wholly surrounded by public lands and that no roads to defendants’ lands have ever existed nor do the patents make any provision for access; that the lands, although never exploited commercially, have utility for some purposes and that defendants desire to “develop” them and sell parcels for home-sites and recreational uses; that the defendants, to that end, laid out and coim menced to construct a two lane surfaced road suitable for vehicular travel, linking said sections together and providing access to them; that upon completion defendants intended to dedicate the road to the public. They make further statements concerning the route selected and the width of the road, which tend to show that the course is predominantly dictated by the nature of the surrounding terrain and that the size is commensurate with the probable need. The court held this showing insufficient to meet the government’s motion. It gave two reasons. The first that no necessity appeared. Said the court: “It is interesting in connection with the claim of the defendants to a way of necessity that they have not shown that any of the parcels as to which defendants claim an interest is entirely landlocked.” Even if the record bore out this statement, such fact would not necessarily have ended the matter. However, the record is to the contrary; it includes, in addition to defendants’ statements concerning lack of access to their lands, a plat which tends to show that most, if not all, of defendants’ lands are wholly surrounded by those of the government. The district court, as the second basis for its ruling, declared in effect that, assuming an easement, the road exceeded in scope that contemplated by the government at the time patent issued. But that fact does not support, let alone require, the conclusion reflected in the summary judgment that defendants are wholly without a right nor does it justify the broad order directing them to quit the public land altogether. The defendants, having raised a factual issue as to whether or not they hold an easement, are entitled to a hearing to determine not only that issue, but the incidental ones that relate to it. The judgment is vacated and the cause is remanded to the district court for further proceedings consistent with this opinion. EUGENE A. WRIGHT, Circuit Judge (dissenting): I dissent: I would hold that under the facts of this case the doctrine of easement by necessity is not binding on the United States and accordingly I would affirm the granting of summary judgment. . The complaint names several persons as defendants, but the judgment, as well as the writ, runs solely against one of them— Michael Dunn, and leaves the present status of the others unclear. References to “the defendants” throughout this opinion include not only Dunn but any other of the defendants who are interested. . Since the government did not, in our judgment, raise the point upon which Judge Wright bases his dissent, we have not discussed it in the opinion, but nevertheless did give it due consideration and concluded that it lacked merit. 3 Powell, Real Property, 443-444. See Superior Oil v. United States, 353 F.2d 34 (9th Cir. 1965). The doctrine applies to roads: “A way of necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is entirely surrounded by the land from which it is severed or by this land and the land of strangers. It is a universally established principle that where a tract of land is conveyed which is separated from the highway by other lands of the grantor or surrounded by his lands or by his and those of third persons, there arises, by implication, in favor of the grantee, a way of necessity across the premises of the grantor to the highway. . ” (17 Am.Jur. Easements, § 58). The court, apparently as a third basis for its ruling, gratuitously held that defendants had no right by statute to an easement. Thus, in the course of its opinion the court declared “ [t] he Congressional statute provides for the construction of public highways by duly constituted public authorities over public lands, but it does not provide for the construction of roads of the nature here involved on the public lands by private persons.” The court did not designate the statute referred to but no doubt had in mind 43 U.S.C. § 932, for both parties now discuss that statute in their briefs on appeal and defendants place considerable reliance upon it as a. separate basis for their attack on the summary judgment. Since the cause must go back to the district court, we will assume that the reference was to 43 U.S.C. § 932 and undertake to consider it. 43 U.S.C. § 932 reads as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” This statute constituted section 8 of the Act of July 26, 1866, 14 Stat. 251, R.S. § 2477; the historical conditions leading to its enactment and the circumstances of its operation are set out. and carefully explained at considerable length in Central Pac. R. Co. v. Alameda Co., 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932) and will not be repeated here. Suffice to say that the statute was passed to protect persons who have already encroached upon the public domain without authorization but who have been allowed to remain there with the knowledge and acquiescence of the government and who should not in conscience be deemed trespassers. It was not intended to grant rights, but instead to give legitimacy to an existing status otherwise indefensible. That such is its purpose is clear. Justice Sutherland, speaking for the Court, in the Central Pacific case, pointed out that the statute “is controlled by the same general principles.” [284 U.S. at 472, 52 S.Ct. at 228] as those embraced in companion section 9 of the same Act, which relates to ditches and canals on the public domain. And to declare those “principles” he quoted the following from Broder v. Water Company, 101 U.S. 274, 25 L.Ed. 790 (1872): “ ‘It is the established doctrine of this court that rights of persons who had constructed canals and ditches are rights which the government had, by its conduct, recognized and encouraged and was bound to protect before the passage of the Act of 1866.’ We are of the opinion ‘that the section of the Act which we have quoted was rather a voluntary recognition of ® preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one.’ ” (284 U.S. at 469-470, 52 S.Ct. at 227). None of the cases cited and relied upon by defendants is apposite; they treat of long established roads or highways and hence do not present the question, as here, whether the statute authorized one to commence construction of a way over public lands. Defendants’ own affidavits showing, as they do, that the road is as yet not even ready for use, render inapplicable the protective provisions of 43 U.S.C. § 932. . “Absolute” necessity is not always prerequisite to an implied easement. 2 Thompson, on Real Property, § 353. . In this conclusion, the district court noted defendants’ concessions to the effect that the government at the time of patent (1906) had not intended a highway for motor vehicles across its retained lands, but this concession does not foreclose all inquiry into questions of size, nature and course of a road. See Superior Oil Co. v. United States, 353 F.2d 34 (9th Cir. 1965).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Sebastian A. ANZALDO, guardian for Gia Anzaldo, a minor, Plaintiff-Appellee, v. S. W. CROES, d/b/a Modern City Motel, Defendant-Appellant. No. 72-1448. United States Court of Appeals, Eighth Circuit. Submitted Feb. 15, 1973. Decided May 1, 1973. Gene R. Bushnell, Rapid City, S. D., for defendant-appellant. Curtis D. Ireland, Rapid City, S. D., for plaintiff-appellee. Before HEANEY and ROSS, Circuit Judges, and BENSON, District Judge. Benson, Chief Judge, United States District Court, District of North Dakota, sitting by designation. BENSON, District Judge. This is a diversity negligence action in which the jury returned a $55,000.00 verdict for Gia Anzaldo, a minor. Appellant Croes appeals from the judgment and the order which denied his motion for judgment notwithstanding the verdict, or in the alternative for a new trial. The Anzaldo family had checked into the Modern City Motel, owned by Croes, and were given a second story room which included an outside balcony. The balcony was entirely enclosed by iron grillwork with a gate leading to a fire escape stairway. The stairway which served the room as the only means of ingress and egress, was prefabricated, and attached to the building in such a way that it left a step eight inches in height at the top landing. This distance exceeded a comfortable step by % to % of an inch. The steps themselves were 24 inches wide. Both of these measurements were insufficient to meet the safety standards of the community. The balcony area and stair landing were encased in a mesh screen, except for the side of the landing toward which the gate opened. In addition to being open on the one side, the space between the individual bars of the railing was greater than the recommended ten inches, leaving an open space through which a child could easily fall. The gate on the balcony was below standards in that it was not self closing, and was too close to the stairs. At ground level and at the fire escape landing were concrete steps that led into a basement entrance. On the evening of August 13, 1969, Gia Anzaldo, then four years old, fell from the balcony, striking her head on one of the basement steps. The fall caused injuries to Gia, resulting in treatment at Creighton Memorial St. Joseph Hospital at Omaha, during which three electroencephalograms were taken. In his motion for judgment notwithstanding the verdict, Appellant Croes asserts that the Appellee Anzaldo failed to prove as a matter of law, that any negligence on the part of the defendant was a proximate cause of Appellee Anzaldo’s injuries. We do not agree. The evidence was sufficient for the jury to find appellant was negligent in maintaining a balcony and stairway that did not conform to the community standards of safety. In addition, there was evidence relating to the line of fall and point of impact, from which the jury could find the negligence was a substantial factor in causing the harm. Mulder v. Tague, 186 N.W.2d 884 (S.D.1971). Appellant’s motion for a new trial was grounded principally on the receipt in evidence of the EEG reports which were part of the hospital records of the Creighton Memorial St. Joseph Hospital of Omaha. The reports were summaries and conclusions of the doctors who read the actual tracings of the electroencephalograms, which were not a part of the record. The trial court had originally sustained the appellant’s objection, and ruled these reports to be inadmissible as outside the scope of the Business Records Act. Later the court changed its ruling and allowed the reports into evidence without any testimony or cross-examination of the doctors. The tracings were taken at three different times under the direction of two different doctors. The report of each EEG bore notations as follows: 1. Dr. Harold A. Ladwig, August 21, 1969— “abnormal EEG, showing S3, right temporal area.” 2. Dr. Harold A. Ladwig, May 19, 1970— “normal EEG.” 3. Dr. Clifford Danneel, March 17, 1972 — “moderately abnormal EEG for age.” The appellant attacks the admissibility of these reports unless the doctors are present and subject to cross-examination. Under a reasonable interpretation of both the Federal Shop Book Act, 28 U.S.C. § 1732, and the South Dakota Business Records as Evidence Act, SDCL 19-71-111, the appellant submits that the EEG reports are outside the scope of such acts, and opinions contained therein are not admissible as exceptions to the hearsay rule. Appellant argues that the Business Records exception exists because business entries covered by the Acts are trustworthy in that (1) they are a product of an efficient clerical system, (2) they are the kind of observations on which competent men would not differ, and (3) they are an automatic reflection of observation, citing New York Insurance Company v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945) (en banc). As such, appellant argues that opinions and conclusions such as the EEG reports do not come within this exception as they are conclusions obtained from interpreting lines produced by electrical devices measuring the activity of the brain. Such interpretation, appellant continues, are by definition matters of judgment which depend on the training and skill of the individual interpreters; they are very subjective and subject to substantial disagreement among experts. Appellee relies on the holding in Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663 (1956), which followed the dissenting opinion in New York Life Insurance Co. v. Taylor. “It would seem that the following parts of a duly authenticated and qualified hospital record should be admissible unless subject to specific objection such as irrelevancy, inadequate sources of information as being self-serving, as going beyond the bounds of legitimate expert opinion, or on similar substantive grounds: the physical examination findings, the patient’s symptoms and complaints, treatment and progress records, diagnosis by those qualified to make them, the results of analyses and laboratory tests, X-rays, the behavior of the patient, and those parts of the patient’s history inherently necessary (or at least helpful) to the observation, diagnosis and treatment of the patient (citations omitted). The matters here noted do not purport to be exclusive. Since the hearsay objection is obviated, we see no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand; to preserve the right of cross-examination intact as to such matters would be to repeal the statute.” at 667. Although the trend at present is narrowing the instances in which records kept pursuant to ordinary and routine business procedures are excluded if they include diagnosis or opinions, the issue of admissibility per se remains open, and we do not decide it as a matter of law in this case. After initially excluding the EEG reports, the trial court admitted them on the grounds that appellant’s counsel had opened the matter on cross-examination of appellee’s principal medical witness. Under the circumstances of this case, the trial court’s initial ruling excluding the evidence was correct. Appellant submits that because he was denied the opportunity to conduct meaningful discovery of the medical issues prior to trial, the court should have either excluded the evidence entirely, or granted a continuance to insure a fail-trial. We agree. An examination of the trial transcript shows that the matter was not opened by appellant’s counsel in his cross-examination, but rather by information volunteered by the witness that went beyond the scope of counsel’s question. In reversing its ruling at the trial and permitting the evidence to be received, the trial court should have granted appellant’s motion for continuance to give the defendant an opportunity to cross-examine the doctors whose opinions were on the reports. The denial of a continuance, coupled with appellee’s counsel’s unwarranted pre-trial obstructionist tactics (explored more fully below), resulted in appellant’s inability to secure meaningful discovery in the critical area of appellee’s claim of mental and psychic damage. Appellee, asserting physician-patient privilege, obtained a protective order from the court on April 17, 1972, preventing appellant from deposing Dr. John R. Mitchell, - the primary treating physician, and Dr. Richard Altland, the psychologist. Just four days later, on April 21, in response to interrogatories requesting appellee to “[ijdentify each person that you expect to call as an expert witness at trial . . .”, the ap-pellee listed the same two doctors as “possible witnesses”. They were called to testify at the trial with Dr. Mitchell as appellee’s principal medical witness. The record is clear that appellee’s counsel asserted medical privilege well knowing the witnesses appellant sought to depose were going to be used to testify on critical matters at the trial. Such tactics serve no purpose, except to obstruct and delay justice, and cannot be condoned. One week prior to trial, the court held that appellee had waived medical privilege. It was too late for meaningful medical discovery. Appellant unsuccessfully tried to arrange for the depositions of Dr. Danneel and Dr. Mitchell. Dr. Mitchell’s testimony at the trial was based on the EEG reports. He had not personally interpreted the electroencephalograms, but was relying on the interpretation of Dr. Danneel and Dr. Ladwig, who were not produced at the trial, and thus unavailable to appellant for cross-examination. Appellant did not know prior to trial that Dr. Mitchell had not interpreted the electroencephalograms himself. These three EEG reports were offered to support a claim of injury which could expose appellant to the likelihood of a very substantial adverse verdict. This, together with the variance in the reports, made it crucial to the appellant to have the opportunity to explore and test the opinions of Dr. Danneel and Dr. Ladwig. As previously stated by this court, a motion for continuance is subject to the broad discretion of the trial judge. Nutt v. Black Hills Stage Lines, Inc., 452 F.2d 480 (8th Cir. 1971); Greyhound Lines, Inc. v. Miller, 402 F.2d 134 (8th Cir. 1968). And further, a trial court’s refusal to grant a continuance cannot be overturned unless abuse of discretion or “prejudicial error” is shown. Nutt, at 483. Long ago we stated that “[t]his court cannot inquire into and examine the mental operations of the trial court in its exercise of a discretionary power. On such an appeal as this we are limited to a consideration of whether the order itself constitutes an abuse of discretion in that it infringes the legal or equitable rights of the defendant as shown by the circumstances and facts conceded or undisputed.” Homeowners’ Loan Corporation v. Huffman, 134 F.2d 314, 318 (8th Cir. 1943). The prime reason for resting broad discretion in the trial court as to continuances was clearly put forth by the Second Circuit, to-wit: “The failure to be ready for trial when called — unfortunately, a condition too prevalent in our courts — is one of the basic causes creating a backlog of calendars. The ensuing delay caused by adjournments and other dilatory tactics, not only hobbles justice but causes the public to mistrust the entire judicial process.” Davis v. United Fruit Company, 402 F.2d 328, 330 (2nd Cir. 1968). However, that court was quick to add this caution: “We realize that a court must not let its zeal for a tidy calendar overcome its duty to do justice .... In order to reduce this choking congestion, the district courts must be permitted to exercise their discretion in appropriate ways that will ensure justice to all who seek it . . . . ” At 331. In this case where counsel was unable to utilize discovery procedure designed to insure full knowledge of the facts and issues upon which adequate preparation could be based, we are unable to say that substantial justice was done. In light of the state of the record, it was a clear abuse of discretion to admit the reports, and not grant the appellant’s motion for continuance. It has been observed that prior to adoption of the present rules pertaining to discovery, results were not based upon the merits of the case, but upon legal maneuvering of counsel. Gebhard v. Ni-edzwiecki, 265 Minn. 471, 122 N.W.2d 110, 114 (1963). The language of the Supreme Court highlighting the importance of discovery in this respect has been stressed in this circuit: “The new rules, however, restrict the pleadings to the task of general notice giving and invest the deposition-discovery process with a vital role in the preparation for trial .... The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. . . . the deposition-discovery rules should be accorded a broad and liberal treatment. . . . Mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation. . . . ” Hickman v. Taylor, 329 U.S. 495, 501, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947) cited in Greyhound Bus Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968). The instant case is similar to Nutt, which held that where the defendants did not learn of a claim for traumatic neurosis until commencement of trial, “[t]he court should have required the plaintiff to forego this new issue, ... or, if plaintiff refused, then it should have granted the defendants a reasonable continuance.” 452 F.2d at 483. This ruling prevailed despite (1) the fact that the record did not reveal any willful unfairness on the part of the plaintiff, or (2) that the appellant conducted “a vigorous and thorough examination” of the neuro-psychiatrist who had examined plaintiff the day before trial. Chief Judge Matthes in dissent, pointed to the trial judge’s attempt in Nutt to protect the appellant’s interests by ordering a day’s delay before allowing the neuropsychia-trist to testify, to enable appellants to have plaintiff examined by a physician of their choice. It would seem that the case for requiring a continuance to the appellant-defendant in this case is even more persuasive than the situation in Nutt. At any rate, in Nutt, this court concluded, in view of the purpose of the federal discovery rules, and that the neuropsychiatrist’s testimony added a “significant new dimension” to ap-pellee’s case, that justice demanded such testimony be struck, or a continuance granted. Without doubt, the admission of the three EEG reports added a “significant new dimension” to appellee’s case, 'when considering that meaningful discovery had been denied. The judgment is vacated and the case is remanded for a new trial limited to the sole issue of damages. . The actual electroencephalograms were not offered in evidence. . See the advisory committee’s notes setting forth the scope of the Proposed Rules of Evidence for United States Courts and Magistrates, Rule 803(6), 468 F.2d 1, 119, 120 (1973). . The following question was asked and the answer given at the close of the appellant-defendant’s cross-examination of Dr. Mitchell: “Q: So that other tests with regard to what you testified to since have been negative, that is, the angiogram and the neurologicals ? A : The two that you mention have been negative. There have, been others.” (Emphasis ours)

f2d_478/html/0451-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff, Appellant, v. COMMONWEALTH OF PUERTO RICO et al., Defendants, Appellees. No. 71-1357. United States Court of Appeals, First Circuit. Argued Feb. 6, 1973. Decided May 18, 1973. Scott P. Crampton, Asst. Atty. Gen., with whom Julio Morales Sanchez, U. S. Atty., Meyer Rothwacks, William Massar, and Jane M. Edmisten, Attys., Tax Division, Department of Justice, were on brief, for appellant. Ruth Tentori De Lebron-Velazquez, Asst. Sol. Gen. for Commonwealth of Puerto Rico and Jose L. Novas, San Juan, P. R., for Puerto Rico Automobile Accident Compensation Administration, with whom Gilberto Gierbolini Ortiz, Sol. Gen. of Puerto Rico, and Fernando Perez-Colon, San Juan, P. R., Counsel for Puerto Rico Automobile Accident Compensation Administration, were on joint brief, for appellees. Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges. CAMPBELL, Circuit Judge. Every person harmed in Puerto Rico as a consequence of maintaining or using a motor vehicle is entitled, regardless of fault, to receive hospital and medical care and to be paid scheduled benefits for dismemberment and other disability. If death ensues, the victim’s family and kin are entitled to benefits. Up to stated limits, benefits take the place of what a victim might recover in a tort action against the person responsible for the accident. Tort recovery is permitted, but only above those limits. § 2058. This “no-fault” plan, enacted in 1970, a year before Massachusetts became the first state to adopt compulsory no-fault insurance, M.G.L. c. 90 § 34A et seq., as amended by St.1970, c. 670 § 1 et seq., is operated by an instrumentality of the Puerto Rico government, a special corporation known as the Automobile Accident Compensation Administration (AACA). § 2060. The AACA is empowered to fix a yearly “premium”, which is to be “in accordance with the experience and the corresponding actuarial study.” § 2063(4). This is exacted annually from each owner of a registered motor vehicle. It is used solely to compensate victims and for expenses of the no-fault scheme. § 2064(3), (4). The funds may not be used for general revenue purposes. The United States brought the present action in the district court on behalf of non-resident servicemen stationed in Puerto Rico. Puerto Rico requires all servicemen owning automobiles to pay the annual no-fault premium. They and their families, like all others in Puerto Rico, may share in the plan’s benefits. The United States has sought a declaration that the exaction, from non-resident servicemen, is illegal under § 514 of the Soldiers’ and Sailors’ Civil Relief Act (the Relief Act), 50 U.S.C. App. § 574. The district court ruled otherwise. It held that the annual contribution, being neither a “tax” nor a fee paid for the privilege of operating a motor vehicle, was not “forbidden” by § 514. We affirm. The district court’s decision was made upon cross motions for summary judgment. Besides affidavits filed earlier for purposes not here relevant, the court had before it a stipulation of facts. Prom the court’s findings and the undisputed facts, the following appears. The premium is set irrespective of the vehicle’s value, and may vary from year to year depending upon past experiences in the administration of the system. In 1970-71 it was fixed by the AACA at $35 per vehicle. A separate $25 license plate fee is charged on registering an automobile in Puerto Rico which servicemen retaining their home state registration need not pay. § 179. (However, the no-fault premium must be paid regardless of place of registration.) Under the no-fault act, § 2064(1), and under the regulations of the Administration, Rule II, Rule 2.1, payment of the premium is made at the time of registration or of renewal of an owner’s license. An owner without Puerto Rican registration must have a sticker attached to his plates evidencing payment of the premium; a required transit license is not issued unless the insurance is paid. Rule 2.6. The premium is prorated if the vehicle is brought into Puerto Rico after the beginning of the year or taken out before the end. § 2064(3). Servicemen for whom this action was brought, residents of the continental United States, are in Puerto Rico solely by reason of military orders. They own motor vehicles, some registered in Puer-to Rico, some registered in home states. All are insured. Their insurance companies are required by Puerto Rico authorities to issue endorsements to their policies which exclude from coverage thereunder accidents occurring in Puer-to Rico to the extent the accident is or would be covered by the Protection Act. While § 514 of the Relief Act has as its chief aim “to prevent multiple State taxation of the property and income of military personnel,” it does not “relieve servicemen from every state tax which is somehow dependent on the presence of personal property within the state.” Sullivan v. United States, 395 U.S. 169, 180, 89 S.Ct. 1648, 23 L.Ed.2d 182 (1969). The tax “in respect of” personal property as to which § 514 most plainly grants immunity is the recurring ad valorem property tax. Thus in California v. Buzard, 382 U.S. 386, 86 S.Ct. 478, 15 L.Ed.2d 436 (1966), § 514 was held to exempt a Washington resident from paying a so-called license fee which California sought to impose as a condition to his registering his car in California. While termed a “license fee”, the exaction was separate from and in addition to an $8 “registration fee”. Calculated at 2% of a motor vehicle’s market value, and collected “in lieu of all taxes according to value levied for state or local purposes on vehicles,” the tax had been adopted as a substitute for local ad valorem taxation of automobiles. Buzard, supra, 382 U.S. at 389, 395, 86 S.Ct. 478, n. 9. The tax proceeds went for highway maintenance, a familiar object of tax revenues. See also Snapp v. Neal, State Auditor, et al., 382 U.S. 397, 86 S.Ct. 485, 15 L.Ed.2d 445 (1965) (serviceman exempt from paying ad valorem trailer tax). Section 514 does not, however, provide exemption from a host state’s sales and use taxes. In Sullivan v. United States, supra, the court held that “taxation in respect of” personal property, within the meaning of § 514, means taxes “on” personal property: The legislative history of the 1942 enactment and the 1944 and 1962 amendments of § 514 reveals that Congress intended the Act to cover only annually recurring taxes on property — ■ the familiar ad valorem personal property tax. Thus, the reports advert to the possibility that servicemen ordered to move around the country — as they were increasingly during World War II — might have their property taxed by more than one state “within the same calendar year”. . . . And the reports throughout refer explicitly to “personal-property taxes on property” . . 395 U.S. at 176-177, 89 S.Ct. at 1653. The court also emphasized the absence of any significant risk of double taxation, both because of credit provisions and the taxes’ non-recurring nature. See 395 U.S. at 180, 89 S.Ct. 1648. In the present instance, the United States argues that Puerto Rico’s no-fault premium is simply a tax on automobiles, the proceeds of which are used for a special class of citizens — those harmed by automobiles. It likens the exaction to the 2% tax in Buzará, used for highway improvement. We do not agree. The measure of the exaction is not the value of the vehicle; the amount of the annual contribution is based on experience and actuarial computations. And it is adjusted to reflect the length of a vehicle’s stay in Puerto Rico. The exaction is, in fact, an insurance premium. As with private insurance, the premium reflects an effort to spread certain costs of personal injuries caused by motor vehicles among all those registering and-maintaining such vehicles. What is significant is not the taxable wealth represented by the vehicle, but the vehicle’s potential for harm when driven — a potential which gives rise to the requirement that its owner contribute to a pool of money held for the benefit of those injured or killed. We believe it to be immaterial whether the sum is properly described as a “tax” (see Carmichael v. Southern Coal Co., 301 U.S. 495, 508, 57 S.Ct. 868, 81 L.Ed. 1245 (1937)) or as a form of regulatory exaction (see Head Money Cases, 112 U.S. 580, 595, 5 S.Ct. 247, 28 L.Ed. 798 (1884)). It is, in any event, not “taxation in respect of” personal property within the meaning of § 514. Sullivan, swpra, 395 U.S. at 175, 89 S.Ct. 1648. Puerto Rico’s exaction is most closely allied to the premium required by some states to be paid to private insurers for “compulsory” motor vehicle insurance, i. e. a policy of insurance made mandatory if one is to secure registration. Such compulsory insurance is usually closely regulated by the state— the terms of the policy being prescribed by law and the amount of the premium set annually by the state. See, e. g., M.G.L. c. 175 § 113A et seq. We are not aware of any authority interpreting § 514 to prevent a host state from requiring a serviceman to comply with its compulsory insurance law. That Puerto Rico’s compulsory insurance is administered by the state rather than by private insurers should make no difference. We recognize that Puerto Rico’s plan, being state-run and no-fault, may create a particular burden; transient servicemen may find it more difficult to obtain full premium adjustments from home-state liability insurers in view of these features (although no-fault is, of course, no longer unique, see M.G.L. c. 90 § 34A et seq., as amended, and generally Note, A Social Insurance Scheme for Automobile Accident Injuries, supra, n. 6 at 432-476). Puerto Rico has a substantial interest in the welfare of its citizens exposed to injury and death through the operation of motor vehicles. We do not believe that Congress meant in § 514 to exempt servicemen, whose vehicles increase the risk of injury to a host state’s citizenry, from participating on the same terms as all others in the prevailing insurance requirements. In holding that the annual premium is not taxation in respect of property under § 514, we have considered whether it might be such by virtue of clause (2) (b) of § 514, defining “taxation” as including “licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: . . .” That clause and its proviso were extensively analyzed in Buzará, supra, and also in Sullivan, supra. The words “licenses, fees or excises” were given a narrow and restricted interpretation in Buzará. They were held to refer “only to those taxes which are essential to the functioning of the host State’s licensing and registration laws in their application to the motor vehicles of non-resident servicemen”. Buzard, supra, 382 U.S. at 395, 86 S.Ct. at 484. In Sullivan, supra, 395 U.S. at 182, 89 S.Ct. 1648, the words were equated with “the motor vehicle registration fee” itself — that and no more. It seems clear, under Buzará and Sullivan, that the Puerto Rico premium is not a “license, fee or excise”, and thus is not, on that ground, “taxation” within the meaning of § 514(2) (b). Moreover, not being a “license, fee or excise”, the premium is not subject to the language in the proviso of clause (2)(b); we need not consider what effect, if any, to give to a serviceman’s compliance or non compliance with the requirements of his home state. Significantly, in Sullivan, supra, 395 U.S. at 181, 89 S.Ct. at 1655, the Supreme Court stated; [Tjhe only taxes on the use of property from which servicemen are exempted are the special registration taxes imposed annually by all States on the use of motor vehicles. The “special registration taxes” referred to were the motor vehicle registration fee; in Puerto Rico, this would presumably be the $25 charge imposed for obtaining Puerto Rico “plates”. Since the premium is not such a special registration tax, and since, if a tax at all, the premium taxes the use of the vehicle rather than its value, § 514 does not prohibit it. Affirmed. . Automobile Accident Social Protection Act of the Commonwealth of Puerto Rico, 2A Laws of Puerto Rico Ann., Title 9, § 2051 et seq. Property damage is not reimbursable under the plan. . § 574. Residence for tax purposes (1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State, Territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent. Por the purposes of taxation in respect of the personal property, income or gross income of any such person by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, of which such person is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed within, or from sources within, such State, Territory, possession, political subdivision, or District, and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district. Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders: Provided, That nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia in respect of personal property used in or arising from a trade or business, if it otherwise has jurisdiction. This section shall be effective as of September 8, 1939, except that it shall not require the crediting or refunding of any tax paid prior to October 6, 1942. (2) When used in this section, (a) the term “personal property” shall include tangible and intangible property (including motor vehicles), and (b) the term “taxation” shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof : Provided, That the license, fee, or excise required by the State, Territory, possession, or District of Columbia of which the person is a resident or in which he is domiciled has been paid. . From affidavits filed in the district court, we understand that of 4300 privately-owned vehicles registered at Ramey ARB to military personnel, 38% aré registered in Puerto Rico; the rest are home-state registered (48%) or registered solely for on-base driving. About 14% of vehicles owned by servicemen at the naval station are registered in Puerto Rico, as are 30% of vehicles owned by other military personnel. . It appears from the affidavits that servicemen get refunds from their insurance companies. However, one officer states in an affidavit that his refund was less than the amount required to be paid under the Puerto Rico plan. Further, two New York servicemen state that New York minimum coverage requirements would force them to continue their coverage while paying for protection under the Puerto Rico plan, and that the plan thus compels them to pay double premiums. New York is one of a relatively few states with a compulsory insurance law. See infra, n. 6. . S.Rep.No.1558, 77th Cong., 2d Sess., 11 (1942) ; H.R.Rep.No.2198, 77th Cong., 2d Sess., 6 (1942) both of which went on to express concern that “[u]nder present state laws the personal property and income of such persons may beeome liable for taxes in several states within the same calendar year.” See also S.Rep.No.959, 78th Cong., 2d Sess., 1 (1944). Although avoidance of multiple taxation is a chief aim, a serviceman need not pay a tax covered by the Relief Act in a host state even if no similar tax is imposed in his home state. Dameron v. Brodhead, 345 U.S. 322, 73 S.Ct. 721, 97 L.Ed. 1041 (1953). . Massachusetts adopted compulsory insurance as early as 1925. See Opinion of the Justices, 251 Mass. 569, 147 N.E. 680 (1925), upholding the scheme under the state’s power to regulate highway travel for the public welfare. Although all states have some kind of financial responsibility law concerning motor vehicle operators, as of 1971 only three, Massachusetts, New York and North Carolina, had compulsory insurance laws. Note, A Social Insurance Scheme for Automobile Accident Compensation, 57 Va.L.Rev. 409, 414 (1971). There is no evidence that Congress had such insurance plans in mind when it enacted § 514 in' 1942 and amended it in 1944 and 1962. . We add that the government has not shown that Puerto Rico’s plan results in all or most cases in double exactions for transient servicemen. See Sullivan, supra, 395 U.S. at 180, 89 S.Ct. 1648. Puerto Rico would seem to avoid or at least reduce double exaction by prorating the premium and exempting the serviceman, while driving in Puerto Rico, from liability below stated limits, thus presumably lowering his liability insurance costs. Preliminary affidavits from some servicemen suggest that the mathematics are unfavorable, especially for those from one of the few compulsory insurance states, New York. But given the variety of home-state laws and the total absence of serious data, we cannot say what financial tradeoffs actually result from a serviceman’s move to Puerto Rico.

f2d_478/html/0456-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NON-RESIDENT TAXPAYERS ASSOCIATION, a corporation on behalf of itself, its members and other persons who have been and will be similarly situated in the same class and classes of persons, et al., Appellants, v. The MUNICIPALITY OF PHILADELPHIA et al., Appellees. No. 72-1166. United States Court of Appeals, Third Circuit. Argued March 5, 1973. Decided May 10, 1973. Lee B. Laskin, Camden, N. J., for appellants. Richard S. Zackin, Asst. U. S. Atty., Newark, N. J., and Albert J. Persiehetti, Deputy City Sol., Philadelphia, Pa., for appellees. S. Jay Sklar, Asst. City Sol., John Mattioni, Deputy City Sol., Martin Weinberg, City Sol., Philadelphia, Pa., for the Municipality of Philadelphia and Thomas Rogers. Herbert J. Stern, U. S. Atty., Joseph F. Audino, Asst. U. S. Atty., Newark, N. J., for U. S. Government, George Schultz, Director of the Office of Management and the Budget, and John Chafee, Secretary of the Navy. George F. Kugler, Jr., Atty. Gen. of N. J., Herbert K. Glickman, Deputy Atty. Gen., Trenton, N. J., for the State of New Jersey as amicus curiae. Before GIBBONS and HUNTER, Circuit Judges, and MUIR, District Judge. OPINION OF THE COURT GIBBONS, Circuit Judge. Appellants filed in the United States District Court for the District of New Jersey a suit challenging (1) the right of the City of Philadelphia to impose and collect a wage tax on non-residents of Philadelphia employed in the Philadelphia Navy Yard, a federal enclave; and (2) certain federal regulations and a federal executive order alleged to have a coercive effect in assisting the City of Philadelphia in the collection of the challenged tax. The defendants named were the City of Philadelphia and Thomas Rogers, the Director of its Department of Collections (the municipal defendants), the Commonwealth of Pennsylvania and Milton Shapp its Governor (the State defendants), and the United States Government, George Schultz, the Director of its Office of Management and the Budget, and John Chafee, its Secretary of the Navy (the federal defendants). The complaint seeks injunctive relief and asks for the convening, pursuant to 28 U.S.C. § 2281 et seq., of a three-judge district court. Such a court was convened. The State defendants moved for dismissal of the complaint on several grounds. The court decided that the Johnson Act, 28 U.S.C. § 1341, denied jurisdiction to a federal court, and it dismissed the complaint as against the State defendants. The municipal defendants moved that the three-judge court be dissolved and that the complaint be dismissed as to them on the ground, among others, that the injunction sought was against a municipal ordinance of local application. See Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274 (1945); Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 94, 55 S.Ct. 678, 79 L.Ed. 1322 (1935). The three-judge court concluded that neither the challenge to the municipal ordinance nor the challenge to the federal regulations and federal executive order were matters required to be heard by a three-judge district court, and it entered an order dissolving itself and transferring the case to a single district judge. NonResident Taxpayers Association v. Philadelphia, 341 F.Supp. 1135 (D.N.J. 1971), aff’d by order, 406 U.S. 951, 92 S.Ct. 2061, 32 L.Ed.2d 340 (1972). That order left pending before the single district court judge, against the municipal defendants, the challenge to the taxing ordinance, and against the federal defendants, the challenge to the federal regulations and federal executive order. The motions of the municipal defendants and the federal defendants to dismiss the complaint were granted by the single district judge, Non-Resident Taxpayers Association v. Philadelphia, 341 F.Supp. 1139 (D.N.J.1971), and this appeal followed. The district court dismissed as to the municipal defendants because the complaint seeks a permanent injunction against the collection of a tax authorized by state law, and such an injunction is prohibited by the Johnson Act, 28 U.S.C. § 1341. Appellants urge two grounds for reversal. First, they urge the Johnson Act properly construed applies only to injunctive relief prior to final hearing. Thus, they urge, the case should be remanded for final hearing, with the city free to collect the tax in the interim, but recognizing the power of the district court to enter an injunction as a part of a final judgment. No case has been called to our attention which recognizes so novel a construction of the Johnson Act. We need look no further than the plain text of the statute to reject it. Next, relying on Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946), the appellants urge that they fall within the exception in the Johnson Act which permits injunctions where there is no plain, speedy and effective state remedy by which the questioned tax may be litigated. The Pennsylvania courts would, however, entertain a suit for a refund. Pa.Stat.Ann. tit. 72, § 7342. Such a suit is a plain, speedy and effective remedy. See, e. g., Houston v. Standard Triumph Motor Co., 347 F.2d 194, 199 (5th Cir. 1965), cert. denied, 382 U.S. 974, 86 S.Ct. 539, 15 L.Ed.2d 466 (1966); Helmsley v. Detroit, 320 F.2d 476, 480 (6th Cir. 1963). Indeed, the power of the City of Philadelphia to tax wages of nonresidents earned in the Philadelphia Navy Yard has been litigated in the courts of the Commonwealth. Kiker v. Philadelphia, 346 Pa. 624, 31 A.2d 289, cert. denied, 320 U.S. 741, 64 S.Ct. 41, 88 L.Ed. 439 (1943) . The Kiker case recognizes the taxing power here challenged. Because that holding by the Commonwealth’s highest court would be recognized as a persuasive if not a controlling authority in any Pennsylvania court to which appellants might resort, they rely on it as establishing the lack of an effective state court remedy. Hillsborough v. Cromwell, supra, does not hold that the unlikelihood of success in the state courts is sufficient to take a case outside the Johnson Act. Rather, the Hillsborough v. Cromwell suit was entertained because it was not clear, under the New Jersey law at the time of the decision, whether there was “any adequate remedy in the New Jersey courts for challenging the assessments on local law grounds.” 326 U.S. at 628, 66 S.Ct. at 451. The Johnson Act, then, is a sufficient reason for sustaining the dismissal of the complaint for injunctive relief against the municipal ordinance without reaching the issue of its alleged unconstitutionality as applied to a federal enclave. We note, however, that the Buck Act, 4 U.S.C. § 106, passed in response to James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937), appears to provide ample justification for the decision of the Supreme Court of Pennsylvania in Kiker v. Philadelphia, supra. Appellants’ due process attack on the ordinance, under cases such as General Motors v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964), Miller Brothers Co. v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954), and International Harvester Co. v. Wisconsin Dept. of Taxation, 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed. 1373 (1944) , if we had to consider it, we would regard it as insubstantial. Turning to the challenged federal actions, our starting point is 5 U.S.C. § 7501(a) which permits the removal or suspension without pay of federal employees in the competitive service “only for such cause as will promote the efficiency of the service.” The head of an executive or military department may, under 5 U.S.C. § 301, prescribe regulations for the governing of his department and the conduct of his employees. The Executive Office of the President, Bureau of the Budget, has, by Circular No. A-38, instructed the heads of all executive departments and establishments to furnish information concerning compensation for personal services of federal employees to states and other governmental units taxing such compensation. That circular states in part: “It is the long-established policy of the Federal Government that its employees have an ethical responsibility to pay their just taxes, whether Federal, State or local, on the grounds that such taxes are a responsibility which every citizen must meet for the support of services provided by each level of government exercising taxing powers.” The Navy Department has issued Joint Instruction No. 12750.2B to all its civilian employees advising them that disciplinary proceedings will be taken for certain common offenses. The Joint Instruction cross references to FPM 735-9 Subchapter 2, Agency Regulations Governing Ethical and Other Conduct and Responsibilities of Employees, which among other things, states: “Employees are required to pay each just financial obligation in a proper and timely manner, especially one imposed by law such as Federal, State, or local taxes.” The Joint Instruction states: “(2) Employees who repeatedly refuse to honor just and acknowledged debts are subject to disciplinary action, including removal, whenever the indebtedness reflects so unfavorably upon their suitability for Federal Service as to warrant disciplinary action. * * ■» * * (5) City of Philadelphia, Wage Tax. The legality of the Philadelphia Wage Tax has been established and all employees must recognize this tax as an obligation which they cannot disregard. (6) Based on the foregoing information, effective immediately, the following procedure for handling all City of Philadelphia Wage Tax Delinquency, will be followed: (a) Upon receipt of tax delinquency notice involving any employee of the Compound, male or female, from the City of Philadelphia Tax Authority, the employee concerned will be notified through his supervisor to report to the Consolidated Civilian Personnel Department, NPFC 23, and be personally counseled by CCPD personnel. (b) Should a second notice of delinquency be received within 6 months following such counseling and the employee fails to show acceptable evidence of responsible action on his/her part, the employee will be officially disciplined for first infraction of ‘Failure to Honor Just Debts Without Good Cause’ following the procedures for initiating disciplinary action, reference (a). The penalty for a first offense ranges from a minimum of a Letter of Reprimand to a maximum penalty of 5 Days Suspension Without Pay. (c) Should a third notice of delinquency, be received during the one year reckoning period and the employee fails to show acceptable evidence of responsible action on his/her part to liquidate the delinquency, it will be considered a second offense of Failure to Honor Just Debts Without Good Cause. The penalty for second offense ranges from a minimum of 3 days suspension without pay to a maximum of 10 days suspension without pay. (d) Should a fourth notice of delinquency be received within the one year reckoning period and the employee fails to show acceptable evidence of responsible action on his/her part to liquidate the debt, a proposed notice of removal from employment will be issued under the procedures set forth in reference (a).” The provisions of the Joint Instruction dealing with delinquency by employees in payment of Philadelphia wage taxes meet reasonable due process requirements. There is a sufficient nexus between the efficiency of the service and the non-payment by employees of their just debts since the federal employer may be importuned by creditors such as Philadelphia to put pressure on such employees for payment. See Jenkins v. Macy, 357 F.2d 62 (8th Cir. 1966); McEachern v. Macy, 341 F.2d 895 (4th Cir. 1965); Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364, cert. denied, 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1949). Cf. Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1168 (1969). The contention that the federal employer, by releasing information belonging to it, thereby violates a constitutionally protected right of privacy, is sustained by no authority which has been called to our attention. Cf. 26 U.S.C. § 6103(b). The contention that the quoted provisions of Joint Instruction No. 12750.2B amount to a pri- or restraint on free speech we regard as frivolous. All of us, appellants included, are free to complain about taxes. We must, nevertheless despite the first amendment, pay them. The judgment of the district court will be affirmed. . That section provides : “The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” . Issued August 4, 1963. . Issued July 7, 1970.

f2d_478/html/0461-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

CHOC-OLA BOTTLERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1424. United States Court of Appeals, Seventh Circuit. Argued Feb. 14, 1973. Decided May 14, 1973. Claude M. Spilman, Jr., Indianapolis, Ind., for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., NLRB, Washington, D. C., for respondent. Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge. HASTINGS, Senior Circuit Judge. This case concerns the validity of a ruling of the National Labor Relations Board on the eligibility to vote in a representation election of an employee discharged for cause minutes before the scheduled time for voting. The case arises on the petition of the employer to review and set aside a Board order that it bargain with the bargaining representative whose majority status was determined by the vote of the discharged employee. The Board has made cross-application for enforcement of its order. The Board found that Choc-Ola Bottlers, Inc. (the Company) violated §§ 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 158(a) (1) and (5), by refusing, on or about September 10, 1971, and at all times thereafter, to bargain collectively with the Retail, Wholesale and Department Store Union, AFL-CIO (the Union), which had been certified by the Board as the exclusive bargaining representative of the Company’s employees. The Board entered an appropriate cease and desist order. The Board’s order of May 22, 1972, is reported at 196 N.L.R.B. No. 162. A brief summary of the procedural setting of this matter follows. On January 10, 1971, the Union filed a representation petition with the Board seeking certification as the exclusive bargaining representative of the Company’s employees in an appropriate unit. Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on February 19, 1971, between the hours of 4:00 and 4:30 P.M. The result of this election was that six votes were cast for the Union, six votes were cast against the Union and one ballot, that of William E. Viles, was challenged by the Company. Since the challenged vote was determinative of the election, the Board’s Regional Director conducted an administrative investigation and made a recommendation that the challenge to the ballot be sustained. This recommendation was thereafter reviewed and reversed by the Board, and the Regional Director was directed to open and count the challenged ballot and certify the results of the election. 192 N.L.R.B. No. 182 (April 27, 1971). The ballot of Viles was opened and found to be a vote for the Union, so the Union was certified by a vote of seven to six. Subsequent administrative procedures had consequences adverse to the Company. The end result was the instant matter now before our court, which has jurisdiction under 29 U.S.C.A. §§ 160 (e) and (f). The facts are not in serious dispute. The Company is a small Indianapolis-based corporation which manufactures, bottles and distributes regionally a carbonated soft drink known as “Choc-Ola.” At the time in question the Company employed 13 people in the representation unit. Mr. Harry Normington, Sr., the inventor of the manufactured product, was president and in active charge of the business of his company. Viles was employed by the Company as an over-the-road truck driver. At 3:57 P.M. on the day of the representation election, Nor-mington discharged Viles for cause. Viles presented himself to vote when the polls opened at 4:00 P.M. His ballot was promptly challenged by the Company observer. Viles’ discharge occurred under the following circumstances. The drivers customarily picked up their trucks at the Company’s premises and left on their delivery routes early in the morning, several hours before the Company’s management personnel arrived to begin work. It was likewise customary for the drivers to finish their routes in the early or mid-afternoon, at which time they would return their truck to the Company’s premises. On the afternoon preceding the election, the Company was informed that one of its drivers had on two occasions been seen delivering truck tires to a “truck-stop” in Galena, Ohio. Viles was the only driver employed by the Company who answered the physical description of this truck driver. He had already left work for the day. Therefore, a note was placed on his truck requesting him to report to Normington when he completed his scheduled route the following day, the day of the election. Upon his return to the Company premises the day of the election at 3:31 P. M., Viles did not report to Normington but remained near his truck in the garage area. After two additional requests to report, Viles reported to Nor-mington at 3:50 P.M. Normington, knowing that the truck tires had been missing from the Company inventory, was not satisfied with Viles’ explanation and found reason to believe that Viles had stolen the tires from the Company, sold them and kept the money for his own use. Normington then and there discharged Viles. All of this happened before the polls were opened by the Board agent conducting the election. The general issue for review is whether the Board properly found the Company violated §§ 8(a)(1) and (5) of the Act by refusing to bargain with the Union certified to represent its employees following a Board-conducted election. However, the key subissue is whether the Board erred in overruling the Company’s challenge to Viles’ ballot, a decision which resulted in the Board’s certifying the majority status of the Union. The Board contends that it acted within its discretion in overruling the Company’s challenge to Viles’ ballot. In the instant ease the Board says it adhered to a long-standing Board rule that an employee is eligible to vote in a Board election if he was employed during the eligibility payroll period and on the day of the election. See Macy’s Missouri-Kansas Division v. NLRB, 8 Cir., 389 F.2d 835, 842 (1968), and a number of Board-cited cases. Since Viles satisfied both of these requirements, the Board holds he was eligible to vote. The circumstance that Viles put in a full day’s labor on a regular workday (the election day) and that his discharge came at the end of his workday and at the end of the workweek is reason enough to satisfy the Board that Viles’ eligibility to vote was not destroyed by the fact that he was discharged three minutes before the polls were to open. The Board further argues that to accept the Company’s position would be to “fractionalize” the day of the election and would lead to administratively unworkable results. It suggests other situations where the Board has refused to fractionalize a critical day. The Board states that the fact that Viles did not have a continuing interest in the outcome of the balloting was immaterial and notes that it has uniformly held that an employee employed on the date of the election is eligible to vote despite an intention to quit after the election. The Company counters with the proposition that since the basic question is whether Viles was eligible to vote, this determination must first be made by reference to the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. Section 8(a)(5), 29 U.S.C.A. § 158 (a)(5), provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section [9(a)].” Section 9(a), 29 U.S.C.A. § 159(a), provides that the bargaining representative must be chosen “by the majority of the employees in a unit appropriate for such purposes.” Here is an explicit recognition of the right to majority rule by those who are employees at the time they vote. The Company notes that in the cases cited by the Board in support of its general standard that a person is eligible to vote if he is an employee on the eligibility date and on the election date there has never been any further question whether the voter was employed at the time he voted. It says that we are faced with a case of first impression in considering the question whether an employee discharged for cause on the day of a representation election is eligible, later that day, to cast his vote for a bargaining representative. We agree with the Company that the question of Viles’ eligibility to vote in the election is a pure question of law, dependent entirely on whether a person in Viles’ situation can be said to be an employee within the meaning of the Act. Therefore, there is no occasion for the Board to exercise its discretion in this matter. We need not dwell on established law recognizing that the Board has wide discretion in supervising the election process' and in resolving questions arising during the course of representation proceedings. See, e. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330-331, 67 S.Ct. 324, 91 L.Ed. 322 (1946); National Van Lines, Inc. v. NLRB, 7 Cir., 273 F.2d 402, 407 (1960). Viles was discharged for cause prior to voting. His employment relationship had not been terminated by reason of a current labor dispute or an unfair labor practice. He was no longer sufficiently concerned with the terms and conditions of employment in the unit to warrant his participation in the representation election. He no longer had a community of interest with other employees in the unit. He no longer had any reasonable expectation of reemployment. When Viles was discharged for cause, he was removed from the payroll, would not perform future services, would not be receiving wages except for past services and was not restricted as to other employment. All these factors are economic and policy considerations placing Viles well outside the ambit of the term “employee” as it is used in the Act. See Allied Chemical Workers, Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 168, 92 S.Ct. 383, 392, 30 L.Ed.2d 341 (1971). As Mr. Justice Brennan, speaking for six of the seven members of the Court, said in the course of holding that retirees are not employees under the Act: “No decision under the Act is cited, and none to our knowledge exists, in which an individual who has ceased work without expectation of further employment has been held to be an ‘employee.’ ” Id. Furthermore, the Court held that “the term ‘employee’ is not to be stretched beyond its plain meaning embracing only those who work for another for hire.” Id. at 166, 92 S.Ct. at 391. There can be little doubt that Viles did not fit this mold at the time he cast his challenged ballot. His relationship with the Company had by that time been definitely and permanently severed. The Act gives no warrant to the Board’s effort to transform Viles, who was, according to the “plain meaning” of words, a “former employee,” into a full-fledged “employee” with the right to determine the representation rights of his 12 former colleagues. In a ease like the present one, it is apparent that the discharged employee's vote will be directed more toward a result that seems to him in the employer’s worst interest than to one in his former colleagues’ best interests. This leaves only the Board’s argument that the result we reach will be administratively unworkable because it will somehow “fractionalize” the election day. The unworkability of one option may well justify an agency in adopting the other of two options when the governing statute permits the adoption of either. But, as we have held, the approach for which the Board contends is not open to it. Even if the result proves inconvenient to administer, the Board must perform the duties Congress has imposed upon it. We do not, however, concede that this result will prove unworkable. The Board has long enforced the rule that a voter is eligible to cast a ballot in a representation election if he is an employee both on the day of the election and during the eligibility payroll period. In addition to these requirements, we now recognize the requirement, grounded in the Act, that he still be an employee at the time he attempts to vote. This holding is entirely consistent with the holdings of all the cases cited by the Board and would not have changed the result in a single one of them. For the foregoing reasons, we conclude that Viles’ vote should not have been counted, that the Union should not have been certified as bargaining representative and that the Company was under no duty to bargain collectively with the Union. Accordingly, we grant the Company’s petition to review, set aside the Board’s order and decline to enforce it. Review granted, order set aside and enforcement denied. KILEY, Circuit Judge (dissenting). I respectfully dissent. I agree that the “key sub-issue” is whether the Board erred in overruling the Company’s challenge to Viles’ ballot. In my opinion “the matter of voter eligibility rests primarily with the Board and ... in its expertise and experience in handling labor-management relations, it should decide this issue, subject, of course, to right of review.” Macy’s Missouri-Kansas Division v. NLRB, 389 F.2d 835, 846 (8th Cir. 1968). I think in reviewing the Board’s decision on Viles’ eligibility to vote we are limited to deciding whether the Board abused its discretion. The majority opinion rests upon rules distilled from several cases: Viles was no longer sufficiently concerned with the unit’s employment conditions under Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 944 (5th Cir. 1959); had no community of interest under NLRB v. Belcher Towing Co., 284 F.2d 118, 121 (5th Cir. 1960); and no longer had any reasonable expectation of reemployment under Whiting Corp. v. NLRB, 200 F.2d 43, 45 (7th Cir. 1952), and Lake City Foundry Co. v. NLRB, 432 F.2d 1162, 1168-1169 (7th Cir. 1970). None of those cases concerned an employee who was discharged for cause after he finished his work the day of the election. In Shoreline the question of eligibility depended on whether the challenged votes were in the unit involved. In Belcher the question was whether a parttime employee had sufficient continuity to gain a community of interest. In Whiting the challenged voter quit two weeks before the election because he was unable physically to do the work, and said he would not return. This court set aside the Board’s finding of eligibility as not supported by adequate proof. In Lake City this court decided that the record did not support the Board’s finding that Kent was an employee when demand for recognition by a union was made because he had — a half hour prior to the demand — been told of the company decision to discharge him, and his final check had been prepared. This court, on authority of Whiting, said Kent could not have had any reasonable expectation of further employment. Viles was discharged election day after completing his work and, presumably, being paid, and only three minutes before the voting began. The day before the election the Company had “strong suspicion” that Viles stole Company tires and sold them for his own profit. Instead of firing Viles on the day he received that information, the president, Normington, left a note on Viles’ truck to report after he had “completed his scheduled route” the next day, the day of the election. This court’s opinion states no good reason why Viles could not have been fired before election day. The Company must have known where he lived and could have communicated with him. The Company seeks to excuse its failure to discharge him the morning of election day on the ground that drivers left the premises several hours before management personnel arrived. This is unpersuasive. It is true that Viles did not report after he completed his work election day, as the note directed him to do. But he was on the premises after 3:31 p. m. and was not discharged until 3:57 p. m. He was requested to report twice after 3:31 p. m. but did not do so until 3:50 p. m. In Macy’s the Eighth Circuit considered the question of voting rights of strikers and their permanent replacements employed after the strike began. The court thought both were entitled to vote since both had a legitimate interest in their jobs, even though the strikers were not employed on the day of election nor the replacements employed on the initial eligibility date. And in NLRB v. General Tube Co., 331 F.2d 751, 752 (6th Cir. 1964), the Sixth Circuit found “no standard . . . which as a matter of law deprives the . . . Board of power to declare an employee eligible to vote where she was on the eligible list and worked the full day of the election,” even though she had announced the morning of the election her intention to quit and had been paid for the day ending at 4:01 p. m., at which time she stood in line to vote. The court discussed this court’s Whiting decision denying employee status by reference to the Board’s then (1964) standard of “reasonable expectation of reemployment within a reasonable time in the future.” The Sixth Circuit observed that the rationale for the standard seemed to be “simply that no more objective standard was available.” General Tube 331 F.2d at 753. The court stated that its research disclosed no instance where the Whiting standard was applied where the employee worked for the full day of election. The general rule is that to be eligible to vote in an election one must be employed during the current payroll period and on the day of election. Macy’s, 389 F.2d at 842. In Macy’s the question was whether three new employees not employed during the payroll period were eligible to vote. The court noted the “difficult and perplexing chore” of determining voting rights in connection with an economic strike. The court said that both the strikers and their replacements had an interest in their jobs and in the outcome of the election. There is of course no question of eligibility of economic strikers or their replacements here. The Macy’s decision, however, discusses, in considerable detail, the tortuous path Board decisions and Congressional policy have taken in resolving voter eligibility, pp. 843-846. The Macy’s decision shows the lack of rigidity in applicable standards of eligibility to the stage where, despite the general rule, economic strikers with no expectation of reemployment are eligible to vote and the permanent replacements for them are also eligible. Thus the general rule does not always hold with respect to the eligible payroll period or to the day of election. Viles, however, satisfied both parts of the general rule. It seems therefore that neither employment on the day of election nor on the eligibility date has been rigidly required for employee eligibility to vote. Presumably the Board in deciding Viles’ eligibility was well acquainted with the variation in applicable standards and with the history of voter eligibility showing a lack of rigidity in applying the rules relied upon by the majority. The Board’s expertise has been historically relied upon in adjusting application of the eligibility rules to the needs of varied factual situations. In the case before us I see no abuse of discretion in the Board’s finding that Viles was eligible to vote even though he could not expect to be reemployed by the Company, since he cannot be said to have no concern with employment conditions at the Company or to have no interest in the outcome of the election, and he had worked and was paid for a full day on election day. I would enforce the Board’s order. . The appropriate unit was stipulated: “All production and maintenance employees of the Employer at its Indianapolis, Indiana plant including truck-drivers; * * . The Stipulation, provided, inter alia: “Said election shall be held in accordance with the National Labor Relations Act, the Board’s Rules and Regulations, and, the applicable procedures and policies of the Board.” The Stipulation defined “Eligible Voters,” in relevant part to be: “ * * * those employees included within the Unit described below, who were employed during the payroll period * * * [ending Wednesday, February 3, 1971], including employees who did not work during said payroll period because they were ill or on vacation or temporarily laid off, * * * but excluding any employees who have since quit or been discharged for cause * * * and who have not been rehired or reinstated prior to the date of the election * * . These facts are consistent with those found by tire Regional Director, and the Board here concedes that Viles was discharged for cause. According to an affidavit of Normington, Viles admitted a ■week after his discharge “that the 3 tires involved were the property of Choc-Ola, and that he had taken them from the company without authorization or payment.” . Greenspan Engraving Corp., 137 N.L.R.B. 1308, 1309 (1962); Gulf States Asphalt Co., 106 N.L.R.B. 1212, 1214 (1953); Reade Mfg. Co., 100 N.L.R.B. 87, 89 (1952); Bill Heath, Inc., 89 N.L.R.B. 1555, 1556 (1950). . Plymouth Towing Co., 178 N.L.R.B. 651 (1969); West Texas Equip. Co., 142 N.L.R.B. 1358, 1359-1360 (1963) ; Deluxe Metal Furniture Co., 121 N.L.R.B. 995, 999 (1958). The Board also cites NLRB v. General Tube Co., 6 Cir., 331 F.2d 751 (1964), and provisions for computing time in various rules of procedure. . Personal Products Corp., 114 N.L.R.B. 959, 961 (1955) ; Whiting Corp., 99 N.L.R.B. 117, 122 (1952), rev’d on other grounds, 7 Cir., 200 F.2d 43 (1952). But see Fairview Hosp., 174 N.L.R.B. 924, 928 (1969), enf’d, 7 Cir., No. 18151 (October 20, 1970), where the Board ruled ineligible an employee whose discharge was effected on the day of the election. The employee’s timecard was pulled before he reported for work. . Proscribed by §§ 2(3) and 9(a), 29 U.S.C.A. §§ 152(3) and 159(a). . Shoreline Enterprises of America, Inc. v. NLRB, 5 Cir., 262 F.2d 933, 944 (1959). . NLRB v. Belcher Towing Co., 5 Cir., 284 F.2d 118, 121 (1960). . Whiting Corp. v. NLRB, 7 Cir., 200 F.2d 43, 45 (1952), cited in note 6, supra. See also Lake City Foundry Co. v. NLRB, 7 Cir., 432 F.2d 1162, 1169 (1970). . See cases cited in note 4, supra. . See cases cited in notes 5 & 6, supra. . There is no argument made that Viles’ misconduct forfeited his voting right, if he was otherwise eligible.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOUSTON NATURAL GAS CORP., Respondent. No. 72-3460 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 18, 1973. Rehearing and Rehearing, En Banc Denied July 13, 1973. Marcel Mallet-Prevost, Asst. Gen. . Counsel, N. L. R. B., Washington, D. C., Clifford Potter, Director, Region 23, N. L. R. B., Houston, Tex., for petitioner. Robert S. Bambace, Neil Martin, Houston, Tex., for respondent. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. AINSWORTH, Circuit Judge: On August 21, 1972, the National Labor Relations Board found that Houston Natural Gas Corporation engaged in an unfair labor practice in violation of sections 8(a)(1) and (5) of the National Labor Relations Act of 1947, 29 U.S.C. §§ 158(a)(1) and (5) (1971), by refusing to bargain collectively with the International Union of Operating Engineers, Local No. 347, AFL-CIO, as the exclusive bargaining representative for “operators A, B and C and apprentice operators, including maintenance operators and maintenance operator apprentices.” Upon petition of the NLRB pursuant to section 10(e) of the Act, 29 U.S.C. § 160(e) (1971), we grant enforcement of the order inter alia compelling the company to bargain collectively with the union. On the initial question regarding the appropriate bargaining unit, section 10(e) limits our factual review to determine whether the Board’s conclusions are supported by substantial evidence on the record considered as a whole. See also Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). Then we must determine whether the Board’s application of a statutory term has a reasonable basis in law. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944). This limited scope of review is justified, because as the Supreme Court said in National Labor Relations Board v. Erie Resistor Corporation, 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963), “we must recognize the Board’s special function of applying the general provisions of the Act to the complexities of industrial life.” Houston Natural Gas Corporation contends that operators A are “supervisors” within the meaning of section 2(11), 29 U.S.C. § 152(11) (1971), and, therefore, should be excluded from the bargaining unit under sections 2(3) and 7, 29 U.S.C. §§ 152(3), 157 (1971), which limit a bargaining unit to employees who are not supervisory personnel. After noting that lead operators have no authority to hire or discharge employees but can recommend employees be given raises or promotions, the Acting Regional Director who initially handled the case stated in his decision: Although the operators A may to some extent direct the work of other employees and undoubtedly are responsible for the operation of complex machinery and equipment when they are in charge of a shift, it is apparent that their relationship to other employees is more that of highly skilled employees to ones with less skill, and that whatever control they exercise derives from their greater skill, experience and responsibility. Accordingly, based on the foregoing, and the entire record, I find that operators A are not supervisors, and include them in the unit herein found appropriate. The NLRB denied review for the reason that the company raised no substantial issues, and we find this decision under section 9(b), 26 U.S.C. § 159(b), is supported by substantial evidence and has a reasonable basis in law. The company at another of its plants entered into a collective bargaining agreement covering a unit which includes operators A. Under these circumstances, we do not believe routine and limited control over employees makes them supervisors. See Ross Porta-Plant, Inc. v. National Labor Relations Board, 5 Cir., 1968, 404 F.2d 1180; National Labor Relations Board v. Security Guard Serv., Inc., 5 Cir., 1967, 384 F.2d 143. See also National Labor Relations Board v. American Oil Co., 7 Cir., 1967, 387 F.2d 786, cert. denied, 391 U.S. 906, 88 S.Ct. 1056, 20 L.Ed.2d 420 (1968); Northern Virginia Steel Corp. v. National Labor Relations Board, 4 Cir., 1962, 300 F.2d 168, 170-172; International Union of United Brewery v. National Labor Relations Board, 1961, 111 U.S.App.D.C. 383, 298 F.2d 297, 302-303, cert. denied, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847 (1962); National Labor Relations Board v. Swift & Co., 9 Cir. 1957, 240 F.2d 65. Following the bargaining unit’s election which resulted in an affirmative vote for the union, the company filed several objections to the election procedure. On November 23, 1971, the Regional Director sent a letter to the company’s counsel advising him: [Ujnder Board policy and well-established ease law, the burden is upon you, as the objecting party, to furnish evidence to prove a prima facie case in support of your objections. Therefore, unless said evidence is submitted forthwith (within 5 working days from receipt of this letter), the objections will be overruled. Generally speaking, and as a minimum, this should include a list of the witnesses, their addresses and telephone numbers, and a brief description of the testimony of each. In this regard, you should not “piecemeal” the submission of evidence but should disclose promptly all the evidence in support of your objections. The post office certification indicates that the letter was received by the law firm on November 24, 1971. The Regional Director waited until December 3, 1971 without any response from counsel. Then the Director certified the union as the bargaining representative and overruled the company’s objections, because the company had failed to support its objections. The company petitioned for review, which the Board denied. Counsel presented no adequate reason why he or at least some other attorney in his office did not respond within the time limit, so we believe the Board’s disposition of the case was justified in order to effectuate the implicit congressional purpose of expeditiously resolving questions preliminary to the establishment of the bargaining relationship. See National Labor Relations Board v. Douglas County Electric Membership Corporation, 5 Cir., 1966, 358 F.2d 125, 129; National Labor Relations Board v. O. K. Van Storage, Inc., 5 Cir., 1961, 297 F.2d 74, 76. Finally, the Board’s grant of summary judgment in the unfair labor practice proceeding was justified. The Board need not relitigate issues previously considered during the representation proceeding. See Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 158, 162, 61 S.Ct. 908, 915, 917, 85 L.Ed. 1251 (1941). Although the company presented what it termed new evidence as an excuse for another hearing, the Board acted within its discretion in refusing to hear the evidence, see Magnesium Casting Co. v. National Labor Relations Board, 401 U.S. 137, 139-140, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971), because, as the Board pointed out in its opinion, the company “made no showing that the proffered evidence could not have been produced in the underlying representation proceeding.” Enforced. . There is no change of policy involved in this ease which would require the Board to exercise rule-making procedures, such as were ordered in Bell Aerospace Co. v. National Labor Relations Board, 2 Cir., 1973, 475 F.2d 485.

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Henry J. MODREY, Plaintiff-Appellee, v. AMERICAN GAGE & MACHINE COMPANY, Defendant-Appellant. No. 282, Docket 72-1534. United States Court of Appeals, Second Circuit. Argued Feb. 13, 1973. Decided May 1, 1973. Charles F. Pigott, Jr., Chicago, 111. (Robert O. Mansell, Chicago, 111., and Henry W. Lauterstein, New York City, of counsel), for defendant-appellant. Charles Marks, New York City (Louis J. Wunder, New York City, of counsel), for plaintiff-appellee. Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge. Of the United States Court of Claims, sitting by designation. OAKES, Circuit Judge: This appeal is from a summary judgment granted to a patent licensor against his licensee in a suit for the second payment allegedly due under the license agreement. That license agreement has now been terminated. Out of the usual maze of claims, counterclaims, and cross claims which patent litigation so frequently entails emerges one central question. The question is whether the district court was correct in concluding that no triable issue of fact is raised by appellant’s contention that under the terms of the license agreement, which was executed before the patent itself was granted, the patent claims ultimately granted to the appellee-licensor did not contain “significant coverage” of the licensed device. The device is an automatic dispenser of magnetizable items such as screws, pins, rivets and the like. For reasons that will appear below, we believe that the district court was incorrect : a triable issue of fact does appear. Accordingly the summary judgment must be reversed and the cause remanded. The decision of the district court is reported at 339 F.Supp. 1213. Appellee Modrey, an inventor, and one Steinmeyer (from whom Modrey took an assignment) applied on July 30, 1966, for the patent now at issue. The invention has some reference in the trade as “Pintrex” or as a “Pintrex” machine or as a part of a “Pintrex” system. After filing the application Modrey entered into a license agreement with C.E.M. Company, a manufacturer, in no way related to the appellant, of “spring pins,” which are simply small, straight, cylindrical rods. Subsequently Modrey entered also into negotiations with Size Control Company (hereinafter “Size Control”), a division of the appellant, concerning a further license to use and exploit the “Pintrex’.’ device. These negotiations were essentially in three stages, and culminated in the license agreement now in issue. The first stage established, among other things, that Size Control would pay Modrey two installments of $15,000 each, one on the signing of the license, the second upon the issuance of a patent, although the terms of the patent grant were not established at this stage. The invention referred to was described in the application as including the following general features: a frame provided with a bin or receptacle containing a quantity of the items to be dispensed, such as pins or screws; a rotary conveyor, consisting of either a disc or a drum, supported by the frame and dipping into the bin or receptacle; a number of elongated magnets so affixed to the disc (it is unnecessary for present purposes to refer to the drum) as to attract to its surface the items to be dispensed; and a passageway or chute so aligned with the magnets that upon rotation of the disc the items would be brought one by one into the passageway or chute whence they could be dispensed in the given manufacturing or packaging operation. The disc was referred to in the negotiations and will be referred to in this opinion as a “magnetic feeder disc.” In the second stage of negotiations Size Control took the position that the license agreement should be modified so as to make the payment of the second installment of $15,000 (for which Mod-rey instituted this suit) conditioned not upon the grant of any patent under the application but only upon the grant of a patent containing the first claim thereof —Claim 1 — as it then existed. Claim 1 rather broadly referred to a conveyor having magnetic elements spaced apart in the direction of travel with the conveyor arranged to pass for part of its travel through a supply of the items to be dispensed, and a conventional discharge chute along the path of the magnetic elements. Because Modrey pointed out that Claim 1 was quite broad and that the Patent Office often requires the language of a broad claim to be narrowed in scope, he refused to agree to Size Control’s proposal. The parties compromised in what we term the third stage of negotiations, and payment of the second installment by Size Control was conditioned upon the grant of claim(s) containing “significant coverage of the magnetic feed disc as shown in Figs. 1 and 2.” It is of this stuff that commercial law suits are so often made; a compromise to reach agreement, leaving undefined except ultimately by the court the specifications of the compromise — the word might as well have been the much overworked “substantial.” It is in connection with just such ambiguous terms that, as Professor Corbin reminds us, see 3 A. Corbin, Contracts § 542 (1960), proof of surrounding circumstances and the use of other extrinsic aids to interpretation are so important in reaching a result that in the end is after all at best, perhaps, an informed guess based upon subsequent rationalization. At this point of negotiations, Modrey executed the license agreement, on June 19, 1968. The agreement was also executed by Size Control, on July 8, 1968, and it paid the first installment of $15,000 to Modrey as required. Meanwhile, however, the patent office had, on July 1, 1968, issued its first Action on the application, rejecting Modrey’s Claims 1-15 among others, including the broad claims relative to the “magnetic feeder disc” shown in Figures 1 and 2; the rejection was under 35 U.S.C. § 102, on the basis that the claims were anticipated by the prior art, specifically Patent No. 2,836,947 and Patent No. 3,065,841. Each of these patents related to a selection and feeder device (or dispenser) using apparently a disc or drum with imbedded magnets to attract objects such as bottle caps from a bin or receptacle and to feed them into a chute. We say “apparently” because these patents are not part of the formal record, although they have been furnished to us gratuitously by the appellant in a special appendix. Modrey did not advise Size Control of the action by the Patent Office, but so narrowed his Claim 1 as hopefully to avoid the problem encountered. Whether or not the narrowing of the claim rendered the “coverage” of the magnetic feeder disc no longer “significant” is the question of law we must determine preliminarily. If we decide that there are genuine issues of material fact raised in appellant’s affidavits on this point then we must remand to the district court for a taking of evidence. Fed.R.Civ.P. 56(e); see First National Bank v. Cities Service Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Dol-gow v. Anderson, 438 F.2d 825, 827 (2d Cir. 1971). Crucial to decision on the preliminary question of law is the way in which Claim 1 and accordingly its dependent claims were narrowed to obtain the patent. What had been referred to in the application as “magnetic elements secured to said conveyor spaced apart in the direction of travel” was amended to read “magnetic elements secured to said conveyor lengthwise spaced apart and oriented generally north-south in the direction of travel thereof” (emphasis supplied). The case turns on whether a magnetic feeder disc patent, limited in its claims to one in which the magnetic elements are oriented generally north-south, has genuine significance or, in the words of the license, “significant coverage.” If it is immaterial in which direction the magnetic elements are “oriented,” then obviously the coverage is insignificant; indeed, there may well be anticipation by the prior art. But if the orientation of the magnetic elements of the disc is material, as, for example, in some way to aid alignment or passage into the dispensing chute, then the ap-pellee really has something, a patent which significantly covers the original claim. It is precisely on this point that we believe there is a genuine issue of material fact. The affidavit of Edward Peonski, an engineer but the president of and chief negotiator for Airtronies, the Size Control division wanting to use the Pintrex, states that it is “wholly unnecessary to orient the magnets generally north-south in the direction of travel thereof” and that the “desired orientation of the items to be dispensed could readily be accomplished by mechanical guide means and the like independent of the magnetic elements.” Indeed, Modrey’s own patent application indicates as much, because its Figures 12 and 13 specifically show the magnetic elements aligned at about a 45-degree angle, thus permitting a headed screw to be dispensed in the usual fashion through the use of a mechanical guide or guides. (No claim is made for the mechanical guides.) Beyond this the specifications of the Modrey patent point toward such an angular orientation with reference to the precise use contemplated by Size Control, viz., for dispensing headed screws, in saying: As is readily evident from an analysis of the previously described figures, the selectors as shown in these figures are not capable of differentiating whether one or the other end of an item faces forwardly when it passes through a gate. To effect such directional differentiation, magnetic pads 45 of the kind previously described are disposed at an angle to the circumferential direction rather than aligned with the same as is shown in all previously illustrated embodiments. (Emphasis supplied.) The district court handled this question of “significance” of “north-south orientation” by saying: The main difference between the coverage of the claims of the patent and those of the application is the limitation imposed on the arrangement of the magnetic elements — “North-South in the direction of travel thereof”. The Agreement did not provide that the term “significant coverage” was meant to cover defendant's proposed machine. Therefore, the fact that the claims of the patent would not protect its proposed machine from competition will not be considered in determining the intent of the parties as embodied in the Agreement. Defendant’s counsel studied the patent application before entering into the Agreement and by letter of June 19, 1968 plaintiff warned defendant that Claim 1 was very broad and might not be allowed. Defendant could have required a more detailed definition of “significant coverage” in the Agreement, but not having done so, the court will not read one in. The words “significant coverage” were put in at the request of Size Control Company and for its benefit. Consequently, if there is any ambiguity, it should be strictly construed against defendant. 339 F.Supp. at 1217 (citations omitted). We think, however, that it was not a question whether appellant’s “proposed machine” was protected from competition, but whether coverage of a magnetic feeder device with north-south orientation was significant. If a magnetic device with the aid of non-patentable mechanical guides works as well with angular orientation of the magnets as with north-south orientation, then the coverage is really unimportant as we view it. Anyone using magnets on a feeder disc and mechanical guides could compete successfully with the claimed device, not just with appellant’s “proposed machine.” In saying this, however, we do not mean to invade the district court’s province, for it is possible that evidence will disclose that with a north-south orientation, because that is “the direction of strongest magnetic flux,” 339 F.Supp. at 1216, the feeder disc would work more efficiently in some way that does not appear to us. This, it seems to us, is the principal question of factual significance for resolution below; if answered in the negative, it would seem that Modrey would not have met the contractual requirements. Our highlighting the question of significant coverage rather anticipates our rulings in reference to the plaintiff-ap-pellee’s claims of estoppel or waiver by appellant’s promotional and sales efforts in connection with the “Pintrex” device and failure to object to the coverage of the patent granted, even though frequently reminded of appellee’s $15,000 claim, until several months after the issuing of the patent. We hold that there was no estoppel as a matter of law since it appears that Size Control had not been advised by Modrey of the original Patent Office action rejecting the application and the steps taken to amend it accordingly. On remand the factual basis on which appellant relied in marketing the “Pintrex” will more fully appear and the issue of estoppel can be dealt with accordingly. We have already said, supra note 4, that appellant may raise the issue of invalidity on remand with district court consent. Appellant also urges illegality because the license agreement permitted royalties to accrue after the patent in question had expired. Brulotte v. Thys Co., 379 U.S. 29, 30, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964), however, held that only as concerns after accrued royalties is an agreement illegal, and that such later accruing royalties are uncollectable. But this does not affect the appellee’s claim to the royalty payment here involved, one due long before expiration of the patent. See also Atlas-Pacific Engineering Co. v. Geo. W. Ashlock Co., 339 F.2d 288, 289 n. 1 (9th Cir. 1964). We reverse the judgment below and remand for trial in accordance with this opinion. . Except in Figures 1 and 2 in the application for a patent, a guide or series of guides also is shown; such a guide is described as having the purpose better to align the items on the disc for passageway through the dispensing chute. . The first claim as originally submitted was for the following: 1. A device for successively and singly dispensing discrete magnetizable items, said device comprising in combination : an endless non-magnetic conveyor mounted for travel along a predetermined path; magnetic elements secured to said conveyor spaced apart in the direction of travel thereof, said conveyor being arranged to pass for part of its travel through a supply of the items to be dispensed for attracting one or several of said items by the magnetic elements as the same pass through said supply and for carrying along the attracted items in random positions and movable in reference to the magnetic elements; and a stationary selector means including a passage opening having an outline approximately corresponding to the outline of the items to permit passage of a single item only and in a predetermined position thereof in reference to said passage opening, said selector means being disposed posterior of the location of the supply and across the path of the magnetic elements whereby an at least partial engagement of an item on any one of the magnetic elements with said opening in the selector means causes the engaged item to move on its magnetic element into a position oriented for passage of said item through said opening and to be pulled through the opening by the continued movement of the respective magnetic element while any other items carried on the same magnetic element are stripped therefrom at the selector means. Each of the claims numbered 2, 4, 14, 20 and 21 — all ultimately granted — is dependent upon Claim 1 since it relates to “A device according to Claim 1.” . Modrey had worked out an agreement with C.E.M. Company whereby it consented, since it was ,primarily interested only in spring pins, to use of the “Pin-trex” by Size Control for certain types of cylindrical pins, pin rollers which are headless nails, nails of any type, taper-pins, cotter pins, rivet eyes, eyelets, washers and spacers. . Appellant contends that the patent in suit is invalid because Patent No. 2,836,947 contained the same north-south alignment. This contention was not raised or passed on below and we also do not pass on it. Because a remand and trial are required to dispose of other contested issues of material fact, however, we note that appellant may, with the district court’s consent, cf. Fed.R.Civ.P. 15(a), amend its plead - ings to raise the issue of invalidity then. Cf. Lear, Inc. v. Adkins, 395 U.S. 653, 663-664, 89 S.Ct. 1902, 1908, 23 L.Ed.2d 610 (1969), quoting with approval Pope Mfg. Co. v. Gormully, 144 U.S. 224, 234, 12 S.Ct. 632, 36 L.Ed. 414 (1892). (“It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly . . . .”)

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UNITED STATES of America, Plaintiff-Appellee, v. Douglas Alan WILSON, Defendant-Appellant. No. 72-2199. United States Court of Appeals, Ninth Circuit. April 30, 1973. Martha Goldin, Atty. (argued), Alan Saltzman, Saltzman & Goldin, Hollywood, Cal., for defendant-appellant. Dale H. Thayer, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before MERRILL and CHOY, Circuit Judges, and ENRIGHT, District Judge. The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation. CHOY, Circuit Judge: Douglas Alan Wilson was convicted after a nonjury trial of refusal to submit to induction into the armed forces in violation of 50 U.S.C. App. § 462(a). He was sentenced to three years in the custody of the Attorney General. Wilson raises a number of challenges to his conviction, but we find only one of merit. We reverse. FACTS Wilson registered for the draft in 1968 and was classified I-A on January 6, 1970. That same month Wilson was hospitalized at the Memorial Hospital of Glendale where, because of an acute narcotics overdose and subsequent respiratory failure, a tracheotomy was performed. On March 11, 1970, Wilson was given a pre-induction physical examination at the Armed Forces Entrance Examining Station (AFEES). He claimed to have a narcotic habit which had resulted in hospitalization and accordingly was scheduled for a psychiatric evaluation. The examining psychiatrist found no neuropsychiatric disorder apparent at that time, noting that Wilson had not documented his claim as a heroin addict. Wilson was found acceptable for induction by AFEES. Wilson was ordered to report for induction on June 9, 1970. After obtaining a postponement of his induction to present a conscientious objector claim, Wilson had his place of induction transferred to New Orleans but he failed to report. Some months later, Wilson contacted his local board and filled out a current information questionnaire. He was ordered to report for induction on April 20, 1971 but again did not. He was subsequently ordered to report on June 9, 1971. Wilson sent his local board copies of the 1970 report from Memorial Hospital of Glendale and a confidential report from Woodoaks Therapy Center. The latter report contained an evaluation by two doctors that Wilson was a severely disturbed young man dependent upon a number of narcotics and dangerous drugs, including heroin for over three years. The primary diagnosis was schizophrenia and secondary was drug dependence. Wilson’s local board informed him that this information would be forwarded to AFEES where he was to report for another physical examination prior to induction. Wilson was given a complete physical examination at AFEES on June 9, 1971. He was referred to the civilian psychiatrist on duty, Dr. Higginbotham, for psychiatric evaluation. The stated reason was the previous neuropsychiatric consultation. He noted Wilson’s history of drug abuse and found toxic psychotic symptoms. He concluded that the history was within normal limits and that Wilson was not incapacitated from a neuropsychiatric viewpoint. Higgin-botham profiled Wilson as “SI,” an ex-aminee who met the current psychiatric standards of the military service. These findings were sent to the medical officer, Captain Watson, who found Wilson qualified for induction Wilson then refused to submit. DISCUSSION The scope of judicial review permitted to this court is the narrowest known to law. United States v. Ervin, 464 F.2d 1021 (9th Cir. 1972). We must determine whether there is a “basis in fact” for the finding that Wilson was qualified for induction. McGee v. United States, 402 U.S. 479, 486, 91 S.Ct. 1565, 28 L.Ed.2d 711 (1971); Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Vasilj v. United States, 425 F.2d 1134, 1137 (9th Cir. 1970). We are limited to Wilson’s Selective Service File in our inquiry, United States v. Lloyd, 431 F.2d 160, 166 (9th Cir. 1970), cert. denied 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971), and cannot search the record to determine whether AFEES’s finding is supported by substantial evidence. United States v. Wilson, 473 F.2d 297 (9th Cir. 1973). Wilson must affirmatively demonstrate the invalidity of AFEES’s action. United States v. Hulphers, 421 F.2d 1291, 1292 (9th Cir. 1969). AFEES determines the medical acceptability of a registrant, United States v. Miller, 455 F.2d 358, 360 (9th Cir. 1970), and federal courts must be particularly cautious in reviewing basis in fact questions of a medical nature. See United States v. Sowul, 447 F.2d 1103, 1105 (9th Cir. 1971). But if the record indicates arbitrary action by AFEES or a deficiency in prescribed procedures that results in prejudice to the registrant, this court can take corrective action. United States v. Shunk, 438 F.2d 1204 (9th Cir. 1971); United States v. Black, 456 F.2d 1297, 1298 (9th Cir. 1972); cf. United States v. Beckett, 457 F.2d 785 (9th Cir. 1972). We choose to do so in this case. There was no basis in fact for AFEES’s finding that Wilson met current psychiatric standards of the military or that he was qualified for induction. The government concedes that the examining psychiatrist, Dr. Higginbotham, was unaware of medical standards controlling the acceptability of registrants and argues that the doctor made no determination of Wilson’s acceptability. Yet Wilson’s Selective Service File indicates that Dr. Higginbotham recorded his finding in shorthand on a consultation sheet as “SI.” This translates into a finding that the examinee meets current psychiatric standards for military service. Therefore, Wilson was found qualified for service under standards of which the examining physician was totally unaware. This arbitrary action deprived Wilson of an opportunity for medical disqualification. United States v. Beckett, supra. The government argues that despite this deficiency Wilson attacks the wrong doctor on this appeal since the medical officer, Captain Watson, reviewed the psychiatric evaluation and was aware of controlling regulations. We think United States v. Verhagen, 341 F.Supp. 637 (E.D.Wis.1972), is instructive and cannot be distinguished from the present case. There an orthopedic specialist examined Verhagen and found him “qualified for duties in the Armed Forces.” The reviewing officer then found Ver-hagen acceptable for induction without providing further explanation. The orthopedist was unaware of army regulations and the court discovered nothing to indicate that personal standards were not utilized. The court held that the decision of the reviewing officer was tainted by the conclusion of an orthopedist who based his finding on improper and unknown standards and that there was no basis in fact for the finding of medical acceptability. We do not decide that Dr. Higgin-botham applied an improper standard, but that he necessarily applied an unknown personal one in finding compliance with the psychiatric standards of the military. Higginbotham’s finding of “SI” and the orthopedist’s finding of “qualified for duties in the Armed Forces” are indistinguishable from their respective viewpoints as specialists. We find no distinction in the reviewing officer’s actions here and those in Ver-hagen. Wilson is a young man with a documented history of drug use. We do not decide whether or not he is a drug addict and therefore medically disqualified from the military service. We hold that Wilson deserved a fair determination of his medical claim, but received an arbitrary and capricious evaluation and that there was no basis in fact for the finding of medical acceptability by AFEES. Reversed. . The causes for disqualification for psychiatric reasons are set out in AR. 40-501 § XVI (1970). They are: psychoses, psychoneuroses and various personality disorders including drug addiction. Higgenbotham was unaware of these grounds for rejection when he made his psychiatric evaluation of Wilson in accordance with AR 601-270 4-20 (h) (1) (b) (1969) : (b) Psychiatric evaluation. A specific psychiatric evaluation will be made by the Chief, Medical Examining Section, whenever the examining physician has reason to question the examinee’s emotional, social, or intellectual adequacy for military service. Such examinees may be referred to a psychiatrist when the services of such a specialist are available with [sic] a period of 2 days. When the services of a psychiatrist cannot be made available within 2 days, or when such referral is not deemed necessary, the medical officer will make the final psychiatric evaluation except in those instances where a security action is pending and the registrant has answered yes to any of the three questions posed in item 6, DD Form 398. See chapter 2, AR 40-501 for causes for disqualification for psychiatric reasons. The mere possibility that a psychiatric condition will arise later in the military service should not be sufficient reason in itself for disqualification ; however, such a possibility should be considered in the light of other findings. (For examjde, moral waivers involving serious offenses of moral turpitude.) Psychiatric determination of mental deficiency will be made independently of the examinee’s scores on the mental tests (AFQT and other), although these scores are useful as confirmatory evidence of this disorder. The short time afforded the medical examiners at the AFEES does not permit them to arrive at a proper psychiatric functional evaluation for profiling purposes. A more desirable time for evaluating the individual’s functional ability from a psychiatric standpoint is during his basic training period. Therefore, any examinee who meets the current psychiatric standards for military service will be profiled 1 (no profile limitation), under the “S” factor in the PULHES system. . The government states in its brief that it has no quarrel with Verhagen “when it is established that the private doctor is unaware of the applicable army regulations.” The government then seeks to distinguish Verhagen. Government Brief at 13-14.

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Caselaw Access Project

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KINGS COUNTY ECONOMIC COMMUNITY DEVELOPMENT ASSOCIATION et al., Plaintiffs-Appellants, v. Clifford M. HARDIN et al., Defendants-Appellees. No. 72-1554. United States Court of Appeals, Ninth Circuit. April 16, 1973. Burton D. Fretz (argued), California Legal Assistance, Santa Maria, Cal., Peter H. Reid, Legal Aid Society of San Mateo County, Daly City, Cal., for plaintiffs-appellants. Peter R. Steenland (argued), Dept, of Justice, Washington, D. C., Dwayne Keyes, U. S. Atty., Joel A. Wallock, Asst. U. S. Atty., Sacramento, Cal., Kent Friz-zell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., for defendants-appel-lees. Before MERRILL and DUNIWAY, Circuit Judges, and CONTI, District Judge. Honorable Samuel Conti, United States District Judge for the Northern District of California, sitting by designation. MERRILL, Circuit Judge: The Kings County Economic Community Development Association, in its complaint filed in this action, describes itself as “an unincorporated association of low-income persons who reside in Kings and Kern Counties, California; the members of said organization cannot afford to purchase bottled water and filters and accordingly must drink, wash and bathe in the high-nitrate water from wells in the vicinity of Delano, California.” Joined with the association, as plaintiffs, are individuals representing a class of “hand-harvest farm workers in the State of California facing daily exposure to polluted waters in the State.” Plaintiffs' concern is with the danger created by the poisonous aftereffects of agricultural pesticides and fertilizers. They have unsuccessfully sought administrative relief and have prepared a proposed “clean water plan” which has not received acceptance. This action was brought against the Secretary of Agriculture, the Secretary of the Interior, and certain officials of both departments, to require them to take action in the control of water pollution caused by agricultural water users. The complaint focuses on action required by the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., and the Federal Water Pollution Control Act, 33 U.S.C. § 1151 et seq. It is plaintiffs' aim eventually to secure action from federal agencies denying farm subsidies and loans to users of pesticides and fertilizers. By this suit they seek to compel defendants to take action in this direction by way of studies, hearings and re-j ports. ; The District Court, finding no relief available under the Acts on which plaintiffs rely, granted defendants’ motion to dismiss. Plaintiffs’ difficulty is due to the fact that their concern is directed toward private rather than public action — the use of pesticides and fertilizers by private individuals. The Federal Water Pollution Control Act, for example, requires compliance with applicable water quality standards by federal agencies having jurisdiction over federal facilities or engaging in public works activities. 33 U.S.C. § 1171. On this appeal, appellants’ principal emphasis is upon the National Environmental Policy Act. They assert, first, that appellees have failed to file an Environmental Impact Statement under § 102(2) (C), 42 U.S.C. § 4332(2)(C). They regard the payment of farm subsidies as “major Federal actions significantly affecting the quality of the human environment.” But this simply is not so. Payment of the subsidies is mandatory under the Agricultural Act of 1970, 84 Stat. 1358. The recipient is free to use the money in any way he sees fit. The fact that it (or other money of the recipient) was put to a use affecting the environment cannot convert that private use into federal action. Appellants next contend that appellees have failed to comply with § 103 of the Act, 42 U.S.C. § 4333. Section 103 reads: “Conformity of administrative procedures to national environmental policy All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter.” But a § 103 review was conducted and measures were proposed. Under date of September 9, 1970, the Council on Environmental Quality was advised of the Department’s review. The Secretary stated: “As a result of this review and other Departmental studies, many corrective actions have been taken and many others are planned. A list of actions exemplifying steps that have been taken and the steps that are underway is attached. We regard this review as a continuing program, and we fully expect to turn up other actions as we proceed in interpreting and fully implementing the Act. Also attached is a list of possible changes in our statutory authorities. These are being considered for submission as legislative proposals following the usual process. For your further information, we are enclosing a set of Departmental directives illustrating the progress made to date in implementing the Act.” The fact that the report did not include any recommendation respecting farm subsidies was explained by affidavit of the Assistant Secretary for International Affairs and Commodity Programs : “ * * * the Department has administratively determined that it is not desirable to impose as a condition for payments and loans under the Department’s commodity programs that farmers follow certain practices in using pesticides, herbicides and fertilizers so as to maintain water quality standards. We are of the opinion that these conditions are unrelated to the purposes for which the programs were adopted, namely to secure fair income for farmers, to provide for an adequate, but not excessive, supply of food and fibers and to provide more flexibility for farmers in making their own farm operating decisions. We believe that it would not be proper to impose conditions on participation in these programs as a means of inducing compliance with objectives that are foreign to the purposes for which the programs were established.” In our judgment this is a wholly rational explanation, and failure to conclude and recommend action to the contrary cannot be said to constitute a failure to comply with the Act. Judgment affirmed.

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Caselaw Access Project

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Donner Joseph LeBLANC, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee. No. 72-3509 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 17, 1973. Rehearing Denied May 14, 1973. Richard .M. Olsen, New Orleans, La. (Court Appointed), for petitioner-appellant. Thomas P. McGee, Asst. Dist. Atty., Parish of Jefferson, Gretna, La., William J. Guste, Jr., Atty. Gen., S. J. Dileo, Jr., Special Counsel, Baton Rouge, La., for respondent-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: This appeal is taken from denial of a writ of habeas corpus below on grounds that (i) Appellant’s conviction in the State Court resulted from a plea of guilty entered by his appointed counsel in violation of Article 553 of the Louisiana Code of Criminal Procedure and (ii) the plea of guilty was neither voluntary, or knowingly made. A brief recital of the events preceding this appeal will suffice. Donner Joseph LeBlanc was arraigned on February 12, 1970 at which time he was accused of armed robbery which carries a sentence of five (5) to ninety-nine (99) years imprisonment in Louisiana. He entered a plea of not guilty to the charge. On June 10, 1970, just prior to the trial, LeBlanc withdrew his plea of not guilty and entered a plea of guilty, waiving all delays for sentencing. He subsequently was sentenced to a term of six years at hard labor without the benefit of parole. On June 8, 1971, LeBlanc filed a writ of habeas corpus in the District Court of Louisiana. An evidentiary hearing was held after which the Defendant’s request for the writ was denied. On appeal to the Supreme Court of Louisiana the writ was again denied. Rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557. Having exhausted his state remedies, LeBlanc filed the present petition for writ of habeas corpus in the United States District Court. Regarding Appellant’s first assertion listed above, the Court below found, and we think correctly so, that it challenged only adherence to state statutory procedures and failed to raise a federal constitutional question. Regarding Appellant’s second contention, the Trial Court below distinguished this case from Boykin on the grounds that the first habeas corpus petition in the State Court resulted in a post-conviction evidentiary hearing which established that LeBlanc’s guilty plea was voluntary. In answer to Appellant’s contention that he was unaware of his ineligibility for parole, the Trial Court correctly held, as we have, that a trial judge is not required to inform a defendant of his ineligibility for parole. Onick v. United States, 5 Cir., 1970, 425 F.2d 1292, cert. denied, 1970, 400 U.S. 846, 91 S.Ct. 92, 27 L.Ed.2d 83; Sanchez v. United States, 5 Cir., 1969, 417 F.2d 494; Trujillo v. United States, 5 Cir., 1967, 377 F.2d 266, cert. denied, 1967, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221. While we agree with the lower courts’ treatment in respect to a trial court’s absence of duty to warn a defendant of his ineligibility for parole and under the circumstances of this case, we agree with its acceptance of evidence obtained in a post-conviction hearing as curative of the otherwise defective trial transcript, we hasten to point out that a post-conviction hearing is not a panacea. The Supreme Court stated in Boykin: “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought . and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. This language italicized bespeaks of precisely what normally occurs in a post-conviction evidentiary hearing. The meaning of Boykin is manifestly clear. It is error, plain on the face of the record, for a trial judge to accept a guilty plea without an affirmative showing that it is intelligently and voluntarily made. This Court will continue to scrutinize with guarded caution those situations, such as this one where the reviewing court cannot ascertain from the trial transcript that the stringent due process requirements imposed upon the states by Boykin v. Alabama, supra, have been complied with scrupulously. But because of the overwhelming showing in the state habeas hearing that the plea was in fact knowingly made with awareness of its consequences in respect of those requirements having constitutional statute, we conclude that the District Court could so find. Affirmed. . Article 553 of the Louisiana Code of Criminal Procedure provides in part' — ■ “In a felony case the defendant shall plead in person. In a misdemeanor case the defendant may plead not guilty through counsel, and may plead guilty through counsel with consent of the court. ...” . As to the plea, the extract from the minutes of the State Court contained the fol-owing verbatim entry— “The accused, Leblanc, appeared before the Bar of the Court this day and this day and through attorney H. Lee withdrew his former plea of “not guilty” and entered a plea of “guilty as charged”, which plea was ordered to be recorded. Delays waived. It is ordered by the Court that the accused for this offense suffer imprisonment in the Louisiana State Penitentiary for a period of six (6) years at hard labor. Defendant gave his age as 24 years old, born November 21, 1945. Bond can-celled, if any. John M. Mamoulides, Assistant District Attorney, representing the State.” . We would add that this contention has been addressed by the High Court of the State of Louisiana and their failure to find reversible error is, as it should be, dispositive. In its' opinion at 559 note 2, the Supreme Court of Louisiana disposed of this contention by stating— “The record reflects that this allegation is obviously without merit. Although the defense attorney addressed the court to introduce the guilty plea, the trial judge addressed the defendant personally to authenticate the plea.” The record developed here by Petitioner does not cast any doubt on the Court’s factual statement. The interest sought to be protected by Article 553 may be gleaned from an “Official Revision Comment” relative to the statute which states in part— “ . . . Louisiana’s requirement that tiie defendant plead ‘in person’, has the advantage of making doubly sure that the defendant is fully cognizant of the plea entered. The history and purpose of this requirement is explained by Or-field, who states: ‘At common law an attorney for the defendant could not plead guilty for the defendant even when the defendant stood by in apparent acquiescence. This rule was relaxed only in the case of misdemeanor . . . ’ ” “ ‘There are a few modern cases holding that the defendant’s attorney may plead guilty for him in his presence. But the courts are reluctant to deviate from the rule. It is possible that a defendant may be too confused or too ignorant to follow the proceedings in court and might not know that a plea of guilty is being entered for him.’ Orfield, Criminal Procedure from Arrest to Appeal, 294, 295 (1947). The ALI commentary lists seventeen states having statutes providing, that ‘the plea of guilty can only be put in by the defendant himself.’ ” . Boykin v. Alabama, 1909, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. . Not the least of the evidence was Appellant’s own admission at the post-conviction hearing that he knew prior to entering the plea that the judge was going to sentence him to six years imprisonment.

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Caselaw Access Project

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UNITED STATES of America, Plaintiff-Appellant, v. 20.53 ACRES OF LAND, MORE OR LESS, IN OSBORNE COUNTY, KANSAS, and City of Downs, State of Kansas, a municipal corporation, et al., Defendants-Appellees. No. 72-1571. United States Court of Appeals, Tenth Circuit. May 15, 1973. Dirk D. Snel, Atty., Dept of Justice (Walter Kiechel, Jr., Deputy Asst. Atty. Gen., Robert J. Roth, U. S. Atty., Roger K. Weatherby, Asst. U. S. Atty., and Jacques B. Gelin, Atty., Dept, of Justice, on the brief), for plaintiff-appellant. Jerry W. Hannah, Topeka, Kan. (Lloyd Bloomer, Osborne, Kan., and George B. Collins, Wichita, Kan., on the brief), for defendants-appellees. Before SETH, Circuit Judge, DURFEE, Senior Judge, United States Court of Claims, and MeWILLIAMS, Circuit Judge. DURFEE, Senior Judge of the United States Court of Claims, sitting by designation. DURFEE, Senior Judge. In this eminent domain proceeding the United States filed a declaration of taking and complaint on March 3, 1966, to acquire fee simple title, perpetual flow-age easements, and lesser interests in property and municipal facilities belonging to the City of Downs, Kansas. These interests were being acquired for purposes of developing the Glen Elder Dam and Reservoir in north central Kansas. A Commission was appointed pursuant to Rule 71A(h), Fed.R. of Civ. P., to determine just compensation. The declaration of taking specified upwards of thirty scattered property acquisitions, a number of which are clustered around the sewage treatment plant owned by Downs. This appeal by the United States is limited to that part of the judgment of the district court confirming the Commission’s award of $220,000.00 as compensation for the acquisition of interests in four parcels around the City’s sewage treatment plant. We reverse and remand. The Government took fee simple title to the existing and only access road (Parcel F) to the sewage plant. The United States planned to build a substitute access road to run westward from the treatment plant and intersect with another road, also to be built and owned by the United States, which would run north to a public highway. The declaration of taking stated that the City “shall have the right to use” the north-south road from the public highway “as a means of access to” the substitute r.oad running westward from the treatment plant, and that the latter road “shall be conveyed to the City * * * upon its request.” The existing effluent or outfall line from the treatment plant was also acquired by the Government by means of obtaining interests in the parcels which the line traversed (Parcels G, H) and by obtaining all right, title, and interest of Downs in portions of the effluent line. Pertinent here is also a small acquired tract (Parcel C’) to the southeast of the treatment plant. The existing effluent line received treated sewage from the plant and conducted it by gravity to a discharge point along the north fork of the Solomon River. The Government planned to construct a protective dike along the river and an outlet works along the dike equipped to collect treated sewage and discharge it into the river. The declaration of taking provided that the United States “will construct, operate and maintain” a substitute effluent line running “to the outlet works to be constructed by the United States * * * ”, such operation and maintenance by the United States to continue “so long as the City * * * may require such in its disposal of sewage effluent.” The district court adopted all of the findings and conclusions of the Commission without change or addition. Insofar as this appeal is concerned, the Commission found and concluded; TRACTS P, G, H and C. The Commission finds from the evidence that tracts F, G, H and C (sic) are so inter-related that they should be considered together. The Commission further finds from the undisputed evidence that prior to the taking, the City of Downs, Kansas was operating a primary and secondary sewage treatment plant in accordance with the rules and regulations of the Department of Health of the State of Kansas, and in all respects, in conformity with all statute laws of the state of Kansas governing the operation of sewage treatment plants. The Commission further finds that after the taking, the existing sewage plant was in effect destroyed and the rule of substitute facility, as instructed by the Court, should apply for the reason that there is no market data available for sewage treatment plants. The Commission further finds that the damages suffered by the city of Downs, Kansas, was the sum of $220,000.00. Appellant, the United States, argues (a) that the Commission apparently awarded compensation for the taking of the entire sewage treatment plant, valuing the plant by means of the replacement cost all facilities including the value of a chlorination facility which never existed as a part of the original plant; (b) that in awarding compensation the Commission impermissibly went beyond the scope of the declaration of taking since only the treatment plant’s access road and effluent line were taken; (c) that the Commission was led astray by the district court, and the court overstepped its own jurisdiction, in instructing the Commission to consider whether or not the “city sewage system” had been “destroyed” by the takings; and (d) “the measurement of compensation for the Government’s relocation of a sewer line and access road was clearly erroneous” since all adequate substitutes had been provided. The foremost error infecting these proceedings is that the Commission failed to comply with the reporting standards set forth in United States v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964). We cannot intelligently review the alleged errors because we do not know how the Commission (and court) arrived at the award of $220,000.00. The Commission’s findings are to be accepted by the district court “unless clearly erroneous.” We in turn also accept the findings unless clearly erroneous. United States v. Brinker, 413 F.2d 733 (10th Cir. 1969). However, conclusory findings are alone not sufficient. Such findings are not reviewable by the “clearly erroneous” standard. Merz, supra, at 198, 84 S.Ct. 639. The Commissioners must show the pathway they took through the maze of conflicting evidence which at the very least consists of demonstrating the reasoning they used in deciding on the award, the standard of valuation they tried to follow, the line of testimony they adopted, and the measure of severance damages (if any) they used. Merz, supra, at 198, 84 S.Ct. 639. See generally, United States v. Corbin, 423 F.2d 821 (10th Cir. 1970); United States v. Evans, 380 F.2d 761 (10th Cir. 1967); Chandler v. United States, 372 F.2d 276 (10th Cir. 1967). Other than state generally that it was using the “substitute facility” rule, the Commission utterly failed to cast light on its pathway to this award. The parties in this' proceeding have given us record references to testimony whereby we might fabricate a bridge to the conclusions of the district court and the Commission. That is not our job. Since this condemnation proceeding has involved a difficult and unusual configuration of facts and issues and it appears that the controversy has generated much heat, it may be helpful to the court and Commission to review here a few basic principles. I. It is elementary that how much or how little property the United States elects to take by condemnation is a legislative, not a judicial, question. Berman v. Parker, 348 U.S. 26, 35-36, 75 S.Ct. 98, 99 L.Ed. 27 (1954). The nature or extent of the interest to be acquired is not to be expanded by judicial fiat. Wilson v. United States, 350 F.2d 901, 906 (10th Cir. 1965). On the other hand, it is equally clear and elementary that where part of a single tract is taken, the owner’s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 87 L.Ed. 336 (1943), and cases therein cited. This is severance damage.5 II. The Supreme Court has long recognized the general rule that indemnity to the owner of condemned property is to be measured by the market value of the property. But the Court has also recognized that market value “may not be the best measure of value in some eases.” United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392 (1949). More specifically, in Brown v. United States, 263 U.S. 78, 83, 44 S.Ct. 92, 94, 68 L.Ed. 171 (1923), where the Federal Government had condemned municipal facilities, Chief Justice Taft concluded that “(a) method of compensation by substitution would seem to be the best means of making the parties whole.” See also Annotation 40 A.L.R.3d 143 et seq. In the case at hand the district court instructed the Commission: [T]he general principles applicable to an eminent domain taking of municipal facilities are well established. The taking may be justly compensated by payment of the costs of a substitute, so long as a full equivalent is afforded for the property taken. * * * A sewage disposal plant and sewage system of a city is a facility having no market value. * * * A source of difficulty in this case has been created by the illusory intersection of the substitute facility rule and the severance damage rule. We believe the case of United States v. Board of Education of Mineral County, 253 F.2d 760 (4th Cir. 1958), offers some guidance. In that ease the Federal Government took approximately three of the eight acres of the Ridgely, West Virginia, High School. The highest and best use of the eight acres was for school purposes ; for these purposes the eight acres had no market value. The evidence was that the High School could not be properly operated with less than eight acres. Hence, the value of the entire eight acres “would be largely destroyed,” according to the evidence, if land were not acquired in substitution for the land taken by the Government. The court concluded: “Any reasonable man would say that where the government takes a part of the property necessary to the proper operation of a school, the government should make it possible for the school to acquire other property to use in substitution for the property taken.” 253 F.2d at 763. Similarly, where the Government takes a part of the property necessary to the operation of a sewage plant, the Government should make it possible for the sewage plant’s owner to acquire other property to use in substitution for the property taken. III. In eminent domain proceedings, it is axiomatic that “a full and just equivalent shall be returned” to the condemnee. Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 37 L.Ed. 463 (1893). The owner “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). An issue in this case is whether or not the Government is obligated to compensate Downs for the value of a new chlorination plant. The plant is necessary in order to treat sewage discharged into recreational waters in compliance with enhanced water quality standards. We believe the cases, City of Eufaula v. United States, 313 F.2d 745 (5th Cir. 1963), and United States v. 531.13 Acres in Oconee County, 366 F.2d 915 (4th Cir. 1966), will provide some guidance to the district court on remand. We do not mean to intimate that the result in these cases must also obtain here. We decline otherwise to pass upon the alleged errors raised by appellant until we have a full and proper report of the Commission before us. In remanding, we think in this case it is appropriate to follow the procedure outlined in Merz, supra, at 200, 84 S.Ct. 639. We think the district court should have the opportunity under Rule 53(e)(2) to make its decision afresh, in light of this opinion. On remand, the district court’s informed discretion will be used to determine whether the matters should be resubmitted in whole or in part to the Commission, or whether the court itself should resolve the disputes on the existing records, or on those records as supplemented by further evidence. Reversed and remanded. . At the time of trial in November 1970, both the substitute access road from the treatment plant to the north-south intersecting road and the north-south road to the public highway had been built and were in use. . As of the time of trial the effluent line had been rerouted and in use. . Both parties have indicated in their briefs that the tract involved is “C’ ”, not “C”. . Apparently the Commission concluded, and the court agreed, that the Government’s promise to provide substitute facilities should be given no weight in determining just compensation; or, that since the Government merely promised permissive use of the Federally owned and controlled substitutes, the substitutes were valueless. We do not actually know the reasoning of the Commission. . Fed.R.Civ.P. 71A(h) and 53(e)(2). . An argument of the Government upon this appeal is that the district court by instruction and orders repeatedly wrongly told the Commissioners that whether the “city sewage system” had or had not been “taken” was a factual question to be resolved by them. Although the district court’s instructions and orders could have been more clearly drawn to avoid any remote inference that the Commission was free to consider whether or not the entire sewage plant was taken, we think that the court was, perhaps inartfully and confusedly, doing no more than explaining to the Commission that it could consider severance damages. The court negated the aforementioned inference in its April 10, 1968 Ruling on Objections to Supplemental Instructions, which the court directed the Commission to consider when interpreting instructions. In that Ruling the court said: “[C]ertainly no award may be made for property not taken.” . See Annotation, 19 L.Ed.2d 1361, 1367-1369.

f2d_478/html/0489-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

In the Matter of Applications for Orders Directing the Review or Release of Certain Grand Jury Testimony of Mario BIAGGI. Nos. 954, 957, Dockets 73-1622, 73-1652. United States Court of Appeals, Second Circuit. Argued May 2, 1973. Decided May 4, 1973. Arthur H. Christy, New York City (David P. Steinmann, Robert S. Appel, and Christy, Frey & Christy, New York City, of counsel), for Mario Biaggi, appellant. Whitney North Seymour, Jr., U. S. Atty., for the S. D. N. Y. (Richard J. Davis, and Jeffrey Harris, Asst. U. S. Attys., of counsel), for the United States of America — appellee. Milton Gould, New York City (Shea, Gould, Climenko & Kramer), New York City, for Abraham D. Beame, amicus curiae, seeking affirmance. Burt Neuborne, New York City Atty., for New York Civil Liberties Union, amicus curiae, seeking reversal. Before FRIENDLY, Chief Judge, HAYS, Circuit Judge, and JAMESON, District Judge. Of the District Court for the District of Montana, sitting by designation. FRIENDLY, Chief Judge: Mario Biaggi, a member of the House of Representatives, is a candidate in the Democratic primary for nomination for the mayoralty of New York City and is the Conservative Party candidate for that office. He appeals from an order of the District Court for the Southern District of New York directing the public disclosure of testimony given by him before a federal grand jury in that district on November 26, 1971, redacted so as not to reveal the names of other persons or businesses mentioned therein, as well as from the denial of certain motions of his which are described below. The events leading to these proceedings begin with an article in the New York Times of April 18, 1973, by Times reporter Nicholas Gage. The article said that “authoritative sources” had revealed that Mr. Biaggi had “refused to answer at least 30 questions when he appeared before a Federal grand jury more than a year ago” and that he had “invoked the Fifth Amendment on questions related mostly to his finances”; that Mr. Biaggi “denied that he ever invoked the Fifth Amendment before any Federal grand jury”; but that “the sources said he answered the questions relating specifically to immigration matters but refused to answer more than 30 others, a number of which concerned his finances.” The flame thus kindled proceeded to spread. In a television broadcast on April 25, Mr. Biaggi announced that on the following day he would move in the district court to have his grand jury testimony reviewed by a panel of three district judges “for the sole purpose of determining whether or not I took the Fifth Amendment privilege or any other privilege on my personal finances and assets.” The brief of the United States asserts that in a later press interview on April 25 Mr. Biaggi denied, as reported in the April 18 article, that he had invoked the privilege with respect to any questions. In conformity with the television announcement counsel for Mr. Biaggi moved, on April 26, for an order whereby a court of three district judges would examine the grand jury minutes and make a public report whether, during his grand jury appearances on October 29 and November 26, 1971, he had claimed any constitutional privilege about his personal finances or assets. Without awaiting this motion, the United States Attorney moved earlier on April 26 for the disclosure of all of Mr. Biaggi’s grand jury testimony on November 26, redacted so as to eliminate the names of other persons. The district court granted the latter motion on the afternoon of April 30, also denying Mr. Biaggi’s motion, but stayed the release for 24 hours to permit an application by Mr. Biaggi to this court for a further stay pending appeal. On the morning of May 1 we- extended the stay pending speedy determination of the appeal, which we ordered to be heard on May 2. On the afternoon of May 1, Mr. Biaggi made another motion to Judge Palmieri. Claiming that release of the redacted testimony of November 26 would lead to endless speculation about the blankedout names, and would perhaps involve him in libel suits were he to reveal such names himself, he moved for full disclosure of the minutes of both his grand jury appearances. The United States Attorney expressed willingness to include as much of the October 29 testimony as was needed for full understanding of the testimony of November 26 but resisted disclosure of the names of third persons mentioned in the transcripts of either date. When Mr. Biaggi refused to accede to redaction, the judge denied the motion. Mr. Biaggi appeals from the order directing the release of his testimony of November 26 and from the denials of his motions. Since the former order is obviously appealable, we need not consider the status of the latter. It is a tradition of our law that proceedings before a grand jury shall generally remain secret. The Supreme Court has referred to this as a long established policy “older than our Nation itself.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). The tradition rests on a number of interests —the interest of the government against disclosure of its investigation of crime which may forewarn the intended objects of its inquiry or inhibit future witnesses from speaking freely; the interest of a witness against the disclosure of testimony of others which he has had no opportunity to cross-examine or rebut, or of his own testimony on matters which may be irrelevant or where he may have been subjected to prosecutorial brow-beating without the protection of counsel; the similar interests of other persons who may have been unfavorably mentioned by grand jury witnesses or in questions of the prosecutor; protection of witnesses against reprisal; and the interests and protection of the grand jurors themselves. The secrecy of grand jury testimony, however, is not absolute. As would be expected, the subject has not been left at large but has been dealt with in the Federal Rules of Criminal Procedure. Rule 6(e) provides for three, and only three, exceptions to the rule of secrecy. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror “may be made to the attorneys for the government for use in the performance of their duties.” The court may grant the request of a defendant for access to grand jury minutes “upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” Finally, matters maybe disclosed “when so directed by the court preliminarily to or in connection with a judicial proceeding.” Manifestly neither of the first two exceptions applies here. The permitted disclosure “to the attorneys for the government for use in performance of their duties” refers to their need for the minutes in the preparation of criminal or, sometimes, civil cases; it does not confer a license to broadcast a transcript of grand jury proceedings to the world, and the United States Attorney asserts no such license here. Since Mr. Biaggi has not been the subject of an indictment, there can be and was no request on his part to have access to the minutes for the purpose of dismissing one. The largest breach in the wall of secrecy has been wrought by the third exception. Balancing the interest of secrecy of the grand jury proceedings against the goal of a just result in a judicial proceeding, this exception.rules in favor of the latter — subject, however, to the detailed control of the judge. That exception too is inapplicable here. We have not been told of any judicial proceeding preliminary to or in connection with which the minutes of Mr. Biaggi’s grand jury testimony may be relevant; obviously the permission to disclose for use in connection with “a judicial proceeding” does not encompass a proceeding instituted solely for the purpose of accomplishing disclosure. The references in federal cases to disclosure of grand jury testimony “in the interest of justice” cited by the Government, of which United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), is a sufficient example, are all in the context of use in judicial proceedings of some sort with the possible exception of In re Bullock, 103 F.Supp. 639, 643 (D.D.C.1952).’ Even in that case disclosure was to be made only to the Commissioners of the District of Columbia, Inspector Bullock’s employers, not to the public. It follows that if Mr. Biaggi had made no application to the district court, the Government could not have procured disclosure of his grand jury testimony. No matter how much, or how legitimately, the public may want to know whether a candidate for high public office has invoked the privilege against self-incrimination before a grand jury, or has lied about having done so, that interest must generally yield to the larger one of preserving the salutary rule of law embodied in Rule 6(e) of Federal Rules of Criminal Procedure. But that is not this case. We need not determine whether Mr. Biaggi’s application of April 26 for a limited review of the grand jury minutes by a judge or judges, which the district court was abundantly justified in denying, both for reasons that are apparent on the public record and for others that are not, would alone have empowered the court to order release of the testimony. For his application of May 1 assuredly did, and it now does not matter that the order of disclosure was based on the Government’s motion rather than on Mr. Biaggi’s. Insofar as the rule of secrecy “was designed for the protection of the witnesses who appear,” In re Grand Jury Proceeding, 4 F.Supp. 283, 284-285 (E.D. Pa.1933), Mr. Biaggi waived this protection by seeking complete disclosure in the form of a motion requesting disclosure of his own testimony for its own sake and not merely as the lesser of evils should release of the redacted minutes be upheld. Insofar as the rule exists for the benefit of the Government, the United States Attorney has waived it in the clearest terms. The interests of grand jurors will not be affected ; they asked no questions and their names could be redacted if they had. There remains only the interest of other persons named in the questions. Having sought disclosure, Mr. Biaggi could not condition his demand upon this being done only in a manner harmful to others. Our reading of the grand jury minutes in redacted form indicates that there is little chance that the questions asked and answers given will provide a context for meaningful inference about the identities of the deleted names. Clearly there would be greater possibility of injury to such persons — and, very likely, to Mr. Biaggi as well — if their names were not deleted. In any event, once Mr. Biaggi’s motion gave the district judge power to direct the disclosure that had been sought, it was for the judge to determine what reasonable conditions should be imposed. We have been handicapped in saying more by the application of Mr. Biaggi's counsel, which we have thought proper to grant, that we stay our order for a short period to enable him to apply to the Supreme Court for a further stay of release of the testimony pending the filing of a petition for certiorari. In the event of denial of such an application and release of the minutes we may wish to supplement this opinion so that the grounds for and the limits of our decision may be even more clearly understood. We affirm the order of the district court and direct that our mandate issue five days after the filing of this opinion unless within that period an application for a further stay shall be filed under Supreme Court Rule 50, in which event release of the testimony shall be stayed until a ruling thereon. During that interval counsel shall endeavor to agree on what portions of the October 29 testimony shall also be released. In the absence of agreement, all shall be, with all names and personal references redacted. HAYS, Circuit Judge (dissenting): Rule 6(e) of the Federal Rules of Criminal Procedure forbids disclosure of grand jury proceedings with certain carefully limited exceptions. My brothers concede that the present situation does not present a ease for the application of any of the exceptions specified in the Rule. They have, without the support of any authority in the statute or the case law, created another exception, applicable to the situation where a witness waives the secrecy requirement by seeking release of the grand jury minutes. I do not believe that we have power to legislate this additional exception and I therefore respectfully dissent. SUPPLEMENTAL OPINION FRIENDLY, Chief Judge, with whom JAMESON, District Judge, joins: Now that Representative Biaggi’s grand jury testimony has been made public, we are relieved of the handicaps, noted in our initial opinion, at 493, which impeded full explanation of the grounds for and limits of our decision. It is now apparent that Mr. Biaggi’s request for a review of his grand jury testimony by one or more district judges “for the sole purpose of determining whether or not I took the Fifth Amendment privilege or any other privilege on my personal finances and assets” was framed, whether wittingly or not, in such a manner as to create a false impression in light of the publicity that had given rise to it. As can be seen from the grand jury testimony, the answer to the precise question propounded in all likelihood would have had to have been in the negative. Yet the New York Times article had reported that Mr. Biaggi had stated in an interview, and had assured the Conservative Party when it was considering him as its nominee for the mayoralty, that he had fully answered all questions before the grand jury. The minutes show that, in fact, he had refused to answer seventeen. When Mr. Biaggi sought a full disclosure, although with the names of other persons named in the questions and answers unredacted, he waived his rights to have the minutes remain secret, and the public interest required that the request be granted with proper protection to the persons named. Our decision should therefore not be taken as demanding, or even authorizing, public disclosure of a witness’ grand jury testimony in every case where he seeks this and the Government consents. It rests on the exercise of a sound discretion under the special circumstances of this case. HAYS, Circuit Judge (dissenting): I dissent. The law forbids the publication of these Grand Jury minutes. In my opinion the rules of law are a more reliable guide to the1 administration of justice than the personal views of judges as to what “the public interest” may require. . We inquired of the United States Attorney at argument what efforts had been made to investigate these leaks. He assured us that he had interviewed the Assistant United States Attorney who had questioned Mr. Biaggi before the grand jury, and also was satisfied of the security of the grand jury minutes. We direct that the investigation be further pursued. . Apparently the reference was to his introduction of private bills on behalf of immigrants. . In the course of argument before the district court counsel expressed a willingness to have the examination made by a single judge. . In Pittsburgh Plate Glass Co. v. United, States, supra, 360 U.S. at 405, 79 S.Ct. 1237 (dissenting opinion), Mr. Justice Brennan enumerated the objectives in different language but substantially to the same effect. . The Jencks Act, 18 U.S.C. § 3500, has recently been amended to include the statement of a grand jury witness called by the Government to testify in a criminal prosecution, but this is so plainly irrelevant that we shall not encumber the opinion with references to it. . It is worth noting that under Grunewald v. United States, 353 U.S. 391, 415-426, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), even if Mr. Biaggi were to appear as a witness in a civil or criminal proceeding, he could not be asked whether he had claimed the constitutional privilege before the grand jury — although that decision rests on grounds other than the secrecy of grand jury minutes. . We likewise find no support for the disclosure in Doe v. Rosenberry, 255 F.2d 118 (2 Cir. 1958). That case went on the ground that disclosure of grand jury minutes to the Grievance Committee of the Bar of the City of New York for investigation whether disciplinary proceedings should be instituted before the Appellate Division of the New York Supreme Court was preliminary to a judicial proceeding. . Subsequent to argument we were advised that counsel for Mr. Biaggi had agreed to deletions from the grand jury minutes of the names of law firms and the names of any alien witnesses who would be put in jeopardy by the release of the testimony. Although this is commendable, it is not sufficient. We think that, in addition to the redactions proposed by the United States Attorney, letters attached to the grand jury minutes should be omitted.

f2d_478/html/0494-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Richard Michael KING, aka Richard Hansen, Defendants-Appellants. Nos. 72-1593, 72-1628, 72-1594 to 72-1602. United States Court of Appeals, Ninth Circuit. Feb. 28, 1973. Paul G. Evans (argued), La Jolla, Cal., Michael S. Hegner (argued), San Diego, Cal., Douglas R. Reynolds (argued), of Holt, Rhoades & Hollywood, San Diego, Cal., Kevin J. Mclnerney (argued), of Mclnerney, Milchen & Frank, San Diego, Cal., Artie G. Henderson (argued), San Diego, Cal., Charles R. Khoury, Jr. (argued), San Diego, Cal., Mobley M. Milam, William Zumwalt, James Hagerstrom, of Public Defenders, Inc., Frank V. Gregorcich, San Diego, Cal., for defendants-appellants. E. Mac Amos, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., John J. Robinson, Atty., Dept, of Justice (argued), Washington, D. C., for plaintiff-appellee. Before DUNIWAY and HUFSTEDLER, Circuit Judges, and JAMESON, District Judge Consolidated with U. S. v. Paul A. Vesco, Jr., No. 72-1628; U. S. v. James Leo Olson, No. 72-1594; U. S. v. John Fahlen, No. 72-1595; U. S. v. John Ferris Pope, No. 72-1596; U. S. v. Virginia Marie Pope, No. 72-1597; U. S. v. Gordon Ardel Maack, No. 72-1598; U. S. v. Miki Dee Thieda, No. 72-1599; U. S. v. James Russell Vukich, No. 72-1600; U. S. v. Carole J. Swisher, No. 72-1601; U. S. v. Robert Craig Light, No. 72-1602. Honorable William J, Jameson, United States District Judge, District of Montana, sitting by designation. DUNIWAY, Circuit Judge: King and ten others appeal from their convictions under 21 U.S.C. §§ 176a, 841, 846, 952, 960, 963 of conspiring to illegally import and to distribute marijuana in the United States. Various of the defendants were also convicted under 18 U.S.C. § 1403(a) for using communications facilities in furtherance of the conspiracy. The government's case was largely derived from a tap of King’s telephone, purportedly conducted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Act), 18 U.S.C. §§ 2510-20. We hold that defendants Light and Virginia Pope do not have standing to challenge the legality of the wire-tap, and affirm their conspiracy convictions. We reverse the convictions of the other defendants. I. Validity of the wire-tap. The principal issue in this case is the validity of the wire-tap of King’s telephone. The defendants make a shotgun challenge to the legality of the tap, arguing that its fruits should be suppressed pursuant to 18 U.S.C. § 2515. Having concluded that the wire-tap was improperly authorized, we deal only with that contention. We first set out the relevant provisions of the Act, and then compare them with what was done in these cases. A. The requirements of the Act. Section 2511 outlaws all wire-tapping, and all disclosures of tapped communications, except for those specifically authorized by the Act. Section 2512 outlaws wire-tapping devices, mailing or transporting them in interstate commerce, and advertising them, with certain specific exceptions. Both sections prescribe substantial criminal penalties. Section 2513 authorizes confiscation of unlawful devices. Section 2515 provides, in pertinent part: “Prohibition of use as evidence of intercepted wire or oral communications. Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received' in evidence in any trial, hearing, or other proceeding in or before any court . . if the disclosure of that information would be in violation of this chapter.” And Section 2518(10) (a) implements Section 2515: “Any aggrieved person in any trial, hearing, or proceeding in or before any court ... of the United States . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that— (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” Sections 2516-18 contain elaborate provisions for the authorization of wire-taps in criminal investigations. They are restrictive rather than expansive in their terms. Section 2516 limits the use of wire-taps to investigations of certain crimes only. Section 2517 provides for limited use of intercepted communications by law enforcement officers. Section 2518 prescribes, in elaborate and generally restrictive detail, the contents of applications for orders authorizing wire-taps, the findings to be made by the judge to whom application is made, the contents of his order, and restrictions upon what may be intercepted and how the order may be carried out. We quote the provisions of these sections directly pertinent to this case. Section 2516(1) provides: “(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize the application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications.” Section 2518(1) provides: “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application ; (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communication sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) a statement of the period of time for which the interception is required to be maintained. . . .” Subsection (3) of Section 2518 prescribes the findings that the judge must make. In essence, they track the quoted provisions of subsection (1). Subsection (4) prescribes, in considerable detail, the contents of the judge’s order approving a tap. These also track the provisions of subsection (1), and include the following: “(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; . . . .” Subsection (5) contains provisions limiting the duration of any authorized tap, including the following: “Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.” Subsections (8) and (9) prescribe methods of assuring the accuracy of transcriptions of what is heard, preservation of records, and preconditions to their use in evidence. B. What happened in this case. On March 20, 1971 Charles Fanning, an attorney of the Department of Justice, applied to the District Court for the Southern District of California for an order authorizing a tap of King’s telephone. The application recites: “3. Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated in this proceeding the Assistant Attorney General for the Criminal Division, the Honorable Will Wilson, to authorize affiant to make this application for an order authorizing the interception of wire communications. The letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A.” The attached letter addressed to Fanning, reads: “This is with regard to your request for authorization to make application pursuant to the provisions of Section 2518 of Title 18, United States Code, for an order of the court authorizing the U.S. Customs Agency Service to intercept wire communications to and from telephone number 714-233-8650, subscribed to by Richard Michael King under the name of Richard Hansen and located in the residence of Richard Michael King, address 2002 First Avenue, Apartment No. 3, San Diego, California, in connection with the investigation into possible violations of 21 U.S.C. 176a by Richard Michael King and others as yet unknown. “I have reviewed your request and the facts and circumstances detailed therein and have determined that probable cause exists to believe that Richard Michael King and others as yet unknown have committed and are committing offenses enumerated in Section 2516 of Title 18, United States Code, to wit: violations of 21 U.S.C. 176a. I have further determined that there exists probable cause to believe that the above person will make use of the above-described telephone in connection with those offenses, that wire communications concerning the offenses will be intercepted, and that normal investigative procedures are unlikely to succeed. “Accordingly, you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the power conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an order pursuant to Section 2518 of Title 18, United States Code, authorizing the U.S. Customs Agency-Service to intercept wire communications from the above-described telephone for a period of twenty (20) days. Sincerely, S/ Will Wilson WILL WILSON Assistant Attorney General” On its face, this letter complies with the Act. Whoever composed it had obviously studied the Act and framed the letter accordingly. The problem arises from the fact that practically everything stated in the letter is false. Wilson did not sign it. He never saw it. He never saw Fanning’s request, or any request, much less reviewed it. He made none of the determinations recited in the second paragraph. Attorney General Mitchell did not specially delegate to him any power to act in this case. In short, the District Judge who issued the order was “had”. When these facts came to light, the government filed affidavits which state what actually happened. One is by Harold P. Shapiro, Deputy Assistant Attorney General in the Criminal Division of the Department of Justice. Shapiro states: “Prior to action on each request, the respective Departmental working file, which included copies of the proposed affidavit, application, and order, was reviewed in a special unit of the Organized Crime and Racketeering Section of the Criminal Division by an attorney whose primary function was to review the entire matter for form and substance with particular emphasis on assuring strict adherence to the required statutory, judicial and Constitutional standards. The attorney of that unit handling the requests, Philip T. White, reviewed the files and recommended favorable action on each request. In its turn, each file was then submitted for review to Edward T. Joyce, a Deputy Chief of the Organized Crime and Racketeering Section, who recommended approval of its request and sent it to me. I examined each file and forwarded it to the office of the Attorney General with a detailed recommendation that the authorization be granted. Following approval in the Office of the Attorney General, the Criminal Division dispatched the letters dated March 19, April 8, April 21, and April 29, 1971, to Charles J. Fanning advising him that he was authorized to present the applications to the court. “I signed Will Wilson’s name to the letters of March 19, April 8, April 21 and April 29, 1971, in accordance with the authorization of Will Wilson and the standard procedures of the Criminal Division. I regarded the signing of Will Wilson’s name as a ministerial act, because Will Wilson had authorized me to sign his name and to dispatch such a letter of authorization in every instance in which the request had been favorably acted upon in the Office of the Attorney General.” A second affidavit is by Attorney General Mitchell. This is what he says: “Shortly after taking office, I determined to utilize the authority granted by Congress in 18 U.S.C. 2510-2520 (Title III of the Omnibus Crime Control and Safe Streets Act of 1968) to conduct electronic surveillance under court authorization in the investigation of certain criminal activities. “I established a procedure whereby all requests for authorization to apply for wire interception orders are subject to intensive review in the criminal Division of the Department of Justice and each of the requests in which the Criminal Division concurs is forwarded to me with a written recommendation of the Criminal Division that I approve it. “Although 18 U.S.C. 2516(1) permitted me, as Attorney General, to designate an assistant Attorney General to authorize applications for wire interceptions without my approval, I chose not to make such designation, but rather to require that all requests for authority to file such applications be forwarded to me for consideration. This procedure was intended to centralize in me the responsibility for and control of the policies to be followed by the Department of Justice in relation to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. “All requests received in my office are reviewed by my Executive Assistant, Sol Lindenbaum. Except as otherwise indicated herein, Mr. Linden-baum transmits the request and all accompanying papers to me, along with his recommendation. If I determine to approve a request, I indicate my approval by initialling a memorandum addressed to the Assistant Attorney General in charge of the Criminal Division. This memorandum recites that the Assistant Attorney General is “specially designated” to authorize the application. Upon receipt of my memorandum, a letter of authorization, over the name of the Assistant Attorney General, is dispatched to the Applicant. The memorandum and the letter of authorization are part of the procedure developed for transmittal of my approval to the applicant. The memorandum constitutes a notification to the Assistant Attorney General of the Criminal Division that I have performed the discretionary act of approving the request. “Somewhat more than a year after this Department first utilized the provisions of Title III, I verbally [sic— we assume that this means orally] authorized my Executive Assistant to act on my behalf on requests that might be transmitted by the Criminal Division at a time when I was not available to act on them. I gave him this authority in the light of his familiarity with my policies and with my decision on all requests that had been previously submitted to me. My subsequent review of cases in which he approved requests on my behalf confirmed that he followed my policies. “Since November 20, 1971, I have personally authorized all applications for interception orders which have been presented to Federal judges pursuant to 18 U.S.C. 2516(1).” A third affidavit is by Sol Lindenbaum. Here is his statement: “At the times of the acts related in this affidavit I was and am now the Executive Assistant to the Attorney General of the United States. I assist the Attorney General in the review of various matters which require his personal attention such as opinions, interpretations, decisions of the Board of Immigration Appeals, applications for pardons and other forms of Executive clemency, antitrust complaints, contracts, agreements, and proposed offers in compromise. See Title 28, Code of Federal Regulations, Section 0.6. “The Attorney General has refrained from designating any Assistant Attorney General to authorize, without his approval, the making of an application for an order permitting the interception of wire or oral communications under Title 18, United States Code, Section 2516(1). Rather, the Attorney General has required that all requests for such authorization be referred to him for consideration. In the normal course of my duties, I review such requests and make recommendations to the Attorney General thereon. I have routinely reviewed such requests since February 1969 and, accordingly, have become familiar with the applicable statutory requirements and the actions taken by the Attorney General on such requests. “On March 19, April 6, April 21, and April 29, 1971, the Criminal Division of the Department of Justice addressed to the Attorney General requests for approval of authorizations to apply for wire interception orders with respect to a certain telephone in San Diego, California, allegedly used by Richard Michael King and others. In each instance, the request was accompanied by copies of the proposed affidavit, application, and order, as well as a recommendation for approval from the Criminal Division. In each instance, I reviewed the submitted material, concluded that the request satisfied the requirements of the statute, and also concluded from my knowledge of the Attorney General’s actions on previous cases, that he would approve the requests if submitted to him. Because the Attorney General was not available on any of the four occasions, I approved each of the requests pursuant to the authorization which he had given me to act in the circumstances and caused his initials to be placed on memoranda to Will Wilson. The memoranda approved requests that authorization be given to Charles J. Fanning to make the applications for interception orders. Copies of these memoranda are attached.” The four memoranda are virtually identical. We quote only the first: “To: Will Wilson Assistant Attorney General (Initialled) JNM From: John N. Mitchell The Attorney General Subject: Interception Order Authorization This is with regard to your recommendation that authorization be given to Charles J. Fanning of the Criminal Division to make application for an Order under Title 18, United States Code, Section 2518 permitting .interception of wire communications^ for a twenty (20) day period to and from telephone number 714-233-8650 located at 2002 First Avenue, Apartment No. 3, San Diego, California, in connection with the investigation into possible violations of Title 21, United States Code, Section 176a by Richard Michael King and others as yet unknown. Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise those powers for the purpose of authorizing Charles J. Fanning to make the above-described application.” There is about as much truth in this memorandum as there is in the Wilson letter. The contrast between the content of the Shapiro, Wilson, Mitchell and Lin-denbaum affidavits and the Wilson letter and Mitchell (really Lindenbaum) memoranda is striking, to say the least. The memoranda tell Wilson that he is specially designated under section 2516 to exercise the powers conferred by that section. The affidavits state that no such designation was made, and that Mitchell retained the powers himself, but “verbally” delegated them to Linden-baum. Yet the Wilson letter recites that he had reviewed the application and made certain determinations, and that Mitchell had specially designated Wilson to exercise his powers under section 2516. We can conceive of no rational explanation for this elaborate paper charade, unless it be to deceive the Congress and the Courts. Perhaps it would come as no shock to most Americans to learn that government bureaucracies operate in this manner in the handling of their day-to-day affairs. However, this was no ordinary affair. Title III of the Act prohibits all interception of wire or oral communication “[ejxcept as otherwise specifically-provided in this chapter . . . .” 18 U.S.C. § 2511. There are few exceptions; the one relevant to this case is section 2516(1), quoted above. The Act and its legislative history make clear the purpose of the authorization requirement. Congress was well aware of the grave threat to the privacy of every American that is posed by modern techniques of electronic surveillance. S.Rep.No.1097, quoted in 1968 U.S. Code Cong. & Admin.News, 2112, 2154. While recognizing the importance of wire tapping in combating organized crime, id. at 2157-60, Congress was concerned lest overzealous law enforcement officers rely excessively upon such techniques in lieu of less intrusive investigative procedures. In order to insure circumspection in their use, Congress erected the elaborate procedural requirements for the initiation of wire taps described above. See id. at 2185-96. It was seen as a significant safeguard for the general public that applications for an order to intercept wire or oral communications must be passed upon before they may be presented to a court by “a publicly responsible official subject to the political process” — either the Attorney General or an Assistant Attorney General of the United States. Id. at 2185. In our opinion, the purpose of this provision was not merely to assure a uniform policy in applying for wiretaps. The Act prescribes a policy; that wire-taps are not to be overused, but are to be confined to those cases of serious crimes in which it is necessary to use them. The Congress wanted each application passed upon by one of the highest law enforcement officials in the government, and it named them. The Congress expected them to exercise judgment, personal judgment, before approving any application. Routine processing by subordinates was not to be the approach. More responsibility than that which devolves upon any department head in any bureaucracy, that is, ultimate responsibility for what his subordinates do, was required. It would subvert the Congressional scheme if we were to sanction anything less than strict compliance with section 2516(1), much less the gross departure that has taken place in this case. Nonetheless, in an attempt to save its prosecution, the Government argues that the spirit, if not the letter, of the statute has been satisfied here. First, the Government would have us ignore the fact that Will Wilson was ignorant of the letter bearing his name, arguing that the Wilson letter was the “ministerial act” of informing Mr. Fanning that his application had been approved at the Attorney -General level. Next, it is argued that it is irrelevant that Attorney General Mitchell did not authorize the wire-tap, because that was done by his “alter ego,” Sol Lindenbaum, who was intimately familiar with his policies in such matters. The Government characterizes this procedure as a good faith attempt to exceed the requirements of the Act. For us to accept this position would be to concede that the hand is quicker than the eye. The Government asks us to wave away the fact that no public official appointed by the President and confirmed by the Senate even saw— much less considered or approved — the wire-tap application. It would have us sanction procedures which treat matters affecting the civil liberties of every citizen of this country as an ordinary piece of agency business, despite an express Congressional mandate to the contrary. Needless to say, we will not do so. Moreover, we note in passing that whoever prepared the Wilson letter and the Mitchell (Lindenbaum) memoranda drew them to track the statute. The let- ■ ter represents to the judge that Mitchell has delegated to Wilson performance of the duty that the Act imposes, and that Wilson has performed it; the memorandum purports to make the delegation that the Act permits. We cannot describe as “good faith” an apparently deliberate attempt to mislead the court. Even if we were to deal with the Government’s argument on its own terms it could not withstand analysis. Assuming for the sake of argument that the district judge would have issued the wiretap order if he had known that the letter bearing Wilson’s name was a fabrication, an assumption that we are not inclined to make, it does not follow that the judge would have accepted approval by Lindenbaum rather than by the Attorney General himself. The Government’s alter ego theory proves too much; it cannot be limited to the facts of this case. Rather, its rationale would allow the Attorney General to appoint many alter egos, within the Justice Department or without. This would emasculate the Act. We recognize that the Attorney General cannot always be available to perform the duties imposed upon him by statute. However, Congress anticipated this problem here: The Act permits him to specially designate an Assistant Attorney General to authorize wire-taps; there are nine of them. A subsidiary argument made by the Government illustrates its vulnerability on this point. It contends that section 2516(1) in fact permits the Attorney General to delegate his authority to approve wire-taps to anyone he pleases, citing the Civil Rights Act of 1968, 18 U.S.C. § 245(a)(1) for the proposition that “when Congress wished to prohibit delegation of any sort, it knew how to do it.” While this argument is not necessarily inconsistent with the Government’s vigorous assertion that no delegation of authority took place here — the alter ego theory — it certainly grates with it. Moreover, the mere statement of such a position is its own refutation. In Section 2516(1), Congress imposed a personal duty, which is not to be delegated to anyone other than an Assistant Attorney General. The fact that it used different language to achieve the same result in a totally unrelated statute is irrelevant. Both of these arguments are derived in part from United States v. Pisacano, 2 Cir., 1972, 459 F.2d 259 (per Friendly, J.), upon which the Government relies heavily. With all respect to the distinguished judge who wrote that opinion, we are not persuaded by Pisacano. As we have indicated, we do not agree that the requirements of section 2516(1) were intended merely to insure the development of a uniform policy with respect to wire-taps or that the Attorney General would remain “responsible” by having his name affixed to the authorization. Congress could have attained these objectives in a manner that placed far less responsibility in our highest law enforcement officials; its concern with confining the use of electronic surveillance only to those situations in which it is absolutely necessary convinces us that the authorization requirements are not to be loosely interpreted. We are supported in this conclusion by the fact that almost every other court which has decided the precise question with which we are presented here has held that these procedures violate the Act. Judge Sobeloff exposed the weakness of the “responsibility” argument in United States v. Gior-dano, supra, note 4, stating: “If we should accept the Government’s reasoning, there can be no assurance that in some future case, if the particular wiretap authorization proved politically embarrassing, the Attorney General would not then repudiate his “Lindenbaum.” The Attorney General would always be able to say with the benefit of hindsight that the subordinate had betrayed his confidence, acted beyond the scope of his responsibility, and the actions taken were not those of an agent. The alter ego theory destroys the concept of establishing identifiable individual responsibility at a certain level of government.” 469 F.2d at 528. Finally, the Government argues that even if the tap of King’s telephone was improperly authorized, there is no reason to apply the “drastic remedy of suppression to correct a technical defect in procedure which in no way undercuts the purpose of the statute or infringes on the rights of the individuals involved.” This has'been described as a “beautiful example of the bootstrap technique.” United States v. Giordano, supra, note 4. We agree. The argument fails because we have rejected its underlying premise. The authorization requirements provided for in section 2516(1) are not mere technicalities; they are at the heart of the Congressional scheme. Moreover, as we have emphasized above, we are not concerned just with the rights of these defendants. The Act’s procedures were designed to protect the general public from abuse of the awesome power of electronic surveillance. The communications in this case were unlawfully intercepted; Congress has provided that the evidence derived therefrom must be suppressed. 18 U.S.C. § 2515. It is with great reluctance that we reverse the convictions in this case. The evidence of guilt derived from the wiretap is overwhelming. A thorough and expensive investigation extending over a period of some months is in effect washed down the drain (except for the contraband that was seized), and it is quite clear that neither Mr. Fanning nor the officers in the field had any means of knowing that the applications were improperly authorized. They, too, were “had.” However, the blame for this waste of public resources does not rest with this court; it lies squarely in the Office of the Attorney General of the United States. Congress did not mean to hamstring law enforcement when it enacted Title III. Rather, it believed that the technology available to organized crime made properly supervised electronic surveillance essential. But proper supervision is the key.' For some reason unknown to this court, the highest law enforcement official in this country felt that he could ignore an express command of Congress. Needless to say, he cannot. Concern for the evils of crime is increasing in the United States, and not without justification. However, in such times it is especially important that the law not be bent in the name of expediency, especially not by the highest law enforcement official in the land. The words of Justice Brandéis, written over forty years ago, sound a warning which must be repeated: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government' of laws, existence of the government will be imper-illed if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Olmstead v. United States, 1928, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Brandeis, J., dissenting). II. Standing. While conceding the standing of the other defendants, the Government argues that defendants Maack, Light, and Virginia Pope cannot challenge the legality of the wire-tap. Under the Act, only “aggrieved persons” as defined in section 2510(11) may move to suppress evidence obtained through electronic surveillance. 18 U.S. C. § 2518(10) (a). Both the language of the statute and its legislative history make it clear that it does not broaden the rule of standing provided for in Rule 41(e), F.R.Crim.P., relating to Fourth Amendment motions to suppress. 18 U.S.C. § 2510(11); S.Rep.No.1097, 90th Cong.2d Sess., supra, at 2179. See also Alderman v. United States, 1969, 394 U.S. 165, 175 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176. Thus, a defendant may move to suppress the fruits of a wire-tap only if his privacy was actually invaded; that is, if he was a participant in an intercepted conversation, or if such conversation occurred on his premises. Alderman v. United States, supra, 394 U.S. at 176, 89 S.Ct. 961. Applying this standard, we hold that defendant Maack has standing to challenge the wire-tap. On at least one occasion a message sent at his direction and a reply thereto were intercepted by Government agents. His privacy was thus invaded to the same extent as if he had taken the phone in hand and spoken on the line himself. However, it is conceded that neither Light nor Virginia Pope has standing. Rather, they argue that the Government waived this objection by not raising it in the proceedings below. While the rule that constitutional rights are personal and may not be raised by a third party is not required by the Constitution, see Barrows v. Jackson, 1953, 346 U.S. 249, 255-260, 73 S.Ct. 1031, 97 L.Ed. 1586, and it conceivably may be possible to waive it, no such waiver occurred here. The government orally challenged the standing of Light and Virginia Pope to participate in the hearing on the motions .to suppress wire-tap evidence. This was sufficient to preserve the matter for appeal. See Rule 51, F.R.Crim.P. Next, it is contended that the convictions of Light and Virginia Pope should nonetheless be reversed because they abandoned their motions for severance in reliance upon the district court’s permitting them to participate in the suppression motions. This argument is frivolous. No wire-tap evidence was introduced against them at the joint trial which could not have been introduced at a separate trial. Thus, they suffered no prejudice. Having concluded that defendants Light and Virginia Pope lack standing to object to the tap of King’s telephone, we consider their other contentions on this appeal. III. Convictions of Light and Virginia Pope. A. Transcription of Grand Jury Minutes. First, it is argued that the indictments against Light and Virginia Pope should be dismissed for the Government’s refusal to transcribe proceedings before the grand jury. Following the return of the original indictments in this case, the defendants made a timely motion before a United States Magistrate for the transcription and disclosure of future grand jury testimony. The motion was denied, but the Magistrate warned the United States Attorney that failure to do so, if shown to be prejudicial, could result in dismissal. Nonetheless, two days later the Government obtained a superseding indictment with no court reporter present. The district judge described this action as “imprudent.” We consider it “arrogant” as well. There is a growing awareness that grand jury secrecy is not an end in itself, and the reasons underlying this tradition are undergoing judicial scrutiny. See, e. g., Dennis v. United States, 1965, 384 U.S. 855, 869-872, 86 S.Ct. 1840, 16 L.Ed.2d 973; Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 401-410, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (dissenting opinion of Brennan, J.); United States v. Dinsio, 9 Cir., 1972, 468 F.2d 1392, 1394; Bursey v. United States, 9 Cir., 1972, 466 F.2d 1059, 1077, 1091-1092; Loux v. United States, 9 Cir., 1968, 389 F.2d 911, 916 n. 2. As the Government correctly points out, the rule in this Circuit is that the recording of grand jury testimony is permissive rather than mandatory; however, we have also observed that such permission may not be arbitrarily denied. United States v. Thoresen, 9 Cir., 1970, 428 F.2d 654, 666. It becomes increasingly apparent that these warnings will not be taken to heart until we actually dismiss an indictment. The only complete remedy for the Government’s behavior would be to dismiss the indictment and require the Government to start over, before a new grand jury, with a reporter present to record the testimony of the witnesses. That, however, is a drastic remedy, and, as in Thoresen, supra, we are not willing to use it here. That is not because we approve of the Government’s action; far from it. There are two steps that must be taken if defendants are to have the benefit of their right to inspect grand jury testimony under Dennis v. United States, supra. The first step is the recording of the testimony. That, however, without more, does not give defendants the right to inspect the record. They must also show a particular need. We recognize that the Government’s refusal to record grand jury proceedings may make it difficult for a defendant to make the showing of need necessary to compel disclosure. But here Light and Virginia Pope have not even attempted such a showing. Compare Dennis v. United States, supra, 384 U.S. at 871-873, 86 S.Ct. 1840; Osborne v. United States, 9 Cir., 1967, 371 F.2d 913, 917-919. They obtained discovery of the Government’s wire tap evidence, which was the crux of its case against them. In such circumstances, they suffered no sufficient prejudice from denial of their motion to record the proceedings to warrant action by us in this case. United States v. Fishbein, 9 Cir., 1971, 446 F.2d 1201, 1206; United States v. Thoresen, supra. We repeat our previous warnings, however: the Government is courting disaster when it fails to record grand jury proceedings, and the judges should exercise their discretion to require such recording. We reserve the matter of the remedy for a more appropriate case. Cf. Thoresen, supra, 428 F.2d at 666. B. Disclosure of the Informant Light and Virginia Pope’s second argument is that it was error for the district court to deny disclosure of the identity of the informant whose information was the primary basis for authorization of the wire-tap. This argument is without merit. There is no constitutional requirement that the identity of an informant be disclosed in a probable cause hearing. McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62. Whether such a requirement will ultimately be imposed as a rule of practice in federal courts is not clear, but see United States v. Harris, 1971, 403 U.S. 573, 585, 91 S.Ct. 2075, 29 L.Ed.2d 723 (plurality opinion of Burger, C. J.); however, the rule in this Circuit is that the informant need not be disclosed when the sole issue is probable cause. United States v. Mehicz, 9 Cir., 1971, 437 F.2d 145, 148-149, cert. denied 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139; Lannom v. United States, 9 Cir., 1967, 381 F.2d 858, 861. Moreover, even if we were to accept the defendants argument that the standard of Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, which held that the identity of an informant must be disclosed whenever it is relevant or helpful to the trial defense of an accused, applies to probable cause hearings, it would not benefit them here. Their argument is that the informant gave false information, not that the officer did not have reason to believe that what he was told was true. Such an attack is not permitted in a hearing to determine probable cause, and the informant’s identity would therefore not have been relevant. United States v. Perry, 2 Cir., 1967, 380 F.2d 356, 358, cert. denied 389 U.S. 943, 88 S.Ct. 307, 19 L.Ed.2d 299. See also Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825, 832-33 (1971). Here there was uncontradicted testimony that the informant purported to have personally observed the events in question, that he had given information to police officers over a long period of time, and that such information had always proved accurate. It was not error for the district court to withhold his identity. United States v. Mehicz, supra. C. Whether the marijuana was properly admitted. Finally, Light and Virginia Pope argue that the district court erred in admitting into evidence the marijuana siezed from their vessel, because goods are not considered smuggled until they have reached a customs house and a negative declaration has been made. The short answer to this contention is that the defendants were charged with and convicted of conspiracy to smuggle marijuana into the United States. It is irrelevant whether or not the substantive offense was consummated. See United States v. Rabinowitch, 1915, 238 U.S. 78, 85-86, 35 S.Ct. 682, 59 L.Ed. 1211. The marijuana was properly admitted as evidence relating to an overt act in furtherance of the conspiracy. In Nos. 72-1602 and 72-1597, the respective convictions of defendants Light and Virginia Pope are affirmed. In all of the other cases, the judgments are reversed and the cases are remanded to the district court. JAMESON, District Judge (concurring in part and dissenting in part): I concur in Section II (Standing) and Section III (Convictions of Light and Virginia Pope) of the court’s opinion, but respectfully dissent from the holding in Section I that the wiretap was invalid. As noted in the court’s opinion, the Court of Appeals for the Second Circuit in United States v. Pisacano, 459 F.2d 259 (1972), was concerned with the validity of wiretaps where the procedure in obtaining the court order was essentially the same as that followed in this case. The court, in an opinion by Judge Friendly, held that the use of wiretaps resulting from the court order did not warrant reversal of the conviction. As a member of the panel in Pisacano I concurred in Judge Friendly’s opinion and adhere to the views therein expressed. In Pisacano the appellants relied upon the decision of the Fifth Circuit in United States v. Robinson, 468 F.2d 189, where the opinion had been filed on January 12, 1972. Apparently Robinson was the first of many cases in which the procedures followed by the Department of Justice in electronic surveillance have been challenged. In Robinson the court reversed a conviction based upon wiretap procedures similar to those in Pisa-cano and the instant cases and remanded to the district court with directions to dismiss the indictment. Subsequent to the decision m Pisacano and other cases involving the validity of interception orders, Robinson was reheard by the court en banc after the United States had filed a supplemental appendix containing additional affidavits and exhibits. On January 16, 1973 in a per curiam opinion Robinson was remanded “to the district court fqr an expedited eviden-tiary hearing to determine whether the wiretap applications * * * were properly authorized under 18 U.S.C.A. 2516(1)”, the district court to “make findings of fact and conclusions of law” to be transmitted to the appellate court. (472 F.2d at 974.) Nine members of the court joined in the order. Six, including the three members of the initial panel, dissented, urging “that the original and supplemental affidavits present all of the evidence relevant to the proper interpretation of the Department’s action vis-a-vis Congress’ § 2516(1) intent as to how wiretap authorizations should be initiated” and “that conceding all that is sworn to, compliance with the statute is still wanting under the panel view.” (472 F.2d at 976) The majority opinion noted that, “The unusual importance of the issue is underscored by the number of courts that have dealt with it since publication of the panel decision.” (472 F.2d at 974) Both opinions cite cases which have followed the panel decision in Robinson or otherwise resolved the authorization issue against the Government and other cases which have held contrary to Robinson (including Pisacano) or distinguished the authorization procedures from those followed in Robinson. There are no substantive differences in the content of the affidavits set out in the majority opinion and those appended to the dissenting opinion in Robinson. The same procedures were followed. Here, however, the affidavits and procedures were considered by the district court in ruling on a motion to suppress on the ground of newly discovered evidence filed subsequent to the guilty verdicts and prior to imposition of sentence. Following a hearing the motion to suppress the wiretap evidence was denied, without formal findings or opinion. The records in Robinson, Pisacano and the instant cases all contain affidavits of Sol Lindenbaum, Executive Assistant to the Attorney General. In addition the record here contains an affidavit of John N. Mitchell, Attorney General, quoted in full in the court’s opinion. This affidavit confirms and clarifies the policy of the Attorney General set out in the other affidavits. While 18 U.S.C. § 2516(1) permitted the Attorney General to specially designate any Assistant Attorney General to authorize applications for wire interceptions without his approval, the Attorney General “chose not to make such designation, but rather to require that all requests for authority to file such applications be forwarded to (him) for consideration.” This was intended to centralize in the Attorney General “responsibility for and control of the policies to be followed by the Department of Justice in relation to Title III. . . . ” All requests for authorization to apply for wire interception orders were “subject to intensive review in the Criminal Division of the Department of Justice” and forwarded to the Attorney General with a written recommendation of the Division for approval. All requests were then reviewed by Sol Lindenbaum, Executive Assistant, and transmitted to the Attorney General with his recommendation. “Somewhat more than a year” after the Department first utilized the provisions of Title III, the Attorney General “authorized (his) Executive Assistant to act on (his) behalf on requests that might be transmitted at a time when (he) was not available to act on them.” The affidavit continues: “I gave him this authority in the light of his familiarity with my policies and with my decision on all requests that had been previously submitted to me. My subsequent review of eases in which he approved requests on my behalf confirmed that he followed my policies.” As the court said in Pisacano: “The Attorney General assumed full responsibility for what was done even if he did not act himself in every case. From what now appears, the ‘narrow limitation’ on authorizations by ‘top department officials’ prescribed in § 2516(1) did result in the establishment of ‘a unitary policy in the use of the awesome power conferred’ in Title III — as the Robinson court concluded was the intent of Congress. Indeed, that court remarked that a direct authorization by the Executive Assistant ‘would have assured that the application was deemed warranted in this particular case and was not “routinely” made by the Assistant Attorney General’s deputy, “in conformity with the standard procedure.” ’ Moreover, the procedures used clearly conformed with the letter of § 2516(1), particularly when this is read in light of the evidence, furnished by § 101(a) of the Civil Rights Act of 1968, 18 TJ.S.C. § 245(a)(1), that when Congress wished to prohibit delegation of any sort, it knew how to do it.” 459 F.2d at 263. As stated in the court’s opinion, “The evidence of guilt derived from the wiretap is overwhelming.” I agree that this in itself is not sufficient to sustain a conviction. It does, however, reenforce my reluctance to join in the opinion, in view of the fact that the Attorney General personally assumed full responsibility for what was done and there is no suggestion that the papers accompanying the request to the Executive Assistant were not sufficient to warrant the application for the interception order. A close and difficult problem is presented. Certainly plausible reasons have been advanced for both interpretations of the provisions of § 2516(1). In view of the clear conflict in the circuits, it is obvious that the issues will be resolved ultimately by the Supreme Court. A petition for certiorari in United States v. Pisacano was filed on April 28, 1972 and a petition in the subsequent Second Circuit ease of United States v. Becker, 461 F.2d 230, was filed on July 28, 1972. There has been no ruling on either petition. While I would prefer to await the decision of the Supreme Court on the pending petitions, in the absence of such a ruling I adhere to Pisacano for the reasons stated therein. I would affirm all of the convictions. . 28 U.S.C. § 506 provides: “The President shall appoint, by and with the advice and consent of the Senate, nine Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties.” . In this case, there were four applications for wire-tap orders and four orders. The first initiated the tap; the other three extended the time during which the tap could he maintained. So far as it is ma-ferial, the documentation in support of each was substantially identical. We therefore confine our statement of the facts to the first application and order. . Attached to the Shapiro affidavit is an affidavit by Will Wilson which says: “I have authorized Deputy Assistant Attorney General Henry B5. Petersen and Deputy Assistant Attorney General Harold Shapiro to sign my name to letters of authorization for application to United States District Courts for orders under Title 18, United States Code, Section 2518, after such application had been approved by the Attorney General.” . A majority of the courts has held that the authorization complies with section 2516(1) if the Attorney General actually approved the request, even though the Wilson letter was false. United States v. Cantor, 3 Cir., 1972, 470 F.2d 890; United States v. Fiorella, 2 Cir., 1972, 468 F.2d 688, 690-91; United States v. Ceraso, 3 Cir., 1972, 467 F.2d 647; United States v. Cox, 8 Cir., 1972, 462 F.2d 1293, 1297-1300; United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 235; United States v. Pisacano, 2 Cir., 1972, 459 F.2d 259, 263; United States v. Askins, D.Md., 1972, 351 F.Supp. 408, [Cr.L.Rep. 2182] ; United States v. Fox, S.D.Ill., 1972, 349 F.Supp. 1258, 1261-1262; United States v. Whitaker, E.D. Pa., 1972, 343 F.Supp. 358; United States v. Consiglio, D.Conn., 1972, 342 F.Supp. 556; United States v. Doolittle, M.D.Ga., 1972, 341 F.Supp. 163; United States v. D’Amato, E.D.Pa., 1972, 340 F.Supp. 1020, 1021; United States v. Iannelli, W.D.Pa., 1972, 339 F.Supp. 171, 174; United States v. Acquino, E.D.Mich., 1972, 338 F.Supp. 1080, 1081; United States v. Gerodemos, N.D.Ill., 1972; United States v. LaGorga, W.D. Pa., 1971, 336 F.Supp. 190, 195. Contra: United States v. Focarile, D.Md., 1972, 340 F.Supp. 1033, 1051-1060, aff’d sub. nom. United States v. Giordano, 4 Cir., 1972, 469 F.2d 522. We need not take a position on this issue to decide this ease, and decline to do so. . 28 U.S.C. § 503 provides: “The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. There is no comparable provision for the appointment of an alter ego. . United States v. Giordano, supra; United States v. Robinson, 5 Cir., 1972, 468 F.2d 189, vacated and remanded in banc, 1973, 472 F.2d 973 [January 16, 1973] ; United States v. Wierzbicki, E.D.Mich., 1972, 12 Cr.L.Rep. 2075; United States v. Fox, supra; United States v. Vasquez, C.D.Cal., 1972, 348 F.Supp. 532; United States v. Narducci, E.D.Pa., 1972, 341 F.Supp. 1107; United States v. LaGorga, W.D.Pa., 1972, 340 F.Supp. 1397; United States v. Baldassari, M.D.Pa., 1972, 338 F.Supp. 904; United States v. Acquino, supra; United States v. Cihal, W.D.Pa., 1972, 336 F.Supp. 261; United States v. Montello, D.D.C., 1972. Furthermore, the panels in Becker and Fiorella, supra, implied that they had misgivings about the result in Pisacano, supra, although bound by it as the law of the Second Circuit. See 468 F.2d at 691; 461 F.2d at 233-234. . Light and Virginia Pope also urge us to adopt the position of Justice Portas, who dissented in Alderman, under which they might have standing to challenge the wiretap. This argument is addressed to the wrong court. . The appeal from the decision of the district court, United States v. Escandar, 319 F.Supp. 295, (S.D.Fla.1970) “was intended to raise the constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968”, but “with the development of facts unknown until the case was before” the appellate court, it turned out “to present only the question of who may initiate an application to engage in * * * secret electronic surveillance under the authorization proviso of that legislation.” 468 F.2d at 190. . After the procedures had been challenged in Robinson and beginning November 20, 1971 the Attorney General “personally authorized all applications for interception orders * * ' * presented to Federal judges pursuant to 18 U.S.C. 2516(1).” Aff. of John N. Mitchell quoted in majority opinion. . The dissenting opinion noted that four other circuits and at least 13 district courts had delivered opinions dealing with the authorization procedures of the Department of Justice; that 13 additional unreported decisions of district courts were pending appeal in six circuits; and that the Department of Justice had informed the court that 92 cases were pending in 29 different district courts in which the issue of the authorization of wiretap applications had been raised. (472 F.2d at 975-976, note 1) . While the misstatements in the authorization applications first came to light after convictions in all of these cases, in Pisacano (following pleas of guilty) and King et al. (following jury verdicts in jury trials or findings of guilt by the court) the procedures were questioned in the district court. In Robinson the issue was first raised in the appellate court. . Other motions relating to the wiretap surveillance had been considered by the district court in a written opinion prior to trial. 335 F.Supp. 523 (S.D.Cal.1971) . Even though the application to the district judge misstated the authorization procedure, as noted supra, a second district judge who tried the case, after being fully apprised of the procedure actually followed, denied the motion to suppress the wiretap evidence. . Senate Report No. 1097, referred to in opinions supporting both interpretations, contains this paragraph: “Paragraph (1) [18 U.S.C. § 2516] provides that the Attorney General, or any Assistant Attorney General of the Department of Justice specifically designated by him, may authorize an application for an order authorizing the interception of wire or oral communications. This provision centralizes in a publicly responsible official subject. to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen.” 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2185 The procedures adopted by Attorney General Mitchell did centralize the formulation of policy “in a publicly responsible official subject to the political process”; that centralization did avoid the development of “divergent practices” ; and the procedures now discovered have led to “an identifiable person.” . In United States v. Becker, supra, 461 F.2d at 236, the court stated that an adherence to the law as set fortli in Pisacano should “not be construed as an approval of the procedure followed by the Attorney General and his staff * * The same is true here. Even though I find no evidence of bad faith or reliance upon insufficient evidence in seeking the interception orders, I do agree that it is unfortunate that the Department of Justice did not comply more strictly with the statutory provisions. As stated in Mr. Mitchell’s affidavit, the procedure has been discontinued and all applications since November 20, 1971 have been approved personally by the Attorney General.

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2024-08-24T03:29:51.129235

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UNITED STATES of America, Plaintiff-Appellant, v. Umberto Jose CHAVEZ et al., Defendants-Appellees. No, 72-2240. United States Court of Appeals, Ninth Circuit. Feb. 28, 1973. John J. Robinson, Atty. (argued), Dept, of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellant. William L. Osterhoudt (argued), Andre T. Laborde, Peter G. Keane, San Francisco, Cal., James Giller, Oakland, Cal., Jerald H. Wilhelm, Newark, Cal., Earle A. Partington, Deputy Federal Public Defender, San Francisco, Cal., Clinton White, J. Bradley Klemm, Murray Petersen, Claude Allen, Oakland, Cal., Paul Alvarado, San Francisco, Cal., for defendants-appellees. Before BARNES, BROWNING, and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: This case is in most respects similar to United States v. King, 9 Cir., 1973, 478 F.2d 516, decided today. However, it differs in one important respect. Umberto Chavez, James Fernandez, and ten others were indicted for conspiring to import and distribute heroin in the United States, a violation of 21 U.S.C. §§ 173, 174. Chavez and Fernandez were also charged with various activities prohibited by 18 U.S.C. § 1952. The government’s case was largely derived from two wiretaps, one of Fernandez’ telephone in Union City, California, and one of Chavez’ telephone in Fremont, California. The district court held that these wiretaps had been conducted in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and ordered their fruits suppressed. The government appeals under 18 U.S.C. § 3731; we affirm. The procedures by which the Fernandez tap was authorized are identical to those described in United States v. King, supra. As in King, the application to the district judge identified Assistant Attorney General Will Wilson as designated by the Attorney General under 18 U.S.C. § 2516 to authorize the application. It was accompanied by a Will Wilson letter substantially the same as that in King. As in King, the District Judge’s order identified Wilson as the person authorizing the application. As in King, practically everything stated in the Wilson letter is false. As in King there are affidavits by Harold Shapiro, Sol Lindenbaum and Will Wilson. There is no affidavit by former Attorney. General Mitchell, but this is immaterial because the Lindenbaum affidavit fully discloses that the Attorney General had chosen not to designate an Assistant Attorney General to authorize applications for interceptions, but had required that all such applications be referred to him for consideration. It also discloses that it was Lindenbaum, not Mitchell, who approved the application. As in King, there is a Memorandum, purportedly from Mitchell but actually from Linden-baum, to Wilson. The relevant content of all of these papers is practically identical to the content of those in King. This is the proverbial “spotted cow” case. As to the Fernandez tap, the order must be affirmed for the reasons stated in King. However, the Chavez tap presents the issue that we expressly reserved in King, namely, whether misidentification of the person who authorized the application for a wiretap requires suppression of its fruits. 478 F.2d at 503 n. 4. In the application by the Justice Department attorney Merten to the District Judge there is the same recital about Wilson as in King and there is the same Wilson letter. There is the same identification of Wilson in the Judge’s order. The Wilson letter is just as false as that in King. As in King, there are affidavits. One is by Henry E. Petersen, who was at the time a Deputy Attorney General in charge of the Criminal Division of the Department of Justice. It is substantially the same as the Shapiro affidavit in King. The Lindenbaum affidavit is like that in King, but, as to the Chavez tap, it says: “On February 16, 1971, and February 25, 1971, the Criminal Division of the Department of Justice addressed to the Attorney General requests for approval of authorization to apply for interception orders with respect to certain telephones in California. The first request related to a telephone in Fremont, California, allegedly used by Umberto Jose Chavez and others. The second related to a telephone in Union City, California, allegedly used by a person identified only as ‘Pelone’ and others. In each instance, the request was accompanied by copies of the proposed affidavit, application, and order, as well as a recommendation for approval from the Criminal Division. “With respect to the first, the Attorney General on February 18, 1971, approved the request that the authorization be given to Maurice Merten to make application for an interception order with respect to the mentioned telephone in Fremont, California. Attached is a copy of the Attorney General’s personally initialed memorandum of that date to Will Wilson reflecting his favorable action on the request.” The Wilson affidavit is like that in King. There is an affidavit by former Attorney General Mitchell, which we quote in full: “John N. Mitchell, being duly sworn, deposes and says: “I held the office of Attorney General of the United States from January 21, 1969, through March 1, 1972. “On February 18, 1971, I approved a request for authority to apply for an interception order in this case and personally initialed a memorandum of that date reflecting my favorable action on the request. I have examined the original of this memorandum and certify that it bears my initials which were personally affixed by me on February 18, 1971. Attached is a copy of my personally initialed memorandum of that date reflecting my favorable action on the request. “My memorandum of approval in this case constituted a notification to the Assistant Attorney General of the Criminal Division that the discretionary action of approving the request to make application to the court for an interception order was taken by me.” The attached Memorandum is as follows: Date: Feb 18 1971 JNM :PTW :lrt “To: Will Wilson Assistant Attorney General Criminal Division From: John N. Mitchell Attorney General JNM Subject: Interception Order Authorization This is with regard to your recommendation that authorization be given to Maurice K. Merten of the Criminal Division to make application for an Order of the Court under Title 18, United States Code, Section 2518, permitting the interception of wire communications for a twenty (20) day period to and from telephone number 415-656-7173, located at 220 Carmeli-ta Place, Fremont, California, in connection with the investigation into possible violations of Title 21, United States Code, Section 174, and Title 26, United States Code, Sections 4704 and 7237, by Umberto Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera, and others as yet unknown. Pursuant to the power conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise that power for the purpose of authorizing Maurice K. Merten to make the above-described application.” It is apparent that the only differences between the authorization of the Chavez tap and the authorization of the King taps are these. First, the Attorney General did see the request for an authorization and did approve the request. Second, he personally initialed the memorandum to Wilson. Nevertheless, we are as much struck by the contrast between the contents of the affidavits and the recitals in the Mitchell memorandum, the Wilson letter, and the Merten application as we were in King. The Merten application to the District Judge recited: “3] Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated in the proceeding the Assistant Attorney for the Criminal Division of the United States Department of Justice, The Honorable Will Wilson, to authorize affiant to make this application for an Order authorizing the interception of wire communications. This letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A.” This recital is entirely consistent with the Attorney General’s memorandum of February 18, 1971, quoted above, but is hardly consistent with what the former Attorney General now says in his affidavit, or with the Lindenbaum affidavit. The Wilson letter attached to the application, recites: “Accordingly, you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the power conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an Order of the Court pursuant to Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Narcotics and Dangerous Drugs and the Bureau of Customs, United States Department of the Treasury, to intercept wire communications from the facility described above, for a period of twenty (20) days.” It also recites review of the request for authorization by Wilson, not Mitchell, and determinations made by Wilson, not Mitchell. Undoubtedly these representations caused the judge to state in his order: “Special Agents of the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice and Special Agents of the United States Customs Agency Service, Bureau of Customs, Department of Treasury, are authorized, pursuant to the application authorized by the Assistant Attorney General for the Criminal Division of the United States Department of Justice, the Honorable Will Wilson, who has been specially designated in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, to exercise the powers conferred on the Attorney General by Section 2516 of Title 18, United States Code, ...” As we said in King, supra, we can see no rational explanation for the elaborate paper charade of the Mitchell memorandum, the Wilson letter, and the Mer-ten application, unless it be to deceive the Congress and the court. That it did deceive the Judge, we have no doubt. The rather extraordinary discrepancies between the application, the Wilson letter and the Mitchell memorandum, on the one hand, and the affidavits, on the other, led counsel to argue to the District Judge that he should find, contrary to-Mitchell’s ex post facto affidavit, that Mitchell had not personally approved the request. This, however, the Judge refused to do. He assumed that Mitchell had approved it, and so do we. Thus there was substantial compliance with Section 2516(1). However, there certainly was not compliance with Section 2518(1)(a) which requires that “Each application for an order . . . shall . . . include . . . the identity of . . . the officer authorizing the application,” or with Section 2518(4)(d) which requires that the order do likewise. There was not merely an omission of the required information; there was a misrepresentation, in circumstantial and carefully phrased detail, all pointing to Wilson as the officer authorizing the application, when in fact he did no such thing. The government argues that there has been “substantial compliance” with Section 2518. Pointing to the legislative history of the. Act, which states that Sections 2518(1) (a) and (4)(d) were designed to “fix responsibility” for the authorization of wiretaps, it argues that the responsible official is “reasonably identifiable” since the “lines of responsibility lead to” Attorney General Mitchell. It relies heavily upon the fact that most courts which have faced the precise question involved here have refused to order suppression. We are not persuaded, either by the argument or the cases. Although we agree that the purpose of Section 2518(1) (a) and (4)(d) was to fix responsibility, see S.Rep.No.1097, quoted in 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2189, 2192, we do not believe that this means the general responsibility of an agency head for the actions of his subordinates. The phenomenon of the “institutional decision” is familiar to anyone who has had dealings with a bureaucracy. Basically, it is a decision which, although signed by a publicly responsible official, is made by the organization rather than by the official. See generally B. Schwartz, An Introduction to American Administrative Law 144-48 (1962) ; 2 K. Davis, Administrative Law Treatise § 11 at 36-38 (1958). Such a decision may be justified by the press of agency business or the expertise of the agency staff. However, it has the defect of obscuring from public view the identity of the persons making the decision and the factors which influenced their formulation of policy. Because of the sensitive nature of wiretapping and the grave threat to privacy which it represents, see United States v. King, supra, 478 F.2d at 513, we conclude that Congress intended to eliminate any possibility that the authorization of wiretap applications would be institutional decisions. It therefore provided that only a few specifically identified and publicly responsible officials could make such decisions, 18 U.S.C. § 2516(1), and that their identity must be disclosed in the application and court order. 18 U.S.C. § 2518(1)(a) and (4)(d). For us to sanction the procedure used in this case would be to defeat the Congressional scheme. As we have shown, the application, order, affidavits, and memoranda submitted to the District Court in connection with the motion to suppress are contradictory. The court would have to engage in considerable sifting and evaluating to determine which of the rather substantial cast of characters actually approved Merten’s request, and even then it could not be certain. It is precisely this type of “button, button, who’s got the button” guessing game that is characteristic of the institutional decision, and that Congress intended to eliminate by Section 2518 (1)(a) and (4)(d). The government’s argument suffers from a second defect. Although former Attorney General Mitchell assumed responsibility after the fact in this case, were we to approve this procedure there would be nothing to prevent future Attorneys General from remaining silent if a particular wiretap proved embarrassing. Cf. United States v. Giordano, supra note 1, 469 F.2d at 528. The Wilson letter and the Mitchell memorandum were carefully drawn to create the illusion of compliance with the Act. Without Mitchell’s affidavit, the lines of responsibility lead to Wilson, not to Mitchell. The quality of administrative action increases when officials know that their decisions cannot escape direct scrutiny by the courts, Congress, and the public. See K. Davis, Discretionary Justice 111-16 (1969). We refuse to read the safeguard of openness out of the Act, contrary to Congressional intent, by emasculating Section 2518(1)(a) and (4)(d). In sum, we hold that the identification requirements of Section 2518(1) (a) and (4) (d) complement the authorization requirement of Section 2516(1). Without the former, the latter would be meaningless : it would be impossible to determine whether the Attorney General or one of his nine Assistant Attorneys General or someone else was actually responsible for the decision to authorize application for a wiretap. Despite the authority to the contrary, we refuse to interpret the authorization requirement strictly, see United States v. King, swpra, and to wave away the identification provisions as mere technicalities. To do so in this case would be to countenance an apparently deliberate deception- of the courts by the highest law officers in the land. The Supreme Court, the Courts of Appeals and the District Courts have traditionally relied upon the integrity of representations made to them by such officers. If we were to uphold what they did here, the door would be open to similar behavior in other cases, and the trust of the courts in the Attorney General and his Assistant Attorneys General, so vital to the efficient and effective conduct of judicial business, would soon be destroyed. 3 In his Memorandum and Order granting the motions to suppress in this case Judge Weigel said: “By plaintiff’s own admission, it is clear that in the case of both wiretaps: (1) Chief Judge Carter was misinformed by plaintiff as to the name of the individual who had authorized application; and (2) the only individual named in the application had never examined it, much less exercised discretion to authorize it. No clearer evidence could be adduced to show complete frustration of the opportunity for Congressional and public scrutiny required by the statute as a means to protect Fourth Amendment rights. The applications for these wiretaps (as well as the orders relying on them) erroneously show that they were authorized by the same man. In fact, neither of the individuals who authorized the applications was in any way identified to Chief Judge Carter, Congress or the public. Evidence secured through the wiretaps must therefore be suppressed for failure to follow the Congressional mandate set out in §§ 2518(1) (a) and 2518(4) (d).” We agree. The order appealed from is affirmed. . The vast majority of courts have either accepted the ■ government’s argument that Section 2518 has been substantially complied with, or have held that any violation was harmless. United States v. Ceraso, 3 Cir., 1972, 467 F.2d 647; United States v. Cox, 8 Cir., 1972, 462 F.2d 1293, 1297-1300; United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 235; United States v. Pisacano, 2 Cir., 1972, 459 F.2d 259, 263 ; United States v. Whitaker, E.D.Pa., 1972, 343 F.Supp. 358; United States v. Consiglio, D.Conn., 1972, 342 F.Supp. 556; United States v. Doolittle, M.D.Ga., 1972, 341 F.Supp. 163; United States v. D’Amato, E.D.Pa., 1972, 340 F.Supp. 1020, 1021; United States v. Iannelli, W.D.Pa., 1972, 339 F.Supp. 171, 174; United States v. Aquino, 1972, E.D.Mich., 338 F.Supp. 1080, 1081; United States v. DaGorga, W.D.Pa., 1971, 336 F.Supp. 190, 195; United States v. Cantor, E.D.Pa., 1971, 328 F.Supp. 561. Contra, United States v. Focarile, D.Md., 1972, 340 F.Supp. 1033, 1051-1060, aff’d, sub nom. United States v. Giordano, 4 Cir., 1972, 469 F.2d 522. We find it significant that Judge Miller’s opinion in Focwrile is the only one cited above which attempts a detailed inquiry into the purpose of Section 2518 and its relationship to Section 2516(1). . The one commendable thing that we find in this case is the apparent candor of the former Attorney General and his subordinates, once the problem was brought to light. We rely on their affidavits, as did the District Judge.

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In the Matter of BARRACO AND COMPANY, Bankrupt. Helen CORBETT, Claimant-Appellant, v. Louis D. TANNENBAUM, Trustee in Bankruptcy of the Estate of Barraco and Company, Appellee. No. 72-1449. United States Court of Appeals, Tenth Circuit. Argued March 27, 1973. Decided May 18, 1973. Dean R. Mitchell, Salt Lake City, Utah (Phil L. Hansen, Salt Lake City, Utah, on the brief), for appellant. Herschel J. Saperstein, Salt Lake City, Utah, for appellee. Before PICKETT, HILL and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Helen Corbett appeals from an Order of the United States District Court for the District of Utah affirming a decision of the Referee in Bankruptcy denying her petition to reclaim certain stock certificates from the Trustee. Corbett purchased 93,000 shares of Classic Mining Company stock between July and October of 1969 through Barraco and Company, a stockbrokerage firm. She paid Barraco the purchase price. Certain Classic Mining Company stock certificates were “tagged” by Barraco for Corbett. They were not, however, delivered to her. These particular stock certificates were received by Barraco for delivery pursuant to orders of purchase made by stock customers other than Mrs. Corbett. Barraco filed a petition for arrangement under Chapter XI of the Bankruptcy Act on November 5, 1969. On February 5, 1970 Barraco petitioned to be adjudged bankrupt because it was unable to work out an arrangement with its creditors. The Bankruptcy Court entered an order to that effect on that date. Corbett thereafter filed suit to recover her stock. Barraco was insolvent on October 17, 1969 when the stock certificates were “tagged” for Mrs. Corbett. The “tagging” occurred within four months of the initial petition for bankruptcy on November 5, 1969. The “tagging” occurred when some employee or officer of Bar-raco placed copies of Mrs. Corbett’s purchase order confirmation slips on 93,000 shares of Classic Mining Company stock certificates in its possession. The District Court made the following Findings of Fact and Conclusions of Law based on stipulations: FINDINGS OF FACT 1. That the applicant Helen Cor-bett purchased 93,000 shares of the capital stock of Classic Mining Company through the bankrupt above named. That the applicant fully paid the purchase price thereof to the bankrupt. 2. That none of the certificates delivered to the bankrupt pursuant to the orders of purchase made by the applicant were in the possession of the Trustee on the date of the filing of the initial petition herein, November 5, 1969. 3. That on the date of the filing of the initial petition herein, 93,000 shares of Classic Mining Company represented by five separate stock certificates were in the possession of the Trustee tagged for the applicant. 4. None of the certificates so tagged for the applicant were deposited with the bankrupt by the applicant nor delivered to the bankrupt pursuant to the orders of purchase made by the applicant. All of said certificates so tagged were either deposited with the bankrupt by a stock customer other than the applicant or delivered to the bankrupt pursuant to the orders of purchase made by stock customers other than the applicant. 5. That the certificates tagged for the applicant were so tagged within one week prior to October 17, 1969. That the bankrupt was insolvent at the time said certificates were tagged and that said tagging occurred within four months of the filing of the initial petition herein on November 5, 1969. (Emphasis ours). CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the court concludes that applicant has no specific title to said certificates of stock nor are said securities specifically identifiable within the meaning of Section 60e of the Bankruptcy Act and her application to reclaim securities should be denied. The sole issue presented is whether Corbett is entitled to reclaim the securities within the custody and control of the Bankruptcy Court pursuant to Section 60(e) of the Bankruptcy Act, which provides: No cash received by a stockbroker from or for the account of a customer for the purchase or sale of securities, and no securities or similar property received by a stockbroker from or for the account of a cash customer for sale and remittance or pursuant to purchase or as collateral security, or for safekeeping, or any substitutes therefor or the proceeds thereof, shall for the purposes of this subdivision (e) be deemed to be specifically identified, unless such property remained in its identical form in the stockbroker’s possession until the date of bankruptcy, or unless such property or any substitutes therefor or the proceeds thereof were, more than four months before bankruptcy or at a time while the stockbroker was solvent, allocated to or physically set aside for such customer, and remained so allocated or set aside at the date of bankruptcy. 11 U.S.C.A. § 96(e)(4). (Emphasis ours.) Corbett alleges that the securities were paid for and identifiable under § 60(e)(4), and that the four-month rule and date of Barraco’s insolvency is immaterial. She alleges that since 93,000 shares of Classic were “tagged” with her name thereon, and remained in Bar-raco’s possession in identical form until bankrupcty, that she is entitled to reclaim the stock. We disagree. We must accept the findings of the Referee in Bankruptcy as approved and adopted by the District Court unless they are clearly erroneous. Ryan v. Rolland, 434 F.2d 353 (10th Cir. 1970); Wolfe v. Tri-State Insurance Company, 407 F.2d 16 (10th Cir. 1969). According to the stipulations, the stock securities actually “tagged” for Mrs. Corbett were not delivered to Barraco for Corbett’s account, but were received by Barraco for the accounts of other customers; and the particular securities so “tagged” were not received by Barraco pursuant to Corbett’s purchase order or for her account as required by § 60(e)(4). These stipulations are supported by the exhibits admitted into evidence. Trustee’s Exhibit #8 is a business record kept by Barraco for Corbett’s account. Her total purchase order was for 93,000 shares of Classic stock. Exhibit #8 specifically identifies the certificate numbers of stock which Corbett was to receive pursuant to her orders. Corbett’s confirmation slips were tagged to certificates bearing numbers other than those evidenced by Exhibit #8. Corbett relies on In Re McMillan, Rapp & Co., 38 F.Supp. 40 (E.D.Pa. 1941), aff’d, In Re McMillan, Rapp & Co., 123 F.2d 428 (3rd Cir. 1941), to establish her right to reclaim the “tagged” securities. McMillan is distinguishable. There the certificates were received by the bankrupt for the specific accounts of certain cash customers. The stipulations in the case at bar state that Barraco did not receive the “tagged” certificates for Corbett’s account, but rather for the account of other customers. Securities are not adequately identifiable within § 60(e)(4) unless they are received for the specific account of a cash customer. Corbett did not establish that the securities were so identifiable. They were not received for her account. The securities claimed by Mrs. Cor-bett must be administered as part of the single and separate fund for the benefit of all like stock customers of the bankrupt pursuant to § 60(e). Affirmed.

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Jerome ROSENBERG, Plaintiff-Appellee, v. Raymond V. MARTIN, Defendant-Appellant. No. 649, Docket 72-2262. United States Court of Appeals, Second Circuit. Submitted March 28, 1973. Decided April 27, 1973. Jerome Rosenberg, plaintiff-appellee, pro se. Norman Redlich, Corp. Counsel of New York City (Stanley Buchsbaum, and Bernard Burstein, New York City, of counsel), for defendant-appellant. Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, District Judge. Of the District Court for the District of Maryland, sitting by designation. FRIENDLY, Chief Judge: Jerome Rosenberg, the successful plaintiff in this civil rights action under 42 U.S.C. § 1983 in the District Court for the Eastern District of New York, had been convicted, upon the testimony of several eyewitnesses, of the felony murder of. two police officers while he was engaged in an armed robbery of the Borough Park Tobacco Company in Brooklyn. After the Governor had commuted his death sentence to life imprisonment, his conviction and that of a co-defendant were affirmed by the New York Court of Appeals, People v. Portelli and Rosenberg, 15 N.Y.2d 235, 257 N.Y.S.2d 931, 205 N.E.2d 857 (1965). One of the contentions on that appeal was that the defendants’ constitutional rights had been violated by denial of their motion for a change of venue because of prejudicial publicity, and the Court of Appeals amended its remittitur to show that it had considered this argument and had held that “no constitutional rights of appellants had been violated.” 16 N.Y.2d 537, 260 N.Y.S.2d 649, 208 N.E.2d 458 (1965). The Supreme Court denied certiorari, Rosenberg v. New York, 382 U.S. 1009, 86 S.Ct. 612, 15 L.Ed.2d 1009 (1966). A petition for federal habeas corpus by Rosenberg on the ground that the pre-trial publicity had denied him a fair trial was denied by Judge Bartels, without an evidentiary hearing, in an unreported opinion, and we affirmed. United States ex rel. Rosenberg v. Mancusi, 445 F.2d 613 (2 Cir. 1971), cert. denied, 405 U.S. 956, 92 S.Ct. 1186, 31 L.Ed.2d 234 (1972). On April 15, 1968, Rosenberg brought this action under section 1983 against three defendants. The only one who remained in the case after the grant of dismissal motions was Raymond V. Martin, a retired Assistant Chief Inspector of Police. Rosenberg’s complaint alleged, that Martin had “caused him to be convicted, by illegal means in lying and inflaming the public about [him] through various News Media,” and had deliberately fed the news media false information “to slander and influence the courts, people and general public against [him].” Martin served an answer denying these allegations and pleading the statute of limitations as an affirmative defense. Plaintiff, who has been appearing pro se throughout, countered, on December 1, 1969 with a “cross-defense” arguing that Martin’s defense was “void and defeated”; he annexed a “supplement pleading” wherein he moved that “this pleading be amended” under F.R.Civ.P. 15(c) in various respects, including the statement of a claim of assault set forth in the margin 3 Without having expressly acted on the motion to amend, the court, on May 11, 1970, struck the defense of the statute of limitations, citing Swan v. Board of Higher Education, 319 F.2d 56, 59 (2 Cir. 1963), which had held the six-year provision of former N.Y. Civil Practice Act § 48(2) to be applicable to actions under 42 U.S.C. § 1983. At the trial the court allowed plaintiff to present testimony on both claims and instructed the jury that he could recover on either. The crime occurred on May 18, 1962. As would be expected in a case where two officers had been killed while discharging their duty, the full force of the police was brought to bear on finding the offenders. It is undisputed that there was extensive news coverage of the murder, the police investigation, and the apprehension of the suspected killers, and that the police were largely responsible for this. Rosenberg was unable to establish, however, that anything like all of 'the publicity was attributable to Martin. The first newspaper received in evidence was an issue of The New York Daily News for May 22, 1962, reporting Portelli’s arrest in Chicago on May 21. A reporter from the News identified portions of the article as having emanated from Martin. These included statements that Rosenberg was the man who had accompanied Portelli into the Borough Park Tobacco Company and had rushed out, over the bodies of the two detectives, after the murder; that both Portelli and Rosenberg had been identified by a half dozen witnesses from their rogues’ gallery photos; and that Portelli, Rosenberg and Dellernia were members of a top hoodlum element and formed part of a stick-up mob in Brooklyn. In a set of excerpts from the News of May 23, after Dellernia had surrendered, Martin was referred to as saying that Rosenberg reportedly had been seen in Manhattan, dressed in women’s clothing; that the police had the gun used in the killing and bullets to match; and that the police had positive identification of the three men in ten other Brooklyn holdups. Late in the evening of May 23 Rosenberg turned himself in at the office of the News. He testified that Martin and other officers arrested him there and that Martin stated before the television cameras covering the scene that he was the killer and that he had a criminal record. Rosenberg was then removed to the 66th Precinct station house in Brooklyn. He testified that he was taken out of the police car a half block away from the station, where television cameras and newsmen were lined up on the street; that, as he was dragged toward the cameras, Martin said “He is the killer, and he is going to burn”; and that he later saw video tapes of the scene, of Martin’s remark, and of the crowd’s angry response. Photographs of the booking of the three men, published in unidentified newspapers, were also received in evidence. As to the assault claim, Rosenberg testified that at the police station he was brought into a small interrogation room, where Martin and a number of other officers began questioning him. When he refused to answer questions, he testified, “Martin started kicking me,” though “just softly.” Later, “He grabbed my throat and he started choking me” — though this was “slight” and “did no real physical damage” — and told him that “you’re going to suffer as best we could make you suffer.” Rosenberg claimed that after a few hours of unsuccessful interrogation, Martin “placed his hand on my ear, like a suction-cup” and then quickly pulled it away; that his ear started to bleed; and that after a week he could no longer hear out of it. Martin denied having taken any such actions, and there was no evidence that Rosenberg had ever brought the alleged assault to anyone’s attention. The judge instructed that if plaintiff proved either that he was physically abused and maltreated while in custody or that he “was the object of prejudicial publicity that went beyond the police needs of the situation” he was entitled to recover damages, provided that Martin was acting under color of state law, custom or usage. The judge fleshed out the prejudicial publicity claim by charging that while the police were entitled to publicize the fact of a crime and “such information as is reasonably related to the task of locating the suspect and taking him securely into custody,” it was for the jury to say: on all the evidence you have heard whether or not you are satisfied that the publications that occurred between the date of the crime and the date of the plaintiff’s trial chargeable to the defendant Martin himself, exceeded the limits of proper police procedure and was prejudicial to the plaintiff in exposing him to defamation, misrepresentation and public obloquy that might háve affected his right to a fair trial and that subjected him to personal humiliation and apprehension or bodily harm. The jury returned a general verdict of $7,500. It is elementary that, in order to recover damages in an action under 42 U.S.C. § 1983 in a case like this, the plaintiff must show a deprivation of constitutional rights. Rosenberg’s claims with respect to the publicity preceding his arrest, the televised recording, and the publication of photographs can be read as invoking two constitutionally protected rights — the recently evolved and not yet clearly defined right to privacy, see Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and the Sixth and Fourteenth Amendment right to a fair trial before an impartial jury, see Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Little need be said with respect to the first. “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value of freedom of speech and of press.” Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967). It is indisputable that the interest in privacy of a fugitive suspected of serious crime must yield to the public interest in his apprehension and the consequent publication of whatever may reasonably be deemed helpful to that end. However, so far as concerns the constitutional right of privacy, as distinguished from the right to a fair trial, the standard of permissible invasion is not to be so narrowly drawn. The constitutional right to privacy is not to be equated with the statutory right accorded by New York, Civil Rights Law §§ 50-51, McKinney’s Con-sol.Laws, c. 6, and other states. Thus far only the most intimate phases of personal life have been held to be thus constitutionally protected. See, in addition to Griswold v. Connecticut, supra, Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This is not to say that no conduct of police officers toward a suspected criminal, even a murderer, may ever constitute a violation of a constitutional right to privacy. If Martin had caused the publication of a photograph of Rosenberg in the nude, compare York v. Story, 324 F.2d 450 (9 Cir. 1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964) (forcing female complainant to' be photographed in indecent postures and circulating the pictures among the police), we would have a quite different ease. But the very court that decided York v. Story has declined to extend it to action of the police in causing publication of charges of criminal conduct, even when the police had concluded that the plaintiff had not in fact committed a crime. Baker v. Howard, 419 F.2d 376 (9 Cir. 1969). See also Mattheis v. Hoyt, 136 F.Supp. 119, 124 (W.D.Mich. 1955). Similarly, the facts presented here fail to state a cause of action under section 1983 for violation of Rosenberg’s constitutionally protected right of privacy. Cf. Felber v. Foote, 321 F.Supp. 85, 88-89 (D.Conn.1970) (three-judge court); Travers v. Paton, 261 F.Supp. 110 (D.Conn.1966). It would likewise seem plain that in order to recover damages for the deprivation of the right to a fair trial, a plaintiff must show not merely that the police engaged in conduct which “exceeded the limits of proper police procedure” and “might have affected his right to a fair trial,” as the judge instructed, but that the improper conduct in fact had that result. Here Rosenberg meets the obstacle that this very issue was raised before the New York Court of Appeals on his appeal from his conviction and, as appears from its remittitur, was decided against him. Under modern notions with respect to issue preclusion, it is of no moment that the adverse party in the criminal case was the State rather than the police officer who is the defendant here. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Zdanok v. Glidden Co., 327 F.2d 944, 954-956 (2 Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964); Bernhard v. Bank of America, 19 Cal.2d 807, 811-813, 122 P.2d 892, 894-895 (1942) (Traynor, J.); B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967); Ritchie v. Landau, 475 F.2d 151, 155 (2 Cir. 1973). It might be contended against giving the New York judgment preclusive effect that while a state judgment between the same parties on the same claim will operate as res judicata in a federal civil rights action, as we held in Lackawanna Police Benevolent Ass’n v. Balen, 446 F.2d 52 (2 Cir. 1971), a state criminal judgment should have no more effect by way of issue preclusion in a federal civil rights action than it would in federal habeas, as Mr. Justice Douglas argued, although unsuccessfully, with respect even to a federal criminal judgment in dissenting from the denial of certiorari in Lauchli v. United States, 405 U.S. 965, 92 S.Ct. 1182, 31 L.Ed.2d 241 (1972). But in this case Martin can successfully respond with the decision in Rosenberg’s federal habeas proceeding that as a result of the lapse of time between the improper publicity in May 1962 and the trial in January 1963, and the effective voir dire of the jury panel, he received a fair trial. It has thus been conclusively determined, not only by a state but by a federal court, that even though the pre-arrest publicity went considerably beyond what was necessary and Martin’s alleged statement before the television cameras was thoroughly reprehensible, this did not in fact deprive Rosenberg of his constitutionally guaranteed right to a fair trial. We see no reason for according him a third opportunity to litigate in this action an issue that the highest court of New York and this court have both decided against him. We turn therefore to the claim of damages for assault which Rosenberg sought to add on December 1, 1969. We assume that brutal police conduct violates a right guaranteed by the due process clause of the Fourteenth Amendment. See Collum v. Butler, 421 F.2d 1257 (7 Cir. 1970); Jenkins v. Averett, 424 F.2d 1228 (4 Cir. 1970). But we hold that the court erred in striking the defense of the statute of limitations with respect to this claim. The first point requiring determination is whether the assault claim “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,” so that the amendment would relate back under F.R.Civ.P. 15(e). If it did, the plaintiff could readily surmount the limitation barrier, since we have held, Swan v. Board of Higher Education, supra, 319 F.2d at 59, that the applicable period for civil rights claims was the six years allowed under former N.Y. Civil Practice Act § 48(2) for actions “to recover upon a liability created by statute,” and here the assault occurred on May 24, 1962, and the complaint was filed on April 15, 1968. If the test were merely temporal, the assault claim would fall within Rule 15(c), since the alleged assault came within a short time after the exhibition before the television cameras. However, the test is not contemporaneity but rather adequacy of notice. As said by Judge Laramore in Snoqualmie Tribe v. United States, 372 F.2d 951, 960, 178 Ct.Cl. 570 (1967), “the inquiry in a determination of whether a claim should relate back will focus on the notice given by the general fact situation set forth in the original pleading.” Under that test the case for relation back conspicuously fails. On the most liberal reading not a word in the complaint even suggested a claim of physical assault. This case is rather strikingly similar to Griggs v. Farmer, 314 F.Supp. 1185 (E.D.Va. 1969), aff’d, 430 F.2d 638 (4 Cir. 1970), where the court refused to permit a “relating back” amendment of a complaint alleging breach of promise to marry to include a claim for assault at the time of the breach. Since the assault claim must be deemed not to have been asserted until December 1, 1969, it was time-barred unless the six year statute of limitations had been tolled. New York’s tolling provision in behalf of certain prisoners affords Rosenberg no aid. Both former Civil Practice Act § 43 and present CPLR § 208 are limited to persons who are imprisoned “on a criminal charge or conviction for a term less than for life”; Rosenberg’s original sentence was death, later commuted to life imprisonment. Ortiz v. LaVallee, 442 F.2d 912 (2 Cir. 1971), on which Rosenberg relies, does not assist him. We there rejected a contention by the State that, despite the literal applicability of the tolling provision to Ortiz, who was serving sentences for fixed terms, there should be no tolling since the provision was intended to alleviate the effect of the “civil death” statute, now N.Y. Civil Rights Law § 79, and the latter had been held inapplicable to federal actions under 42 U.S.C. § 1983, Beyer v. Werner, 299 F.Supp. 967, 969-970 (E.D.N.Y.1969), and cases there cited. Although the court, relying on a 1958 Report of the New York Advisory Committee on Practice and Procedure which referred to the practical difficulties in the way of a prisoner’s suit, concluded that the tolling provision “was intended to apply even where a prisoner has the legal capacity to sue,” it does not follow that the existence of such difficulties permits a federal court to create a tolling provision more liberal than the state legislature has seen fit to enact. The judgment is reversed, with instructions to dismiss the complaint. . A mis-trial had been declared as to a third defendant, Dellernia, whose role was allegedly to assist in the get-away but who drove off at the sound of gunfire. He was subsequently acquitted. . The complaint was not formally filed by the Clerk of the District Court until May 20, 1968, because filing had to await Judge Mishler’s disposition of Rosenberg’s motion for leave to proceed in forma pau-peris, which was received along with the complaint. This motion was granted on May 20, and the complaint filed. Judge Dooling held, however, that “The action must be treated as commenced on April 15, 1968, when the Clerk of Court received the complaint.” We agree. . Defendant also assaulted plaintiff while handcuffed various times causing an infliction of harm to the left ear internally causing loss of hearing, at time of interrogation on May 23, 1962. . There was other testimony of extensive television coverage of the murder and the ongoing investigation, but the extent to which these were incidents for which Martin may have been responsible apparently was not brought out. . Rosenberg’s complaint contained allegations that statements made by Martin were “lies”, “maliciously false”, and “slander” ; and the district judge charged the jury that the plaintiff’s constitutional right “to be free of gratuitous prejudicial publicity” was an aspect, not only of his right to a fair trial, but “of his rights not to be defamed or misrepresented while under the custody of the law by those who were in charge with his custody.” To the extent that the complaint might be viewed as stating a cause of action for defamation, such a claim does not implicate any federally-protected rights and is not cognizable under 42 U.S.C. § 1983. Association for Preservation of Freedom of Choice, Inc. v. Simon, 299 F.2d 212, 214 (2 Cir. 1962) ; Heller v. Roberts, 386 F.2d 832 (2 Cir. 1967). See also Church v. Hamilton, 444 F.2d 105 (3 Cir. 1971) ; Morey v. Independent School District #492, 312 F.Supp. 1257 (D.Minn.1969), aff’d, 429 F.2d 428 (8 Cir. 1970). . For other cases see Friendly, Federal Jurisdiction: A General View 101-02 n. 113 (1973). . As stated in this court’s opinion, 445 F.2d at 617: At the voir dire of the jury, each prospective juror and alternate was questioned separately outside of the presence of the other veniremen. Each side was granted a total of thirty peremptory challenges. The twelve jurors and three alternates were finally selected after 109 prospects had heen questioned. From the record of the voir dire it appears that there was only one juror who remembered any of the details of the crime. This juror, Mr. Westbrook, stated that he remembered that Rosenberg was alleged to have a prior criminal record, but, upon questioning, he insisted that he could decide the case solely on the basis of evidence adduced at trial. After the court rejected a challenge for cause, the defense failed to exercise what would have been its first peremptory challenge. The remaining jurors only vaguely remembered the case, and indeed no more than what was already apparent from the voir dire. . It could be argued that, under F.R.Civ.P. 15(a), Martin should have' repleaded the statute of limitations as a defense to the amended pleading. However, as pointed out above, the judge made no formal order allowing the amendment. It seems plain from the record that the court and the parties considered that the amendment bad been made and that plaintiff’s motion to strike the defense of limitations was addressed to this as applied to both claims. Indeed, plaintiff’s principal contention in support of his motion, that because of Ms “civil death” the statute of limitations was tolled, was quite unnecessary to the claim of prejudicial publicity. . The period for actions “to recover upon a liability created by statute” was shortened to three years, effective September 1, 1963, by CPLR § 214(2), but CPLR § 218(b) provides that any cause of action not barred on that date would have the benefit of the six years previously allowed.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Kenneth J. HAMPTON, d/b/a Hampton Vending Supply, Plaintiff-Appellant, v. GRAFF VENDING COMPANY et al., Defendants-Appellees. No. 72-3276. United States Court of Appeals, Fifth Circuit. May 9, 1973. Rehearing Denied June 11, 1973. James L. Branton, San Antonio, Tex., for plaintiff-appellant. Earl Luna, Dallas, Tex., for defendants-appellees. Before TUTTLE, THORNBERRY and DYER, Circuit Judges. DYER, Circuit Judge: Hampton brought this action under section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.A. § 13(a), claiming that Graff Vending Company had illegally lowered its prices in the San Antonio and Houston areas. The district court found that Graff’s actions did not have the effect of substantially lessening competition, that they did not operate to discriminate against Hampton, and that Graff acted reasonably to meet competition; pursuant to these findings judgment was entered for Graff and Hampton appealed. Because we are of the view that Hampton successfully established a case of primary line price discrimination as to some of Graff’s activities, we reverse. 1. Facts The basic facts are essentially undisputed. Because the application here of the correct principles of law requires an understanding of the competitive situation, however, we must set out an accurate description of the market involved. Both Hampton and Graff expend their profit making efforts in what is known as the bulk vending supply business. This business consists of the sale of ball gum and charms and of the sale of vending machines through which the gum and charms are sold to the public. The distributive channels for these products are not uniform throughout the industry, but frequently the items are sold by the manufacturer to a functional wholesaler, who in turn resells them to an operator who actually places and fills the machines at their retail locations in grocery stores, gas stations, etc. Additionally, certain wholesalers function partially as operators and certain large operators buy direct from some manufacturers. Graff, according to its own advertising, is the world’s largest bulk vending distributor, with its home office in Dallas, Texas. It has outlets in many states and has several warehouses in Texas, including ones in San Antonio and Houston. Graff functions primarily as a wholesaler, but does operate some retail routes in other parts of the country and does own some retail routes in San Antonio. The source of most of Graff’s gum is W. R. Grace Company of Chicago, Illinois, which manufactures Leaf gum. Graff serves as the almost exclusive distributor of Leaf gum in Texas and purchases at list price less 19% and less some freight allowances. Hampton’s functional role is not as easily characterized and must be viewed, to some extent, historically. Since 1965 Hampton has been an operator of vending machines in the San Antonio area. Sometime in 1969 he became an employee of Graff and ran its San Antonio office, in addition to continuing his own business as an operator. At the end of 1970 Hampton quit working for Graff and added a wholesale element to his business reselling some gum to other operators. From early 1971 to the present, Hampton has maintained this functional stance, working primarily in the San Antonio — south-Texas area with occasional sales to other parts of Texas and to other states. The heart of this controversy concerns Hampton’s source of gum and the price paid for it. When Hampton left Graff’s employ and began wholesaling as well as operating, he purchased his gum through his father, who had a large volume contract with Graff. Under this contract Hampton’s father purchased Leaf gum from Graff at list price less 10% and he passed this price on directly to his son. Hampton in turn used some of this gum on his own routes and resold the rest to various operators at list. During 1971 and into the first months of 1972, while Hampton was functioning both as an operator and a wholesaler, Graff experienced a steady decrease in sales in the San Antonio and Houston areas. In Februai’y 1972, in the midst of these decreased sales, Graff’s contract with Hampton’s father came up for renegotiation and Graff decreased the discount it would offer on Leaf gum from 10% to 8%. Hampton’s father would not purchase from Graff at this rate and the contractual relationship, and Hampton’s source of gum, terminated on May 15, 1972. Efforts by Hampton to negotiate a satisfactory contract with Graff directly also failed. With his source of Leaf gum becoming less attractive Hampton looked elsewhere for gum and contacted American Gum Company. This led to his placing a 1000 case order with American at a price of list less 17 % and freight allowances. Because the list prices for American and Leaf gums were approximately equal, this price constituted a substantial savings over the price he previously paid to Graff via his father. Shortly after Hampton contracted with American, Graff implemented a previously arranged sale on Leaf gum for all sales out of its San Antonio and Houston offices. This sale was supported by Leaf who had been asked for help in these two marketing areas and who had agreed to lower prices to Graff by $1.50 per case on some gum and by $.90 per case on other gum if Graff would pass the savings along. The resulting price at which Graff would sell to anyone, including small operators, was approximately equal to the price American charged Hampton. Correspondingly, Hampton’s resale price to operators was now considerably higher than Graff’s resale price to operators. The impact of Graff’s new price structure was almost immediate. Its sales recovered sharply from their year and one-half slide and Hampton’s sales dropped from previous months. Hampton then filed this suit. II. The Court Below Hampton’s argument below was tied completely to his status as a wholesaler and a direct competitor of Graff. As a result, he attempted to show a case of primary line discrimination. Graff, on the other hand, seemed to prefer to view the case as a secondary line case, and then in turn met this argument with the assertion that its lower prices were available to everyone, including Hampton. In the alternative, it argued that its lower prices were justified as a good faith effort to meet competition (said to be that of American) and to regain Hampton and others as customers. The district court, faced with a complex case involving businesses functioning at more than one level of distribution, framed its findings of fact and conclusions of law in terms of a secondary line case and entered judgment for Graff. While we feel that some of Graff’s contentions have merit, we conclude that they must be reevaluated in light of Hampton’s primary line argument. III. Prima Facie Case of Primary Discrimination The presence of most of the requisite elements in Hampton’s case was not questioned below and has not been questioned here. Three elements, however, merit our attention — Hampton’s status as a functional competitor, the existence of price discrimination, and the effect on competition. Hampton’s role as a competitor wholesaler is obscured by two other relationships he had with the San Antonio market. First, until just prior to this suit, he had been a customer of Graff. Nevertheless, that position does not bar him now from asserting rights incident to his functional position. In fact, the record clearly shows that even when he was a customer of Graff, he was able to compete successfully with Graff for wholesale business. Furthermore, in his current position, he is a completely independent competitor. The second relationship Hampton has with the current market that belies his status as a wholesaler is his continuing business as an operator. Graff has not suggested that this in any way bars Hampton from suing as a wholesaler and the fact that 90% of Hampton’s business is wholesale indicates that this is his true position in the distributive scheme. We, therefore, consider him to be a functional competitor of Graff. The occurrence of price discrimination is more easily discerned. Graff readily admitted that it requested support from Leaf for its price cut only for the San Antonio and Houston areas. At its offices throughout the remainder of Texas and in other states, Leaf gum continued to be sold at list price. The fact that within these two Texas markets the prices were the same to all customers is irrelevant. “[A] price discrimination within the meaning of [section 2(a)] is merely a price difference,” FTC v. Anheuser-Busch, Inc., 1960, 363 U.S. 536, 549, 80 S.Ct. 1267, 1274, 4 L.Ed.2d 1385, and Hampton has shown and Graff has admitted a geographic price difference. The final element about which there could be a question is whether the effect of Graff’s actions “may be to substantially lessen competition.” In considering this, we are first met with the district court’s finding that the sale “would not” have that effect. This finding, however, is not entitled to the mantle of protection normally afforded district court findings under Rule 52(a), Fed.R.Civ.P., because the court’s findings had obvious reference to a case of secondary line discrimination. While we have no quarrel with the finding in that context, it is in no way binding on us when the case is properly construed as primary line discrimination. See Shultz v. First Victoria National Bank, 5 Cir. 1969, 420 F.2d 648. See also United States v. Singer Manufacturing Co., 1963, 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 10 L.Ed.2d 823; Manning v. M/V “Sea Road”, 5 Cir. 1969, 417 F.2d 603. When the discrimination alleged here is evaluated at the wholesale level the deleterious impact on competition becomes apparent. This is exemplified by Hampton’s personal situation. Before Graff’s sale, for example, he was able to purchase his No. 933 gum from American at $7.73 per case and was selling it at $9.74. Graff’s corresponding figures were $7.40 and $9.70. Given some difference in the quantity in each case (see footnote 2), the prices were roughly comparable, and this resulted in a competitive market based largely on the quality of the wholesaler’s service. This relationship was shattered when Graff requested and received an additional discount of up to $1.50 per case, which allowed it to purchase an identical case of No. 933 Leaf gum at $5.95 and to sell it at $8.20. To meet this price Hampton, or any other competing wholesaler, would have to lower his resale price almost to the level of his cost of acquisition. In Hampton’s position that would reduce gross income before costs to approximately $.50 per case. From the testimony of Graff’s director of sales and marketing, it is apparent that no wholesaler could continue to compete with only that amount of markup. Although the above comparison was made only between Hampton’s and Graff’s prices, we are not unaware that the Robinson-Patman Act is concerned primarily with possible injury to competition and not to competitors. See Borden Co. v. FTC, 5 Cir. 1967, 381 F.2d 175. Our review of the record, however, reveals no existing, or potential, wholesale competitor in the San Antonio area who was able to compete, or would be able to compete, with Graff’s sale prices. Certainly, no wholesaler purchasing from Graff could hope to resell at a profit because Graff offered the sale price to everyone and granted no discounts whatsoever off that price. Similarly, the evidence indicates that American had no instituted price system to match Graff’s price on Leaf gum and thus no wholesaler could compete by purchasing from that source. Leaf also was unavailable as a direct source of reduced price gum because Graff received a very special concession for this sale and because Graff had a virtually exclusive distributorship of Leaf products in Texas. Finally, although other companies manufacture comparable gum, the evidence indicated no substantial competitive activity by them in the San Antonio area before the sale, much less during it. Consequently, we are confronted with a wholesale gum market in which, immediately following the price cut, Graff increased its market share by as much as 50% and Hampton’s share dropped approximately 39%. Therefore, with no definable end for the sale in question and with no viable wholesale competitor in the area, we conclude, after a careful review of the record, that there is both a reasonable possibility, and a reasonable probability, that the effect of Graff’s reduced prices on Leaf gum products may be to substantially lessen competition. IV. Defense Against Prima Facie Price Discrimination Case The showing that Hampton was Graff’s functional competitor, that price discrimination occurred, and that it resulted in the proscribed effect on competition does not constitute an irrebuttable violation of the Robinson-Patman Act. Instead, the Act allows a person against whom a prima facie case has been established to justify his actions by raising any of three affirmative defenses built into the Act itself. The chief defensive effort by Graff that retains any validity in a primary line case is aimed at the so-called “good faith meeting competition defense” incorporated in section 2(b) of the Act. The section 2(b) defense, if proved, does constitute an absolute defense to a prima facie price discrimination case, regardless of the anti-competitive effect shown to exist. Jones v. Borden Co., 5 Cir. 1970, 430 F.2d 568. The burden of proving the defense, however, is squarely on the price discriminator, see Surprise Brassiere Co. v. FTC, 5 Cir. 1969, 406 F.2d 711, and it is a burden that is not easily met. For Graff to prevail on this point the record must at least demonstrate “the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor.” FTC v. A. E. Staley Manufacturing Co., 1945, 324 U.S. 746, 759-760, 65 S.Ct. 971, 977, 89 L.Ed. 1338, see Callaway Mills Co. v. FTC, 5 Cir. 1966, 362 F.2d 435. Perhaps the most fundamental element of the defense is that the price met must be that of a competitor. In a primary line case such as this, it would be reasonable then for Graff to try to show that Hampton’s prices, or those of some other wholesaler, were lower than its own and that it tried to match them. For the period from January 1971 to May 15, 1972, Graff has failed to do this. During that time Hampton purchased from Graff and resold at exactly the same price that Graff sold directly to operators. No other wholesaler was shown to have sold at a lower price during this period. After May 15, 1972, Graff has at least shown that, among local wholesalers, Hampton sold American gum at a price somewhat below Graff’s price for Leaf gum. This small difference, however, attributable to more gum balls being packed in an American case than in a Leaf case, is completely insufficient to justify price cuts of $1.50 and $.90 for certain kinds of Leaf gum. Therefore, most of Graff’s effort at establishing a competitive relationship for section 2(b) purposes was not directed at San Antonio wholesalers, but at American itself. As unusual as this approach is in a primary line case, it is not without merit. The reason is that, although Hampton did compete with Graff as a wholesaler throughout this period, he had also been a substantial customer of Graff until May 1972. As such, it would be unreasonable for us to bar Graff completely from using the 2(b) defense in this special situation. where a former customer had been induced away by a manufacturer otherwise competing with Graff’s supplier. The competitive relationship thus established is merely the first step in claiming the protection of this defense. Graff is still required to prove that its prices, within reasonable limits, were just low enough to meet but not beat the competitive price. Jones, supra, 430 F.2d at 573; Callaway, supra. In this respect, as we demonstrate hereinafter, Graff has failed to show a good faith effort to meet American’s prices. It is clear from the record that Hampton purchased gum from American at list less 17%. This fact alone does not justify the sweeping price cuts on Leaf products to all purchasers, however. Graff has shown no other sales by American to San Antonio purchasers at prices below Leaf’s list price and no sales, other than American’s to Hampton, at anything approaching $1.50 off the list price on a case of gum. Despite the absolute lack of such evidence, Graff now claims that it was justified in offering the reduced prices to all purchasers in San Antonio, large or small, wholesaler or operator. We conclude that this was an unreasonable competitive tactic. Although the exact details of American’s pricing schedule are not before us, it is beyond question that Hampton was able to receive his 17 % discount only because he made a large volume order. This quantity discount approach was not foreign to the industry; both Graff’s director of sales and marketing and its San Antonio area representative testified that they knew American would only sell at a discount similar to Hampton’s if the purchaser made a volume purchase of upwards to 20-25 cases. Nevertheless, possessing a generally accurate picture of its competitor’s sales policy and well aware that it itself only gave discounts to volume purchasing accounts, Graff lowered its prices to approximately the level Hampton got from American and then offered these prices to all, including the smallest operator able to purchase only one case at a time. To suggest that such a sales policy was a good faith, reasonable effort to meet competition is unthinkable. Graff, who might have engineered a carefully drawn sales compaign to regain the business of Hampton and perhaps any other customers lost to American, instead resorted to a severe price cut which, contrary to the normal practice in the industry, gave to the small operator the price offered by American only to quantity purchasers. See FTC v. Standard Brands, Inc., 2 Cir. 1951, 189 F.2d 510. We conclude that Graff has not established a good faith meeting competition defense within the meaning of section 2(b) of the Robinson-Patman Act. V. Available Relief In his original complaint, Hampton requested damages, costs, a reasonable attorney’s fee, a preliminary injunction, and “such other and further relief as is just.” After obtaining a preliminary injunction, he was denied all requested relief including a permanent injunction. Because we have found that he proved a prima facie case and that Graff did not successfully establish a 2(b) defense, we must consider what relief is now appropriate. Hampton’s counsel at oral argument urged that we remand the case so that the district court could receive further evidence on damages; in the alternative he urged that the case be remanded so that the district court could make a finding on damages based on the record as it presently stands. Because the proceeding below was a full hearing on the merits, Hampton’s first position is utterly without merit. His second position is also untenable. Near the close of the hearing the following exchange occurred between the court and Hampton’s counsel. THE COURT: I don’t think there is any proof of loss, as to the amount of loss of damages or earnings at this time. Now, it may be that before Mr. Branton rests, there will be. But at the present time I don’t think he has established any damages. Have you, Mr. Branton? I haven’t heard any figures mentioned. MR. BRANTON: I don’t think I have. I think we have established that he has suffered a loss and that there is a decline in his business, but there is no— THE COURT: But there is no evidence. I haven’t heard any figures mentioned or anything. I think we are prolonging this thing. Hampton thereafter introduced no further evidence and has not demonstrated to this court any compelling reason, in the record or otherwise, for us to ignore his admission. Hampton must have felt that his proof had failed to nail down clearly ascertainable damages or that it was impossible to place a dollar value on them. Since upon a full trial there was a failure of proof of actual damages, that is the end of the matter. That there is no entitlement to damages, however, is not dispositive of the question of permanent injunctive relief. Authorized under 15 U.S.C.A. § 26, a permanent injunction can be issued by a federal district court exercising equitable jurisdiction because it has “broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future unless enjoined, may fairly be anticipated from the defendant’s conduct in the past.” Zenith Radio Corp. v. Hazeltine Research, Inc., 1969, 395 U.S. 100, 132, 89 S.Ct. 1562, 1581, 23 L.Ed.2d 129, quoting NLRB v. Express Publishing Co., 1941, 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930. In the present posture of this case, however, the initial determinations of whether an injunction should issue, and what its scope should be if issued, are peculiarly within the competence of the district court and we intimate no predisposition on either question. We, therefore, remand this aspect of the case for a reevaluation of the record with respect to possible injunctive relief. The final relief prayed for was a reasonable attorney’s fee and costs, in accordance with 15 U.S.C.A. § 15. Such relief is addressed to the sound discretion of the district court and, under the facts of this case, we think it appropriate for that court to examine the question first. See Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 431 F.2d 334, cert. denied, 1971, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811. We reverse and remand for further proceedings not inconsistent with this opinion. Reversed and remanded. . Section 13(a) provides in pertinent part: (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, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, 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. . . Although Graff had operated some routes in San Antonio 2 or 3 years prior to this suit, it now just owns the master contract with several grocery store chains in the city; other people, who purchase supplies from Graff, actually work these routes. . From the record, the following is an example of the per case price that Hampton paid to Graff prior to May 15, 1972, and to American after that date. Mfg’s list, No. 9SS Gum tall gum Hampton’s cost Leaf * $ 9.70 ** $8.73 (list less 10%) American* $10.15 $7.73 (list less 17% and frt.) * The per case price is not exactly comparable because a Leaf case has a 5550 count and an American case has a 5670 count. ** The list price of one case of Leaf No. 933 ball gum increased from $9.40 to $9.70 on March 15, 1972. Other Leaf products increased in price at the same time. . Hampton’s complaint alleged that Graff had cut its price in all areas of sales— gum, charms, and machines. It is clear from the record, however, that he only adduced evidence concerning alleged price discriminations with respect to Leaf gum. Consequently, it is on this ground alone that Hampton must prevail, if at all. . Graff asked for these price reductions only for San Antonio and Houston, despite the fact that it was experiencing decreased sales in at least several other major marketing areas. . The following is an example of the prices available to a small operator in San Antonio after the beginning of Graff’s sale. Case of No. 933 Ball Gum Seller List Discounts Costs Price Graff/Leaf $ 9.70 1.50 + 19% + frt. $5.95 $8.20 Hampton/American $10.15 17% + frt. $7.73 $9.74 * * Hampton sold a case of American No. 933 ball gum at below list to make the gum more competitive with Leaf gum from Graff, which had been sold at list price prior to the sale in question. . An injury to the primary line of commerce is one that affects competition among sellers. It was the subject of the first federal statute dealing exclusively with price discrimination and is still covered by the Robinson-Patman Act. See FTC v. Anheuser-Busch, Inc., 1960, 363 U.S. 536, 542-543, 80 S.Ct. 1267, 4 L.Ed.2d 1385. It differs from secondary line price discrimination in which competition is usually affected because some customers of a seller do not receive prices as low as certain “favored” customers. . The facts of this case differ from those of several other primary line cases in that the geographic price difference here was not absorbed by the discriminator, but was underwritten by the manufacturer at the discriminator’s request. This has not been raised as a distinguishing factor and, where a large national wholesaler is able to request and receive this kind of preferential treatment, the potential force of any such argument is lost. . There is some indication in the record that, on many sales, Hampton’s gross income would be still less. According to Hampton’s trial brief, in addition to overhead expenses, he has to pay the freight on his shipments to non-local customers while Graff does not. This one item, claims Hampton, increases his cost on over one-half of his delivered cases of No. 933 American gum from $7.73 to $8.18 a case. . Mr. Goldstein stated that Graff could not maintain the sale price ($8.20 per case on No. 933 gum) if it were required to revert to its old price schedule from Leaf ($7.40 per case) ; this would yield a maximum of $.80 per case, and, with other costs and overhead included, would allow no more than a few cents profit on a case. According to Mr. Goldstein, such a profit level is insufficient to support a continuing wholesale business. . Compare FTC v. Morton Salt Co., 1948, 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196, and Borden Co., supra with, Foremost Dairies, Inc. v. FTC, 5 Cir. 1965, 348 F.2d 674, 680 n. 11, cert. denied, 382 U.S. 959, 86 S.Ct. 435, 15 L.Ed.2d 362. . Based on the findings of the district court, Graff has continued to assert that no discrimination occurred because the sale price was available to Hampton. This secondary line argument carries no weight in a primary line case. . Section 2(b) of the Act, 15 U.S.C.A. § 13(b) provides: Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination : Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. . For example, Hampton sold a 5670 count case of No. 933 American gum for $9.74. At that price level, Graff would have been justified in lowering the price, to operators, on its 5550 count case from $9.70 to $9.53 — a total of $.17. Even when some amount is added for a reasonable uncertainty over Hampton’s exact prices in a competitive situation, the technically allowed cut of $.17 cannot grow to $1.50. . Hampton testified that he was required to place a 100 case order to get the 17% discount plus freight. . The district court’s findings to the effect that Graff’s sale was a reasonable way to meet competition and that Graff’s prices were not unreasonably low are not binding on us when the case is properly viewed as primary line discrimination. Furthermore, because Graff has failed to prove a 2(b) defense, we need not consider whether Graff’s price cuts were a proper response to individual competition situations, or whether the new price structure was an illegal plan or system for meeting competition. Compare Calla-way, supra, with Surprise, supra.

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Jane DOE et al., Plaintiffs-Appellants, v. James D. HODGSON, Secretary of Labor, et al., Defendants-Appellees. No. 606, Docket 72-1744. United States Court of Appeals, Second Circuit. Argued March 22, 1973. Decided May 1, 1973. Burt Neuborne, New York City (New York Civil Liberties Union, Norman Dorsen, New York University Law School, New York City, on the brief), for plaintiffs-appellants. T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. New York; Taggart D. Adams, Asst. U. S. Atty., on the brief), for federal defendants-appellees. Stephen P. Seligman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of New York; Samuel A. Hirshowitz, First Asst. Atty. Gen., Irving L. Rollins, Asst. Atty. Gen., on the brief), for New York State defendants-appellees. Before SMITH, FEINBERG and MANSFIELD, Circuit Judges. FEINBERG, Circuit Judge: Nine migrant agricultural workers, protected by pseudonyms, challenge the constitutionality of provisions in various federal and state statutes which operate to exclude them and others so situated from the beneficial provisions of social legislation in such areas as unemployment compensation, minimum hours and wages, social security and workmen’s compensation. Plaintiffs’ complaint sought the convening of a three-judge court, a declaratory judgment, and “appropriate equitable relief in the nature of injunction or mandamus enforcing plaintiffs’ rights and defendants’ responsibilities under the First, Fifth, Thirteenth and Fourteenth Amendments. . . .” The United States District Court for the Southern District of New York, Marvin E. Frankel, J., refused to convene a three-judge court and dismissed the complaint, 344 F.Supp. 964 (1972), because of the controlling effect of Romero v. Hodgson, 403 U.S. 901, 91 S.Ct. 2215, 29 L.Ed.2d 678 (1971), summarily affirming 319 F.Supp. 1201 (N.D.Cal.1970) (per curiam). Although we believe that as an original matter plaintiffs’ basic equal protection claim merits the closest judicial attention, we conclude that under applicable precedent we should not now engage in that pursuit. Because the plight of migrant workers as portrayed in plaintiffs’ complaint is so unfortunate, we reach this conclusion, and consequently affirm, with considerable hesitation. In Romero v. Hodgson, supra, a divided three-judge court sustained the Federal Unemployment Tax Act, one of the statutes under attack here, against an equal protection challenge. Faced with the argument that the exclusion of agricultural labor from the coverage of the statute was no longer justifiable on the grounds originally relied upon by the Supreme Court in 1937, the majority nevertheless sustained the exclusion, 319 F.Supp. at 1203, because it could be seen as an indirect subsidy of a “beneficent enterprise,” or as an effort to save the compensation fund from the drain which would result from the inclusion of another large “deficit industry,” or even as a necessary political compromise without which it would have been impossible to inaugurate a most important reform in American institutions. Judge Zirpoli filed a strong dissent, arguing that the exclusion was now factually unsupportable and therefore irrational. The dissent pointed out that while administrative hardship for small farmers might have justified the original exemption of agricultural workers, “in 1964, 89 per cent of all hired farm workers . . . were employed by large commercial agricultural corporations” ; in addition, unemployment compensation has been extended to other industries which “fiscally speaking, are much greater drains on the compensation fund,” thus making “untenable the . . . argument that agriculture has been excluded as a ‘deficit’ industry” (footnote omitted); and, finally, the “Unemployment Tax Act is not an industrial subsidy; it is social welfare legislation.” Id. at 1205. With the issues thus clearly spelled out, on direct appeal to the Supreme Court the judgment of the district court was summarily affirmed. Plaintiffs argue that such a disposition should not be controlling in this case. They point to the heavy Supreme Court caseload and the observations of Supreme Court scholars (including the recent report of a study group chaired by Professor Paul A. Freund) to the effect that summary disposition of cases on the appellate docket “is not a satisfactory equivalent for the judgment on the merits it is supposed to be.” Plaintiffs thus contend that summary affirmance is entitled to no more — or little more — precedential weight than is the denial of a petition for a writ of certiorari. However, we have ruled to the contrary. See United States ex rel. Epton v. Nenna, 446 F.2d 363, 366, cert. denied, 404 U.S. 948, 92 S.Ct. 282, 30 L.Ed.2d 265 (1971); Heaney v. Allen, 425 F.2d 869, 870-871 (1970); Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 262-263 n. 3 (1967). We are aware that the Ninth Circuit has stated that a summary affirmance by the Supreme Court of a case within its “obligatory appellate jurisdiction has very little precedential significance.” See Dillenburg v. Kramer, 469 F.2d 1222, 1225 (1972). For now, however, we continue to believe that we are bound by the Supreme Court’s summary affirmances “until such time as the Court informs us that we are not.” United States ex rel. Fein v. Deegan, 410 F.2d 13, 22 (2d Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450 (1969). Plaintiffs also argue that even if the affirmance in Romero is entitled to pree-edential weight, differences between that case and this are so significant that the affirmance in the former cannot foreclose the claims made here. Romero, they say, challenged only one statute, while this case attacks many in an effort to establish a “pattern or practice” of systematic exclusion of migrants from curative social legislation. Second, plaintiffs contend that they can here demonstrate a “causal relationship” between the exclusions and deprivation of fundamental rights, e. g., association, speech, right to travel, and that strict equal protection review is thus appropriate. Finally, plaintiffs urge that Romero was decided prior to cases from the last Term in which the Supreme Court invested “rational basis” review under the equal protection clause with considerably more bite and realistic application than had previously been thought appropriate. These arguments, particularly the last, are by no means frivolous. However, as to the first two, we cannot in good conscience hold that either the presence of four federal statutes under attack instead of one or the bare assertion that “fundamental rights” of migrants are jeopardized by the statutory exclusions justifies our disregarding Romero. As to the last argument, we have ourselves noted the apparent, post-Romero, trend toward a less deferential application of the “rational basis” standard of equal protection, although not without some disagreement. See Boraas v. Village of Belle Terre, 476 F.2d 824 (2d Cir. 1973) (Timbers, J., dissenting from 4-4 denial of en banc reconsideration). Were we writing on a clean slate, we would take very seriously the assertion that on these facts the statutory exclusions cannot be sustained. But given Romero, the slate is not clean; plaintiffs must obtain any further writings on it in this case from the Supreme Court. Judgment affirmed. . The complaint challenges the Federal Unemployment Tax Act, 26 U.S.O. § 3306 (c) (1), (k) ; the Fair Labor Standards Act, 29 U.S.C. § 206(a)(5) ; the Social Security Act, 42 U.S.O. § 409(h) (2) ; the New York Unemployment Insurance Act, N.Y.Labor Law § 511(6) (a) (McKinney’s Consol.Laws, c. 31, 1965) ; the New York Minimum Wage Act, id. § 651(5) (b), id. §§ 671(6), 673 (1972-73 Supp.) ; and the New York Workmen’s Compensation Law, N.Y.Wkmn’s Comp.Law § 201 (6) (A) (McKinney’s Consol.Laws, c. 67 1965). Plaintiffs also attack exclusion from and misapplication of the National Labor Relations Act, 29 U.S.C. §§ 152(3), 158(b) (4). In their briefs in this court, plaintiffs refer to only one state statute, the workmen’s compensation law. In view of our disposition, we think it unnecessary to resolve any inconsistency. . E.g., none of the plaintiffs earns more than $3,000 per year; they are randomly subject to enforced periods of unemployment ranging up to weeks without any compensation, during which they are “reduced to utter destitution”; although subjected to serious occupational hazards posed by mechanized equipment and noxious pesticides, plaintiffs are without the disability protections of workmen’s compensation laws. . Because we agree with Judge Frankel’s resolution, we need not consider alternative objections to relief, pressed by appellees and alluded to by the district court, i. e., whether plaintiffs’ prayer for injunctive relief is sufficiently concrete to merit three-judge consideration, and whether plaintiffs seek to enjoin assessment or collection of federal taxes, as prohibited by 26 U.S.O. § 7421(a). See 344 F.Supp. 967 & n. 3. . Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 512-513, 57 S.Ct. 868, 81 L.Ed. 1245 (1937). . Mr. Justice Douglas would have noted probable jurisdiction. . Report of the Study Group on the Caseload of the Supreme Court 26 (1972) ; see authorities cited in United States ex rel. Epton v. Nenna, 318 F.Supp. 899, 906 n. 8 (S.D.N.Y.1970). . Although these cases considered the stare decisis effect of a Supreme Court dismissal, for want of a substantial federal question, of an appeal from a state court, their reasoning applies with at least as much force to summary affirmances on direct appeals from three-judge courts. This difference in disposition is without significance, explained only by history. R. Stem & E. Gressman, Supreme Court Practice 233 (4th ed. 1969). . Accord, Serrano v. Priest, 487 P.2d 1241, 1264 & n. 35 (Cal.1971) (dictum). . In particular, while the three-judge district court Romero majority noted “something rigid” about the choice between the strict standard of review and one “as deferential as any known to the law,” 819 F.Supp. at 1202, it is precisely this sharp dichotomy which we have found considerably narrowed. See, e.g., Boraas v. Village of Belle Terre, 476 F.2d 806, 814-815 (2d Cir. 1973) ; Green v. Waterford Board of Education, 473 F.2d 629, 633-634 (2d Cir. 1973) ; City of New York v. Richardson, 473 F.2d 923, 930 (2d Cir. 1973) ; Aguayo v. Richardson, 473 F.2d 1090, 1108 (2d Cir. 1973).

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2024-08-24T03:29:51.129235

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AMALGAMATED WORKERS UNION OF the VIRGIN ISLANDS et al., Appellants, v. HESS OIL VIRGIN ISLANDS CORP. No. 72-1653. United States Court of Appeals, Third Circuit. Argued Jan. 31, 1973. Decided April 23, 1973. John M. O’Quinn, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Tex., J. Michael Spencer, St. Croix, Virgin Islands, for appellants. Alexander A. Farrelly, Birch, de-Jongh & Farrelly, Charlotte, Amalie, St. Thomas, V.I., for appellee. Before VAN DUSEN, ROSENN, and HUNTER, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. Plaintiffs (appellants) in this case are the Amalgamated Workers Union of the Virgin Islands and four of its members, suing on behalf of- all members of the union who have worked a “rotating shift” for defendant Hess Oil Virgin Islands Corporation. Plaintiffs instituted this suit as a class action in the District Court for the Virgin Islands in January 1972 alleging that Hess was violating the Virgin Islands Fair Labor Standards Act by requiring employees to work the “rotating shift” without overtime compensation. Defendant moved to dismiss the suit as a class action because there were superior procedures available to plaintiffs before the Commissioner of Labor. On May 22, 1972, the district court entered an order remanding the case “to the Department of Labor for determination on the merits.” ******Plaintiffs appeal that decision. For the reasons stated below we reverse. The rights allegedly violated are conferred by 24 V.I.C. § 20, which establishes that overtime at the rate of at least one and one-half times the employee’s regular rate must be paid any employee who works more than five consecutive days or longer than forty hours in a work week. The available remedies derive from 24 V.I.C. § 17. Section 17(a) provides that an employer who pays any employee less than the applicable rate shall be liable to the employee for the full amount of the applicable rate, for any costs, and reasonable attorney’s fees allowed by the court. Subsection (b), upon which the district court apparently relied, authorizes the Commissioner of Labor to sue on behalf of an employee. It provides: (b) At the written request of any employee paid less than the wage to which he is entitled under or by virtue of this chapter, the Commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. One can read the district court’s dismissal of the action to have been predicated on any of three different, independent theories: (1) The Department of Labor has the expertise and personnel to make a superior adjudication and thus must be preferred under the requirements of F.R.Civ.P. 23(b)(3); or, (2) Application must be first made to the Department of Labor and its administrative remedies exhausted before court adjudication; or, (3) All wage litigation must be channelled through the Department. We find no merit in any of these theories. The district court’s first possible theory constitutes a misapplication of the “superiority requirement” of Rule 23(b)(3). Rule 23(b)(3) provides one of three alternative prerequisites for a class action, in addition to the requirements of subsection (a). It provides that a class action may be maintained if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” (Emphasis added.) It then delineates factors pertinent to this question: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. As we view it, it would appear that the rule was not intended to weigh the superiority of a class action against possible administrative relief. The “superiority requirement” was intended to refer to the preferability of adjudicating claims of multiple-parties in one judicial proceeding and in one forum, rather than forcing each plaintiff to proceed by separate suit, and possibly requiring a defendant to answer suits growing out of one incident in geographically separated courts. That possible administrative remedies were not intended to be considered as “other available methods” in deciding whether the class action is maintainable under Rule 23 is suggested by several considerations. Initially, the “superiority requirement” is stated in the same sentence that requires that the questions of law and fact common to the class members predominate over any questions affecting only individual members. Secondly, the factors stated to be pertinent to the two findings all relate to the desirability of having one suit instead of multiple suits. Finally, and perhaps most importantly, the advisory committee notes on the requirement focus on the question whether one suit is preferable to several. F.R.C.P. 23, Notes of Advisory Committee on Rules. We find no suggestion in the language of Rule 23, or in the committee notes, that the value of a class suit as a superior form of action was to be weighed against the advantages of an administrative remedy. We leave this question, however, for disposition in an appropriate case. We are unable to perceive any reason why the “remedy” in section 17(b) of the Virgin Islands Fair Labor Standards Act, if cognizable under Rule 23, would be superior to the class action. The expertise of the Commissioner is immaterial, since the ultimate decision on the merits must be by the district court. The Commissioner is not authorized to make any preliminary findings. He is authorized only to bring a suit on behalf of the employee in the district court. Moreover, the deterrent value of a suit for judicial vindication of statutory rights under the Virgin Islands Fair Labor Standards Act would, in all likelihood, be diminished by precluding a class action and thereby requiring each individual employee to file his complaint with the Commissioner. On the other hand, an appropriate class action for multiple claims based on violations of “wage and hour laws” may very well serve a prophylactic function. For these reasons, we think the district court relied on improper factors and abused its discretion in determining that subsection (b)(3) does not justify this class action. We also note that the requirements of Rule 23(b) (3) need not be met if the requirements of one of the other subsections of Rule 23 are met. Subsection (b) also provides that a class action may be maintained if the prerequisites of subsection (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole; . . . . We think subsections (b)(1) and (2) might well apply to this suit because wage and hour litigants in the Virgin Islands would in the future, under the decision of the district court, have to press claims with the Commissioner of Labor, and any adjudication on the merits would establish a precedent applicable to all. Therefore, on remand, the district court should consider the applicability of subsections (b)(1), (2), and (3). The district court’s second possible theory, the doctrine of exhaustion of administrative remedies, does not depend on the class nature of the suit. If applicable, it would require named plaintiffs, as well as any class they represent, first to take their complaints to the Commissioner of Labor. This doctrine, however, is inapplicable to this case because the administrative agency does not have authority to grant the relief requested. See American Federation of Government Employees v. Resor, 442 F.2d 993, 995 (3d Cir.1971). None of the actions the Commissioner is empowered to take would provide relief for the plaintiffs. He cannot impose penalties, and his investigatory powers, although they might be helpful in litigation, would not result in an award of back pay to plaintiffs. For this reason, the argument that plaintiffs are required to press the suit through the Commissioner is not really an argument that plaintiffs should exhaust administrative remedies; it is an argument that the statute requires wage and hour litigation be channelled through the Commissioner. This third possible theory for dismissing the action is also inapplicable to this case. Section 17(b) contains no explicit language requiring that the employee request the Commissioner to prosecute his suit and imposes no other limitations upon his right to sue. It appears that the provision authorizing the Commissioner to sue for the employee was intended merely as an alternative for the employee who could not afford private counsel or, for one reason or another, preferred to have the suit prosecuted under official auspices. It no doubt serves a useful function in protecting an employee from fear of recrimination, and it may relieve him from embarrassment in pursuing his employer with legal action. Two federal statutes provide instructive comparisons. The Fair Labor Standards Act, 29 U.S.C. § 216(c), is analogous to the Virgin Islands statute. It has been interpreted to permit suit by an employee without first requesting prosecution of the claim by the Secretary of Labor, even though the Secretary can bring suit at employee request. See DeFigueiredo v. Trans World Airlines, Inc., 322 F.Supp. 1384, 1388 (S.D.N.Y.1971); Mitchell v. All-States Business Products Corp., 250 F.Supp. 403, 406 (E.D.N.Y.1965) (dictum). Similarly, the courts have uniformly interpreted an analogous provision in the Labor Management Relations Act, 29 U.S.C. § 464(a), to allow a union member to maintain a private action to challenge a union trusteeship without first filing a complaint with the Secretary of Labor. See, e.g., Hotel & Restaurant Employees and Bartenders International Union v. Del Valle, 328 F.2d 885, 886 (1st Cir.), cert. denied, 379 U.S. 879, 85 S.Ct. 146, 13 L.Ed.2d 86 (1964); Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 923-924 (4th Cir. 1963). We need not reach the issue apparently raised for the first time on appeal whether exhaustion of remedies under the collective bargaining agreement is required. Appellee has not made an application to the court requesting a stay pending exhaustion of internal remedies and has not demanded that plaintiffs pursue any such remedies. The judgment of the district court will be reversed and the ease remanded for proceedings consistent with this opinion. . Although the district court memorandum and order are ambiguous, we interpret its action as a dismissal of the complaint. The decision was entered upon a motion to dismiss the “action as a class action,” and there was no indication that the court intended merely to stay the action or that it retained jurisdiction. In effect, the decision necessarily amounted to a dismissal of the action, since the remand was to an agency that had no power to provide relief. The use of the term “remand” was inappropriate since the case originated in the district court, not in the Department of Labor. To “remand” a cause is to send it back to the court from which it came. Black’s Law Dictionary 1457 (Revised 4th ed. 1968). See Northern Pacific Terminal Co. v. Lowenberg, 18 Fed. 339, 341 (Cir.Ct., D.Oregon 1883). . The pertinent portion of the opinion of the district court reads as follows: I am not convinced that a class action in the instant case is a superior method of adjudicating the claims of the plaintiffs. Plaintiffs have an administrative remedy in the first instance with the Commissioner of Labor. That department has far greater expertise and personnel available to determine the merits of the claims advanced herein. For that reason, I therefore remand this case to the Department of Labor. . AVe do not suggest that the inability to provide the specific relief requested by the plaintiff will always preclude application of the exhaustion doctrine. In Laveson v. Trans World Airlines, 471 F.2d 76 (3d Cir. 1972), we applied the related primary jurisdiction principle to preclude a treble damage antitrust suit prior to consideration of the issues in the case by the CAB, even though that agency had no power to award damages. Laveson is different from this case, however, because the CAB did have the power to exempt the alleged wrongdoing from the antitrust laws. Here, the Commissioner has no power to grant exceptions to the employer from the minimum and overtime wage requirements. . 3 V.I.C. § 356(a)(4)(A) directs the Department of Labor to administer and enforce the laws pertaining to wages and hours. We do not read that general mandate as an authorization to make an award of monetary damages for an aggrieved employee. We note that 24 V.I.C. § 5, part of the Fair Labor Standards Act, lists the powers of the Commissioner with respect thereto, but does not mention the power to award monetary damages to an aggrieved employee. Counsel for defendants has also called our attention to 24 V.I.C. § 11(a), which provides that any aggrieved person in any occupation for which a “wage order” has been issued may obtain judicial review in the district court. This provision concerns the issuance of orders prescribing minimum wages under 24 V.I.C. § 10. It does not contain any authorization, implicit or otherwise, as suggested by defendants, for an order awarding back pay to employees. We are naturally reluctant to find an implicit authorization when an explicit one would be so easy to provide. Moreover, it would seem anomalous, on the one hand, to authorize the Commissioner to award an employee his claim of back pay, and, on the other, to authorize him in the terms of 24 V.I.C. § 17 (b) to bring a legal action to collect such claim. AVe also note that the Commissioner of Labor has not promulgated any rules or regulations for the conduct of hearings to adjudicate wage claims although he has promulgated rules and regulations for the conduct of hearings to carry out his statutory authority to adjudicate unfair labor practice claims. . Construing the analogous provisions in the United States Fair Labor Standards Act, 29 U.S.C. § 216, the court in Shultz v. Wheaton Glass Co., 319 F.Supp. 229, 231 (D.N.J.1970), aff’d, 446 F.2d 527 (3d Cir. 1971), noted: Congress was well aware that, in many instances, employees were reluctant to bring direct wage and hour actions against their employers for fear of subsequent retaliation. . It provides in relevant part: When a written request is filed by any employee with the Secretary of Labor claiming unpaid minimum wages or unpaid overtime compensation under section 206 or section 207 of this title, the Secretary of Labor may bring an action in any court of competent jurisdiction to recover the amount of such claim. . . . It provides in relevant part: Upon the written complaint of any member . . . of a labor organization alleging that such organization has violated the provisions of this sub-chapter . . . the Secretary shall investigate the complaint and if the Secretary finds probable cause to believe that such violation has occurred he shall . . . bring a civil action in any district court. . . .

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GRAVOIS BANK et al., Petitioners, v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM et al., Respondents, and Manchester Financial Corp. and the National Bank of Affton, Intervenors. No. 72-1423. United States Court of Appeals, Eighth Circuit. Submitted March 13, 1973. Decided April 27, 1973. Richard L. Hughes, St. Louis, Mo., for petitioners. David F. Ulmer, St. Louis, Mo., for intervenors. James C. Hair, Atty., Department of Justice, Washington, D. C., for respondents. Before VAN OOSTERHOUT, Senior Circuit Judge, MEHAFFY and HEA-NEY, Cii’cuit Judges. HEANEY, Circuit Judge. The petitioners, three Missouri banks, ask us to review an order of the St. Louis Federal Reserve Bank granting the intervenor, Manchester Financial Corporation, permission to acquire The National Bank of Affton, a bank in organization. Manchester Financial Corporation (MFC) is a bank holding company incorporated in 1968. In September of 1969, pursuant to a reorganization plan, the shareholders of the Manchester Bank of St. Louis, a state chartered bank, exchanged their Manchester Bank stock for shares in MFC. *As a result of the reorganization, the Manchester Bank became the principal subsidiary of MFC. The management of MFC and the Manchester Bank are substantially identical. On March 29, 1972, MFC filed an application with the Board of Governors of the Federal Reserve System (Board) pursuant to § 3(a)(3) of the Bank Holding Company Act of 1956, 12 U.S.C. § 1842(a)(3), for prior approval by the Board of its proposed acquisition of one hundred percent (less director’s qualifying shares) of the voting shares of the proposed Affton Bank. Pursuant to its regulations, the Board delegated its authority for approval of the acquisition to the St. Louis Federal Reserve Bank (Reserve Bank). 12 C.F.R. § 265.2(f)(22). The Reserve Bank, in turn, pursuant to 12 U.S.C. § 1842(b), notified the Comptroller that it had received MFC’s application. The Comptroller did not reply. However, on October 29, 1971, the Comptroller had granted his preliminary approval to the chartering of the Affton Bank, subject to the condition that MFC would be allowed to acquire the Affton Bank stock. In view of the fact that the Comptroller did not recommend disapproval of MFC’s application, it was not necessary for the Board to grant a hearing on the application. See, 12 U.S.C. § 1842(b). On May 3, 1972, petitioners’ attorney submitted written objections to the Board requesting that the Board deny MFC’s application. ****On June 12, 1972, the Reserve Bank issued an order approving MFC’s application. The petitioners filed a petition for review of the Reserve Bank’s order with this Court on July 11, 1972, but they did .not seek a stay of the order pending the outcome of the appeal. On August 12, 1972, MFC advised the Reserve Bank that it had completed the acquisition. Thereafter, the Affton Bank commenced operating. The petitioners make four contentions on this appeal: (1) That the Board has no jurisdiction to approve a bank holding company’s application to acquire a newly created bank. (2) That the Comptroller of the Currency improperly delegated his authority by conditioning his grant of a charter to the Affton Bank upon subsequent approval by the Board of MFC’s request for permission to acquire the Affton Bank stock. (3) That the Reserve Bank, in approving MFC’s acquisition of the Affton Bank stock, failed to make a factual determination as to whether or not the Affton Bank would be operated as a de facto branch of the Manchester Bank. (4) That the Affton Bank will be operated as a de facto branch of the Manchester Bank, in violation of Missouri law and 12 U.S.C. § 36(c). We review these contentions seriatim. (1) The Bank Holding Company Act of 1956, as amended, 12 U.S.C. § 1841 et seq., inter alia, regulates the acquisition of assets by bank holding companies. Section 3(a)(3) of the Act requires that the bank holding companies obtain approval from the Board prior to obtaining ownership or control of stock in any “bank” if, as here, the acquisition will result in its owning in excess of five percent of that bank’s voting shares. 12 U.S.C. § 1842(a)(3). The petitioners argue that because the Bank Holding Company Act defines “bank” in terms of an existing operational institution, 12 U.S.C. § 1841(c), the Board was without jurisdiction to approve MFC’s acquisition of the proposed, but not yet operating, Affton Bank. We reject this contention. In doing so, we note that the Supreme Court in Whitney Nat. Bank v. Bank of New Orleans & Trust Co., 116 U.S.App.D.C. 285, 323 F.2d 290 (1963), rev’d on other grounds, 379 U.S. 411, 417, 85 S.Ct. 551, 555, 13 L.Ed.2d 386 (1965), stated: “The Bank Holding Company Act of 1956 prohibits a bank holding company from acquiring ownership or control of a national bank, new or existing, without the approval of the Federal Reserve Board. * * (Emphasis added.) See also, First National Bank in Billings v. First Bank Stock Corp., 306 F.2d 937 (9th Cir. 1962). Moreover, we note that the Board has historically construed the statute as allowing it to approve the acquisition of new banks by bank holding companies, and that it approved one hundred seven such acquisitions between 1960 and 1972. The construction is, in our view, reasonable and, accordingly, we give great weight to it. See, Investment Company Institute v. Camp, 401 U.S. 617, 626-627, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). (2) The petitioners’ contention that the Comptroller improperly delegated his chartering authority to the Board by conditioning the grant of the “certificate of authority to commence business” upon subsequent approval by the Board of MFC’s request for permission to obtain the Affton Bank stock is without merit. The applicable statute requires that the identity of the shareholders in a proposed bank be set out in the application for a charter. 12 U.S.C. § 22. Moreover, in granting the charter, the Comptroller is obligated to determine that the aforementioned condition, among others, is met. 12 U.S.C. § 26. Accordingly, where the prospective shareholder must also gain approval of the Board to acquire the stock, it is necessary for the Comptroller to condition the granting of the charter on subsequent approval of the acquisition by the Board. The Comptroller had independently made his determination as to the identity of the shareholders and, in our view, the “condition” does not represent an unlawful delegation of this duty. It merely insures that his determination will be carried out. (3) The petitioners contend that the Reserve Bank, in considering MFC’s application for prior approval, did not examine the facts to determine whether or not the Affton Bank would be operated as a de facto branch of the Manchester Bank. They argue that historically the Board has maintained that such an examination is not required, and they emphasize that the record indicates that the Reserve Bank followed the Board’s traditional practice here. We agree. The parties agree that Missouri is a unit bank state which, by law, prohibits branch banking. They also agree that in view of the Supreme Court’s decision in Whitney, the Board may not approve a bank holding company’s application to acquire stock of a bank in a unit bank state if the bank will, as a practical matter, be operated as a branch. See, Commercial Nat. Bank of Little Rock v. Board of Gov., 451 F.2d 86, 89 (8th Cir. 1971). The Board maintains that the Reserve Bank examined this issue in the instant case and found that the proposed acquisition represented a bona fide holding company operation and would not be operated as a branch. Our review in this ease is largely governed by the Bank Holding Company Act. Section 9 of the Act provides that review may be obtained in this Court. 12 U.S.C. § 1848. The statute defines the extent of our jurisdiction and requires that “[t]he findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive.” Implicit in this later command is a requirement that the Board make findings of fact to facilitate our review. They have done so here, and it is to those findings and the record which we must look to determine whether or not the Board has decided that the Affton Bank would not be operated as a branch of the Manchester Bank. The Board points out that the Reserve Bank, acting under delegated authority, approved MFC’s application with the written objections of the petitioners before it. It emphasizes that the Reserve Bank specifically found that “consummation of the proposal would be in the public interest” and argues that this finding could not have been made if the Reserve Bank had found the Affton Bank to be a branch. While under some circumstances it might be proper for a reviewing court to assume that this finding indicates that the Board did examine the facts to determine if de facto branching would result, such an assumption would not be proper here. This is true because here the record indicates that an appropriate examination was not made. We are driven to this conclusion by a letter of June 12, 1972, written by the Reserve Bank’s Vice President, Harold E. Uthoff, to the petitioners’ attorney. There, Mr. Uthoff made the following statement explaining the Reserve Bank’s disposition of the petitioners’ objection: “Careful consideration was given to comments contained in your formal protest dated November 16, 1971 in which it was contended that the laws of Missouri clearly prohibit branch banking. On several occasions in the past the Board of Governors has considered the question of whether the existence of restrictive or prohibitive branching laws are a ban to approval of a proposed bank holding company acquisition and has rejected such contention for reasons cited in the matter of Application of First Arkansas Bankstock Corporation, Little Rock, Arkansas (1970 Federal Reserve Bulletin, page 779).” (Emphasis added:) It is evident from this statement that the Reserve Bank was aware of the petitioners’ de facto branch argument. However, it chose to dispose of the contention by reference to a prior analogous ease decided by the Board. Thus, reference that that prior case is necessary to ascertain the extent to which the de fac-to branch issue was considered. The applicable portion of that decision reads as follows: “ * * * The Protestants were reminded at the oral presentation that the Board has, on several occasions, taken the position that a State’s restrictive branch banking laws do not, in the light of the legislative history of the Act, provide guidance with respect to the Board’s responsibilities in considering an application to form or expand a bank holding company in such State. (See, Application of Tennessee Financial Corporation, 1969 Federal Reserve Bulletin, 160,161, and cases there cited.) The Board here reaffirms that position. * * * ” (Emphasis added.) First Arkansas Bankstock Corporation, Little Rock, Arkansas, 1970 Federal Reserve Bulletin 778, 779. In Application of Tennessee Financial Corporation, 1969 Federal Reserve Bulletin 160, 161, the Board made a similar statement to that quoted from First Arkansas and gave the following citations in support of that statement: (a) Application of Farmers and Mechanics Trust Company, Childress, Texas, 1960 Federal Reserve Bulletin 14, 16; (b) Application of Denver U. S. Ban-corporation, Inc., Denver, Colorado, 1963 Federal Reserve Bulletin 1518,1527; (c) Application of First Colorado Bankshares, Inc., Englewood, Colorado, 1963 Federal Reserve Bulletin 1646, 1651. Keeping in mind the fact that the Reserve Bank rejected the petitioners’ contention by relying on the Board’s prior decision in First Arkansas, which in turn specifically relied on the reasoning given in the above cited Board decisions, we now review those decisions. (a) Farmers and Mechanics Trust Company. There, the Board stated: “ * * * Thus, notwithstanding proposals made on the floor of the Congress regarding the relation of State branch banking laws to holding company expansion, the existence in a particular State of a prohibition against branch banking cannot be weighed as an adverse consideration by the Board in exercising its judgment on a holding company’s application to acquire stock of a bank in that State.” (Emphasis added.) 1960 Federal Reserve Bulletin at 16. (b) Denver U. S. Bancorporation. There, the Board reaffirmed and expanded the principle stated in Farmers and Mechanics Trust Company: “The Board finds inapplicable to its statutory functions under Section 3 of the Bank Holding Company Act both the reasoning and holding in the Bank of New Orleans case. Accordingly, it believes its earlier position in the Farmers and Mechanics Trust Company matter to be consistent with controlling law and precedent for the Board’s present action in deciding the bank holding company application now before it.” 1963 Federal Reserve Bulletin at 1527. (c) First Colorado Bankshares. There, the Board stated: “* * * [T]he existence of a State statutory prohibition against branch banking, as in Colorado, cannot be weighed as an adverse consideration by the Board in its exercise of judgment on an application by a bank holding company to acquire stock of a bank in that State. The Board has considered the point * * * that the Board’s position should be reconsidered in the light of a recent decision by the United States Court of Appeals for the District of Columbia in Saxon, Comptroller of the Currency v. Bank of New Orleans and Trust Company et al., 116 U.S.App.D.C. 285, 323 F.2d 290, decided August 14, 1963. * * * The Court’s ultimate decision was premised upon a specific finding that, in its organization, financing, management, and operation, the new national bank was to all intents and purposes a branch of an existing national bank. “The Board finds inapplicable to its statutory functions under Section 3 of the Bank Holding Company Act both the reasoning and holding in the Bank of New Orleans case. Accordingly, it believes its earlier position in the Farmers and Mechanics Trust Company matter to be consistent with controlling law, and precedent for the Board’s present action in deciding the bank holding company application now before it.” 1963 Federal Reserve Bulletin at 1651. A close reading of these and other Board decisions reveal that the standards applied by it in reviewing branching challenges are vague and differ somewhat with each decision. Consequently, it is difficult to precisely determine the Board’s position on the issue before us. However, by specifically rejecting the reasoning and holding of the D.C. Circuit’s Whitney decision, the Board made it clear in Denver U. S. Bancorporation and First Colorado Bankshares that it was of the view that it need not examine the facts to determine if, as a practical matter, the acquisition of a bank by a bank holding company would result in the creation of a branch bank. That position, of course, is contrary to current law, and the Board has acknowledged that fact on this appeal. Yet, as was demonstrated above, the Reserve Bank’s rejection of the petitioners’ de facto branching argument in the instant case was ultimately based in part on these two Board decisions. Thus, contrary to the assertions made in the Board’s brief and oral argument, we are compelled to conclude that the Reserve Bank failed to examine the facts to determine if the Affton Bank would be a de facto branch of the Manchester Bank. The Board argues that this conclusion is inconsistent with our affirmance of its First Arkansas decision in Commercial Nat. Bank of Little Rock v. Board of Gov., supra. We disagree. The principal issue in Little Rock was whether a holding company operation per se inevitably constituted branch banking. We held that it did not, but stated that de facto branch banking was prohibited in Arkansas even if done through a holding company structure. We went on to hold that the record did not reveal a violation of the branch banking laws of that State. We were not squarely faced there with the issue raised here — viz., whether the Board failed to consider if a de facto branch would be created. If we had been faced with the question, we would have answered it in the same way as we do here, assuming there was nothing further in that record on this issue. (4) In view of our holding that the Reserve Bank failed to consider whether the Affton Bank would be a de facto branch of the Manchester Bank, we feel that it would be improper for us to go to the merits of the matter. The Board must make the initial determination of the issue on its merits. Accordingly, consistent with the dictates of 12 U.S.C. § 1848, we remand this case to the Board. In reconsidering this case, the Board shall follow the guidelines laid down by this Court in Commercial Nat. Bank of Little Rock v. Board of Gov., supra, 451 F.2d at 89-90. The petitioners did not initially ask for a stay of the Board’s approval of MFC’s acquisition of the Affton Bank stock, and we understand that the Aff-ton Bank is currently operating as a subsidiary of MFC. It can continue to do business pending review by the Board. Remanded for further review consistent with this opinion. . The Manchester Bank has 220,000 shares outstanding. All but 1,280 of these shares are now owned by MFC. Eight hundred fifty of the shares not owned by MFC are held by the seventeen directors of the Manchester Bank as “director qualifying shares.” Four hundred thirty shares are owned by persons who did not exchange their Manchester Bank stock for stock in MFC. . The Affton Bank is located in Affton, Missouri, an unincorporated area of South St. Louis County. . The petitioners had initially informed the Board of their objections in a letter of November 16, 1971. . The propriety of this delegation of authority is not challenged here. . This finding was made in the Reserve Bank’s letter of June 12, 1972, to MFC granting approval to MFC’s proposed acquisition of the Affton Bank stock. The letter was written over the signature of Harold E. Uthoff, Vice President of the St. Louis Federal Reserve Bank. A similar finding was made by Carrold L. Jack, Investigating Assistant Examiner, in his staff report to Mr. Uthoff. Earlier in this same staff report, Mr. Jack indicated that the petitioners “believe this acquisition to be in violation of Missouri State branch banking laws, notwithstanding an Opinion by the Attorney General of the State to the contrary.” Mo.Atty. Gen.Opinion No. 375 (July 27, 1971). There, the Missouri Attorney General surmised that: “ * * * [t]he Missouri courts would follow the cases from other jurisdictions in holding that mere ownership by a holding company of controlling stock holdings in several banks or trust companies, does not constitute illegal branch banking. * * * ” However, the opinion does not discuss the de facto branch issue. . The Whitney decision is referred to by its companion’s case name, Saxon, Comptroller of the Currency v. Bank of New Orleans and Trust Company et al., in these decisions of the Board. We note that the Supreme Court reversed the Court of Appeals’ decision in Whitney on procedural grounds and did not reach the merits. However, the Supreme Court did recognize that it would be improper for the Board to approve a bank holding company’s acquisition if in fact a branch bank would result. Whitney Nat. Bank v. Bank of New Orleans & Trust Co., 116 U.S.App.D.C. 285, 323 F.2d 290 (1963), rev’d on other grounds, 379 U.S. 411, 418, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). See, Commercial Nat. Bank of Little Rock v. Board of Gov., 451 F.2d 86, 89 (8th Cir. 1971).

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Victoria Ann LIDIE et al., Appellants, v. STATE OF CALIFORNIA et al., Appellees. No. 26845. United States Court of Appeals, Ninth Circuit. April 10, 1973. Daniel S. Brunner (argued), Legal Aid Foundation of Long Beach, San Pedro, Cal., for appellants. Edward M. Belasco, Deputy Atty. Gen. (argued), Lee D. Barker, Deputy County Counsel (argued), Evelle J. Younger, Atty. Gen,, John D. Maharg, County Counsel, Los Angeles, Cal., for appellees. Before BROWNING and GOODWIN, Circuit Judges, and EAST, District Judge. The Honorable William G. East, United States District Judge for the District of Oregon, sitting by designation. ALFRED T. GOODWIN, Circuit Judge: Plaintiffs, representing a class of applicants for food stamps, brought action against the State of California, the County of Los Angeles, and certain named officials, seeking declaratory and injunctive relief and damages. The state participates in the Federal Food Stamp program. The food stamp legislation required state plans submitted to the Secretary of Agriculture to provide that “the State agency shall undertake the certification of applicant households in accordance with the general procedures and personnel standards used by them in the certification of applicants for benefits under the federally aided public assistance programs * * 7 U.S.C. § 2019(e)(2) (1970), subsequently amended, Act of October 30, 1972, Pub.L. No. 92-603, § 411(d), 86 Stat. 1491. Department of Health, Education and Welfare regulations required benefits under the federally aided public assistance programs to be provided within 30 days of the application. H.E.W. Handbook of Public Assistance Administration, Part IV, 2300(b). • Plaintiffs assert that state and local officials had not followed this timetable in the administration of the food stamp program. I. JURISDICTION The first question is whether the district court, and therefore this court, has jurisdiction of the action. Plaintiffs relied for jurisdiction on 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Because they did not allege the deprivation of any constitutional rights, their complaint raised in acute form the question left unanswered in King v. Smith, 392 U.S. 309, 312 n. 3, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968): whether 28 U.S.C. § 1343 gives the federal courts jurisdiction to hear purely statutory claims. In a supplementary brief, plaintiffs have requested leave to amend their complaint in this court so that it will assert the deprivation of a constitutional right. They also claim jurisdiction under 28 U.S.C. § 1337. Although amendment in the court of appeals is unusual, and not a practice to be encouraged, we believe that a substantial saving in judicial time and labor justifies the amendment in this case. 28 U.S.C. § 1653; Barrow Development Co. v. Fulton Insurance Co., 418 F.2d 316, 12 A.L.R.Fed. 420 (9th Cir. 1969). We grant leave to amend. The amended complaint states facts establishing jurisdiction under the “Act of Congress regulating commerce” provision of § 1337. The food stamp program has been held to be such an act. Moreno v. United States Department of Agriculture, 345 F.Supp. 310, 313 (D.D.C.1972), prob. juris, noted, 409 U.S. 1036, 93 S.Ct. 526, 34 L.Ed.2d 485 (1972); Murphy v. Colonial Federal Savings and Loan Ass’n, 388 F.2d 609 (2d Cir. 1967). We need not reach the claim that federal jurisdiction is based upon a denial of a constitutional right. II. RIGHT TO RELIEF The district court dismissed the action, holding that: (1) the defendants had violated no federal law in their processing of food stamp applications; (2) there was no actual controversy, because those plaintiffs entitled to receive food stamps had gotten them; (3) the plaintiffs had not established a class of persons entitled to relief, for they had not shown that the defendants had in any case wrongfully failed to provide food stamps within 30 days; and (4) the plaintiffs had failed to show that any of them came within the class which they sought to establish. The district court’s dismissal was error. The action is not moot if either the class action for an injunction or the demand for damages survives. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Norman v. Connecticut Board of Parole, 458 F.2d 497 (2d Cir. 1972). There is a live issue regarding plaintiffs’ claim for damages. At the time this action was brought, the 30-day rule was binding on the Secretary of Agriculture. The 30-day period ran from the date the agency received an' expression of the applicant’s desire to receive aid. If the food stamp program were run by the Department of Health, Education and Welfare, the 30-day rule would be mandatory. Rodriguez v. Swank, 318 F.Supp. 289 (N.D.Ill., 1970), aff’d per curiam, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971); Like v. Carter, 448 F.2d 798 (8th Cir. 1971), cert. denied, 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588 (1972). The 30-day rule was one of the “Requirements for State Plans” in the H.E.W. Handbook, Part IV, § 2200(b)(3). The regulations which stated that the 30-day period terminated when “the applicants * * * receive their first assistance check * * * ” and which limited the circumstances under which the state agency could delay for more than 30 days were among the “Criteria for the Administration of the Plans,” H.E.W. Handbook, Part IV, § 2300. While no “assistance checks” are involved in the food stamp program, the equivalent would appear to be the “Authorization to Purchase” card given to recipients rather than the mere submission of recipients’ names to the “District Food Stamp Budget Unit.” At the time the action was commenced, the Secretary of Agriculture did not purport to vary the H.E.W. standards or adjust them to the needs of his program, but, by a regulation repeating the statutory language referring to the H.E.W. standards, adopted those standards as his own. 7 C.F.R. § 1601.1(g) (1970). Under the regulation, we hold that an applicant eligible for stamps was entitled to receive them within 30 days of his application. III. SCOPE OF REMEDY But the abstract right to relief, upon a proper showing, does not end the matter. Plaintiffs are not entitled to the injunctive relief they seek, for two reasons: (1) at the time this action was brought the individual plaintiffs were not proper representatives of a class; and (2) changes in the relevant regulations since the action was filed have deprived the plaintiffs’ contentions of their original force. The claims and defenses of these so-called representative parties are not typical of the claims and defenses of the alleged class within the meaning of Fed.R.Civ.P. 23(a)(3). Given the many disputed factual issues peculiar to individual plaintiffs, a class action is not warranted under Fed.R.Civ.P. 23(b)(3). The H.E.W. regulation relied on by the plaintiffs contemplates that the 30-day time limit will be exceeded “in unusual situations * * * in a small percentage of cases * * H.E.W. Handbook, Part IV, § 2300(b)(6). The situations of the original plaintiffs, Cooley, Lidie, and Jordan, appear to be unusual. Cooley was not eligible for food stamps at all, because he ate a majority of his meals in restaurants. Lidie and Jordan had been on the food stamp rolls, but were dropped for failure to use the stamps. The delay they complain of was in their attempt at recertification. There were also many disputed factual issues concerning each of their applications. Nor could the plaintiffs’ “Motion to Amend” have cured their problem. The motion was actually a motion to intervene by several additional plaintiffs. Motions to intervene are liberally granted in mootness situations to avoid the problem of the granting of selective relief by defendants and the avoidance of the “dismissal or compromise” provisions of Fed.R.Civ.P. 23(e). But where the original plaintiffs were never qualified to represent the class, a motion to intervene represents a back-door attempt to begin the action anew, and need not be granted. Washington v. Wyman, 54 F.R.D. 266 (S.D.N.Y.1971). The heart of the class action is the preponderance of questions of law and fact common to the plaintiffs seeking to assert the rights of the alleged class. The new parties sought to be interjected into the action could not enhance the common cause, and would add to the idiosyncratic problems presented by the original plaintiffs. The class action was correctly denied. Even if there had been a proper basis for proceeding as a class action, there is a further reason for denying injunctive relief in this case. During the pendency of this action, the Secretary of Agriculture, pursuant to his authority to issue regulations and to “formulate and administer” a food stamp program, 7 U.S.C. § 2013, published regulations which accepted in part and rejected in part suggested reforms similar to the claims of the plaintiffs in this case. 7 C.F.R. §§ 270, 271 (1972). Also during this litigation, the Food Stamp Act was amended to eliminate the requirement that the Secretary of Agriculture’s processing procedures be the same as those of the Department of Health, Education and Welfare. Act of October 30, 1972, Pub.L. No. 92-603, § 411(d), 86 Stat. 1491. The new regulations of the Secretary of Agriculture recognize the 30-day time limit, but require a more formal application than did the old H.E.W. regulations and require only notification, not assistance, to be given after 30 days. Because of the “necessarily forward looking nature of any injunctive relief,” DeBremaecker v. Short, 433 F.2d 733, 735 (5th Cir. 1970), plaintiffs would now have to show that these new rules are invalid in order to obtain an injunction requiring stamps to be given 30 days after application. Cf. Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). Upon remand, the prayer for injunctive relief should be deleted, unless plaintiffs make such a showing. IY. STATE LIABILITY Defendants argue that because the Secretary had approved their plan an action will not lie against the state. The defendants also argue that because the food stamp program’s standards are derived from H.E.W. regulations this action is, essentially, a dispute between two federal agencies. However, federal approval of .the state statutory and regulatory scheme does not render the state’s administration of its program any less “state action” within the meaning of 42 U.S.C. § 1983. There was agency approval in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), and in King v. Smith, swpra,, but an action against a state official was still a proper way to test the legality of the state plan. Plaintiffs’ claims for money damages for delay raise the Eleventh Amendment problem on which the circuits have disagreed. Jordan v. Weaver, 472 F.2d 985 (7th Cir., 1973); Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972). However, defendants did not assert this defense in the district court. It is clear that the state’s sovereign immunity, if it exists, can be waived. By not raising the defense at an appropriate time, the state waived whatever protection, if any, the Eleventh Amendment might have provided in this case. We need not decide now whether the Second Circuit or the Seventh Circuit correctly resolved the Eleventh Amendment issue. We remand the action to the district court for further proceedings to determine whether the alleged delay was justified by the special circumstances presented by each of the individual claims. If a particular delay was not justified, a successful plaintiff will be entitled to restitution measured by an issue of stamps or a payment of cash in the value of the stamps he would have received during the period of any wrongful delay. Reversed and remanded.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

CAPITOL BUS COMPANY, t/a Trailways of Pennsylvania v. BLUE BIRD COACH LINES, INC., et al. Appeal of BLUE BIRD COACH LINES, INC. and Aetna Casualty and Surety Company, 71-2005. Appeal of AMERICAN FIDELITY FIRE INSURANCE COMPANY, 71-2006. Nos. 71-2005, 71-2006. United States Court of Appeals, Third Circuit. Argued Dec. 1, 1972. Decided May 14, 1973. James K. Thomas, Joseph P. Hafer, Metzger, Hafer, Keefer, Thomas & Wood, Harrisburg, Pa., for appellants in No. 71-2005 and cross-appellees in No. 71-2006. Frederick W. Andrews, Pannebaker, Andrews & Yost, Harrisburg, Pa., for cross-appellant in No. 71-2006 and as appellee in No. 71-2005. Clyde W. McIntyre, McNees, Wallace & Nuriek, Harrisburg, Pa., for appellee in both cases. OPINION OF THE COURT Before KALODNER, ADAMS and HUNTER, Circuit Judges. KALODNER, Circuit Judge. In this diversity action, tried to the District Court upon stipulated facts, the appellant insurance companies were held liable to the appellee Capitol Bus Company, t/a Trailways of Pennsylvania (“Trailways”), for $13,700 damages to one of its buses on November 8, 1969, while it was being operated in the franchise area of the appellant Blue Bird Coach Lines. (“Blue Bird”), under an “Equipment Lease Agreement” (“Agreement”), designed to provide for the continuous carriage of passengers, without change of buses, over the franchise areas of the five bus lines party to the Agreement. The appellant American Fidelity Fire Insurance Company (“American”) was the property damage insurance carrier for Trailways and the appellant Aetna Casualty and Surety Company (“Aetna”) was Blue Bird’s property damage insurance carrier. The bus lines party to the Agreement participated in operating a scheduled run from Washington, D.C. to Erie, Pennsylvania through their franchise areas. Trailways’ franchise area extends from Washington, D.C. to Elmira, New York. Blue Bird’s franchise area extends from Corning, New York to Jamestown, New York. Two drivers, working in eight-hour shifts, were employed in the run; one from Washington, D.C. to Olean, New York, and the other from Olean to Erie, Pennsylvania, and return to Olean. Trailways furnished the driver on the Washington to Olean shift. Blue Bird furnished the driver on the Olean to Erie, and return to Olean, shift. Trailways paid its driver his mileage pay rate on his Washington to Olean shift. It also paid incidental Social Security taxes, federal and Pennsylvania unemployment and Workmen’s Compensation. Blue Bird reimbursed Trailways for use of Trailways’ driver on a nonprofit basis at the rate of 13 cents per mile from the driver’s entry into Blue Bird franchise area at Corning until the end of his shift at Olean. Blue Bird received all the revenue benefits from the operation of the bus by the Trailways driver between Corning and Olean. It paid Trailways 18 cents per mile for use of the bus after it entered its franchise area at Corning, in consonance with Paragraph 11 of the Agreement which provided that “[e]ach operating carrier agrees to pay the owning carrier of buses leased hereunder a rental of eighteen cents (180) for each mile that such leased buses are operated by such operating carrier.” (emphasis supplied.) The bus was damaged when it ran off the road while being driven by the Trailways driver at Andover, New York. Andover lies between Corning and Olean, Blue Bird franchise area. The question here presented is whether American, Trailways’ property damage insurance carrier, or Aetna, Blue Bird’s property damage insurance carrier, is liable for payment of the damages sustained by the bus. American contends it is not liable since in its view Blue Bird was the “operating carrier” of the bus when it was damaged, and American’s policy provides that its coverage “shall cease while owned buses are being operated by other bus companies under . . . interchange agreements.” Aetna contends “Blue Bird, Aetna’s insured, was not an operating carrier within the meaning of the Equipment Lease Agreement,” and that the coverage of its policy specifically extends “only with respect to the terms and conditions of the equipment lease agreement.” Aetna further contends that “[t]he principles of agency and re-spondeat superior also indicate that the Trailways operator remained in the employ of its [sic] original master and Blue Bird is not responsible for the damage to the bus.” As earlier stated, the District Court ruled that both American and Aetna were liable under their policies for payment of the damage to the bus. It based its ruling on its holding that the Trailways driver was the “servant” of both Trailways and Blue Bird when the bus was damaged and thus the two bus lines were “operating carriers” under the Agreement which made an “operating carrier” liable for damage to a bus. The District Court resorted to general agency principles in ruling that the Trailways driver was the “servant” of the two bus lines, citing Dickerson v. American Sugar Refining Co., 211 F.2d 200 (3 Cir. 1954); Restatement (Second) Agency §§ 226, 227 (1957); Annot., 17 A.L.R.2d 1388 (1951). The District Court erred when it resorted to general agency principles and it compounded its error when it premised its holding that both bus lines were “operating carriers” on its common servant finding. We are here concerned solely with rights and liabilities of parties spelled out and fixed by the terms of a contract to which they are party. Where a contract relating to leasing of equipment spells out and fixes the liabilities of the lessor and lessee with respect to damages sustained by the leased equipment the contract alone must be looked to, and general agency principles are inapplicable. The fact that general agency principles would be applicable in determining the liability of the lessor and lessee with respect to damages suffered by a third party in the use of the equipment is irrelevant to the determination of the rights and liabilities of the contracting parties inter se. What has been said brings us to the Agreement which was executed May 15, 1969, some six months prior to the happening of the bus accident. The Agreement provides in relevant part: “1. PURPOSE “The purpose of this agreement is to provide for the interchange of motor vehicle equipment between the parties hereto for operation in through service without change of buses, over the authorized operating routes of the respective parties. “2. DEFINITIONS “(a) ‘Owning Carrier’ as used herein means the status assumed by any party hereto when it permits any bus owned by it to be used and operated by any of the other parties hereto under and by virtue of this agreement. “(b) ‘Operating Carrier’ as used herein means the status assumed by any party hereto when such party takes, uses and operates the bus of another party hereto under and by virtue of this agreement. “(c) Operation of lease equipment shall be deemed to have begun when delivery of a bus leased hereunder is accepted by the driver, operator or other authorized representative of any operating carrier, and shall be deemed to continue until delivery of said leased bus is accepted by the driver, operator or other authorized representative of another party hereto. “4. EQUIPMENT AND USE “Each of said parties hereto shall furnish for use and operation by all of the parties hereto the number of buses of late model and of uniform make and design shown opposite its name in Schedule A attached. . . . Each of the said parties agrees to take, use and operate said equipment on its respective portion of said through routings in order to maintain the through schedule described in Schedule B attached. All expense for operating said buses shall be borne by the owning carrier, except for the compensation of operators or drivers; public liability insurance; highway, mileage, use and franchise taxes and highway, bridge, ferry, tunnel and terminal tolls and charges, which shall be borne by the operating carriers. . “5. DRIVERS “Each operating carrier shall furnish competent operators or drivers to operate buses leased by it hereunder. “7. DAMAGES TO LEASED BUSES “Whenever any leased bus is damaged by accident or collision, except loss or damage occasioned by fire, all costs of repairs shall be borne by the operating party in whose possession said bus was held or by whom such bus was being operated at the time of such damage. . . . “9. PUBLIC LIABILITY INSURANCE “Each operating carrier shall be solely and fully responsible for the op eration by it of leased buses and to that end agrees to indemnify and save harmless each of the other parties hereto from and against any and all claims, suits, or judgments for personal injuries, including death, and damage to or loss or destruction of property resulting from operation by such operating carrier. . “11. RENTAL “Each operating carrier agrees to pay to the owning carrier of buses leased hereunder a rental of eighteen cents (18^) for each mile that such leased buses are operated by such operating carrier. . “12. RETENTION OF INDIVIDUAL RESPONSIBILITY AND RIGHTS “Each operating carrier retains full responsibility and authority for the conduct of its common carrier service over its respective portion of the through routings. No party shall have any liability or expense due to the action of or operation by any other party except as specifically provided herein and in no way shall any party hereto be considered to have surrendered or transferred any of its rights to any other party.” (emphasis supplied). In construing the Agreement we must give effect to these well-settled principles: A contract is to be considered as a whole, and, if possible, all its provisions should be given effect; while a contract’s provisions must be interpreted with reference to the whole the specific controls the general; and a contract should be construed so as to give effect to its general purpose. A contract must be interpreted in light of the meaning which the parties have accorded to it as evidenced by their conduct in its performance. Applying the principles stated to the instant case, we are of the opinion that (1) standing alone, and independently so, the Agreement, by its terms, constituted Blue Bird the “operating carrier” of the bus when it was damaged while being operated in Blue Bird’s franchise area; and (2) Blue Bird’s course of conduct in the performance of the Agreement demonstrated that it interpreted the Agreement as constituting it the “operating carrier” of the bus when it was damaged. On the score of the latter holding we need only point out that it is undisputed that Blue Bird paid Trailways 18 cents per mile rental for the bus from its entry into Blue Bird’s franchise area in consonance with Paragraph 11 of the Agreement which provided “[e]ach operating carrier agrees to pay to the owning carrier of buses leased hereunder a rental of eighteen cents (180) for each mile that such leased buses are operated by such operating carrier,” and that Blue Bird also paid Trailways 13 cents per mile for the driver’s wages while the bus was being operated in Blue Bird’s franchise area in consonance with Paragraph 4 of the Agreement which requires the “operating carrier” to pay “the compensation of operators or drivers.” Our view that the Agreement, standing alone, must be construed as constituting Blue Bird the “operating carrier” of the bus when it was damaged while being operated in Blue Bird’s franchise area is premised on these considerations : The Agreement, considered as a whole, was designed, as earlier stated, to provide for the continuous carriage of passengers, without change of bus, over the franchise areas of the five signatory parties. In implementation of its design, the Agreement defines an “operating carrier” as one which “takes, uses and operates the bus of another party” in its franchise area, and spells out the scope of authority and liabilities of the “operating carrier” with respect to use of the leased bus and the terms and conditions of the rental. Critical to the issue whether Blue Bird was an “operating carrier” when the bus was damaged in its franchise area is the provision of the Agreement that “\_e\ach of the said parties agrees to take, use and operate said equipment on its respective portion of said through routings in order to maintain the through schedule. . . . (emphasis supplied). The force of this provision is that the bus was delivered to, and accepted by, Blue Bird when it entered its franchise area. Further critical to the issue of Blue Bird’s liability for payment of the damages to the bus in its franchise area are the provisions that (1) “[w]henever any leased bus is damaged by accident or collision . . .all cost of repairs shall be borne by the operating party in whose possession said bus was held or by whom such bus was being operated at the time of such damage. . . . ”; (2) “[e]ach operating carrier shall be solely and fully responsible for the operation by it of leased buses. . . . ”; (3) “[e]ach operating carrier retains full responsibility and authority for the conduct of its common carrier service over its respective portion of the through routings.” (emphasis supplied). It may be noted that the District Court held that the Agreement, by its terms, constituted Blue Bird an “operating carrier” at the time the bus was damaged. There is no basis in the Agreement for the District Court’s finding that Trailways was also an “operating carrier,” inasmuch as the bus was not operating in Trailways’ franchise area when it was damaged. It made that finding on its theory that the bus driver at the time of the accident was the “common servant” of both Trailways and Blue Bird under general agency principles, which as we earlier stated, was erroneous. In accordance with what has been said the Order of the District Court will be vacated and the cause remanded with directions to proceed in accordance with this Opinion. . Cf., McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 442 (1957). . J. E. Faltin Motor Transportation, Inc. v. Eazor Express, Inc., 273 F.2d 444, 445 (3 Cir. 1959) ; Empire Properties Corporation v. Manufacturers Trust Co., 288 N.Y. 242, 43 N.E.2d 25 (1942) ; Pritch-ard v. Wick, 406 Pa. 598, 178 A.2d 725 (1962) ; Restatement, Contracts §§ 235 (c), 236(b) and (c) (1932) ; Williston on Contracts, Third Edition §§ 618, 619 (1961). . Philips Electronics & Pharmaceutical Industries Corp. v. Leavens, 421 F.2d 39, 45 (3 Cir. 1970) ; American Cyanamid Company v. Ellis-Foster Company, 298 F.2d 244, 246 (3 Cir. 1962) ; Pittsburgh Railways Company v. Equitable Life Assurance Society of the United States, 288 F.2d 640, 642 (3 Cir. 1961) ; Maloney v. Glosser, 427 Pa. 548, 552, 235 A.2d 607, 609 (1967) ; Heilwood Fuel Co., Inc. v. Manor Real Estate Company, 405 Pa. 319, 328, 175 A.2d 880, 884 (1961) ; Restatement, Contracts § 235(e) (1932). “An important aid in the interpretation of contracts is the practical construction placed on the agreement by the parties themselves.” Williston on Contracts, supra note 2, § 623, at 789. . Paragraph 12 of the “Recommendations of Findings of Facts,” submitted to the District Court and signed by counsel for Blue Bird, Aetna and American, states: “At the time of this accident, Blue Bird paid Trailways at the rate of $.18 a mile for the bus under paragraph 11 of the Agreement attached hereto and $.13 a mile for the driver’s wages under a supplemental understanding while the bus was being operated under Blue Bird franchise. The wages of the driver were paid by Trailways.” . Agreement, Paragraph 1. . Id., Paragraph 2(b). . Id., Paragraph 4. . This cited provision is dispositive of Blue Bird’s contention that “Blue Bird had not accepted delivery of the bus” within Paragraph 2(c) of the Agreement which provides that “[o]peration of lease equipment shall be deemed to have begun when delivery of a bus leased hereunder is accepted by the driver, operator or other authorized representative of any operating carrier. . . . ” To hold otherwise would be in disregard of the settled rule that provisions of a contract must be construed in light of the totality of the contract’s provisions and stated purpose. Further, the fact that Blue Bird collected revenues derived from operation of the bus from the point it entered its franchise area and paid mileage rental to Trailways from that point and recompensed Trailways for the driver’s use establishes that Blue Bird considered it had accepted delivery of the bus. . Id., Paragrapli 7. . Id., Paragraph 9. . Id., Paragraph 12.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

EMLE INDUSTRIES, INC., et al., Plaintiff, and GLEN RAVEN MILLS, INC., et al., Plaintiffs in Separate Actions and Appellants, v. PATENTEX, INC., Defendant in All Actions and Appellee, and Burlington Industries, Inc., Former Defendant in Emle Action. Nos. 668-673, Dockets 72-2048 to 72-2053. United States Court of Appeals, Second Circuit. Argued April 3, 1973. Decided May 9, 1973. Frederic Houston, New York City, for appellant Glen Raven Mills, Inc.; John L. Ryan, New York City, for appellants Knit Products Corp., Bossong Hosiery Mills, Inc., Tower Hosiery Mills, Inc., and Holt Hosiery Mills Inc.; William T. Stephens, New York City, for appellant Alba-Waldensian, Inc. (Otterbourg, Steindler, Houston & Rosen, Pell & Le-Viness, Sullivan & Cromwell, New York City, Arthur O. Cooke, and Cooke & Cooke, Greensboro, N. C., on the brief). George T. Mobille, Washington, D. C. (Robert S. Newman, Whitman & Ransom, New York City, George M. Sirilla, Cushman, Darby & Cushman, Washington, D. C., on the brief), for appellee. Before KAUFMAN, ANDERSON and OAKES, Circuit Judges. . We have jurisdiction to review an order disqualifying an attorney under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Fleischer v. Phillips, 264 F.2d 515 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959) ; Marco v. Dulles, 268 F.2d 192 (2d Cir. 1969) ; 9 Moore, Federal Practice ¶ 110.13 [10]. IRVING R. KAUFMAN, Circuit Judge: We are called upon today to decide a question of acute sensitivity and importance, touching upon vital concerns of the legal profession and the. public’s interest in the scrupulous administration of justice. At issue is the disqualification of David Rabin, Esq., on the ground that his representation of the plaintiffs in the underlying actions below constituted a breach of Canon 4 of the Code of Professional Responsibility, which governs the conduct of lawyers. The complaints in these actions sought declaratory judgments that patents held by Patentex, Inc., were invalid and unenforceable. The complaints alleged unlawful manipulation and control of Patentex by its part-owner, Burlington Industries, Inc., and charged Burlington with directing Patentex to improperly acquire and illegally use the patents in question to control prices in the yarn processing and knitting industry. Lead counsel for the plaintiffs, and self-acknowledged architect of all but one of the seven complaints in these actions, was David Rabin, a specialist in textile patent litigation. In the years between 1958 and 1962, however, Rabin had represented Burlington in another patent suit, referred to as the Supp-hose case, which also called into question the nature and scope of Burlington’s control over Patentex. Patentex, therefore, moved for Rabin’s disqualification, asserting that Rabin’s present adversarial posture might result in disclosure or conscious or unintentional use of confidential information acquired by him during the Supp-hose litigation. Judge Motley, in the district court, granted the motion, and this appeal followed. We approach our task as a reviewing court in this case conscious of our responsibility to preserve a balance, delicate though it may be, between an individual’s right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility. This balance is essential if the .public's trust in the integrity of the Bar is to be preserved. Moreover, we are mindful that ethical problems cannot be resolved in a vacuum. To affirm the order below will, to be sure, deprive plaintiffs of highly qualified counsel of their own choosing and may foreclose Rabin’s participation in future actions brought against Burlington and Patentex. There can be no doubt, however, that we may not allow Rabin to press these claims against Patentex if, in doing so, he might employ information disclosed to him in confidence during his prior defense of Burlington. Such a result would work a serious injustice upon Burlington and Patentex and would tend to undermine public confidence in the Bar. Thus, even an appearance of impropriety requires prompt remedial action by the court. After thorough consideration, we conclude that Rabin’s earlier defense of Burlington against charges that it controlled Paten-tex for illegal purposes precludes him from pressing similar claims in the instant suits. Accordingly, we affirm. I. At the outset, it is useful to identify the central characters in this litigation. Burlington Industries Inc., whose executive offices are located in Greensboro, North Carolina, is, we are told, the world’s largest textile company. As such, it is a major force in the yarn processing and knitting industry. Chad-bourn Gotham, Inc., headquartered in Charlotte, North Carolina, is also a primary competitor in this field. These two companies each own fifty percent of the voting stock of Patentex, Inc. According to a Dun & Bradstreet report, Burlington and Chadbourn created Pa-tentex in 1955 “to acquire title [from them] to patents and methods of manufacturing women’s stretch stockings and processing yarns used in their manufacture .... [Patentex] license[d] other hosiery manufacturers under their patents and in turn receive [d] royalties for their use.” Thus, in return for royalty payments, Burlington and Chad-bourn allowed their competitors to employ knitting technology which they had patented. Lawrence Greenwald was president of Patentex at the time of the Supp-hose litigation, discussed in greater detail below, but is no longer employed by either Patentex or Burlington. Edward Kobos became Assistant to the President and Secretary of Patentex in 1957 and continues to hold these posts today. In 1957, Douglas Orr was assistant general counsel of Burlington and served as chief counsel to Patentex. From 1964 until his retirement in 1971, he was Burlington’s general counsel. Finally, David Rabin is a patent attorney who specializes in textile patents. In addition to both a bachelor’s and a master’s degree in law, his professional background includes a degree in mechanical engineering from Duke University and a period of employment in the United States Patent Office, where he specialized in yarn and knitting technology. His present office is in Greensboro, an area correctly categorized as “the heart of the textile industry.” Since an understanding of Rabin’s prior involvement with Burlington in the Supp-hose case is essential to consideration of Patentex’s motion to disqualify him from serving as counsel in the pending actions, we now turn to a discussion of these two proceedings. A. The Prior Action: The Supp-hose Case The Rabin-Burlington-Patentex nexus was first formed in the Supp-hose case. The origins of that dispute date back to at least January, 1958, when Claussner Hosiery Co., a licensee of Patentex, inquired of Patentex President Greenwald whether it could manufacture hosiery with the same construction as a stretch support stocking then being marketed by Kayser-Roth, Inc. under the trade name “Supp-hose.” After several communications between Patentex and Claussner on this subject, Kobos, Greenwald’s assistant, informed Claussner and certain other Patentex licensees that they could continue to manufacture stretch support stockings under several Patentex patents without infringing Kayser-Roth’s patent. Patentex assured them that pursuant to its license agreement it would defend its licensees against any infringement actions brought against them by Kayser-Roth. Claussner’s primary concern, however, was that Kayser-Roth would commence infringement actions throughout the country against Clauss-ner’s large retail customers, who in turn would threaten to withhold future retail orders unless Claussner defended them. When Claussner sought assurance from Patentex that the latter would defend such “third-party” actions as well, Ko-bos replied, on October 30, 1958, that “we would not be willing to undertake to defend you in the event one of your retail customers were sued, even though you were later voluntarily or involuntarily involved in the suit.” At this juncture, Claussner turned to Rabin for professional advice. Rabin suggested that the wisest course for Claussner to follow would be to initiate litigation in a forum of its own choosing seeking a declaratory judgment that Kayser-Roth’s patent was invalid. At Claussner’s request, Rabin prepared an appropriate complaint for Claussner and its affiliate, McCallum Hosiery Co. Claussner subsequently consented to joining two other Rabin clients, Triumph Hosiery Mills and Hudson Hosiery Co., as plaintiffs in the action. After his retention by these four hosiery mills, Rabin met with Orr, at that time Burlington’s assistant general counsel, to discuss Patentex’s attitude toward the impending litigation. Although Orr again rebuffed a request to defend any actions that Kayser-Roth might bring against retail customers of Patentex’s licensees, he indicated that Burlington would be interested in joining the contemplated declaratory judgment action against Kayser-Roth and, accordingly, requested Rabin to represent Burlington as well. According to Rabin, he responded by “explain [ing] to Mr. Orr that [he] was flattered with the invitation [to represent Burlington] but in view of the then pending actions against Burlington and [his] position of representing Claussner, McCallum, and Hudson, [he] would have to decline.” The currently pending actions to which Rabin referred were two infringement actions — both unrelated to the Kayser-Roth matter — which Rabin was prosecuting against Burlington on behalf of Floyd Shoaf, an inventor, and Tight Pat, Inc., owner of an allegedly infringed patent. The conflict concerning Clauss-ner, McCallum, and Hudson to which Rabin alluded was, of course, their potential claims against Patentex based on the indemnity clause in the license agreement. After discussing these matters with Orr, Rabin conferred with Shoaf and representatives of Claussner, McCallum, Hudson, and Tight Pat. Rabin then informed Orr that his clients had consented to his representation of Burlington and that Rabin would do so as long as he maintained “the right to protect and preserve any claims of my various clients with respect to Patentex, Inc.” Following this ’ agreement, in December, 1958, Rabin filed a complaint against Kayser-Roth and its subsidiary, Alamance Industries, seeking a declaratory judgment that the Supp-hose patent was invalid. In February, 1959, Kay-ser-Roth served its answer, denying that its patent was invalid. In addition, Kayser-Roth asserted a counterclaim, alleging that The Plaintiff, Burlington Industries, Inc., through its officers and agents, and through Patentex, Inc. . a company which the Plaintiff, Burlington Industries, Inc., actively controls, has individually and in Plaintiffs, actively induced infringement of the aforesaid patent-in-suit concert and cooperation with the other . by said Plaintiffs and others [the Patentex licensees] for the purpose of unlawfully exploiting and destroying Defendants’ property rights in said invention and destroying or adversely affecting Defendants’ United States and foreign business in said invention. Thus, for the first time, Burlington’s alleged control of Patentex had become an issue in the Supp-hose case. Accordingly, Kayser-Roth took pre-trial depositions of Greenwald, Kobos, and Orr for the purpose of exploring the nature and degree of that control. The thrust of this inquiry is illustrated by the following testimony by Patentex President Greenwald: Q. How does Patentex communicate with Burlington ? A. Usually by word of mouth, I guess. Q. Do you have any written memos or inter-office communications ? A. I am not much of a writer. People are in the next office — I usually talk to them. I don’t write them notes. I won’t say I never have, but I don’t make a general practice of it. Q. Do you have any records of communications between Patentex and Burlington relative to the subject matter of this litigation ? A. Not that I know of. •X* * * * * -X- Q. How often does the board of directors of Patentex meet? A. It’s required by its by-laws to meet once a year and it meets possibly once or twice a year in between. Q. In connection with the day-today operations of Patentex, who is in charge of that ? A. I am. Q. With respect to the policy and decisions and judgments that are taken day-to-day, is that your responsibility? A. Within limits. If they are policy matters, then I consult the directors. * * * * * * Q. Burlington is charged with the duty of managing Patentex, is it not? A. I believe I elaborated on that once before. That is true but it’s a trust. When I say “it’s a trust”, I mean I am entrusted with the management of it and the decisions and policy are arrived at jointly with Chadbourn-Gotham and Burlington and that I have never taken anything upon myself that I thought could be questioned. While it is unclear whether Rabin participated in preparatory conferences with anyone other than Greenwald, it is undisputed that Rabin was present as counsel for Burlington at each deposition at which Burlington’s relationship with Patentex was discussed. Other events raised the issue of Burlington’s control of Patentex in yet another way. Upon receipt of the counterclaim, Rabin sent notice to Patentex, on behalf of his clients, indicating that its licensees had been charged with infringement. In response to Rabin’s letter, Greenwald, in correspondence dated August 18, 1959, called to Rabin’s attention paragraph eleven of the license agreement, which provides that “If, after notification to Licensor by Licensee of . the institution of suit for alleged infringement, Licensor, upon advice of its counsel, shall inform Licensee that the claim of infringement appears to be valid, Licensor may advise Licensee to modify its methods or processes of manufacture to avoid such infringement. . . .” Accordingly, Green-wald suggested that the licensees should alter their methods of manufacture “so as to avoid any infringement of [Kay-ser-Roth’s patent].” Kayser-Roth discovered this letter during a deposition and sought at trial to characterize its contents as an admission by Patentex of the validity of Kayser-Roth’s Supp-hose patent. Kayser-Roth argued, albeit unsuccessfully, that the admission could be imputed to Burlington because of its control of Patentex. Thus, although the Supp-hose litigation ultimately concluded in 1962 with a declaration that Kayser-Roth’s patent was invalid, the nature and extent of Burlington’s control over Patentex was, beyond peradventure, a disputed matter in that case. That question was in sharp focus both because of Kayser-Roth’s direct charge that Burlington caused Patentex to induce its licensees to infringe the Supp-hose patent, and because of Kayser-Roth’s attempt to im-put to Burlington the alleged admission of validity in Greenwald’s August 18, 1959 letter. With this background in mind, the question remains whether a substantially related issue is present in the instant actions, such as to require the disqualification of Mr. Rabin. To that question we now turn. B. The Present Actions Our discussion of the instant controversy is, perforce, a limited one, since other than the submission of affidavits and depositions pertaining to the motion for disqualification, and the filing of the parties’ complaints and answers, there has been little activity directed towards resolving the merits of the underlying dispute. Ernie and three affiliated companies, represented by Rabin, filed their complaint in May 1968, naming as defendants both Patentex and Burlington. Of particular interest is paragraph 12 of the complaint, prepared entirely by Mr. Rabin, which alleges that Defendant Patentex, Inc. is a patent holding and licensing company controlled by defendant Burlington Industries, Inc. and holds numerous patents pooled together from various sources for the purpose of controlling the manufacture and sale of stretchable knitted fabrics, including hosiery, the method of manufacture thereof, and the processing of yarns to impart torque characteristics, among other products. Defendant Burlington Industries, Inc., through management of Patentex, Inc., has acquired competing patents through the resolution of interference proceedings in the United States Patent Office, and otherwise, and has endeavored to license the entire yarn processing industry and knitting industry, of which Burlington Industries, Inc. is a major entity, through preferential and discriminatory agreements, with the resolution of such proceedings occurring without regard to the first and true inventor of the alleged inventions, and have misused such patents, [emphasis supplied] The complaint sought “an adjudication that defendants have misused their patents . . . and that such patents are unenforceable.” Patentex’s answer, apart from admitting that it was a company holding title to patents acquired from various sources, denied all other allegations in paragraph 12. As indicated by that portion of paragraph 12 that we have underscored for emphasis, the issue of Burlington’s control of Patentex was contested in the present action just as it was in the Supp-hose case. Five additional complaints — those of Knit Products, Bossong Hosiery Mills, Alba-Waldensian, Tower Hosiery Mills, and Holt Hosiery Mills — which also are part of this consolidated action, though drafted by Rabin as well, were not filed until May, 1970. These suits by Paten-tex licensees, which did not name Burlington as a defendant, grew out of a demand made by Patentex that they sign a new license agreement more favorable to Patentex. According to Rabin, I had been consulted by the various clients whom I had represented over a substantial number of years, conferred with them and the decision was made, in view of substantial unauthorized infringements by others, among other reasons, that these actions would be brought after the license agreements were repudiated, and it was not found necessary to bring Burlington into that lawsuit because there had been no threats made by Burlington, just solely against Patentex because Patentex was the licensor. These complaints, however, differed from the Emle complaint only in the amount of specifies provided for the claim of misuse. After alleging that “Patentex is a patent holding and licensing company . . . owned by Burlington Industries, Inc. and Chadbourn, Inc. and . . . organized for the purpose, among others, of acquiring competing patents and patent applications in the yarn processing and knitting industry,” the complaints detailed eleven ways in which Patentex’s licensing program constitutes a misuse of its patents. In addition, the complaints specifically claimed that the licensing program violates the antitrust laws. The seventh complaint, filed by Glen Raven Mills in February, 1970, was not prepared by Rabin but Glen Raven’s attorney, Frederic Houston, conceded that he referred to Rabin’s Emle complaint while drafting it. Rabin undertook to represent Glen Raven in June, 1971. Aside from a few requests for admissions and interrogatories served by Pat-entex and Burlington in the Emle action, these matters lay dormant until May, 1971. On May 25 of that year, however, Burlington moved to dismiss the Emle complaint under Rule 12(b)(6), F.R.Civ.P., for failure to allege the existence of an actual controversy between the Emle plaintiffs and Burlington. In order to prepare a defense to this motion, Rabin sought to depose Kobos, still Assistant to the President of Patentex and its Secretary. Rabin had only begun questioning Kobos on his duties at Patentex when counsel for Paten-tex instructed Kobos not to respond to any further questions. Subsequently, on September 27, 1971, Patentex filed a motion to disqualify Rabin from representing the plaintiff in each action on the ground that Rabin’s involvement constituted a breach of professional ethics. As we have noted, the actions were consolidated for the purposes of deciding this motion and came before Judge Motley. She concluded that “the issues of the control of Patentex by Burlington and the business relationships between Patentex and Burlington were present in the Swpp-Hose Case and are also present in the instant cases” and accordingly granted the motions to disqualify Rabin. This appeal followed. II. As previously indicated, Canon 4 of the Code of Professional Responsibility provides that “A lawyer should preserve the confidences and secrets of a client.” We take as our guidepost in applying the language of Canon 4 to this case the standard articulated by Judge Weinfeld in T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y. 1953). There, the court said: I hold that the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained. 113 F.Supp. at 268-269 (emphasis supplied). The “substantially related” test has been approved and followed by subsequent decisions, see, e.g., Consolidated Theatres v. Warner Bros., 216 F.2d 920 (2d Cir. 1954); Doe v. A. Corp., 330 F.Supp. 1352 (S.D.N.Y.1971), aff’d, 453 F.2d 1375 (2d Cir. 1972) (per curiam); Empire Linotype School v. United States 143 F.Supp. 627 (S.D.N.Y.1956); United States v. Standard Oil Company, 136 F.Supp. 345 (S.D.N.Y.1955), and has been embraced by both sides in this proceeding. Canon 4 implicitly incorporates the admonition, embodied in old Canon 6, that “The [lawyer’s] obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.” Without strict enforcement of such high ethical standards, a client would hardly be inclined to discuss his problems freely and in depth with his lawyer, for he would justifiably fear that information he reveals to his lawyer on one day may be used against him on the next. A lawyer’s good faith, although essential in all his professional activity, is, nevertheless, an inadequate safeguard when standing alone. Even the most rigorous self-discipline might not prevent a lawyer from unconsciously using or manipulating a confidence acquired in the earlier representation and transforming it into a telling advantage in the subsequent litigation. Or, out of an excess of good faith, a lawyer might bend too far in the opposite direction, refraining from seizing a legitimate opportunity for fear that such a tactic might give rise to an appearance of impropriety. In neither event would the litigant’s or the public’s interest be well served. The dynamics of litigation are far too subtle, the attorney’s role in that process is far too critical, and the public’s interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer’s representation in a given case. These considerations require application of a strict prophylactic rule to prevent any possibility, however slight, that confidential information acquired from a client during a previous relationship may subsequently be used to the client’s disadvantage. Moreover, the court need not, indeed cannot, inquire whether the lawyer did, in fact, receive confidential information during his previous employment which might be used to the client’s disadvantage. Such an inquiry would prove destructive of the weighty policy considerations that serve as the pillars of Canon 4 of the Code, for the client’s ultimate and compelled response to an attorney’s claim of non-access would necessarily be to describe in detail the confidential information previously disclosed and now sought to be preserved. Thus, where “it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject matter of his subsequent representation,” T.C. Theatre Corp., supra, at 269, (emphasis supplied), it is the court’s duty to order the attorney disqualified. Nowhere is Shakespeare’s observation that “there is nothing either good or bad but thinking makes it so,” more apt than in the realm of ethical considerations. It is for this reason that Canon 9 of the Code of Professional Responsibility cautions that “A lawyer should avoid even the appearance of professional impropriety” and it has been said that a “lawyer should avoid representation of a party in a suit against a former client, where there may be the appearance of a possible violation of confidence, even though this may not be true in fact.” American Bar Association, Standing Committee on Professional Ethics, Informal Opinion No. 885 (Nov. 2, 1965). Examination of the issues in the Supp-hose case and in the present actions, in light of the “substantial relationship” test, leads inexorably to the conclusion that Rabin properly was disqualified from representing the plaintiffs in the present actions. Each proceeding involves a claim that Burlington controls Patentex and uses this control for an illegal purpose. In the Supp-hose case, Kayser-Roth argued that Burlington’s control was used to destroy the Supp-hose patent and, also, that this control justified imputing to Burlington an admission made by Patentex. In the present suits, plaintiffs alleged that such control permitted Burlington, through Patentex, to fix prices within an industry in which Burlington is the dominant factor. Rabin himself recognized the identity of issues between the two cases in his deposition on the motion to disqualify: Q. My question, however, was very simply this: Did the defendants in the Supp-hose case go into the relationship of Burlington and Patentex, during the depositions of Kobos, Orr, Greenwald ... at which depositions you were in attendance, being Burlington’s counsel? A. [Mr. Rabin]: That is correct. Q. They did ? A. Yes. They went into the relationship between, to the best of my knowledge, of who owned or controlled Patentex. Q. Right. Whether Burlington owns and/or controls Patentex. A. That’s right. •X- * -X- * *X- -X- Q. And I believe it is correct, is it not, that Burlington Industries was named as a codefendant in the Complaint you prepared and filed in the behalf of Emle? A. That is correct. ■X- * X- X- X- X- Q. You agree, do you not, that one of the issues raised by paragraph twelve [of the Emle complaint] is the extent, if any, of Burlington’s control over Patentex? A. I think I indicated to you before, Mr. Mobile, this was the position that I had, that I — yes. Q. The answer is yes? A. Yes, the answer is yes. * * * * * * Q. Well, it is a fact, is it not, that, in every one of the 1970 actions . . the issue of Burlington’s control over Patentex was raised in the Complaints you filed as it was in the Complaint in the Emle case ? A. Yes. Q. That is a fact, isn’t it ? A. Right. Rabin’s testimony underscores the inference of substantial relationship of issues, easily drawn from an examination of the pleadings alone in each proceeding. It is clear, therefore, that there are matters in controversy in each case —both the nature and scope of control, if any, exercised by Burlington over Pat-entex — that are not merely “substantially related,” but are in fact identical. It is strenuously argued, however, that control of Patentex by Burlington was conceded in a stipulation by Burlington in the Supp-hose case and, therefore, is not at issue here. Plaintiffs contend, instead, that the disputed matter in each case is the use to which Burlington put its control over Patentex and that this use differs in each action. The simple answer to this argument, however subtly advanced, is that it is factually incorrect. The stipulation in the Supp-hose case merely recited that “Burlington and Chadbourn each own 50% of the voting stock of Patentex, and Burlington owns 45% and Chad-bourn owns 55% of the non-voting stock, and the majority of the Patentex Board of Directors are Burlington men and the minority are Chadbourn men.” It stated further that “Burlington pays the salaries of Patentex employees and certain other expenses of Patentex, and the amount attributable to Patentex is charged back against Patentex’s account.” We are unable to agree that a concession that Burlington owned fifty percent — less than a majority — of Pat-entex’s voting shares is tantamount to an admission by Burlington that it exercised day-to-day or week-to-week control over Patentex and that it caused Patentex to engage in illegal activity. Moreover, Greenwald’s deposition in the Supp-hose case, with its emphasis on his relationship with Burlington executives and its concern with Greenwald’s degree of decision-making freedom, demonstrates that the question of control was an important issue in that case, one not resolved by stipulation. Thus, although in both the prior and the present case the parties sought to prove that Burlington had achieved an illegal end through Patentex, in each case they first faced the burden of proving that Burlington did, in fact, control Patentex in such a manner that the alleged illegal ends could be achieved. It is urged that the fact of Burlington’s control of Patentex was widely known throughout the industry and that such notoriety removes that issue from the case. We do not understand what this “notoriety” argument proves. Henry Drinker, a leading authority in the field of legal ethics, notes that the client’s privilege in confidential information disclosed to his attorney “is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.” H. Drinker, Legal Ethics 135 (1953). Here, even assuming arguendo that Burlington’s control of Patentex was “notorious” within the industry, it can hardly be contended that “trade gossip” is sufficiently reliable such as to constitute the basis of formal proof. The issue of control — its nature and scope — remained to be developed at trial, and Rabin, were he permitted to represent the plaintiffs in any further proceedings, might make use of confidential information establishing Burlington’s alleged control over Patentex. Thus, industry “notoriety” of Burlington’s control does not bear even one iota upon the ethical considerations here involved. Two final questions remain. The plaintiffs contend that at the time Rabin undertook to represent Burlington in the Supp-hose case, it was agreed that Burlington would not move to disqualify Rabin in any future matter in which he opposed Burlington. This claim, however, fails to withstand scrutiny. An examination of Rabin’s own recollection of the agreement leads to a conclusion that the Burlington-Rabin agreement dealt only with Rabin’s ability to continue prosecution of the unrelated Shoaf and Tight Pat actions, referred to earlier, and his freedom to press, if necessary, the potential indemnity claims of Claussner, MeCallum, and Hudson under the Patentex license agreement. According to Rabin, he “was flattered with the invitation [to represent Burlington] but in view of the then pending actions against Burlington and [Ms] position representing Claussner, MeCallum, and Hudson, [he] would have to decline.” (emphasis supplied) It was only in response to these specific concerns that Orr stated, again according to Rabin, “that no conflict would arise in the future.” This limited view of the agreement also is supported by Orr’s recollection of the understanding: Q. Well, to refresh your recollection, do you recall Mr. Rabin indicating to you that he had a conflict with existing litigation? A. [Mr. Orr] : With respect to the Claussner case, I remember he did. Q. The Supp-Hose case ? A. The Claussner claim for indemnity, yes. Q. And that if he undertook to represent Burlington that he would be in a position of conflict or could be in a position of conflict by reason of his representation of Shoaf and Tight Pat? A. No. Q. What was the conflict ? A. Well, the possible conflict that he would want to reserve any rights that Claussner and his other clients who were licensees of Patentex might have to bring suit against Patentex on the indemnity agreement. Q. Did he make it clear to you that he reserved these rights if he should represent Burlington ? A. Yes. It would be unreasonable to read Orr’s recognition and acceptance of these potential conflicts as a blanket waiver by Burlington covering all possible future claims in which Rabin might be involved in a posture adverse to Burlington. Rabin himself conceded that he “was not that clairvoyant to ask something of that sort.” In light of the strict prophylactic purposes of Canon 4’s injunction to preserve a client’s confidences, we do not find an all-inclusive waiver in this case. Lastly, it is urged that Burlington’s motion to disqualify Rabin is barred by the doctrine of laches. This claim too must fail. Since, as we have noted, disqualification is in the public interest, the court cannot act contrary to that interest by permitting a party’s delay in moving for disqualification to justify the continuance of a breach of the Code of Professional Responsibility. See United States v. Standard Oil Co., supra, 136 F.Supp. at 351 n. 6. Accordingly, “the Court’s duty and power to regulate the conduct of attorneys practicing before it, in accordance with the Canons, cannot be defeated by the laches of a private party or complainant.” Empire Linotype School, supra, 143 F.Supp. at 631. Although in an extreme case a party’s delay in making a motion for disqualification may be given some weight, see Marco v. Dulles, 169 F.Supp. 622, 632 (S.D.N.Y.1959) (nineteen year delay), such extenuating circumstances are not present here. The three-year gap between filing of the Ernie action in 1968 and Patentex’s motion to disqualify Rabin in 1971 is not extraordinary. Moreover, plaintiffs themselves allowed the actions to remain virtually dormant and they have not demonstrated that Patentex’s delay has caused them any prejudice. Indeed, whatever delay may have accompanied Patentex’s motion to disqualify Mr. Rabin has, if anything, worked to its disadvantage and not to that of the plaintiffs. Appellants themselves suggest that the delay has rendered Patentex’s claim of prejudice under Canon 4 moot because Mr. Rabin has been associated with this matter for over five years. If that is true, it can hardly be argued that appellants would have been better situated if Patentex had moved for disqualification at an earlier time, for had they done so appellants would have been deprived of Rabin’s services altogether. Laches is an equitable remedy and the court will not bar a claim on that ground where no prejudice has resulted from the delay. IV. In light of all we have said, we conclude that the issue of Burlington’s control over Patentex was a disputed matter in the Supp-hose case and is a core subject of the controversy in the present actions. Since Rabin defended Burlington against such a claim in the Supp-hose case he must be barred from asserting a “substantially related” claim against Burlington on behalf of the present plaintiffs. For the reasons set forth above, we need not inquire whether Rabin in fact had access to confidential information when he represented Burlington in the Supp-hose case. We realize, of course, that Rabin’s disqualification may inconvenience plaintiffs, who undoubtedly chose Rabin in the belief that he was the best attorney to prosecute their claims. Moreover, without impugning its motives, we are not so naive as to believe that Patentex will be displeased to see Rabin, effective advocate that he is, removed from these proceedings. But the possibility that Patentex may benefit from Rabin’s disqualification cannot alter our conclusion that his continued participation in these proceedings would constitute a serious breach of professional ethics. Furthermore, we are certain that despite his considerable talents, Rabin is not the only member of the patent bar qualified to capably represent these plaintiffs. It is argued that to disqualify Rabin from these actions in an excess of ethical zeal will permit the defendant to monopolize patent counsel. We can only note, however, that it is hardly appropriate to east aside ethical responsibilities out of an excess of antimonopolistic fervor. Reduced to basics, this argument would permit Rabin to represent plaintiffs only by carving out a special exception to the strictures of Canon 4 for situations in which a motion for disqualification has been made by a large corporate litigant against an attorney who has crossed sides to represent smaller interests. Nothing in the Code of Professional Responsibility or in the teaching of prior cases warrants such ethical relativity, for the Code, like its predecessor the Canons of Professional Ethics, “set[s] up a high moral standard, akin to that applicable to a fiduciary. . . . Without firm judicial support, the Canons of Ethics would be only reverberating generalities." Empire Linotype School v. United States, 143 F.Supp. 627, 633 (S.D.N.Y.1956). We have said that our duty in this case is owed not only to the parties — who by chance consist of a group of smaller competitors arrayed against the industry giant — but to the public as well. These interests require this court to exercise its leadership to insure that nothing, not even the appearance of impropriety, is permitted to tarnish our judicial process. The stature of the profession and the courts, and the esteem in which they are held, are dependent upon the complete absence of even a semblance of improper conduct. We conclude, therefore, that the substantial relationship between matters contested in the Supp-hose litigation and issues raised in the present actions requires that Rabin be barred from further participation in these proceedings. Accordingly, the order of the district court is affirmed. . Canon 4 of the Code of Professional Responsibility provides that “A lawyer should preserve the confidences and secrets of a client.” . Separate but similar complaints were filed by Ernie Industries, Inc., Glen Raven Mills, Inc., Knit Products Corp., Bossong Hosiery Mills, Inc., Alba-Waldensian, Inc., Tower Hosiery Mills, Inc., and Holt Hosiery Mills, Inc. The actions were consolidated in the district court for purposes of deciding the motion to disqualify and were similarly consolidated on appeal to this court. Ernie Industries was adjudicated bankrupt on December 27, 1971, and has not participated in this appeal. . Triumph Hosiery Mills, Inc. v. Alamance Industries, Inc., 191 F.Supp. 652 (M.D.N.C.1961), aff’d, 299 F.2d 793 (4th Cir.), cert. denied 370 U.S. 924, 82 S.Ct. 1566, 8 L.Ed.2d 504 (1962). . Upon information and belief, the activities and conduct of Patentex in its patent licensing programs in the yarn throwing industry and the knitting industry constitute a misuse of the Patentex patents among other reasons: (a) conducting a package licensing program of numerous patents and obligating licensees to pay royalties irrespective of the use of said entire package and without setting a royalty for unrelated patents in the package; (b) illegally tying a group of competing patents in a single package; (c) granting preferential licenses at discriminatory royalty rates under the same patent; (d) unlawfully demanding and collecting royalties on unpatented devices and products beyond the expiration date of one or more of the license patents without reducing or modifying the royalty rate; (e) requiring licensees to grant back to Patentex improvements made in yarn throwing and knitting resulting in restraining improvements and developments in yarn throwing and knitting and perpetuating a patent pool of indeterminate duration and beyond the terms of the licensed patents ; (f) discriminatorily waiving or knowingly refusing to collect royalties uniformly from (1) yarn throwsters and (2) knitters; (g) extracting as a condition for becoming a patent licensee under the Pat-entex patents that the validity of the Patentex patents would not be contested at any time by the licensee irrespective of termination of the license agreement or a determination of invalidity of one or more Patentex patents by a court of competent jurisdiction; (h) entering into discriminatory licensing arrangements in its licensing programs by nonuniform licensing provi-visions among different licensees including but not limited to exempting some licensees from payment of royalties while demanding that other licensees pay royalties upon goods of the same quality, description and characteristics; (i) refusing to honor its expressed commitment and obligation to most favorable royalty treatment of licensees and not to others; (j) acquiring patents through misrepresentations and fraud upon the United States Patent Office; and (k) illegally cross-licensing and pooling of patents. . At the time of Judge Weinfield’s decision, preservation of a client’s confidences was governed by Canons 6 and 37 of the Canons of Professional Ethics, whereas the motion to disqualify in the instant case was made under Canon 4 of the Code of Professional Responsibility, which superseded the Canons on January 1,1970. The difference is immaterial, however, since “Canon 4 and its subjoined rules make no changes in settled principles of ethics involving the preservation of confidential cliental information. These precepts have been traditional in the relationship of client and lawyer in the art of legal ethics, preserved by old Canons 6, 11, and 37 . ” R. Wise, Legal Ethics 65 (1970). . There can be no doubt that Judge Motley applied this standard. She specifically stated that Applying the test enunciated by Judge Weinfeld of this Court in T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (1953), the court finds and concludes the motion to disqualify Mr. Rabin on the ground of conflict of interest must be granted. [T]he issues of the control of Paten-tex by Burlington and the business relationships between Patentex and Burlington were present in the Supp-Hose case and are also present in the instant cases. . This reasoning also explains why Rabin is barred from these actions despite his claim that he became aware of Burlington’s control of Patentex during a previous defense of Bossong Hosiery Mills in a patent infringement action brought against it by Patentex. Rabin asserts that he became familiar with Burlington’s relationship with Patentex in order to prosecute Bossong’s counterclaim that Patentex misused its patents “in the exercise of a concerted effort to monopolize illegally the field of stretch yarn production . . . . ” This representation cannot destroy the inference that during his subsequent attorney-client relationship with Burlington, Rabin became privy to confidential information not disclosed during the Bossong action. . In connection with their claim of non-access, plaintiffs argue that the district court should have held an evidentiary hearing on this point. In addition to the compelling policy reasons against such a procedure, we note that Judge Motley considered extensive affidavits and depositions submitted by the parties and reviewed them at length during an oral hearing on the motion. Such procedures have proven adequate in other cases presenting complicated facts. See, e. g., United States v. Standard Oil Co. (N.J.), 136 F.Supp. 345 (S.D.N.Y.1955). Moreover, no request for an evidentiary hearing was made in the district court.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

AIR TERMINAL CAB, INC., Appellee, v. UNITED STATES of America, Appellant. AIRWAY TAXI COMPANY, INC., Appellee, v. UNITED STATES of America, Appellant. No. 72-1348. United States Court of Appeals, Eighth Circuit. Submitted Jan. 10, 1973. Decided April 30, 1973. Rehearing and Rehearing En Banc Denied May 22, 1973. Wesley Filer, Atty., Dept, of Justice, Washington, D. C., for appellant. William I. Rutherford, St. Louis, Mo., for appellees. Before LAY, HEANEY and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. The question before the Court is whether drivers of respondent’s taxicabs are employees within the provisions of the Federal Insurance Contributions Act (FICA) (26 U.S.C. § 3101 et seq.) and the Federal Unemployment Tax Act (FUTA) (26 U.S.C. § 3301 et seq.), which impose taxes on employers to finance government benefits for employees. These consolidated cases are suits for refund by two taxicab companies of partial payment of an assessment of withholding, FICA and FUTA taxes, penalties and interest allegedly owed by the plaintiffs. The plaintiff taxpayers have each paid one quarter of the alleged liabilities under protest. The Government counterclaimed below for alleged liabilities for other quarters. The years in question are 1965 through 1968. The District Court for the Eastern District of Missouri, Judge Wangelin presiding, found that the taxicab drivers were not employees for purpose of federal income tax withholding, FICA and FUTA taxes. Air Terminal Cab, Inc. v. United States, 341 F.Supp. 1257 (E.D.Mo.1972). The resolution of the question whether the taxicab drivers are employees must be made by applying common law definitions of “employee” and “independent” contractor. It was thought by some that the decisions in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) and Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947) resulted in a more relaxed meaning of the term “employee” as used in the tax statutes. Shortly after those decisions, however, Congress amended the definition sections of the pertinent acts to make it clear that the term “employee” should be read “under the usual common law rules.” 26 U.S.C. § 3121(d)(2) and § 3306(i). See H.Conf.Rep.No. 2771, 81st Cong. 2d Sess. p. 104. See also, Hoosier Home Improvement Company v. United States, 350 F.2d 640, 642 (CA 7 1965). The working relationship between the taxicab drivers and the appellees is undisputed and the facts are fully stipulated. The pertinent facts necessary for determination of the issue are as follows: Appellees, Air Terminal Cab, Inc. (Air Terminal) and Airway Taxi Company (Airway) are corporations organized and existing under and by virtue of the laws of Missouri. The method of operation of the two companies is substantially similar, but each is separately owned and operated. The two companies obtained franchises from St. Louis County to operate a specified number (12 each) of taxicabs within that county. Their cabs can only pick up passengers within the unincorporated areas of St. Louis County. The primary source of passengers in this restricted area is Lambert Airfield where passengers are picked up by the taxicabs waiting in line. The County granted franchises to appellees whose businesses involve company owned cabs operated by drivers who receive their compensation by retaining a percentage of the fares collected. The companies do not have formal business offices but are operated from the homes of their respective presidents. They do not advertise nor do they have listed telephone numbers in the telephone directory. The taxicabs owned by the companies are not radio equipped, nor is there any kind of an operational dispatcher system. The drivers do not regularly report their whereabouts, nor do they receive instructions from the company presidents. The presidents may, if it becomes necessary to contact a driver, leave messages at the service stations where the taxicabs are left overnight, or they may call the drivers at their homes after working hours. The taxicabs used in the businesses were owned and insured for liability by appellees. The drivers do not carry any insurance on their operation of the taxicabs. They are equipped with fare meters and have the company name, either “Lambert Airfield Cab, Co.” or “Lambert Airport Cab, Co.” painted in black letters on the door. When not in use, the taxicabs owned by each company are parked at separately owned service stations, in return for which each company contracts out to the particular service station the minor maintenance work needed on the taxicabs. During the years in suit — 1965 through 1968 — the drivers of the companies’ taxicabs operated in the following way: (a) At the beginning of their shifts, each of the drivers pick up the taxicab he is to drive at the service station where the particular driver’s company keeps the taxicabs pursuant to the maintenance-parking arrangement described above. (b) From the service station, the drivers usually proceed directly to Lambert Airfield to pick up fare-paying passengers. (c) After a passenger has been left at his destination, the drivers usually return directly to Lambert Airfield to pick up another fare-paying passenger. A driver makes an average of six (6) trips a day, consisting of transportation of a passenger from Lambert Airfield to the passenger’s destination and return to the Airfield. (d) The drivers maintain a trip sheet on which is to be noted the pick up point and destination of each fare-paying passenger and the amount of the fare paid by each passenger. (e) At the end of the shift, each driver deducts from the total amount of fares collected, the amount expended for gasoline and oil. The amount remaining is then divided equally between the company and the driver. The driver takes the company’s share and puts it in an envelope then along with the trip sheet drops the envelope through a slot in a metal strong box at the service station where the taxicabs are parked when not in use. The driver retains his own share of the fares collected and receives no other remuneration. These envelopes are picked up regularly by the president of the company. The trip sheets and envelopes are furnished to the drivers by the companies. (f) The drivers do not use the taxicabs for their personal use. At the end of their shift, the drivers return the taxicabs to the service station to be parked and left until the next shift. The drivers who drive the taxicabs owned by the plaintiff companies, as well as drivers for other taxicab companies in the St. Louis and St. Louis County areas, are organized into and are members of Local 688 Warehouse und Distribution Workers Union, affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehouse-men of America. Pursuant to contracts entered into with Local 688, effective September 1, 1965 and extending through 1968, “owner-drivers” 3 are regarded as employees of taxpayers and taxpayers reserve “the right to control the manner, means and details of, and by which the owner-operator performs his services, as well as the ends to be accomplished.” The drivers are required to work a minimum of nine hours per day, five days per week pursuant to the union contract. They may work a maximum of 14 hours per day and six days per week. In addition, starting times and days to be worked are set by taxpayers. After drivers have completed one year of work they are entitled to a one-week paid vacation, sick leave benefits, and specified paid holidays. Article XII of the union contract gives the companies the right to discharge drivers pursuant to the union grievance procedure. The issue of whether an employer-employee relationship exist for purposes of employment taxes has generally been held to be one of fact. Saiki v. United States, 306 F.2d 642, 648 (CA8 1962); American Consulting Corp. v. United States, 454 F.2d 473, 477 (CA3 1971); Lanigan Storage & Van Co. v. United States, 389 F.2d 337, 340-341 (CA6 1968); Lifetime Siding, Inc. v. United States, 359 F.2d 657, 662 (CA2 1966); Hoosier Home Improvement Co., Inc. v. United States, 350 F.2d 640, 643 (CA7 1965); McGuire v. United States, 349 F.2d 644, 646 (CA9 1965); Service Trucking v. United States, 347 F.2d 671, 672 (CA4 1965). In the instant case the trial court likewise held it was a question of fact, stating at page 1263 of 341 F.Supp.: “The question of plaintiffs’ control over the manner and means of the operation of the taxicab is a factual question. Considering all factors, the Court concludes that the plaintiff had little, if any, control over the means and method by which the drivers performed their services.” (emphasis added) However, this Court has not hesitated to reverse where the evidence did not support the conclusion reached by the trier of fact. Saiki v. United States, supra, 306 F.2d 642, 652 (CA8 1962); United States v. Kane, 171 F.2d 54 (CA8 1948). Where the facts are stipulated “and there is no conflict in the evidence, or in the inferences which reasonably can be drawn therefrom, this Court may rule upon the question of law presented and is not restricted by the limitation of Rule 52(a) F.R.Civ.Proc.” United States v. Kavanaugh, 308 F.2d 824, 828 (CA8 1962); United States v. Mississippi Valley Barge Line Co., 285 F.2d 381, 388 (CA8 1960); Compare, Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Azad v. United States, 388 F.2d 74, 78 (CA8 1968). Moreover, even if we would apply the “clearly erroneous” rule, the Supreme Court has pointed out that “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” United States v. U. S. Gypsum Company, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). In the case at bar the facts are largely stipulated and there is no dispute as to them. Whether the question for determination is viewed as one of fact or law, we are convinced that under applicable standards a mistake has been committed in the result arrived at by the trial court. This Circuit has not directly passed on the question of whether a taxicab driver is an employee for federal employment tax purposes. The two leading cases in this area appear to be Party Cab Company v. United States, 172 F.2d 87 (CA7 1949), cert. denied, 338 U.S. 818, 70 S.Ct. 62, 94 L.Ed. 496 (1949) and United States v. Fleming, 293 F.2d 953 (CA5 1961). In Party Cab the taxicab drivers worked essentially on a rental basis whereby they paid a fixed fee for the use of a cab and were subject to little control over their daily routine other than fixed working hours. The court held that the drivers were not employees for employment tax purposes. In Fleming, the drivers were directed to pickups by radio dispatcher calls, were required to account for their trips by use of trip reports, were subject to discharge, did not pay for their own gas and oil, and were required to split their fares with the company (65% to the company). In finding that the taxicab drivers were employees, the court in Fleming relied heavily on the fare-splitting arrangement between the drivers and the company. 293 F.2d at 957. The court there stated: “The large measure of control here present, the operation by the Company of a taxi business rather than merely a renter of cabs, and other factors require a determination that the employer-employee relationship existed.” (emphasis added) We stated, supra, that common-law tests are to be used to determine the status of the taxicab drivers. These common law tests mentioned in the Internal Revenue Code sections here involved, 26 U.S.C. §§ 3121(d)(2) and 3306 (i), are elaborated in corresponding sections of the Treasury Regulations, 26 C.F.R. §§ 31.3121 (d)-l and 31.3306 (i)-1, which provide: “Generally such relationship exists [of employer-employee] when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work to the individual who performs the services.” * •* * * •» * “Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case.” (Emphasis added.) Thus, control, either actual or the right to it, is the basic test used to determine the relationship in question. Here there were no supervisory employees, no officers, no garages, no radios, no dispatchers, no telephones, and no regular contact between appellees and their drivers. On the other hand, the drivers had regular working hours, were limited as to where they could pick up customers, could not use cabs for their personal use, were required to account for fares by submitting “trip sheets,” and were required to split (after deducting amounts spent for gas and oil) their fares evenly with appellees. This arrangement closely resembles that in Fleming, supra, where the court held that the taxpayers were conducting a business as a common carrier with employees rather than the rental operation as found in Party Cab, supra. The Internal Revenue Service has also ruled that the receipt or fare sharing arrangement diminishes the likelihood of a true lessor-lessee relationship because of the company’s interest in receipt of the maximum amount of income possible in return for its financial risks. Rev.Rul. 71-572, 1971-2 Cum.Bull. 347. Where a company has a general measure of control over the manner in which services of their taxicab drivers are performed, such as operation in a restricted territory, control of hours worked, and the governing of income to the drivers, the employer-employee relationship exists for purposes of the federal employment taxes. Cf. Westover v. Stockholders Publishing Co., 237 F.2d 948 (CA9 1956). Even if actual control was absent, it is the right to control which is determinative. In McGuire v. United States, 349 F.2d 644, 646 (CA9 1965) the court stated: “The absence of need to control should not be confused with the absence of right to control. The right to control contemplated by the Regulations relevant here and the common law as an incident of employment requires only such supervision as the nature of the work requires.” Where the nature of a person’s work requires little supervision, there is no need for actual control. Some occupations such as unloaders, see McGuire, supra; United States v. Kane, 171 F.2d 54, 59 (CA8 1948), or doctors, Cody v. Ribicoff, 289 F.2d 394 (CA8 1961); Flemming v. Huycke, 284 F.2d 546 (CA9 1960), are unsuited to direction and close control by an employer. In the instant ease, the nature of appellees’ businesses simply do not require close hour by hour supervision, but the right to control is not lacking.3 Other factors in this case lead us to believe that the employer-employee relationship exists. The cab drivers have no capital investment in the business. They do not even supply their own oil or gas. All they provide is their labor since the company owns the taxicabs and purchases liability insurance. Daily reporting sheets must be submitted by the drivers to the company. The appellees may discharge the drivers for cause pursuant to the labor contract. See Treasury Regulations, supra. Moreover, the companies provide fringe benefits such as paid vacations and holidays, sick leave, and pension plans. All of these are consistent with an employer-employee relationship. These taxicab drivers were performing personal services constituting an integral part of appellee’s business operations. They were not pursuing any separate trade, business, or profession involving capital outlay and were subject to general control over the manner and means of performing their services. They were, in effect, common-law employees for purposes of federal employment taxes here involved. Reversed. . Alleged liability for Air Terminal for all taxes due is stipulated to be $71,235.02. Airway’s liability is $60,778.86. . Appellees in their brief contend that the term “owner-drivers” found in the labor contract excludes their drivers because they do not own their own taxicabs. We agree. Read in its entire context, the labor contract’s use of the term refers only to situations where the driver owns his own cab. Other parts of the labor contract, however, do apply to the appellees’ drivers. . Revenue Ruling 71-572 was issued in 1971 after the appellees filed their suits for refund on May 21, 1971. Attached to the stipulation of facts in the record is a letter ruling by the Internal Revenue Service to the District Director of St. Louis, Mo., which pertains to Laclede Cab Co. and Red Top Cab Company which also operate under franchi-es in St. Louis County. Appellee relies on this letter for support. In those situations. a daily rental fee was paid by the drivers for the use of the taxicabs. The drivers could use the taxicab for a maximum shift, obtain orders from the company’s radio dispatcher and generally operate as a taxicab. There was a union contract, similar to those herein. The driver, however, paid all expenses and retained for himself all fares. It was held by the I.R.S. that the Laclede and Red Top drivers were not employees for employment tax purposes. The instant case is distinguishable, however, in the method that the financing is arranged. The Laclede and Red Top drivers rented the taxicabs and ran their own business, quite similar to the Party Cab case. The fare-splitting arrangement in the instant case is similar to Fleming where a similar arrangement resulted in the employer-employee relationship. . Appellees base much of their argument on the fact that the taxicabs are not equipped with two-way radios or any kind of a dispatcher system. The nature of the appellees’ businesses is such that such a system is unnecessary because almost all passengers are picked up at the airport on a random basis. This feature is not determinative of control. Almost all of the taxicab cases we have read involve a dispatcher system of some type, but the decisions have gone both ways. . See Restatement (Second) of Agency § 220 (1958) for a summary of common law factors to be considered in finding the employer-employee relationship. Missouri has accepted the criteria set out in the Restatement of Agency for determining whether or not an employer-employee relationship exists. Dean v. Young, 396 S.W. 2d 549, 553 (Mo.1965). The element of control, or right to control is most frequently used in Missouri cases as distinguishing a servant from an independent contractor. Id. Thus, Missouri’s common law on this issue is consistent with the federal law.

f2d_478/html/0581-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

H. Gordon HOWARD, Plaintiff-Appellant, v. The STATE DEPARTMENT OF HIGHWAYS OF COLORADO et al., Defendants-Appellees. No. 72-1010. United States Court of Appeals, Tenth Circuit. Argued Aug. 21, 1972. Decided May 18, 1973. H. Gordon Howard, pro se. Loyal W. Trumbull, Asst. Atty. Gen., Denver, Colo. (Duke W. Dunbar, Atty'. Gen., and Joseph M. Montano, Chief Highway Counsel, Asst. Atty. Gen., Denver, Colo., on the brief), for appellees. Before BARNES, HILL and HOLLOWAY, Circuit Judges. Honorable Stanley, N. Barnes, of the Ninth Circuit, sitting by designation. HOLLOWAY, Circuit Judge. Appellant Howard brought this suit challenging the validity under the federal constitution and antitrust laws of the Colorado Outdoor Advertising Act, as amended, § 120-5-2 et seq., Colorado Revised Statutes Annotated, 1963 (1971 Supp.). Among other things, Howard asserted the unconstitutionality of the statute under the First Amendment guarantee of free speech, the due process, equal protection and privileges and immunities clauses and Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2. He alleged that the defendants were threatening him with fine and imprisonment for violation of the statute, by threatening letters, and were attempting to deprive him of his property rights in leases and highway information and directional signs to Pine Lake Trailer Resort and Campground, which he owns and operates. He invoked the provisions of 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. §§ 1983 and 1985(3), and prayed for a declaratory judgment, or an injunction, prohibiting and enjoining defendants from enforcing the allegedly unconstitutional act and for damages. The defendants moved to dismiss, among other things claiming Eleventh Amendment immunity for the State and the Department, and asserting that the complaint failed to state a claim for relief. By brief they argued for abstention to permit proceedings in the state courts of Colorado. The district court, as a single judge, determined that abstention was appropriate and dismissed the action without prejudice, and Howard appealed. For reasons that follow we affirm the dismissal on different reasoning than that of the district court. At the hearing where the dismissal ruling was announced the court indicated that jurisdiction was proper, but that it was appropriate to abstain from exercising such jurisdiction to permit state court proceedings. As noted, the suit sought an injunction against the enforcement of the state statute on grounds of its unconstitutionality. This raises the question whether the three-judge court requirements of 28 U.S.C.A. §§ 2281 and 2284 apply. The bringing of such a suit does not compel the convening of a three-judge court if a substantial federal question is not presented, see Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152; but the single judge may not, if jurisdiction exists, make the determination to abstain and withhold relief. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794; see also Goosby v. Osser, 409 U.S. 512, 516-517, 93 S.Ct. 854, 35 L.Ed.2d 36 (decided 1/17/73); A.L.I., Study of the Division of Jurisdiction Between State and Federal Courts 330; Wright, Federal Courts (2d Ed.) 193. The determination to abstain and withhold relief is a function of the three-judge court in such a case. See Goosby v. Osser, supra at 522, 93 S.Ct. 854. The single judge need not request a three-judge court if no substantial federal question is presented, and instead he may dismiss for want of jurisdiction. Goosby v. Osser, supra, at 522, 93 S.Ct. 854; Ex parte Poresky, supra 290 U.S. at 31-32, 54 S.Ct. 3; Firkins v. Colorado, 434 F.2d 1232, 1233 (10th Cir.). However, the Supreme Court has made it clear that strict standards must be met before the court may conclude that the case is insubstantial. “In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claim frivolous . . . ” Goosby v. Osser, supra at 518, 93 S.Ct. at 859. In this case we conclude that the complaint presents no substantial federal question for reasons that follow, and, therefore, affirm the dismissal as proper for lack of jurisdiction. While this three-judge court problem was not presented to the trial court or here by the parties, it is jurisdictional and may not be waived. Stratton v. St. Louis Southwestern Railway Co., 282 U.S. 10, 13, 15, 51 S.Ct. 8, 75 L.Ed. 135; Riss & Co. v. Hoch, 99 F.2d 553, 555 (10th Cir.); Americans United for Separation of Church and State v. Paire, 475 F.2d 462 (1st Cir., 3/16/73); see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644. We have noted the problem because of its jurisdictional nature and its effect on the disposition which we feel is properly a dismissal for want of jurisdiction. The amended complaint of Howard alleged essentially these facts. Howard is the owner and operator of Pine Lake Trailer Resort and Campground located on Colorado Highway #14, Weld County, Colorado. He is also the lessee of ground on which the signs are located. The defendants are the State of Colorado; the State Highway Department, a State subdivision; Charles Shumate, chief engineer and head of the Department; A1 Bower, deputy chief engineer and head of the sign department of the Colorado Highway Department; and Milo Ballinger, superintendent at Greeley for the Department. Howard avers that the defendants are threatening him with fines and imprisonment for violation of the Colorado Outdoor Advertising Act. Two notices were sent him by defendant Ballinger, stating that two roadside advertising devices referring to the Pine Lake Campground were in violation of the Act, being in the nature of advertising to motorists traveling on a Federal Aid Highway, and there being no required permit for the signs. Notice was given to remove the signs or to apply within thirty days for a permit. The notices also referred to possible conviction and fine up to $1,000 for offenses under the Act. The amended complaint further alleged that Howard’s rights arise under the due process clause of the Fourteenth Amendment; that the Act is an unconstitutional zoning law, attempting to legislate out of existence a legitimate informative and advertising business; that the statute was being used to take Howard’s property without just compensation ; that the statute denies due process and is arbitrary and discriminatory in violation of the Fourteenth Amendment; and that the statute unlawfully operates to establish a monopoly in violation of the antitrust laws. On brief Howard argued to the district court and here that the statute also unconstitutionally denies First Amendment rights of free, speech. As amended the Colorado Outdoor Advertising Act prohibits the erection or maintenance of any advertising device, as defined in the act, which is designed, intended or used to advertise or to give information in the nature of advertising visible to the public traveling on the main traveled way of the state highway system unless the advertising device is erected and maintained in accordance with provisions of the article. § 125-5-12. The “State Highway System” includes the interstate highways and federal aid roads. § 120-13-1. With certain exceptions provided in § 120-5-18, all such devices are prohibited except where a permit has been obtained. Other sections of the amended act completely forbid the issuance of permits under certain circumstances. § 120-5-23. We are satisfied that the complaint presents no substantial federal question as to the validity of the statute. The Supreme Court has long sustained exercises of the police power of the states for regulation and prohibition of various forms of outdoor commercial advertising. See, e. g., Railway Express, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262; Fifth Avenue Coach Co. v. New York, 221 U.S. 467, 31 S.Ct. 709, 55 L.Ed. 815; Packer Corporation v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643. Moreover similar statutes restricting roadside advertising have been upheld in several decisions against similar constitutional challenges. See, e. g., Elliott Advertising Co. v. Metropolitan Dade Co., 425 F.2d 1141 (5th Cir.), cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35; Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248; Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573 (Ky.); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 218 N.Y.S.2d 640, 176 N.E.2d 566; contra,, State Highway Department v. Branch, 222 Ga. 770, 152 S.E.2d 372. In the Markham case the Washington Highway Advertising Control Act was upheld against the due process claims of arbitrariness and denial of just compensation, as well as equal protection and free speech claims among others. Moreover the Supreme Court subsequently dismissed an appeal of the Markham case for want of a substantial federal question. Markham Advertising Co., Inc. v. Washington, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512, rehearing denied, 393 U.S. 1112, 89 S.Ct. 854, 21 L.Ed.2d 813. We have considered cases bearing on free speech relied on by appellant Howard, Tobin Imports, Inc. v. Rizzo, 305 F.Supp. 1135 (E.D.Pa.); and Close v. Lederle, 303 F.Supp. 1109 (D.Mass.), reversed, 424 F.2d 988 (1st Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140. We feel there is no substantial support in these cases for a claim of denial of free speech where only commercial advertising and directional signs are involved. In sum we are satisfied that appellant Howard’s constitutional claims raised no substantial federal question. Appellant Howard also alleged that the Colorado Act was invalid under the federal antitrust laws. He argues that the Act empowers the State, which maintains campgrounds and outdoor recreational facilities, to enter the field of private business as a monopoly. The argument is without substance. Where a monopoly or restraint of trade is a result of valid state action, there is no antitrust violation. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315; see California Transport v. Trucking Unlimited, 404 U.S. 508, 516 n. 3, 92 S.Ct. 609, 30 L.Ed.2d 642 (Stewart, J., concurring). Appellant argues that 28 U.S.C. A. § 1343 and 42 U.S.C.A. §§ 1983 and 1985(3) are separate sources of rights and federal jurisdiction. However the statutes clearly create no separate rights themselves but instead confer remedies for enforcement of rights arising under the Constitution or federal law, and make a grant of federal jurisdiction to hear such cases. Since the complaint shows no violation of rights under federal law, the remedial and jurisdictional statutes add no substance to appellant’s ease. See Stringer v. Dilger, 313 F.2d 536, 540 (10th Cir.). For these reasons we conclude that no substantial federal question was presented and that a dismissal for want of jurisdiction was proper. See Ex Parte Poresky, supra 290 U.S. at 32, 54 S.Ct. 3; Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939. Accordingly the judgment is modified to provide that the action is dismissed for want of jurisdiction, and as modified, is affirmed. . § 120-5-18 provides in part as follows: “(2) (a) Tlie following advertising devices shall not require permits under this article: (b) (Repealed) , . . . ; (c) Advertising devices advertising the sale or lease of the property on which they are located; (d) Advertising devices advertising activities conducted on the property on which they are located; (e) Advertising devices which are located in areas which were zoned industrial or commercial under authority of state law prior to January 1, 1970.” . See also Moore v. Ward, 377 S.W.2d 881 (Ky.) ; General Outdoor Advertising Co. v. Department of Public Works, and fourteen other cases, 289 Mass. 149, 193 N.E. 799, appeals dismissed, 297 U.S. 725, 56 S.Ct. 495, 80 L.Ed. 1008; People v. Goodman, 31 N.Y.2d 262, 290 N.E.2d 139; Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328 (Ohio). And see People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, appeal dismissed for want of a substantial federal question, 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107. . We have examined the jurisdictional statement in the Markham, case. In presenting the constitutional issues to the Supreme Court of the United States, the statement included the constitutional claims mentioned above and rejected by the Washington Supreme Court.

f2d_478/html/0586-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. George Gordon LIDDY et al. (two cases). In re TIMES MIRROR COMPANY (two cases). Appeal of John LAWRENCE. Appeal of Jack NELSON and Ronald J. Ostrow. Nos. 73-2210, 72-2211. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 20, 1972. Decided Dec. 20, 1972. Mr. J. Roger Wollenberg, Washington, D. C., argued for appellant, Times Mirror Co. with whom Messrs. Timothy B. Dyk and Daniel Marcus, Washington, D. C. , were on the motion. Mr. Herbert J. Miller, Jr., Washington, D. C., argued for appellants, Jack Nelson and Ronald J. Ostrow with whom Mr. Martin D. Minsker, Washington, D. C., was on the motion. Mr. William O. Bittman, Washington, D. C., argued for appellees. Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges. ORDER PER CURIAM. On consideration of the emergency motions of the Times-Mirror Company and Jack Nelson and Ronald Ostrow for stay pending appeal, it is Ordered by the Court that the aforesaid motions are denied. The denial of this stay is suspended until 5 p. m. Friday, December 22, thereby leaving in effect until that time the order of this Court entered on December 19, 1972, to permit application to the Supreme Court for certiorari if this step is desired. If application for cer-tiorari is made the stay will continue until an order is entered in these cases by the Supreme Court. Circuit Judge LEVENTHAL would extend the stay in any event until close of business Friday, January 5, 1973, and order that the subpoena be returnable at that time, and subject to the conditions set forth in his opinion filed herewith. LEVENTHAL, Circuit Judge: I would extend the stay to close of business Friday, January 5, 1973, in order to provide better opportunity for making application to the Supreme Court. Such opportunity is, I think, particularly appropriate since this case involves an estimate as to the implications for criminal trials of the Supreme Court’s opinion last Term in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). In making an estimate of the probability of success on appeal, I begin with the premise that the Branzburg decision is controlled in the last analysis by the concurring opinion of Justice Powell (408 U.S. at 709, 92 S.Ct. at 2670) as the fifth Justice of the majority. That opinion holds, as I understand it, that there is no universal constitutional privilege of a newsman to keep confidential the identity of his sources and the content of their revelations. The assertion of that privilege may, however, come to involve a question under the First Amendment freedom of the press, and in such case there will be need for balancing that assertion against the need for the material in the interest of society, as in a case where a newsman has “reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” (p. 710, 92 S.Ct. at 2671). That does not require a demonstration of either total lack of legitimacy or utter lack of any possible need, for it may be raised on a claim that the information desired of the newsman has only a “remote” relationship to the subject of the investigation. As to the conduct of the balancing test, Justice Powell made it clear that the judge is “free to balance the competing interests on their merits in the particular case.” He stated (p. 710, 92 S.Ct. at 2671): The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a ease-by-case basis accords with the tried and traditional way of adjudicating such questions. Branzburg’s precise decision was limited to the need of a grand jury, but there are references in the opinion which indicate an intention for applicability to a criminal proceeding. And in a larger sense the grand jury’s investigation is part of the functioning of the judiciary branch of the government, as is the conduct of a criminal trial before a petit jury. In a grand jury context, the First Amendment considerations cannot prevail, e. g., to preclude a witness from giving information as to a crime he has witnessed. But it may require that the trial judge determine that society has an interest in the subject matter of the proceeding that is “immediate, substantial, and subordinating,” that there is a “substantial connection” between the information desired of the witness and the overriding interest of society in the subject matter of the investigation — “and that the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest”, an inquiry which might require the proceeding to move forward deliberately, and reflectively, step-by-step. Bursey v. United States, 466 F.2d at 1083. In a grand jury context there are protections, while such matters are being reflected upon, because of the secrecy of the grand jury- — a matter that was made the point of special notation in the Branzburg opinion. This indicates that where such a question arises in the context of a criminal proceeding the need of society for public-trial release of the information may require, under the less-drastic means principle, that the need for this first be reviewed and determined in proceedings that are held by the court in camera, and with only counsel in attendance as at a side-bar conference. In the present case, the need of society is asserted by counsel for the defense in a criminal proceeding for impeachment of a government witness. This is a case where the newsman’s source is known, and indeed the information was revealed in a first-person interview. This dilutes but it does not remove the First Amendment consideration of the importance to a newsman — and to the information of the public at large, through the press — of the content of the interview obtained under a pledge of confidentiality. Affidavits of John Sei-genthaler, Robert J. Manning, James C. Hagerty, Edwin O. Guthman and William F. Thomas. At the same time, it has a bearing on the definition of society’s need for the information. In general, pre-trial statements by a prospective government witness “ripen into evidentiary material for purposes of impeachment if and when, and only if and when, the witness who has made the statement takes the stand and testified.” This is subject to the interest of the court, especially in facing a protracted trial, and here the jury is to be sequestered, to make appropriate pretrial provision, in order to prevent unfairness and avoid undue delay at trial. Recognizing that this court is not in a position to make definitive rulings at this time, a fair estimate of the result that would be forthcoming on appeal, leads me to conclude that the return date of the subpoena should be postponed to Friday, January 5, 1973, that it should provide that the material will be lodged with the trial court and not be disclosed to counsel prior to the completion of the direct testimony of Mr. Baldwin; that it will not then be released pursuant to the subpoena unless and until the trial judge has made inquiry of the possibility of less drastic means, including at least inquiry of Mr. Baldwin whether he will permit its release, and if not to state the reasons therefor; that the trial judge will have had a pretrial opportunity to consider the matter but he will not provide for release unless he makes a determination at that time (following Baldwin’s direct testimony) that there is a need therefor; that the first release will be solely to counsel in camera, and there will be no release at public trial until the trial judge determines that there is a need for such pub-lie-trial disclosure. Under those circumstances, however, and with such a determination of need, there would appear to be no First Amendment interests that outweigh the need for such disclosure. . Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir. 1972). . United States v. Rothman, 179 F.Supp. 935, 937 (W.D.Pa.1959) ; Jencks Act, 18 U.S.C. § 3500. . Rule 17 (c), F.R.Crim.Proc.; Shores v. United States, 174 F.2d 838, 845 (8th Cir. 1949). . This procedure may obviate the need for decision of the constitutional issue.

f2d_478/html/0588-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Howard PASTERNACK, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE. No. 71-1592. United States Court of Appeals, District of Columbia Circuit. Jan. 4, 1973. Mr. Howard Pasternack, pro se. Mr. Fred B. Ugast, Acting Asst. Atty. Gen., U. S. Dept, of Justice, was on the pleading for appellee. Mr. Meyer Roth-wacks, Atty., Dept, of Justice, also entered an appearance for appellee. Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges. PER CURIAM: On November 3, 1966, appellant, a United States citizen residing in London, England, filed a pro se petition with - the United States Tax Court for redetermination of tax deficiencies for 1962 and 1963, of $607.30 and $480.41 respectively. His petition contested the disallowance of dependency deductions for his two children. After trial held on January 26, 1970, the Commissioner’s motion to dismiss appellant’s case for lack of prosecution, due to his nonappearance at trial, was granted by order entered on February 17,1970. In a letter that was received by the Tax Court on March 24, 1970, more than 30 days after judgment was entered, appellant objected to the decision. The Tax Court through inadvertence misplaced this letter. Upon its rediscovery, the Court, on November 10, 1970, entered an order granting special leave to file the March 24 letter as a motion to vacate the February 17, 1970, judgment, and simultaneously granted the motion. On March 31, 1971, the Tax Court granted the Commissioner’s motion to vacate the November 10, 1970, order, on the ground that the February 17, 1970 order had become final, 90 days after entry, and the Tax Court was without jurisdiction to disturb it. Appellant timely filed a notice of appeal from that decision. He was unable to appear for oral argument. We entered an order to decide the case without oral argument, have studied the briefs and the file, and come to the conclusion that reversal is in the interest of justice. I. FAILURE TO APPEAR AT TRIAL This case requires reference to the procedural background of the default judgment that the Commissioner contends became final, beyond power to vacate or modify. We agree, for reasons to be stated, with the taxpayer’s claim that irregularities ascribable to the Tax Court and the Commissioner, and not any fault of the taxpayer, are primarily accountable for the entry of the February 17,1970, default judgment. The Tax Court’s Rules contain provisions for a Report Calendar and for a Trial Calendar. The Report Calendar Rule provides for reports of the progress of the litigation and permits the setting of tentative trial dates. The Tax Court, on three separate occasions between October 1967 and March 1969, sent Orders for Trial Status Reports to appellant in London which proposed tentative trial dates. In each instance taxpayer replied that his work in London precluded attendance except during his summer vacation. Each time the case was rescheduled. On July 31, 1969, the Court sent a Trial Status Report proposing a January 26, 1970 trial date. This notice was sent to the same address as previous correspondence, “c/o EURNAVFACE-NGCOM, Box 69, FPO New York, N.Y. 09510,” a government address which had been used by appellant, as an employee of the United States Navy in London. The form provision set forth that the Report— “shall, not earlier than 75 days, nor later than 80 days, after the date of this Order, be submitted to the Court.” Receipt of this notice was delayed, due to a change of address incident to appellant’s new employment. His response was dated November 4, 1969. It was thus received by the Court more than 80 days after its order issued, but prior to the scheduled January 26, 1970 trial date. Appellant’s letter advised the Court of his change of address and his inability to attend, and suggested that the trial be conducted through affidavits taken at the U.S. Embassy in London or by the local U.S. Internal Revenue Ad-visor. The Tax Court’s Trial Calendar Rule provides that the parties will be notified not less than 90 days in advance of the trial date. On October 24, 1969, the Court sent a notice to appellant at his original government address that the trial was scheduled for January 26, 1970. No supplemental notice was sent when the Court was advised by appellant’s letter of November 4 of his new address. Apparently this notice reached appellant after the trial date. The notice stated: “Failure to appear will be taken as cause for dismissal in accordance with Rule 27(c)(3) of the Court’s Rules of Practice.” That Rule provides: Attendance at trials. The unexcused absence of a party or his counsel when a case is called for trial will not be the occasion for delay. The case may be dismissed for failure properly to prosecute or the trial may proceed and the case be regarded as submitted on the part of the absent party or parties. Although appellant was not in receipt of this notice prior to trial he was then engaged in correspondence with the Commissioner concerning the possibility, which appellant had initiated at some previous time, of presentation of the case on a set of stipulated facts. The Commissioner sent two letters with proposed stipulations. They were sent to the home (and therefore correct) address. But the Commissioner’s letters, unlike those of the Tax Court, were sent by surface mail. The first letter, sent November 17, 1969, was received by appellant on January 12, 1970. The second letter, sent December 24, 1969, arrived before the first, on January 2, 1970. In the December 24 letter, the Commissioner asked why there had been no response to his November 17 letter concerning stipulations, and also advised the taxpayer that failure to appear at the scheduled January 26, 1970, trial would result in a dismissal for lack of prosecution. The taxpayer responded immediately on January 2 that he had not yet received the November 17 letter and hoped, due to what he believed to be the strength of his case, dismissal would not result. He also indicated that he would be pleased to attempt to arrive at some stipulation. The proposed stipulation was received on January 12, 1970, and on January 13, the appellant responded, raising certain questions about the stipulations. In response to an apparent reference in the Commissioner’s letter (which had been sent November 17) about the impending January 26, trial, appellant referred the Commissioner to his November 4 reply to the Trial Status Report, wherein he had requested a new trial date. Thus, the Commissioner and the Tax Court had both been informed about the requested delay. Nevertheless, on January 26, 1970, the Tax Court called the case for trial, with results now to be described. The IRS counsel moved to dismiss for lack of prosecution. The Court asked: “Did you receive some indication that he wouldn’t be present?” Counsel replied that taxpayer was out of the country, no longer working for the Government, that counsel had advised taxpayer by letter of December 24 that it was the policy of the government to move orally for dismissal for lack of prosecution, of the petition of any taxpayer who did not appear at the time the case was calendared for trial. IRS counsel continued: “I received an answer to that correspondence by letter dated January 2, and Mr. Pas-ternack said he didn’t want to lose by default but he didn’t say he was going to appear for trial.” Counsel further stated: By letter dated January 13, he advised this office in one of the paragraphs that he had advised the Tax Court that he wouldn’t be able to make it. I, therefore, cheeked with the national office and they checked with the Tax Court and they phoned me back and said that the Tax Court had no information in this regard. The Court indicated it would grant the Commissioner’s motion to dismiss appellant’s case for lack of prosecution, and the order was entered on February 17, 1970. Plainly, the Tax Court was not aware of appellant’s inability to be at trial. In addition, Judge Fay was not aware of taxpayer’s suggestion that the trial be conducted through affidavits. Even more significantly, the judge was not advised of the significant fact that there were stipulation negotiations in progress. Government counsel merely identified Mr. Pasternack’s January 13 reply to the IRS letter of January 2 by reference to taxpayer’s statement that he did not want to lose by default. Counsel gave not a hint, breath, or glimmer of reference to the content of the taxpayer’s letter as one that was responsive to 'the Commissioner’s proposal for stipulation. We are much troubled by the selective nature of the presentation of the situation by Government counsel, given the absence of counsel for the taxpayer. If the Tax Court had been in possession of appellant’s response before the trial no default would have been entered. Judge Fay made this crystal clear — both by vacating the default judgment, and by his remarks at the subsequent hearing when he said that the Court had entered its default decision “in a blind way — without all the facts before it”, but nevertheless, concluded he was compelled to undo that corrective order. At the very least, appellant’s letter was timely as a motion for a continuance. The Tax Court’s Rule 27(d) provides: Continuances — motions—trials. (1) Court action on cases set for hearing on motions or trial will not be delayed by a motion for continuance unless it is timely, sets forth good and sufficient cause, and complies with all applicable Rules. While continuances are within the sound discretion of the Tax Court, Balestrieri & Co. v. C. I. R., 117 F.2d 867 (9th Cir. 1949), certainly Rule 27(d) cannot fairly be reconciled with a procedure that resulted in no consideration to proposed reasons for postponement. II. FINALITY OF JUDGMENT Appellant first learned of the default on March 16, 1970, when he received the Commissioner’s letter dated February 9, 1970, sent by surface mail, which advised that the proposed stipulations had become moot. In his reply on the same date to the Tax Court, appellant recounted his response to the Trial Status Report, his negotiations with the Commissioner on proposed stipulations, and his belief that the trial was not to be held on January 26, 1970. His letter ended with this paragraph: I would be very grateful, in the event my case has been dismissed, to reconsider it in the light of the background herein presented. If even this is not possible, kindly advise me of any rights of appeal open to me. This letter was received by the Tax Court on March 24, 1970, which, under Tax Court rules for the computation of time, was 35 days from the date of judgment, February 17, and thus not within the 30 day period allowed for making a motion for reconsideration This document was inadvertently misplaced, as Judge Fay noted in his November 16, 1970, ruling vacating the default. The Commissioner contended that the February 17, 1970, judgment became final and unappealable on May 18, 1970, and that the Tax Court was without jurisdiction on November 16, because the 90 day appeal time had expired to grant the taxpayer relief. The Tax Court adopted this view on March 31, 1971, and vacated its prior order, thereby reinstating the default judgment. Although courts must normally adhere to statutory commands of finality, such commands are normally read in the light of an overriding interest of correcting injustice whenever there is fraud on the court or the integrity of the judicial process or functioning has been undercut. We do not reach the finality question, however, since we think appellant’s March 24 letter, and particularly the last sentence quoted above, conveying intent to appeal if reconsideration was not possible, is fairly to be taken as a notice of appeal. As the Ninth Circuit noted in Yanow v. Weyerhaeuser S.S.Co., 274 F.2d 274, 282-283 (1959): There is a considerable body of authority indicating that in determining whether an attempted appeal has been accomplished, most informally drawn papers and improperly labeled documents have been held sufficient to accomplish the apparent objective of taking an appeal. . .• . The rationale of the cases relating to informal or irregular appeals is that notwithstanding the papers filed were inaptly worded, or labeled, or even failed to use the word “appeal”, or were filed in the wrong court, yet they sufficed to show the party intended to appeal. This approach, of treating the letter as a notice of appeal, is fortified by the background of this case; the dismissal would not have been entered but for the loss by the Tax Court of appellant’s response to the calendaring notice, and the somewhat selective answers of the Commissioner to the Tax Court’s inquiries regarding the status of the case. It is fair to assume that in view of appellant’s lack of ready availability for trial in the United States, the Tax Court would at least have recessed for inquiry whether this case might not proceed by stipulations, affidavits, or deposition. Under the view we have taken of this case, this court has before it not only an appeal from the Tax Court’s order of March 31, 1971, but also an appeal from the default of February 17, 1970. In light of appellant’s timely appeal of March 24, 1970, we vacate the judgment of February 17, 1970. The default judgment was entered on the basis of a record that was misleading to the trial judge — because of the non-filing of the letter sent to the Tax Court by appellant on November 4, 1969, and the selective presentation ' of IRS counsel — and its maintenance is not in the interest of justice, see 28 U.S.C. § 2106. Reversed and remanded for further proceedings. So ordered. . Rule 27(b), United States Tax Court Rules of Practice (hereinafter TCRP) provides; Report Calendars. On a calendar specifically set for the purpose or on a trial calendar, and after due notice of the time and place given to the parties by the Clerk, any cause at issue may be listed and called, first, for report as to whether the case is to be tried or otherwise disposed of, and if the latter, to report on its status, and second, if it is to be tried, for report on the current status of preparations for trial, particular reference being given to the requirements of Rule 31(b) [which relates to stipulations]. . The proposed dates for trial and the Status Order dates are as follows: April 1, 1968 by Order of October 2, 1967; December 2, 1968 by Order of May 20, 1968; and June 16, 1969 by Order of December 10, 1968. . Up until the termination of his government job, appellant regularly came to the United States during the summer on vacations paid for by the government. As can be seen from the dates proposed for trial, note 2, supra, a summer date was only proposed in the third Order. The June 16, 1969 date was not acceptable since appellant was not entitled to take another paid vacation to the United States until 1970. . Rule 27 (c), TCRP, provides : Trial Calendars (1) Each case, when at issue, will be placed upon a calendar for trial in accordance with Rule 26 [relating to Place of Trial; request and designation] and the Clerk, not less than 90 days in advance unless otherwise authorized by the Chief Judge, will notify the parties of the place where and the time when it will be called. . There is no reference in the record that this notice was ever received, though the records of the Tax Court indicate that it was sent to appellant’s old address. . The taxpayer had attempted at an earlier stage in the litigation to negotiate a set of stipulations but the Commissioner had not cooperated. . Additional notice was supplied to the Tax Court of this fact since the taxpayer sent copies of his correspondence with the Commissioner to the Court. If these letters had been on file, Judge Fay would have been alerted to the fact that the reply to the Status Report was missing. . The Government agreed to drop a deficiency claim against petitioner’s former wife. . See pp. 8-9 Tr. of Hearing, Feb. 26, 1971, where Judge Fay stated: [the] Court was not aware of what was in the record. And the Court, so to speak, in a blind way entered a decision. Without all the facts before it. The facts which were available to the Court —and I entered an order to dismiss. And then, some time subsequent thereto, it came to my attention that there was a document in the Court’s file, or it should have been in the Court’s file. . . . It wasn’t the fault of the taxpayer. It was the fault of the Court. And, the Court without that document would not have entered the decision that was entered. . Judge Fay did not specifically refer to the fact that appellant had not filed a response to the Status Report within the 80 day time period. But in a prior response to a proposed trial date, when appellant exceeded the time limit set, due to constant travel requirements, his trial date was rescheduled. . The Tax Court’s Rules of Practice do not provide that notice of default judgment be served upon the defaulting party. Any possible issue of due process that might be raised in this regard is not reached here due to the view we take of this case. Suffice it to say, that ordinarily a taxpayer will be advised of the probability of default judgment being entered, if he does not appear for trial, in the required trial notice, which Mr. Pasternack never received. It was, therefore, a fortuity that he was so advised by the Commissioner, who had no obligation to perform that act. . Rule 61, TCRP. . Rule 19(e) provides: No motion for retrial, further trial or reconsideration may be filed more than 30 days after the opinion has been served, except by special leave. Although appellant mailed his response within the 30 day period, this was not timely under Treasury Regulation on Procedure and Administration, 301.7502-1-(c) (ii) (1972) which provides that timely filing is governed by the date of receipt in the case of a letter bearing a foreign postmark. . Order of the Tax Court, Docket No. 6081-66, November 10, 1970. . 26 U.S.C. § 7483 (Supp.1972). . See Denholm & McKay Co. v. Commissioner, 132 F.2d 243 (1st Cir. 1942). . Kenner v. C.I.R., 387 F.2d 689, 691 (7th Cir. 1968). . Greater Boston TV Corp. v. FPC, 149 U.S.App.D.C. 322, 463 F.2d 268, 278 (1971). . See Rule 30, TCRP, which provides for Submission Without Trial or Appearance, and Rule 31, which provides for Stipulations. . The November 16, 1970 and March 31, 1971, Tax Court orders were entered on the assumption that appellant’s March 24, 1970, letter was only a motion to vacate. Since in our view it is also properly taken as a notice of appeal, and the February 17, 1970, default judgment must be vacated, we need not give further consideration to the subsequent orders of the Tax Court.

f2d_478/html/0594-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

YALE BROADCASTING COMPANY et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. No. 71-1780. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 24, 1972. Decided Jan. 5, 1973. Mr. Tracy A. Westen, Washington, D. C., with whom Mr. Eric H. Smith, Washington, D. C., was on the brief, for petitioners. Mr. Joseph A. Marino, Associate Gen. Counsel, F. C. C., with whom Messers. John W. Pettit, Gen. Counsel, R. Michael Senkowski, Counsel, F. C. C., and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief, for respondents. Mr. John H. Conlin, Associate Gen. Counsel, F. C. C. at the time the record was filed, also entered an appearance for respondent, F. C. C. Before DANAHER, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges. WILKEY, Circuit Judge: The source of this controversy is a Notice issued by the Federal Communications Commission regarding “drug oriented” music allegedly played by some radio stations. This Notice and a subsequent Order, the stated purposes of which were to remind broadcasters of a pre-existing duty, required licensees to have knowledge of the content of their programming and on the basis of this knowledge to evaluate the desirability of broadcasting music dealing with drug use. Appellant, a radio station licensee, argues first that the Notice and the Order are an unconstitutional infringement of its First Amendment right to free speech. In the alternative, appellant contends that they impose new duties on licensees and must, therefore, be the subject of rulemaking procedures. Finally it is argued that the statements’ requirements are impermissibly vague and that the FCC has abused its discretion in refusing to clarify its position. Finding none of these arguments of the licensee valid, we affirm the action of the FCC. 1. Substance of the First and Second Notices In the late 1960’s and early 1970’s the FCC began receiving complaints from the public regarding alleged “drug oriented” songs played by certain radio broadcasters. In response to these complaints the Commission issued a Notice, the stated purpose of which was to remind broadcasters of their duty to broadcast in the public interest. To fulfill this obligation licensees were told that they must make “reasonable efforts” to determine before broadcast the meaning of music containing drug oriented lyrics. The Notice specified that this knowledge must be in the possession of a management level executive of the station, who must then make a judgment regarding the wisdom of playing music containing references to drugs or the drug culture. This initial Notice led to substantial confusion within the broadcast industry and among the public. Confusion centered around the meaning of phrases such as “knowing the content of the lyrics,” “ascertain before broadcast,” and “reasonable efforts.” In order to clarify these ambiguities, the FCC issued a second Memorandum and Order clarifying and modifying certain parts of the original Notice. The thrust of this Order was that (1) the Commission was not prohibiting the playing of “drug oriented” records, (2) no reprisals would be taken against stations that played “drug oriented” music, but (3) it was still necessary for a station to “know” the content of records played and make a “judgment” regarding the wisdom of playing such records. II. Interpretation of the Definitive Order Many of appellant’s fears and arguments stem from the apparent inconsistencies between the Notice and the subsequent Order. It is quite clear, however, that the Order “constitutes the Commission’s definitive statement” regarding broadcaster responsibility.^.To the ex-' tent that the two are inconsistent or confused, we treat the Notice, as we believe the Commission intends, as superseded by the Order. Reference to the Commission’s requirements is to those established by the Order. Once the Order is taken as definitive, it becomes fairly simple to understand what the FCC asks of its licensees. The Order recognizes the gravity of the drug abuse problem in our society. From this basis, the Order proceeds to remind broadcasters that they may not remain indifferent to this severe problem and must consider the impact that drug oriented music may have on the audience. The Commission then makes the common sense observation that in order to make this considered judgment a broadcaster must “know” what it is broadcasting. The Commission went to great lengths' to illustrate what it meant by saying that a broadcaster must “know” what is being broadcast. The Order emphasizes that it is not requiring the unreasonable and that the Commission was “not calling for an extensive investigation of each. . . . record” that dealt with drugs. It also made clear that there was no general requirement to pre-screen records. The Commission in its Order was obviously not asking broadcasters to decipher every syllable, settle every ambiguity, or satisfy every conceivable objection prior to airing a composition. A broadcaster must know what he can reasonably be expected to know in light of the nature of the music being broadcast. It may, for example, be quite simple for a broadcaster to determine that an instrumental piece has little relevance to drugs. Conversely, it may be extremely difficult to determine what thought, if any, some popular lyrics are attempting to convey. In either case, only what can reasonably be understood is demanded of the broadcaster. Despite all its attempts to assuage broadcasters’ fears, the Commission realized that if an Order can be misunderstood, it will be misunderstood — at least by some licensees. To remove any excuse for misunderstanding, the Commission specified examples of how a broadcaster could obtain the requisite knowledge. A licensee could fulfill its obligation through (1) pre-screeing by a responsible station employee, (2) monitoring selections while they were being played, or (3) considering and responding to complaints made by members of the public. The Order made clear that these procedures were merely suggestions, and were not to be regarded as either absolute requirements or the exclusive means for fulfilling a station’s public interest obligation. Having made clear our understanding of what the Commission has done, we now take up appellant’s arguments seri-atim. III. An Unconstitutional Burden on Freedom of Speech Appellant’s first argument is that the Commission’s action imposes an unconstitutional burden on a broadcaster’s freedom of speech. This contention rests primarily on the Supreme Court’s opinion in Smith v. California, in which a bookseller was convicted of possessing and selling obscene literature. The Supreme Court reversed the conviction. Although the State had a legitimate purpose in seeking to ban the distribution of obscene materials, it could not accomplish this goal by placing on the bookseller the procedural burden of examining every book in his store. To make a bookseller criminally liable for all the books sold would necessarily “tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature . ” Appellant compares its own situation to that of the bookseller in Smith and argues that the Order imposes an unconstitutional burden on a broadcaster’s freedom of speech. The two situations are easily distinguishable. Most obviously, a radio station can only broadcast for a finite period of twenty-four hours each day; at any one time a bookstore may contain thousands of hours’ worth of readable material. Even if the Commission had ordered that stations pre-screen all materials broadcast, the burden would not be nearly so great as the burden imposed on the bookseller in Smith. As it is, broadcasters are not even required to pre-screen their maximum of twenty-four hours of daily programming. Broadcasters have specifically been told that they may gain “knowledge” of what they broadcast in other ways. A more subtle but no less compelling answer to appellant’s argument rests upon why knowledge of drug oriented music is required by the Commission. In Smith, knowledge was imputed to the purveyor in order that a criminal sanction might be imposed and the dissemination halted. Here the goal is to assure the broadcaster has adequate knowledge. Knowledge is required in order that the broadcaster can make a judgment about the wisdom of its programming. It is beyond dispute that the Commission requires stations to broadcast in the public interest. In order for a broadcaster to determine whether it is acting in the public interest, knowledge of its own programming is required. The Order issued by the Commission has merely reminded the industry of this fundamental metaphysical observation — in order to make a judgment about the value of programming one must have knowledge of that programming. We say that the licensee must have knowledge of what it is broadcasting; the precise understanding which may be required of the licensee is only that which is reasonable. No radio licensee faces any realistic possibility of a penalty for misinterpreting the lyrics it has chosen or permitted to be broadcast. If the lyrics are completely obscure, the station is not put on notice that it is in fact broadcasting material which would encourage drug abuse. If the lyrics are meaningless, incoherent, the same conclusion follows. The argument of the appellant licensee, that so many of these lyrics are obscure and ambiguous, really is a circumstance available to some degree in his defense for permitting their broadcast, at least until their meaning is clarified. Some lyrics or sounds are virtually unintelligible. To the extent they are completely meaningless gibberish and approach the equivalent of machinery operating or the din of traffic, they, of course, do not communicate with respect to drugs or anything else, and are not within the ambit of the Commission’s order. Speech is an expression of sound or visual symbols which is intelligible to some other human beings. At some point along the scale of human intelligibility the sounds produced may slide over from characteristics of free speech, which should be protected, to those of noise pollution, which the Commission has ample authority to abate. We not only think appellant’s argument invalid, we express our astonishment that the licensee would argue that before the broadcast it has no knowledge, and cannot be required to have any knowledge, of material it puts out over the airwaves. (We can understand that' the individual radio licensees would not be expected to know in advance the content or the quality of a network program, or a free flowing panel discussion of public issues, or other audience participation program, and certainly not a political broadcast. But with reference, to the broadcast of that which is frequently termed “canned music,” we think the Commission may require that the purveyors of this to the public make a reasonable effort to know what is in the “can.” No producer of pork and beans is allowed to put out on a grocery shelf a can without knowing what is in it and standing back of both its content and quality. The Commission is not required to allow radio licensees, being freely granted the use of limited air channels, to spew out to the listening public canned music, whose content and quality before broadcast is totally unknown. Supposedly a radio licensee is performing a public service — that is the raison d’etre of the license. If the licensee does not have specific knowledge of what it is broadcasting, how can it claim to be operating in the public interest? Far from constituting any threat to freedom of speech of the licensee, we conclude that for the Commission to have been less insistent on licensees discharging their obligations would have verged on an evasion of the Commission’s own responsibilities. By the expression of the above views we have no desire whatsoever to express a value judgment on different types of music, poetry, sound, instrumentation, etc., which may appeal to different classes of our most diverse public. “De gus-tibus non est disputandum.” But what we are saying is that whatever the style, whatever the expression put out over the air by the radio station, for the licensee to claim that it has no responsibility to evaluate its product is for the radio station to abnegate completely what we had always considered its responsibility as a licensee. All in .all, and quite unintentionally, the appellant-licensee in its free speech argument here has told us a great deal about quality in this particular medium of our culture. IV. The Requirement of Rulemaking We turn next to appellant’s contention that the Commission in its Order has imposed a new duty on the broadcasting industry. If the FCC were indeed imposing a new duty on its licensees, its action should be subject to the public debate and scrutiny of rulemaking proceedings. If the Commission is simply reminding broadcasters of an already existing duty, rulemaking is not required. We conclude that the stated purpose and the actual result of the Commission’s Notice and Order was to remind the industry of a pre-existing duty. The basis for this pre-existing duty has existed since the early days of government regulation of the airways. The most thorough articulation of this duty was given in the Commission’s 1960 Program Policy Statement wherein it said: Broadcast licensees must assume responsibility for .alb-material which is broadcast through Their facilities. This includes all programs and advertising material which they present to the public. . . . This duty is' personal to the licensee and may not] be delegated. He is obligated to bring his positive responsibility affirmatively to bear upon all who have a hand in providing broadcast material for transmission through his facilities so as to assure the discharge of his duty to provide acceptable program schedule consonant with operating in the public interest in his community. This 1960 Statement and the Order challenged here are remarkably similar. Both require the broadcaster to assume responsibility for what is broadcast, that the broadcaster actively exercise his judgment in pursuit of this responsibility, and that this exercise of judgment result in programming that is in the public interest. The only real difference between the 1960 Statement and the Order under attack is that the Order (1) deals with programming as it relates to drugs rather than programming generally, and (2) specifically states that a broadcaster must have “knowledge” of what he is programming. There is a long-standing Commission policy of reminding licensees of their responsibility in a particular area whenever there appears to be licensee indifference. A notice quite similar to the one challenged here was issued with respect to foreign language broadcasting. There, a Commission inquiry had revealed that many licensees were carrying foreign language broadcasts without having any familiarity with the foreign language. Broadcasters were accordingly advised: Licensee responsibility requires that internal procedures be established and maintained to insure sufficient familiarity with the foreign language to know what is being broadcast and whether it conforms to the station’s policies and to the requirements of the Commission’s rules. Failure of licensees to establish and maintain such control over foreign language programming will raise serious questions as to whether the station’s operation serves the public interest. In addition to this example, the Commission has reminded broadcasters of their obligations in a number of other specific situations It is entirely reasonable for the Commission to issue “reminders” referring to specific areas when such problems exist. The Commission need not content itself with repeating general policy statements when the general policy is being violated in a very specific way. It is much more logical for the Commission to point out the specific problem and then illustrate how the general policy applies in the particular situation. It is likewise irrelevant that the current Order requires broadcasters to “know” what they are programming. Such a requirement imposes no new burden upon the broadcasting industry. Indeed, the requirement that the licensees broadcast in the public interest necessitates some sort of knowledge on their part. Undoubtedly, the only reason the Commission stressed the point in the Order was because of certain broadcasters’ absurd contention that they either did not or could not know what they were broadcasting. As we noted in Part III, it cannot be argued that no knowledge has ever been required of broadcasters. In its less extreme form appellant’s contention seems to be that, although some form of knowledge has always been required, the Notice and Order impose a much greater burden of knowledge on the broadcasting industry than has previously existed. This argument is baseless. The requisite degree of knowledge is not absolute but, rather, is quite liberal. Indeed, a licensee could not do less than is asked and still fulfill its obligation to broadcast in the public interest. In sum, the main thrust of the Commission’s earlier Notice and of its later Order is that whether a song presents the banal observations of a moon-struck adolescent, resembles two enraged alley cats fighting in a garbage can, or contains the subtle reflections of a master poet, a licensee may not broadcast ignorant of the content of his programming. V. Asserted Vagueness Perhaps the most strenuously urged and least meritorious of appellant’s arguments are based upon the contention that the Commission’s Order is imper-missibly vague. From this common starting point, appellant argues (1) that the Order is unconstitutionally vague, or (2) that the Order is so vague that the Commission abused its discretion in refusing to clarify it. A. It is indisputable that generally the Government may not draw a line between permissible and impermissible speech in such an unclear and imprecise manner that “men of common intelligence must necessarily guess at its meaning and differ as to its application.” We shall assume for the moment that this standard applies with full force to the broadcast industry. Even under this standard the Commission’s Order is not unconstitutionally vague. In fact, the Commission has done an admirable job of explaining the nature and degree of knowledge expected of broadcasters. As illustrated in Part II of this opinion, this court has no difficulty understanding what the Commission expects of its licensees. Removed from appellant’s obfuscation, the structure, purpose and requirements of the Order are quite clear. First, the Order defines what it is attempting to achieve. Secondly, it provides three examples of ways a broadcaster may attain this goal. Thirdly, the Order does not forbid a broadcaster from attaining the goal by another means. Thus the Or-~A der avoids the constitutional infirmity of vagueness by providing explicit ways for a broadcaster to meet its requirements while simultaneously avoiding ov-erbreadth by not limiting compliance to l the methods specified. B. A second argument based on the alleged vagueness of the Order is that the Commission has abused its discretion in failing to clarify the nature of its requirements. Specifically, appellant charges that the Commission abused its discretion in declining to issue a declaratory judgment on the acceptability of its proposed plan for complying with the Notice. It is clearly within the discretion of the Commission to issue a Declaratory Order on a licensee’s proposal. It is equally clear, however, that the Commission is not required to issue such a declaratory statement merely because a broadcaster asks for one. There are over 7,500 radio stations in this country. If the Commission were required to pass upon, approve or disapprove, the methods of operations of each of these stations, the administrative task would be enormous. This disinclination to rule here is in accord with the Commission’s long standing policy of refusing to issue interpretative rulings or advisory opinions whenever the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them. An administrative agency should not be compelled to issue a clarifying statement unless its failure to do so can be shown to be a clear abuse of discretion. Here the Commission could reasonably conclude that it had said enough and that the rest was up to the “licensee’s individual responsibility for programming.” We will not, therefore, compel the Commission to issue a ruling on appellant’s proposed plan for compliance. VI. Conclusion In spite of the horrendous forebodings which brought appellant into court the fact is that appellant has recently had its license renewed. Likewise, there has been no showing or suggestion that the standard enunciated in the Order has been employed to deny any license to a broadcaster. If such a denial does occur and can be shown to be unfair or due to a misapplication of the Commission’s own guidelines (as described in Part II of our opinion), then redress may be sought in the courts. Until that time, appellant might commit its energies to the simple task of understanding what the Commission has already clearly said, rather than instituting more colorful but far less fruitful actions before already heavily burdened federal courts. For the reasons given above, the action of the Federal Communications Commission is Affirmed. ON MOTION FOR REHEARING EN BANC Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges. PER CURIAM. The motion for rehearing en banc initiated by a member of the Court in regular active service is denied, 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). Separate Statement by Chief Judge BAZELON as to why he would grant rehearing en banc, sua, sponte. BAZELON, Chief Judge: This litigation concerns a series of directives issued by the Federal Communications Commission in 1971 which advised the nation’s broadcasters that they were expected to exercise “responsibility” in regard to the playing of “drug-oriented” popular records. The petitioners argued that the impact of the Commission’s rulings was indirect censorship of these songs. The panel of this court which heard the case decided that the Commission’s statements merely reiterated a traditional Commission policy — that broadcast licensees must “assume responsibility for all material which is broadcast through their facilities”. After reviewing the panel decision, I moved for rehearing of the case en banc. The panel opinion found that the language of the Commission’s directives does not purport to censor popular songs. But that language can only be understood in the light of the Commission’s course of conduct. The Commission’s initial statement in the area of “drug-oriented” songs was a “Public Notice” issued on March 5, 1971. 5The Notice, entitled “Licensee Responsibility to Review Records Before Their Broadcast”, did not specifically prohibit the playing of particular songs. But broadcasters might well have read it as a prohibition. For one thing, two members of the Commission, including the member reported to be the originator of the Notice, appended to it a formal statement explaining that their goal was to “discourage, if not eliminate, the playing of records which tend to promote and/or glorify the use of illegal drugs.” Five weeks after the Notice was issued, the Commission’s Bureau of Complaints and Compliance provided broadcasters the names of 22 songs which had come to its attention as “so-called drug-oriented song lyrics.” The Commission’s action was reported by responsible organs of the press as an act of censorship. It appears that radio stations moved quickly to ban certain songs. In some cases stations stopped playing, regardless of subject or lyric, all the works of particular artists whose views might lift the Commission’s eyebrow. Broadcasters circulated the list of 22 songs throughout the industry as a “do not play” list. The Commission's subsequent “Memorandum Opinion and Order”, issued on April 16, 1971, and designated by the Commission as its “definitive statement” on the subject, appeared to backtrack somewhat. The Order repudiated the list of 22 songs. It stated that the evaluation of which records to play “is one solely for the licensee”, and that “[t]he Commission cannot make or review such individual licensee judgment.” But the Commission’s order went further. Instead of rescinding the Public Notice, the Order restated its basic threat: “the broadcaster could jeopardize his license by failing to exercise licensee responsibility in this area.” As we have recognized, “licensee responsibility” is a nebulous concept. It could be taken to mean — as the panel opinion takes it — only that “a broadcaster must ‘know’ what it is broadcasting.” On the other hand, in light of the earlier Notice, and in light of the renewed warnings in the Order about the dangers of “drug-oriented” popular songs, broadcasters might have concluded that “responsibility” meant “prohibition”. The Commissioners themselves were unclear on the matter. The Order expressed full adherence to the policy of the prior Notice. But two Commissioners issued concurring statements indicating that the Order restored the status quo prior to the March 5 Notice. A third Commissioner issued a dissenting statement indicating that the Order did not restore the status quo. A fourth Commissioner issued a rather enigmatic statement indicating his agreement with both the Notice and the Order but observing that they established an “impossible assignment.” The confusion was crystallized later in 1971 in Congressional testimony by FCC Chairman Burch. At one point, the Chairman offered this assurance: Chairman Burch: . . . [Cjontrary to Commissioner Johnson’s statement that we banned drug lyrics, we did not ban drug lyrics. . Moments later, however, the following ensued: Senator Nelson: All I am asking is: If somebody calls to the FCC’s attention that a particular station is playing songs that, in fact, do promote the use of drugs in the unanimous judgment of the Commission; if you came to that conclusion, what would you do ? Chairman Burch: I know what I would do, I probably would vote to take the license away. This court is the primary forum for judicial review of broadcast licensing regulation, jin reviewing the Commis-t sion’s actions' nwteifflmcal areas — e. g. ¡dicing broadcasters’ mechanical opera-ons and interference between stations -we must accord great deference to its ¡eisions. But no such deference is due cases involving the Commission’s >ublic interest” regulation of program intent. It is the “power to specify aterial which the public interest re-lires or forbids to be broadcast that .rries the seeds of the general author-y to censor. . . ” Courts have a jecial responsibility to protect First Amendment rights and a special expertise for doing so. In NAACP v. Button, Mr. Justice Brennan observed that “precision of regulation must be a touchstone” in the area of freedom of expression. There is no precision here. The Commission’s chameleon-like directives reflect the spectrum from confusion to deliberate obfuscation. The court must look to the impact of these directives, not merely their language. Such review is all the more necessary where the Commission’s directives are couched in code words for license renewal such as “public interest” or “licensee responsibility”. Seven years ago, a member of the Commission explained : ¡Talk of “responsibility” of a broad-Í caster in this connection is simply a euphemism for self-censorship. It is an attempt to shift the onus of action against speech from the Commission to the broadcaster, but it seeks the same ^result — suppression of certain views \nd arguments. Since the imposition of the duty of such “responsibility” involves Commission compulsion to perform the function of selection and ex-elusion and Commission supervision of the manner in which that function is performed, the Commission still retains the ultimate jpower to determine what is and what is not permitted on the air. Judge (now Chief Justice) Burger found this reasoning to be “unanswerable.” Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App.D.C. 146, 148, 403 F.2d 169, 171 (1968). In the differing circumstances of this case, that reasoning might be answerable. But the court cannot abdicate its responsibility to face the question. The panel opinion indicates that the present challenges to the Commission’s directives are premature; that the Commission’s final sanction is denial of a license, and until that sanction is imposed, the petitioners cannot demonstrate any harm from the Commission’s actions. Opposed to this viewpoint is the often recognized principle that the threat of legal sanction can have as much effect on the conduct of threatened parties as the sanction itself. If that principle applies here, as petitioners argue, then there is a judicially cognizable injury as soon as broadcasters begin to alter their programming to avoid governmental reprisal. This case presents several other questions of considerable significance: Is the popular song a constitutionally protected form of speech ? Do the particular songs at which these directives were aimed have a demonstrable connection with illegal activities? If so, is the proper remedy to “discourage or eliminate” the playing of such songs? Can the FCC assert regulatory authority over material that could not constitutionally be regulated in the printed media ? Clearly, the impact of the Commission’s order is ripe for judicial review. And, on that review, it would be well to heed Lord Devlin’s recent warning: If freedom of the press [or freedom of speech] perishes, it will not be by sudden death. . It will be a long time dying from a debilitating disease caused by a series of erosive measures, each of which, if examined singly, would have a good deal to be said for it. . There are actually two major Federal Communications Commission actions involved in this dispute. The first is a Public Notice, 28 F.C.C.2d 409 (1971). The second is a Memorandum Opinion and Order, 31 F.C.C.2d 377 (1971). The sole purpose of the second item mentioned above was to clarify and modify the Public Notice. . Public Notice, 28 F.C.C.2d 409 (1971). . Memorandum Opinion and Order, 31 F.C.C.2d 377 (1971). . In its Memorandum and Order, the FCC noted that its initial Notice had been widely misconstrued. The Commission then said: [I]t follows that where a notice is so erroneously depicted, we should appropriately call attention to the error. We do so in this Memorandum and Order. While it adheres fully to the above noted established policy of licensee responsibility, this opinion treats the matter in greater detail and this constitutes the Commission’s definitive statement in this respect. 31 F.C.C.2d at 378. . “Clearly, in a time when there is an epidemic of illegal drug use — when thousands of young lives are being destroyed by use of drugs like heroin, methedrin (“speed”), cocaine — the licensee should not be indifferent to the question of whether his facilities are being used to promote the illegal use of harmful drugs.” IUd. . “The Commission did make clear in the Notice that the broadcaster could jeopardize his license by failing to exercise license responsibility in this area. Except as to broadcasts by political candidates, the licensee is responsible for the material broadcast over his facilities. The thrust of the Notice is simply that this concept of licensee responsibility extends to the question of records which may promote or glorify the use of illegal drugs. The licensee should know whether his facilities are being used to present again and again a record which urges youth to take heroin or cocaine— that it is a wonderful, joyous experience.” Id. at 379. . Id. at 380. . As noted below, the Commission made reference to methods of compliance other than pre-screening in the Memorandum and Order. In a subsequent Order the Commission explicitly disclaimed any intention of requiring pre-screening: We think it appropriate to point out, however, that petitioners’ repeated reference to a pre-screening requirement for each record is an erroneous interpretation of our April 16, 1971 order. Memorandum Opinion and Order, 81 F.C.C.2d 385, 386 n. 1 (1971). . “We recognized in the ADL case, supra, that imposition of any undue verification process ‘could significantly inhibit the presentation of controversial issue programming’ (6 F.C.C.2d at p. 386) ; cf. Washington Post v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966). That is equally so here. Therefore, what is required is simply reasonable and good faith attention to the problem. We wóuld conclude this aspect as we did in the prior Notice. Thus, here as in so many other areas, it is a question of responsible, good faith action by the public trustee to whom the frequency has been licensed. No more, but certainly no less is called for.” 31 F.C.C.2d 377, 380. . “Again, it may be desirable to proceed by analogy. Licensees instruct their employees that before presenting taped material containing questionable language (i. e., of an indecent or obscene nature), the matter should be brought to the attention of a responsible management official. . . . Further, while such material might be presented once in a series part of which has been screened and approved, its presentation is then picked up, either by complaint or station personnel, and a judgment made as to further presentation. So also here, disc jockeys could be instructed that where there is a question as to whether a record promotes the illegal drug usage, a responsible management official should be notified so he can exercise his judgment. It may be that a record which raises an issue in this respect is played once, but then the station personnel who have heard it will be in a position to bring it to the attention of the appropriate management official for his judgment.” Ibid. . See note 9, supra. . 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). . Id. at 153-154, 80 S.Ct. at 218. . See footnote 10, supra, and accompanying text. Appellant attempts to buttress its argument based on Smith by pointing to a number of cases that reject the contention that purveyors of public information are required to verify the truth of controversial statements. See Appellant’s Brief at 41-42. Those cases are even less relevant than Smith. They all involve fact situations in which obtaining the needed information would be most difficult or even impossible. . Cf. Noise Control Act of 1972, Pub.L. No. 92-574, 86 Stat. 1234 (1972). . Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 35, 447 F.2d 1201, 1204 n. 5 (1971). . See, e. g., KFKB Broadcast Association v. Federal Radio Commission, 60 U.S.App.D.C. 79, 81, 47 F.2d 670, 672 (1931). . Report and Statement of Policy re: Commission En Banc Programming Inquiry, 25 Fed.Reg. 7291, 7295, 30 R.R. 1902, 1912-1913 (1960). . Public Notice Concerning Foreign Language Programs, 9 P. & F. Radio Regs. 2d 1901 (1967). . Ibid. . See, e. g., Licensee Responsibility With Respect to the Broadcast of False, Misleading or Deceptive Advertising, FCC 61-1316 (November 7,1961). Appellant, in its reply brief, attempts to distinguish these examples by pointing out that they deal with unique facts and are based upon different legal theories than those involved in this case. This is true. We make use of these examples here, however, for the very limited purpose of illustrating that the Commission often draws attention to and makes statements regarding specific areas of licensee activity. . Appellant attempts to buttress its argument that the Order imposes a new duty by pointing to the widespread use of live and network programming. The argument is that since it is impossible to know prior to broadcast what is in those types of programs, the Notice must, if it requires any knowledge at all, impose a new duty. This argument ignores the fact that the Notice imposes no absolute requirement to pre-screen or know what a reCord says prior to broadcast. See footnote 8, supra. Pre-screening is merely one way that a broadcaster may fulfill its obligation. . Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). . See generally the discussion in Part II of the opinion. . “The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.” 5 U.S.C. § 554(e) (1970) (emphasis added). . “[I]n applying the public interest standard to programming, the Commission walks a tightrope between saying too much and saying too little. In most areas it has rbsolved this dilemma by imposing only general affirmative duties — e. g., to strike a balance between the various interests of the community, or to provide a reasonable amount of time for the presentation of programs devoted to the discussion of public issues. . . . Given [the Commission’s] long-established authority to consider program content, this general approach probably minimizes the dangers of censorship or pervasive supervision.” Banzhaf v. FCC, 132 U.S.App.D.C. 14, 27, 405 F.2d 1082, 1095 (1968). . See, e. g., Use of Broadcast Facilities by Candidates for Public Office, 24 F.C.C.2d 832, 885 (1970). . Banzhaf v. FCC, 132 U.S.App.D.C. 14, 27, 405 F.2d 1082,1095 (1968). . As to the nature of the broadcasters’ “responsibility”, see pp. 603, 604, infra. . Yale Broadcasting Co. v. FCC, at 599, 600, quoting Report and Statement of Policy re: Commission En Banc Programming Inquiry, 25 Fed.Reg. 7291, 7295, SO R.R. 1902, 1912-13 (1960). . Rule 35(a), Federal Rules of Appellate Procedure. This is — and should be — an unusual procedure. See, e. g., United States v. Sambro, 147 U.S.App.D.C. 75, 454 F.2d 918 (1971) (Statement of Chief Judge Bazelon) ; Southern Ry. Co. v. Lanham, 408 F.2d 348 (5th Cir. 1969) (dissent from denial of rehearing en banc). . 28 FCC 2d 409 (1971). . I. e., Cmr. Robert E. Lee; of. Week’s Profile, Broadcasting, May 3, 1971, p. 67. . 28 FCC 2d 410, 411 (1971). . In its subsequent Order, infra, the Commission reported that the 22 songs had been identified by the Department of the Army. Apparently the Commission conferred with military officials before issuing the initial Public Notice. 31 FCC 2d 79 (1971). The Commission did not consult with the Bureau of Narcotics and Dangerous Drugs. N.Y. Times, March 28,1971, p. 41, c 1. . See, e. g., headlines quoted at 32 FCC 2d 377 (1971) and N.Y. Times, March 7, 1971, p. 28, c. 3. . Joint App. at 87-88; see Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16, 77 (1972) (Chief Judge Bazelon dissenting) at 366 n. 60. . Joint App. at 148. . 32 FCC 2d 377 (1971). . Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169 (1968). . 32 FCC 2d 382 (1971) (Cmra, Bartley and H. Rex Lee). . id. at 386. (Cmr. Johnson). . Id. at 382 (Cmr. Wells). . Hearings on the Effect of the Promotion and Advertising of Over-the-counter Drugs on Competition, Small Business, and Health and Welfare of the Public, Before the Subcomm. on Monopoly of the Senate Select Comm, on Small Business, 92d Cong., 1st Sess., pt. 2 at 734-736 (1971). . Banzhaf v. FCC, 132 U.S.App.D.C. 14, 26, 405 F.2d 1082, 1094 (1968), cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). But we emphasize that our cautious approval [in Banzhaf] does not license the Commission to scan the airwaves for offensive material with no more discriminating a lens than the “public interest” or even the “public health”. 132 U.S.App.D.C. at 31, 405 F.2d at 1099. . Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). . 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). . See, e. g., Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971) ; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17L.Ed.2d 629 (1967) ; Bagget v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) ; cf. Laird v. Tatum, 408 U.S. 1, 12-13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ; Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32-33, 405 F.2d 1082, 1100-1101 (1968) cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). . Complaint of Anti-Defamation League of B’nai B’rith Against Station KYTM, 6 FCC 2d 385, 398. (Cmr. Loevinger, concurring). . CBS v. FCC, 316 U.S. 407, 414, 62 S.Ct. 1194, 86 L.Ed. 1563 (1941) ; see Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1098-1100 (1970) ; cf. the candid statement of Clay T. Whitehead, Director of Telecommunications Policy in the White House, as to why the threat of license removal is an effective means of program control: “The main value of the sword of Damocles is that it hangs, not that it drops. Once you take a guy’s license away, you no longer have any leverage against him.” The Washington Post, March 9, 1973, at p. A 17 col. 3. . Popular songs might be considered mere entertainment, or even noise pollution. Yale Broadcasting Co. v. FCC, at 598, 599. On the other hand, historians and sociologists have noted that the popular song has been an important medium of political, moral, and aesthetic expression in American life. Morison, Oxford History of the American People, xxiii-xxvii, 223, 238, 250, 399, 479, 634, 860, 917 (1965) ; Reich, The Greening of America, 242-251 (1971). . The only evidence in the record on this point is the statement of the Director of The Bureau of Narcotics and Dangerous Drugs expressing strong doubt that there is any connection between “drug-oriented song lyrics” and the use of drugs. The New York Times, March 28, 1971, p. 41, c. 1. See Banzhaf v. FCC, 132 U.S.App.D.C. 14, 31-32, 405 F.2d 1082, 1098-1099 (1968), cert. den. sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). Cf. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1973) (Marshall, J., dissenting) . . See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972) (Chief Judge Bazelon, dissenting) (application of the Fairness Doctrine). Unlike the “Fairness Doctrine” cases, there can be no assertion here that the chilling effect is incidental to providing access to the media for viewpoints that would contribute to a fuller debate on public issues. The question is thus presented whether the rationale of the “Fairness Doctrine”, or any other realities of the electronic media, warrant intrusion on broadcasters’ free speech rights in this case. . Quoted in remarks by Richard S. Salant, to the Boston Univ. School of Public Broadcasting, Boston, Mass. April 28, 1971.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

UNITED STATES of America v. James J. BROWN, Appellant. No. 24646. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 8, 1971. Decided Jan. 8, 1973. Rehearing Denied April 5, 1973. 'Mr. Jon P. Axelrod, Washington, D. C., with whom Mr. Norman Lefstein, Washington, D. C., was on the brief, for appellant. Mrs. Barbara A. Bowman and Karen E. Moore, Washington, D. C., also entered appearance for appellant. Mr. David G. Larimer, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee. Before DANAHER, Senior Circuit Judge, and WRIGHT and LEVEN-THAL, Circuit Judges. LEVENTHAL, Circuit Judge: Appellant was indicted on 8 counts of robbery, 11 of assault with a deadly weapon, and one count each of rape and carrying a pistol without a license. At a trial in 1969, without a jury, by Judge William B. Jones, he was acquitted by reason of insanity. Following that acquittal, appellant was given a hearing, pursuant to 24 D.C.Code § 301(d), as construed in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), to determine whether he was mentally ill and ought to be retained in custody in a mental hospital. He demanded a jury. The District Judge instructed the jury that the issue of mental illness vel non was to be determined by a preponderance of the evidence. The jury found appellant was mentally ill, and Judge Jones ordered appellant committed to St. Elizabeths Hospital until released in accordance with 24 D.C.Code § 301(e). This appeal followed. That preponderance standard was the one set forth in the Bolton opinion as applicable to this post-acquittal commitment proceeding. Appellant claims: (1) In view of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Due Process requires the reasonable doubt standard of proof in an involuntary civil commitment proceeding. (2) Equal Protection requires that proceedings to maintain detention of persons who have been acquitted of criminal charges by reason of insanity be governed by the same standard of proof as applies in proceedings for civil commitment of other mentally ill people who are thought to be dangerous. We find no error in the trial court’s instructions and we affirm. As to the standard of proof in an involuntary civil commitment proceeding, the pertinent statute provides that the court may order hospitalization or other treatment “if the court or jury finds that the person is mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty. . . .” D.C.Code § 21-545. That provision, and its predecessor, have been construed to require a showing by the party seeking civil commitment “by a preponderance of the evidence.” Lynch v. Overholser, 369 U.S. 705, 711, 714, 82 S.Ct. 1063, 1069, 8 L.Ed.2d 211 (1962); In re Alexander, 125 U.S.App.D.C. 352, 372 F.2d 925 (1967); Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 652 (1966). The claim that a reasonable-doubt standard is constitutionally requisite is based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Winship involved a juvenile delinquency proceeding brought under a New York statute defining delinquency as acts which, if done by an adult, would constitute a crime. Notwithstanding that juvenile court proceedings are styled “civil” by New York, as by most other states, the Court held that the elements of due process would not be substantially different from those pertaining to the criminal process, because in either case, the risks connected with being wrong would be much the same; a substantial and involuntary deprivation of liberty combined with the odium of a stigma upon one’s good name. Justice Harlan’s concurring opinion expatiated on the reasons for a higher standard of proof in criminal (and delinquency) eases than in civil cases, why the nature of the issues makes a difference in terms of requisite burden of proof. We acknowledge that a substantial contention can be made that the elements of detention and “stigma” involved in involuntary commitment to a mental hospital by civil process, and the nature of the issues of mental illness and likelihood of dangerousness to self or others, requires that these issues be proved by a standard greater than the “bare” preponderance of evidence standard applicable in an ordinary civil action between two private persons. However, it may be that where the issue involved is not the occurrence of an event, but the individual’s mental condition and propensity (“dangerousness”), society may fairly appreciate that if it is to combine realism with humanity and fairness it might sensibly adopt a standard like “clear and convincing evidence” — requiring more certitude than bare “preponderance of evidence” but not quite as much as “beyond a reasonable doubt.” In Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Court held that banishment by a deportation order could not permissibly be accomplished with the same “preponderance” standard as is applicable to negligence cases, but the Court did not require the same standard of proof as a criminal proceeding and instead fashioned the intermediate standard of “clear, unequivocal, and convincing evidence.” 385 U.S. at 285, 87 S.Ct. 483. As the Court noted, this standard has been applied in civil cases involving allegations of particular significance. See also New York Times Co. v. Sullivan, 376 U.S. 254, 285-286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), where the Court held that “convincing clarity” is the constitutional standard requisite for a finding of malice justifying damages for a statement defaming a public official in regard to his official conduct. We entered an order suspending consideration of this case pending determination by the Supreme Court of cases that would, we thought, have resolved the constitutional requirement for civil commitment. The Supreme Court’s ultimate disposition left that issue unresolved. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). Reverting to the case before us, we now conclude that it is not necessary to determine that constitutional issue. Even assuming that a standard of persuasion higher than “preponderance” is mandated for involuntary civil commitment proceedings, it is not necessarily applicable as to the issue of commitment of a person who has successfully claimed the defense of insanity in a criminal proceeding. In Lynch v. Overholser, supra, Justice Harlan’s opinion, after noting the “elaborate procedural precautions included in the civil commitment provisions” pointed out that these did not necessarily apply to the person who successfully presses an insanity defense to a criminal proceeding. See 369 U.S. 705 at 715, 82 S.Ct. 1063 at 1069: The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed' is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successively invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision. Persons acquitted by reason of insanity have been determined to have been guilty, beyond a reasonable doubt of acts that impaired the safety of the community. They are in a different position, at least for some purposes, from persons who have not committed any such acts but are sought to be civilly committed solely because of dangers and propensities arising from mental condition. So much was acknowledged in Bolton v. Harris as a justification for commitment of the insanity-acquitted without the predicate required for civil commitment, without either a hearing or determination of present mental condition, for the period required in order to make a determination of present condition. Bolton also held that the difference between the two groups did not warrant continued holding of the insanity-acquitted without a judicial hearing. The soundness of this is undisputed, and indeed, as was noted in United States v. Brawner, 471 F.2d at 996, 997 was incorporated by Congress into the 1970 legislation (cited in note 3). Bolton further held that the procedures culminating in the judicial determination, after hearing, on continued detention vel non should be substantially similar to those in proceedings, under 21 D.C.Code § 545(b), for civil commitment of the dangerous mentally ill. No question arises as to this ruling, and the insanity-acquitted person has substantially all the procedural protection of 21 D.C.Code § 545, including provisions for examinations, notice, counsel, cross-examination, and jury trial. What appellant seeks is a decision that changes the Bolton ruling that on the issue of detention the burden is on the Government to prove present mental illness by a preponderance of the evidence. Appellant seeks that change on the ground that the Bolton opinion erroneously assumed that this was the standard for civil commitment. If there was such an erroneous assumption it was offset by another erroneous assumption that the standard on burden of proof must be the same for both groups. There is justification for the preponderance of proof standard for confinement of the insanity-acquitted even assuming a higher standard is required prior to civil commitment for propensity. We think this justification exists even though, at the same time, we would find no justification for denying the insanity-acquitted the right to jury trial that is recognized for those involved in civil commitment proceedings. The difference between the classes for purposes of burden of proof, is in the extent of possibility and consequence of error. If there is error in a determination of mental illness that results in a civil commitment, a person may be deprived of liberty although he never posed any harm to society. If there is a similar error in confinement of an insanity-acquitted individual, there is not only the fact of harm already done, but the substantial prospect that the same error, ascribing the quality of mental disease to a less extreme deviance, resulted in a legal exculpation where there should have been legal responsibility for the antisocial action. The matter now being discussed is suffused with the broad consideration that modern standards of the insanity defense, not restricted to those who do not know right from wrong, call for the acquittal of persons who “may have meaningful elements of responsibility.” And over and above the difficulty of situations where the issue of mental responsibility is doubtful, we cannot wholly ignore the danger of calculated abuse of the insanity defense, referred to in Lynch v. Overholser. Baxstrom v. Herold, does not cut across our analysis. It involved a New York statute law providing that a state prisoner, at the end of his sentence, could be civilly committed without the jury trial and hearing generally required prior to civil commitment. The Court said (at 111-112, 86 S.Ct. at 768): “For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.” Insofar as Baxstrom pertains to procedures, its spirit may be applicable to all persons in prison. But insofar as it may govern burden and standard of proof, it is limited to persons at the end of the penal term. Whatever protection can be available to society from detention of offenders has been achieved, and whatever additional protection is now needed because of present danger from mental illness must be sought from ex-convicts on the same basis as from non-convicts who are dangerous by reason of mental illness. In contrast, the insanity-acquitted present different considerations on the issue of burden of proof on detention. The clear implications of the foregoing analysis, and Baxstrom, require, however, that when the individual has been in detention for a considerable period of time, his continued detention vel non should be governed by the same standard of burden of proof as applies to civil commitments. The extent of that period calls for sound discretion, would take into account e. g., the nature of the crime (violent or not), nature of treatment given and response of the person, would generally not exceed five years, and should, of course, never exceed the maximum sentence for the offense, less mandatory release time. In the case before us that period of time has not been reached and the committal judgment of the District Court reflecting a determination based on preponderance of the evidence is sustained. We reiterate the holding of Bolton v. Harris on the preponderance standard, although we acknowledge some difference in underlying reasoning. Affirmed. J. SKELLY WRIGHT, Circuit Judge, dissenting: The majority opinion acknowledges that recent Supreme Court decisions may well require a higher standard of proof in ordinary civil commitment proceedings than “preponderance of the evidence.” I agree. But the majority holds that such a higher standard need not apply in proceedings to commit a person who has been found not guilty by reason of insanity. I believe the disparity in treatment sanctioned by the majority is logically untenable, rests on unsupportable policy grounds, and is in conflict with prior decisions of this court and the Supreme Court. Therefore, I respectfully dissent. In Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 651 (1968), this court held that persons acquitted of criminal charges by reason of insanity could not be civilly committed under 24 D.C.Code § 301(d) (1967) without being provided a judicial hearing with procedures “substantially similar” to those in ordinary civil commitment proceedings. These safeguards included a right to a judicial hearing on the issue of whether the defendant was presently dangerous as a result of mental illness, imposition of the burden of proof on the Government, trial by jury, and a right to counsel. Bolton relied heavily on this court’s earlier decision in Cameron v. Mullen, 128 U.S.App.D.C. 235, 243, 387 F.2d 193, 201 (1967), where we said that “while prior criminal conduct is relevant to the determination whether a person is mentally ill and dangerous, it cannot justify denial of procedural safeguards for that determination.” Both Bolton and Mullen were based on Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), where the Supreme Court held that New York’s statutory procedure permitting civil commitment of persons at the end of jail sentences without the jury trial safeguard afforded persons subject to ordinary civil commitment violated equal protection. The Court held that the fact of past criminal conduct lacked a sufficient connection with current mental illness to justify lesser procedural safeguards. “Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all.” Id. at 111, 86 S.Ct. at 763. (Emphasis in original.) The Court in Baxstrom further stated that “[a] person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all gemblance of rationality of the classification, purportedly based upon criminal propensities, disappears.” Id. at 115, 86 S.Ct. at 764. Bolton and Baxstrom stand for a basic proposition that a proven history of past dangerousness or illness, while certainly admissible in evidence, may not be used as an excuse to abrogate or change well recognized safeguards, including burden of proof, in civil commitment proceedings, or their equivalent, to determine present dangerousness or illness. The majority ignores this teaching of Bax-strom and Bolton. Moreover, my brethren fail to appreciate that acquittal by reason of insanity says precious little on the question whether a person presently suffers from mental illness. At most, an insanity acquittal means that at the time the charged crime was committed, which ordinarily would be months or sometimes years before the Section 301(d) hearing, there was a reasonable doubt that the defendant was free of such ah illness. Since a reasonable doubt as to sanity is hardly tantamount to a conclusion of mental illness, there may well be only the flimsiest relation between the Government’s failure to prove past capacity and current incapacity. Thus it can hardly be argued that the-prior acquittal, standing alone, has any necessary bearing as a factual matter on the mental illness finding to be made in the Section 301(d) hearing. Yet the thrust of the majority opinion is that appellant Brown’s prior acquittal must somehow skew the factual determination to be made in the current Section 301(d) hearing. As I have always understood the issue of burden of proof, the standard we adopt reflects our view as to the risk of error we are willing ¿to accept in our judgments. A heavy burden of proof in criminal cases, for example, reflects our belief that, given the consequences of conviction, only a minimal chance of error will be tolerated, that it is better to risk letting culpable defendants go free as the price of ensuring that those not culpable will be acquitted to the greatest extent possible. In civil commitment cases the majority seems prepared to concede that this logic —basically, our abhorrence of wrongful incarceration — dictates a greater burden of proof than “preponderance of evidence” as to the relevant issues of illness and dangerousness. But with respect to those acquitted of criminal charges by reason of insanity, my brethren pull back. They do this notwithstanding the teaching of Baxstrom and Bolton and in spite of the fact that the prior judgment of acquittal speaks in muted tones at best to the central question of current illness. The majority’s central proposition is that Brown should be treated differently because he has already been found to have committed a series of indisputably dangerous felonies. These acts are said to dictate lesser solicitude for his rights —as expressed through a burden of proof —than if he were sought to be committed before he was found to have committed such acts. But it should be obvious that these acts, standing alone, go only to the civil commitment standard of dangerousness, which Brown’s counsel has stipulated is not at issue, and not to the additional, central, question of mental illness. Yet the majority opinion is willing to accept the non sequitur that the admitted fact of dangerousness in the past must have a necessary bearing on the court’s finding on the question of illness in the present. The underlying justification for the majority’s acceptance of this illogic seems to be its fear that strengthening the burden of proof in Section 301(d) proceedings will cause wholesale release of persons acquitted of crimes by reason of insanity. This possibility, coupled with the fact that persons with “meaningful elements of responsibility” may be acquitted by reason of insanity, is said to raise the spectre that the insanity defense may be abused. While this argument has a superficial appeal, it clearly proves too much. For its logical import — a policy of relaxing constitutional safeguards in incarcerating those acquitted by reason of insanity — was rejected in Bolton where we held that mandatory civil commitment following a successful insanity defense was constitutionally unjustifiable and that the procedural safeguards used in ordinary civil commitment proceedings were required. No one will disagree that the imposition of the safeguards required by Bolton reduces the probability that all those acquitted by reason of insanity will be incarcerated. But in my judgment, Bax-strom precludes this court from overruling Bolton, even if a majority of its members were so inclined. Finally, in my view it is untenable to argue, as does the majority, that this disparity in burdens of proof is justifiable as a means of deterring frivolous insanity defenses. So long as the burden of proof rests on the Government in Section 301(d) proceedings, I doubt that defense counsel’s criminal trial strategy will be crucially affected by a necessarily speculative evaluation of his post-trial chances of dealing with one or another standard of proof. More important, it seems anomalous, to say the least, that this court, which has given such consistent recognition to the need for a carefully administered insanity defense, see, e. g., United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972) (en banc), should suddenly embrace such a roughhewn and very possibly useless means of restraining its use. It is doubtless true, as the majority suggests, that the insanity defense as it has been administered in this case, when coupled with the Bolton decision, might in theory give rise to a “revolving door” phenomenon whereby persons who have committed dangerous acts may be first acquitted by reason of insanity and next totally freed because of the Government’s inability to meet the standards of proof for civil commitment. But this problem of slippage is not eliminated by the disparity in burdens of proof endorsed by the majority. At best it is only reduced, and at the terrible price of incarcerating persons for a mental illness we are not sure they have. Bolton sought to place those acquitted by reason of insanity on the same footing as those haled before the court in ordinary civil commitment proceedings. I would continue to follow its teaching. Indeed, given Baxstrom, in my judgment we have no choice. I respectfully dissent. . Two issues are ordinarily presented: first, whether the subject is mentally ill; second, whether because of that mental illness, he will be likely to injure himself or others. 21 D.C.Code § 541(a). The “likely hazard” issue has been removed from this case by counsel’s stipulation that Mr. Brown is dangerous if the jury shall find that Brown is mentally ill. . See Tr. 250-251: It is provided by law that if you should find that the Government has established by a preponderance of the evidence the essential element, that the respondent is mentally ill, then in this case the Court may order the respondent’s hospitalization for an indeterminate period of time, or order such other alternative course of treatment as it believes will be in the best interests of the respondent or of the public. If, however, you should find that the Government has failed to establish by a preponderance of the evidence that the respondent is mentally ill, the Court may not order the respondent’s hospitalization or treatment, but will order the release of the respondent. . Bolton v. Harris, supra, 130 U.S.App.D.C. at 10, 395 F.2d at 652. We have no occasion to consider the changes subsequently wrought in § 301(d) by the D.C. Court Reform and Criminal Procedure Act of 1970, P.L. 91-358. . See 397 U.S. at 363-364, 90 S.Ct. at 1072: “The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose hi's liberty upon conviction and because of- the certainty that he would be stigmatized by the conviction. Accordingly, a' society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” . See 397 U.S. at 370-372, 90 S.Ct. at 1076: “ . . . [T]he reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’ “In a criminal case, on the other hand, we do not view the social dis-utility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-526 [78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460] (1958) : ‘There is always in litigation a margin of error, representing error in fact-finding, which both parties must take into account. Where one party has at stake an interest of transcending value— as a criminal defendant his liberty— this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.’ “In this context, . . . the requirement of proof beyond a reasonable doubt in a criminal case [is] bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” . Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis., 3-judge court, Oct. 18, 1972). . Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L. Rev. 1288, 1291 (1966) ; Comment, Due Process for All — Constitutional Standards for Involuntary Civil Commitment and Release, 34 U.Chi.L.Rev. 633, 654-59 (1967). . The Court cited as instances cases involving allegations of civil fraud, adultery, illegitimacy of a child born in wedlock, lost wills, oral contracts to make bequests. . Lynch v. Overholser, supra, 369 U.S. at 714, 82 S.Ct. 1063; Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 313, 281 F.2d 943, 948 (1960). The jury is routinely instructed: “If you find that the Government has failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense, you must find the defendant not guilty, and you should not consider any possible verdict relating to insanity.” United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, June 23, 1972, Appendix B. . 130 U.S.App.D.C. at 10, 395 F.2d at 651: “[A] reasonable application permits Subsection (d) to treat persons acquitted by reason of insanity differently from civilly committed persons to the extent that there are relevant differences between these two groups.” . In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465 (Cal.Sup.Ct. en banc, 1972). Tbe court, reviewing the authorities, held that defendants acquitted by reason of insanity represented a special and exceptional class, already involved in a determination that they endangered the public safety as a result of their mental condition, to be distinguished from the class of persons subject to civil commitment because of only potential danger. The court saw no basis for distinguishing between the insanity-acquitted, and those sought to be civilly committed, in terms of right to jury trial, but held that the stringent burden resting on the Government as- a condition of civil commitment did not apply to continuation of commitment of those who had established an insanity defense. We regard that principle as sound, without passing on the question whether we would extend it as far as the California procedure, where the burden of proof is placed on the defendant, to show by a preponderance of evidence that he was insane at the time of the offense (at the criminal trial), and that he recovered his sanity (in the proceeding to determine whether the post-trial commitment, for examination, should be extended into a continuing commitment). . Dixon v. Jacobs, 138 U.S.App.D.C. 319, 331-333, 427 F.2d 589, 601-603 (1970) (concurring opinion). . 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). . Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969). . See Dixon v. Jacobs, concurring opinion, supra, 138 U.S.App.D.C. at 331-333, 427 F.2d at 602-604. . Our judgment is without prejudice to a request for periodic examinations, such as are provided for in Bolton, or to a request, after an appropriate period, for determination, in line with the penultimate paragraph of our opinion, of whether further commitment can be justified under the standards pertinent to civil commitment of those dangerous by virtue of mental illness. . In re Winship, 397 U.S. 358, 361-368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt in criminal and juvenile cases) ; Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 282-286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (due process requires “clear, unequivocal, and convincing evidence” standard of proof in deportation cases). . This standard has been employed in this jurisdiction in civil commitment proceedings under 21 D.C.Code § 545(b) (1967) and 24 D.C.Code § 301(d) (1967). See Bolton v. Harris, 130 U.S.App.D.C. 1, 10 n. 50, 395 F.2d 642, 651 n. 50 (1968) ; In re Alexander, 125 U.S.App.D.C. 352, 354, 372 F.2d 925, 927 (1967). But the standard has been sharply criticized as too weak. See, e. g., Murel v. Baltimore City Criminal Court, 407 U.S. 355, 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972) (Mr. Justice Douglas, dissenting) ; Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288, 1291 (1966). And very recently a 3-judge District Court has ruled that a person may be civilly committed only upon proof beyond a reasonable doubt that he is mentally ill and dangerous. Lessard v. Schmidt, E.D.Wis., 349 F.Supp. 1078 (1972). . Shortly after Baxstrom, the New York Court of Appeals came to a conclusion similar to this court’s in Bolton. In People v. Dally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966), it held that continuing commitment of persons acquitted by reason of insanity required that the state grant the defendant the benefit of the same procedural' safeguards, jury trial in particular, as were granted all others civilly committed. It said, 19 N.Y.2d at 35, 277 N.Y.S.2d at 660, 224 N.E.2d at 92, that this equivalent procedural protection was required by the “spirit if not the express langu[a]ge of the Baxstrom decision.” . Bolton v. Harris, supra note 2, 130 U.S.App.D.C. at 8, 395 F.2d at 649. . See In re Winship, supra note 1, 397 U.S. at 371-372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (Mr. Justice Harlan, concurring) ; Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). . The changes made in § 301(d) by the D.O. Court Reform & Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473-668, while not relevant in this case, seriously alter the procedure for treatment of persons acquitted by reason of insanity. Under the new legislation, those acquitted by reason of insanity shall be committed to a hospital for the mentally ill and provided with a hearing within 50 days to determine whether they shall be released. In that hearing, unlike the hearing utilized in this case, the burden of proof is on the person confined to prove that he has recovered his sanity and will not in the reasonable future be dangerous to himself or others. See 24 D.C. Code § 301(d) (l)-(2) & (e) (Supp. V 1972). . Because of the ambiguous nature of the very concept of mental illness, see Washington v. United States, 129 U.S.App.D.C. 29, 31, 390 F.2d 444, 446 (1967), and its potentially “grab bag” quality, see Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 131, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (Mr. Justice Douglas, dissenting), it has been repeatedly recognized that endorsing a mild standard of proof in commitment cases can result in grave injustice. See Murel v. Baltimore City Criminal Court, supra note 2, 407 U.S. at 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Mr. Justice Douglas, dissenting) ; Note, supra note 2, 79 Harv.L.Rev. at 1291; cf. Lessard v. Schmidt, supra note 2.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

INTERNATIONAL HARVESTER COMPANY, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. GENERAL MOTORS CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. CHRYSLER CORPORATION, a Delaware Corporation, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. FORD MOTOR COMPANY, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. Nos. 72-1517, 72-1525, 17-1529, 72-1537. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 18, 1972. Decided Feb. 10, 1973. As Amended Feb. 12, 1973. Reuben L. Hedlund, of the Bar of the Supreme Court of Illinois, pro hac vice, by special leave of the Court, with whom Lawrence Gunnels, Chicago, 111., was on the brief for petitioner in No. 72-1517. Frederick M. Rowe, Washington, D. C., with whom Edward W. Warren, F. F. Hilder, Asst. Gen. Counsel, William L. Weber, Jr., Detroit, Mich., and Hammond E. Chaffetz, Washington, D. C., were on the brief for petitioner in No. 72-1525. John E. Nolan, Jr., Washington, D. C., with whom Robert E. Jordan, III, William G. Christopher, Michael J. Mai-ley, Richard H. Porter, Scott R. Schoen-feld, Washington, D. C., and Victor C. Tomlinson were on the brief for petitioner in No. 72-1529. Howard P. Widens, Washington, D. C., with whom Jay F. Lapin, William P. Hoffman, Jr., Gerald Goldman, Washington, D. C., were on the brief for petitioner in No. 72-1537. James A. Glasgow, Atty., Department of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark and Raymond N. Zagone, Attys., Department of Justice, were on the brief for appellee. Jerome Maskowski was on the brief for State of Michigan, amicus curiae. Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges. LEVENTHAL, Circuit Judge: These consolidated petitions of International Harvester and the three major auto' companies, Ford, General Motors and Chrysler, seek review of a decision by the Administrator of the Environmental Protection Agency denying petitioners’ applications, filed pursuant to Section 202 of the Clean Air Act, for one-year suspensions of the 1975 emission standards prescribed under the statute for light duty vehicles in the absence of suspension. I. STATEMENT OF THE CASE The tension of forces presented by the controversy over automobile emission standards may be focused by two central observations: (1) The automobile is an essential pillar of the American economy. Some 28 per cent of the nonfarm workforce draws its livelihood from the automobile industry and its products. (2) The automobile has had a devastating impact on the American environment. As of 1970, authoritative voices stated that “[ajutomotive pollution constitutes in excess of 60% of our national air pollution problem” and more than 80 per cent of the air pollutants in concentrated urban areas. A. Statutory Framework Congressional concern over the problem of automotive emissions dates back to the 1950’s, but it was not until the passage of the Clean Air Act in 1965 that Congress established the principle of Federal standards for automobile emissions. Under the 1965 act and its successor, the Air Quality Act of 1967, the Department of Health, Education and Welfare was authorized to promulgate emission limitations commensurate with existing technological feasibility. The development of emission control technology proceeded haltingly. The Secretary of HEW testified in 1967 that “the state of the art has tended to meander along until some sort of regulation took it by the hand and gave it a good pull. . . . There has been a long period of waiting for it, and it hasn’t worked very well.” The legislative background must also take into account the fact that in 1969 the Department of Justice brought suit against the four largest automobile manufacturers on grounds that they had conspired to delay the development of emission control devices. On December 31, 1970, Congress grasped the nettle and amended the Clean Air Act to set a statutory standard for required reductions in levels of hydrocarbons (HC) and carbon monoxide. (CO) which must be achieved for 1975 models of light duty vehicles. Section 202(b) of the Act added by the Clean Air Amendments of 1970, provides that, beginning with the 1975 model year, exhaust emission of hydrocarbons and carbon monoxide from “light duty vehicles” must be reduced at least 90 per cent from the permissible emission levels in the 1970 model year. In accordance with the Congressional directives, the Administrator on June 23, 1971, promulgated regulations limiting HC and CO emissions from 1975 model light duty vehicles to .41 and 3.4 grams per vehicle mile respectively. 36 Fed.Reg. 12,657 (1971). At the same time, as required by section 202(b) (2) of the Act, he prescribed the test procedures by which compliance with these standards is measured. Congress was aware that these 1975 standards were “drastic medicine,” designed to “force the state of the art.” There was, naturally, concern whether the manufacturers would be able to achieve this goal. Therefore, Congress provided, in Senator Baker’s phrase, a “realistic escape hatch”: the manufacturers could petition the Administrator of the EPA for a one-year suspension of the 1975 requirements, and Congress took the precaution of directing the National Academy of Sciences to undertake an ongoing study of the feasibility of compliance with the emission standards. The “escape hatch” provision addressed itself to the possibility that the NAS study or other evidence might indicate that the standards would be unachievable despite all good faith efforts at compliance. This provision was limited to a one-year suspension, which would defer compliance with the 90% reduction requirement until 1976. Under section 202(b)(5)(D) of the Act, 42 U. S.C. § 1857f-l(b) (5) (D), the Administrator is authorized to grant a one-year suspension only if he determines that (i) such suspension is essential to the public interest or the public health and welfare of the United States, (ii) all good faith efforts have been made to meet the standards established by this subsection, (iii) the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective date of such standards, and (iv) the study and investigation of the National Academy of Sciences conducted pursuant to subsection (c) of this section and other information available to him has not indicated that technology, processes, or other alternatives are available to meet such standards. The statute provides that an application for suspension may be filed any time after January 1, 1972, and that the Administrator must issue a decision thereon within 60 days. On March 13, 1972, Volvo, Inc., filed an application for suspension and thereby triggered the running of the 60 day period for a decision. 37 Fed.Reg. 5766 (March 21, 1972.) Additional suspension requests were filed by International Harvester on March 31, 1972, and by Ford Motor Company, Chrysler Corporation, and General Motors Corporation on April 5, 1972. Public hearings were held from April 10-27, 1972. Representatives of most of the major vehicle manufacturers (in addition to the applicants), a number of suppliers of emission control devices and materials, and spokesmen from various public bodies and groups, testified at the hearings and submitted written data for the public record. The decision to deny suspension to all applicants was issued on May 12, 1972. The Decision began with the statement of the grounds for denial: “ . . . I am unable, on the basis of the information submitted by the applicants or otherwise available to me, to make the determinations required, by section 202 (b) (5) (D) (i), (iii), or (iv) of the Act.” The EPA Decision specifically focused on requirement (iii) that: the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective date of such standards • • •> A Technical Appendix, containing the analysis and methodology used by the Administrator in arriving at his decision, was subsequently issued on July 27, 1972. B. Initial Decision of the Administrator The data available from the concerned parties related to 384 test vehicles run by the five applicants and the eight other vehicle manufacturers subpoenaed by the Administrator. In addition, 116 test vehicles were run by catalyst and reactor manufacturers subpoenaed by the Administrator. These 500 vehicles were used to test five principal types of control systems: noble metal monolithic catalysts, base metal pellet catalysts, noble metal pellet catalysts, reactor systems, and various reactor/catalyst combinations. At the outset of his Decision, the Administrator determined that the most effective system so far developed was the noble metal oxidizing catalyst. Additionally, he stated that the “most effective systems typically include: improved carburetion; a fast-release choke; a device for promoting fuel vaporization during warm-up; more consistent and durable ignition systems; exhaust gas recirculation; and a system for injecting air into the engine exhaust manifold to cause further combustion of unburned gases and to create an oxidizing atmosphere for the catalyst.” It was this system to which the data base was initially narrowed: only cars using this kind of system were to be considered in making the “available technology” determination. The problem the Administrator faced in making a determination that technology was available, on the basis of these data, was that actual tests showed only one car with actual emissions which conformed to the standard prescribing a maximum of .41 grams, per mile, of HC and 3.4 grams per mile of CO. No car had actually been driven 50,000 miles, the statutory “useful life” of a vehicle and the time period for which conformity to the emission standards is required. In the view of the EPA Administrator, however, the reasons for the high test readings were uncertain or ambivalent. Instead, certain data of the auto companies were used as a starting point for making a prediction, but remolded into a more useable form for this purpose. As the Administrator put it : Much of the data reports emissions measured by test procedures different from the 1975 Federal test procedure and requires conversion to the 1975 procedure by calculations which cannot be regarded as precise. Emission data was frequently submitted without an adequate description of the vehicle being tested, the emission control systems employed, or the- purpose of the test. The fuel and oil used in tests were not always specified. Adjustments made to components of the engine or emission control system were frequently made and seldom'fully explained. In most cases, tests were not repeated, even where results departed significantly from established trends, and little or no information was submitted to explain the diagnosis of failure, where test results showed poor results. Most important, only a few test cars were driven to 20,000 miles or more, and no vehicle employing all components of any applicant’s proposed 1975 control systems has yet been driven to 50,000 miles. In the face of these difficulties, analysis and interpretation of the data required assumptions and analytical approaches which will necessarily he controversial to some degree, (emphasis added) In light of these difficulties, the Administrator “adjusted” the data of the auto companies by use of several critical assumptions. First, he made an adjustment to reflect the assumption that fuel used in 1975 model year cars would either contain an average of .03 grams per gallon or .05 grams per gallon of lead. This usually resulted in an increase of emissions predicted, since many companies had tested their vehicles on lead-free gasoline. Second, the Administrator found that the attempt of some companies to reduce emissions of nitrogen oxides below the 1975 Federal standard of 3.0 grams per vehicle mile resulted in increased emissions of hydrocarbons and carbon monoxide. This adjustment resulted in a downward adjustment of observed HC and CO data, by a specified factor Third, the Administrator took into account the effect the “durability” of the preferred systems would have on the emission control obtainable. This required that observed readings at one point of usage be increased by a deterioration factor (DF) to project emissions at a later moment of use. The critical methodological choice was to make this adjustment from a base of emissions observed at 4000 miles. Thus, even if a car had actually been tested over 4000 miles, predicted emissions at 50,000 miles would be determined by multiplying 4000 mile emissions by the DF factor. Fourth, the Administrator adjusted for “prototype-to-production slippage.” This was an upward adjustment made necessary by the possibility that prototype cars might have features which reduced HC and CO emissions, but were not capable of being used in actual production vehicles Finally, in accord with a regulation assumed, as to substance, in the text of the Decision, but proposed after the suspension hearing, a .downward adjustment in the data readings was made on the basis of the manufacturers’ ability, in conformance with certification procedures, to replace the catalytic converter “once during 50,000 miles of vehicle operation,” a change they had not used in their testing. With the data submitted and the above assumptions, the Administrator concluded that no showing had been made that requisite technology was not available. The EPA noted that this did not mean that the variety of vehicles produced in 1975 would be as extensive as before. According to EPA, “Congress clearly intended to require major changes in the kinds of automobiles produced for sale in the United States after 1974” and there “is no basis, therefore, for construing the Act to authorizing suspension of the standards simply because the range of performance of cars with effective emission control may be restricted as compared to present cars.” As long as “basic demand” for new light duty motor vehicles was satisfied, the applicants could not establish that technology was not available For purposes of judicial review, the initial EPA decision rests on the technology determination. The Administrator did state: On the record before me, I do not believe that it is in the public interest to grant these applications, where compliance with 1975 standards by application of present technology can probably be achieved, and where ample additional time is available to manufacturers to apply existing technology to 1975 vehicles. (Emphasis added.) The statute apparently contemplates the possibility of an EPA denial of suspension for failure to meet criterion (i) of § 202(b)(5)(D) (“essential to the public interest”) even though criterion (iii) has been satisfied (“applicant has established that effective control technology . [is] not available”). It suffices here to say that the EPA’s 1972 “public interest” finding was obviously only a restatement of, and dependent on the validity of, the conclusion of a failure to satisfy standard (iii) by showing that effective control technology is not available. The Administrator also offered some “comments” on issues pertinent to the required “good faith” determination under standard (ii), as guidance to applications who might seek a one year suspension next year of the 1976 oxides of nitrogen standard. But he explictly disclaimed reaching that question in this proceeding. The thrust of his comment was to call into question the rigid “arms length” relationship structure which vehicle manufacturers imposed on their suppliers, as a source of a halter on progress in developing the required technology. C. This Court’s December 1972 Remand After oral argument to this court on December 18, 1972, in a per curiam order issued December 19, 1972, we remanded the record to the Administrator, directing him to supplement his May 12, 1972 decision by setting forth: (a) the consideration given by the Administrator to the January 1, 1972 Semiannual Report on Technological Feasibility of the National Academy of Sciences; and (b) the basis for his disagreement, if any, with the findings and conclusion in that study concerning the availability of effective technology to achieve compliance with the 1975 model year standards set forth in the Act. Our remand order was not intended to indicate that we had concluded that an EPA conclusion was required as to clause (iv> — concerning the evaluation based on the NAS study and other information (from sources other than applicants)— when the Administrator had determined under (iii) that the auto companies had not shown technology was not available. We were nevertheless troubled by arguments advanced by petitioners that the methodology used by the Administrator in reaching his conclusion, and indeed the conclusion itself, was inconsistent with that of the Academy. It was our view that if and to the extent such differences existed they should be explained by EPA, in order to aid us in determining whether the Administrator’s conclusion under (iii) rested on a reasoned basis. D. Supplement to the Decision of the Administrator Our remand of the record resulted in a “Supplement to Decision of the Administrator” issued December 30, 1972. The Administrator in his Supplement stated that “In general I consider the factual findings and technical conclusions set forth in the NAS report and in the subsequent Interim Standards Report dated April 26, 1972 . to be consistent with my decision of May 12, 1972.” The Report made by the NAS, pursuant to its obligation under 202(b)(5) (D) of the Clean Air Act, had concluded : “The Committee finds that the technology necessary to meet the requirements of the Clean Air Act Amendments for 1975 model year light-duty motor vehicles is not available at this time.” The Administrator apparently relied, however, on the NAS Report to bolster his conclusion that the applicants had not established that technology was unavailable. The same NAS Report had stated: the status of development and rate of progress made it possible that the larger manufacturers will be able to produce vehicles that will qualify, provided that provisions are made for catalyst replacement and other maintenance, for averaging emissions of production vehicles, and for the general availability of fuel containing suitably low levels of catalyst poisons. The Administrator pointed out that two of NAS’s provisos — catalytic converter replacement and low lead levels — had been accounted for in his analysis of the auto company data, and provision therefor had been insured through regulation. As to the third, “averaging emissions of production vehicles,” the Administrator offered two reasons for declining to make a judgment about this matter: (1) The significance of averaging related to possible assembly-line tests, as distinct from certification test procedure, and such tests had not yet been worked out. (2) If there were an appropriate assembly-line test it would be expected that each car’s emissions could be in conformity, without a need for averaging, since the assembly line vehicles “equipped with fresh catalysts can be expected to have substantially lower emissions at zero miles than at 4000 miles.” The Administrator also claimed that he had employed the same methodology as the NAS used in its Interim Standards Report, evidently referring to the use of 4000 mile emissions as a base point, and correction for a deteriorrtion factor and a prototype-production slippage factor. The identity of methodology was also indicated, in his view, by the fact the EPA and NAS both agreed on the component parts of the most effective emission control system. The Administrator did refer to the “severe driveability problems” underscored by the NAS Report, which in the judgment of NAS “could have significant safety implications,” stating that he had not been presented with any evidence of “specific safety hazard” nor knew of any presented to the NAS. He did not address himself to the issue of performance problems falling short of specific safety hazards. II. REJECTION OF MANUFACTURERS’ GENERAL CONTENTIONS We begin with consideration, and rejection, of the broad objections leveled by petitioners against EPA’s over-all approach. A. Future Technological Developments We cannot accept petitioners’ arguments that the Administrator’s determination whether technology was “available,” within the meaning of section 202(b) (5) (D) of the Act, must be based solely on technology in being as of the time of the application, and that the requirement that this be “available” precludes any consideration by the Administrator of what he determines to be the “probable” or likely sequence of the technology already experienced. Congress recognized that approximately two years’ time was required before the start of production for a given model year, for the preparation of tooling and manufacturing processes. But Congress did not decide — and there is no reason for us to do so — -that all development had to be completed before the tooling-up period began. The manufacturers’ engineers have admitted that technological improvements can continue during the two years prior to production. Thus there was a sound basis for the Administrator’s conclusion that the manufacturers could “improve, test, and apply” technology during the lead time period. ■ The petitioners’ references to the legislative history are unconvincing. None of the statements quoted in their briefs specifically states that “available” as used in the statute means “available in 1972.” There is even comment that points to a contrary interpretation. In any event, we think the legislative history is consistent with the EPA’s basic approach and evidences no ascertainable legislative intent to the contrary. While we reject the contention as broadly stated, principally by General Motors, we hasten to add that the Administrator’s latitude for projection is subject to the restraints of reasonableness, and does not open the door to “ ‘crystal ball’ inquiry.” The Administrator’s latitude for projection is unquestionably limited by relevant considerations of lead time needed for production. Implicit also is a requirement of reason in the reliability of the EPA projection. In the present case, the Administrator’s prediction of available technology was based on known elements of existing catalytic converter systems. This was a permissible approach subject, of course, to the requirement that any technological developments or refinements of existing systems, used as part of the EPA methodology, would have to rest on a reasoned basis. B. Claimed Bight of Cross-Examination Chrysler has advanced a due process claim based upon two principal features of the proceeding, the inability to engage in cross-examination and the inability to present arguments against the methodology used in the Technical Appendix of the Administrator, which served as a basis for his decision. The suspension provision of Section 202(b)(5)(D) does not require a trial type hearing. It provides: Within- 60 days after receipt of the application for any such suspension, and after public hearing, the Administrator shall issue a decision granting or refusing such suspension. First, this provision for a “public hearing” contrasts significantly with other provisions that specifically require an adjudicatory hearing. More importantly, the nonadjudicatory nature of the “public hearing” contemplated is underscored by the 60 day limit for a decision to be made. The procedure contemplated by Congress in its 1970 legislation must be appraised in light of its concern with “avoidance of previous cumbersome and time-consuming procedures,” see Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 234, 462 F.2d 846, 849 (1972). As to legislative history of this provision, the starting point is the provision in Senate Bill 4358: Upon receipt of such application, the Secretary shall promptly hold a public bearing to enable such manufacturer or manufacturers to present information relevant to the implementation of such standard. The Secretary, in his discretion, may permit any interested person to intervene to present information relevant to the implementation of such standard. This was dropped in conference, along with a provision permitting six months for a suspension decision. The resulting legislation both expedited the decision-making, and contemplated EPA solicitation of a wide range of views, from sources other than the auto companies, though the companies’ applications and presentation would surely be the focus of consideration. Underlying this approach of both shortening time for decision and enlarging input lies, we think, an assumption of an informative but efficient procedure without mandate for oral cross examination. In context, the “public hearing” provision amounts to an assurance by Congress that the issues would not be disposed of merely on written comments, the minimum protection assured by the Administrative Procedure Act for rule-making, but would also comprehend oral submissions of a legislative nature. These are required even for rule-making when “controversial regulations governing competitive practices” are involved. American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 317, 359 F.2d 624, 631 (en banc 1966), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966); Walter Holm & Co. v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009 (1971). Even assuming oral submission, in a situation where “general policy” is the focal question, a legislative-type hearing is appropriate. A complication is presented by the case before us in that the general policy questions became interfused with relatively specific technical issues. Yet within the context of a quasi-legislative hearing and the time constraints of the statute, we do not think the absence of a general right of cross-examination on the part of the companies was a departure from “basic considerations of fairness.” Walter Holm & Co. v. Hardin, supra, 145 U.S.App.D.C. at 354, 449 F.2d at 1016. Hearings ran for two weeks and a wide range of participants was included within the proceeding: manufacturers, vendors of the control devices and public interest groups. The auto companies were allowed to submit written questions to the Hearing Panel to be asked to various witnesses. Opportunity to prepare written questions is not as satisfactory to counsel as the opportunity to proceed on oral cross-examination, with questions that develop from previous answers. But examination on interrogatories has long been used in the law when necessary, albeit second best. And interrogatories to a live witness — often arranged in private lawsuits by use of a commission — avoid the peril of “canned” affidavits and counsel-assisted, or even counsel-drafted, responses to interrogatories. Their availability was a reasonable attempt by EPA to elicit the facts and at the same time cope with the time constraints. We do not think more was required. There was a meaningful opportunity to be heard. The specific nature of a “hearing” varies with circumstances. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), cited with approval in Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Whether particular attributes of forensic presentation are not only salutary but also mandatory must also depend on circumstances. The heft of the hearing problem, including the time constraints on decisions, convinces us that the assertion of a broad right of cross-examination cannot be successfully maintained. We distinguish between the assertion of a. broad right of cross-examination, such as that argued to this court, and a claim of a need for cross-examination of live witnesses on a subject of critical importance which could not be adequately ventilated under the general procedures. This is the kind of distinction that this court made in its en bane opinion in American Airlines v. CAB, supra, 123 U.S.App.D.C. at 318-319, 359 F.2d at 632-633. We see no principled manner in which firm time limits can be scheduled for cross-examination consistent with its unique potential as an “engine of truth” — the capacity given a diligent and resourceful counsel to expose subdued premises, to pursue evasive witnesses, to “explore” the whole witness, often traveling unexpected avenues. Given the variances in counsel, the reality that seasoning and experience are required even for trial judges who seek to avoid repetitive and undue cross-examination, the enhancement of difficulties encountered with the breadth of issues involved in a “public interest” proceeding, the fairly-anticipated problem of provision for redirect (and recross) and the interplay of different cross-examinations, there is not insignificant potential for havoc. What' is most significant is that these complications are likely to be disproportionate to the values achieved, in a proceeding focusing on technical matters where other techniques generally are sufficient to adduce the pertinent information- as to both what is known and unknown. In context, we consider that the technique, adopted by EPA, of pre-screen-ing written questions submitted in advance is reasonable and comports with basic fairness as the general procedure. This approach permits screening by the hearing officer so as to avoid irrelevance and repetition, permits a reasonable estimate of the time required for the questioning, and aids scheduling and allocation of available time among various participants and interests. The record reveals that the hearing officers did not propound the pre-submitted questions like robots; they were charged with conducting a hearing for the purpose of focusing information needed for decision, and they quite appropriately “followed up” on questions. We revert to our observation that a right of cross-examination, consistent with time limitations, might well extend to particular eases of need, on critical points where the general procedure proved inadequate to probe “soft” and sensitive subjects and witnesses. No such circumscribed and justified requests were made in this proceeding. C. Right To Comment on EPA Methodology A more serious problem, at least from the point of an informed decision-making process, is posed by the inability of petitioners to challenge the methodology of EPA at the hearing. In other contexts, it is commonplace for administrative proceedings to focus in detail on agency methodology, and such elucidation is salutary, of particular aid to a reviewing court. Again, however, we cannot ignore the problem of time. In part, EPA developed its methodology on the basis of submissions made by the companies at the hearings, as to the parameters of its various data. The requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions. Given the circumstances, we cannot hold the absence of the right to comment on the methodology a violation of the statute or due process, though such opportunity would certainly have been salutary. While the statute makes no express provision therefor, we assume that Congress contemplated a flexibility in the administrative process permitting the manufacturers to present to EPA any comments as to its methodology, in a petition for reconsideration or modification. However, this opportunity does not permit invocation of the doctrine of failure to exhaust administrative remedies as a bar to these appeals, for those petitions could not have affected or deferred the finality of the EPA decision or the time for seeking judicial review. The opportunity is noted to obviate any possibility that the law, or our comments, may be misunderstood to require a rigid procedure of prompt and unshakeable decision-making. Our own December remand requesting clarification of the Decision illustrates that while this statute imposes some unusual time restraints it does not jettison the flexibility and capacity of reexamination that is rooted in the administrative process. American Airlines v. CAB, supra, 123 U.S.App.D.C. at 319; 359 F.2d at 633. As matters have shaped up, the central technical issue on this appeal concerns the reliability of EPA’s methodology. While we do not say that the failure to provide reasonable opportunity to comment on EPA methodology invalidates the EPA Decision for lack of procedural due process, or similar contention, we must in all candor accompany that ruling with- the comment that the lack of such opportunity has had serious implications for the court given the role of judicial review. We shall subsequently develop the legal questions, primarily questions of EPA’s burden of proof, that arise with respect to EPA methodology. We preface these with admission of our doubts and diffidence. We are beset with contentions of petitioners that bear indicia of substantiality. Yet we have no EPA comment on the specific questions raised, apart from some discussion by counsel which is not an adequate or appropriate substitute. Our December 1972 remand opened the door to a candid discussion of these matters, but EPA fashioned a carefully limited response. The EPA might have indicated that it desired to take a fresh look at its methodology on the basis of petitioners’ criticisms, in which case, on an adaptation of the Smith v. Pollin, procedure, this court might have remanded the ease to the agency. This remand would come during the course of our judicial review and would not conflict with the 60-day statutory time limit for the hearing and decision on the applications for suspension. Indeed, the fact that the Administrator issued the Technical Appendix almost three months after his Decision, at a time when judicial review had already begun to run its course, indicates that the agency did not believe that agency consideration was frozen from the moment that the suspension decision was rendered, a view we approve. The EPA had latitude to continue further consideration even without requesting a court remand (under Smith v. Pollin) that would suspend judicial consideration. III. OVERALL PERSPECTIVE OF SUSPENSION ISSUE This case ultimately involves difficult issues of statutory interpretation, as to the showing required for applicants to sustain their burden that technology is not available. It also taxes our ability to understand and evaluate technical issues upon which that showing, however it is to be defined, must rest. At the same time, however, larger questions are at stake. As Senator Baker put it, “This may be the biggest industrial judgment that has been made in the United States in this century.” 116 Cong.Rec. 33,085 (1970). This task of reviewing the suspension decision was not assigned to us lightly. . It was the judgment of Congress that this court, isolated as it is from political pressures, and able to partake of calm and judicious reflection would be a more suitable forum for review than even the Congress. Two principal considerations compete for our attention. On the one hand, if suspension is not granted, and the prediction of the EPA Administrator that effective technology will be available is proven incorrect, grave economic consequences could ensue. This is the problem Senator Griffin described as the “dangerous game of economic roulette.” 116 Cong.Rec. 33,081 (1970). On the other hand, if suspension is granted, and it later be shown that the Administrator’s prediction of feasibility was achievable in 1975 there may be irretrievable ecological costs. It is to this second possibility we first turn. A. Potential Environmental Costs The most authoritative estimate in the record of the ecological costs of a one-year suspension is that of the NAS Report. Taking into account such “factors as the vehicle-age distribution among all automobiles, the decrease in vehicle miles driven per year, per car as vehicle age increases, the predicted nationwide growth in vehicle miles driven each year” and the effect of emission standards on exhaust control, NAS concluded that: . the effect on total emissions of a one-year suspension with no additional interim standards appears to be small. The effect is not more significant because the emission reduction now required of model year 1974 vehicles, as compared with uncontrolled vehicles (80 percent for HC and 69 percent for CO), is already so substantial. Other considerations may diminish the costs even further. There seems to be agreement that there are performance costs for automobiles in employing pollution control devices, even if the effects on performance cannot fairly be characterized as constituting safety hazards. The NAS Report summarized the problem, as follows: Three areas of vehicle performance are likely to be adversely affected by the 1975 emission control systems. These are fuel economy, vehicle-acceleration capability, and vehicle drive-ability (or ability to perform adequately in all normal operating modes and ambient conditions). The question in this context is not whether these are costs the consumer' should rightly bear if ecological damage is to be minimized, but rather the general effect on consumer purchasing of 1975 model year cars in anticipation of lower performance. A drop-off in purchase of 1975 ears will result in a prolonged usage of older cars with less efficient pollution control devices. If the adverse performance effect deterred purchasing significantly enough, resulting in greater retention of “older” ears in the “mix” of cars in use, it might even come to pass that total actual emissions (of all cars in use) would be greater under the 1975 than the 1974 standards. Many of the anticipated performance problems are traceable to the systems introduced to conform cars to control of nitrogen oxides to achieve prescribed 1975 standards, by use of exhaust-gas recycle (EGR). Such systems affect vehicle-acceleration capability because the power output for a given engine displacement, engine speed, and throttle setting is reduced. The NAS Report indicates that such systems could result in direct fuel-economy penalties of up to 12 percent compared with 1973 prototype vehicles. The NAS Report states that the effects of emission controls on vehicle driveability are difficult to quantify, but nevertheless makes the following qualitative evaluation: Driveability after a cold-engine start, and especially with cold ambient conditions, is likely to be impaired. To reduce HC and CO emissions during engine warmup, the choke is set to release quickly, and the fuel-air mixture is leaned out as early as possible after engine startup. Under these conditions, problems of engine stall, and vehicle stumble and hesitation on rapid acceleration, have been prevalent. The willingness of the consumer to buy 1975 model year cars may also be affected, to some degree, by the anticipated significant costs of pollution control devices. The problem is further bedeviled by the possibility that consumers albeit rightly assigned the cost burden of pollution devices, may seek to avoid that burden, however modest, and to exercise, at least in some measure, an option to use older cars. Again, this would have the thrust of increasing actual total emissions of cars in use. We may also note that it is the belief of many experts — both in and out of the automobile industry — that air pollution cannot be effectively checked until the industry finds a substitute for the conventional automotive power plant — the reciprocating internal combustion (i. e., “piston”) engine. According to this view, the conventional unit is a “dirty” engine. While emissions from such a motor can be “cleaned” by various thermal and catalytic converter devices, these devices do nothing to decrease the production of emissions in the engine’s combustion chambers. The automobile industry has a multi-billion-dollar investment in the conventional engine, and it has been reluctant to introduce new power plants or undertake major modifications of the conventional one. Thus the bulk of the industry’s work on emission control has focussed narrowly on converter devices. It is clear from the legislative history that Congress expected the Clean Air Amendments to force the industry to broaden the scope of its research — to study new types of engines and new control systems. Perhaps even a one-year suspension does not give the industry sufficient time to develop a new approach to emission control and still meet the absolute deadline of 1976. If so, there will be ample time for the EPA and Congress, between now and 1976 to reflect on changing the statutory approach. This kind of cooperation, a unique three-way partnership between the legislature, executive and judiciary, was contemplated by the Congress and is apparent in the provisions of the Act. The NAS estimated that there would be a small environmental cost to suspension of 1975 standards even if 1974 standards were retained, but further recommended intermediate standards that would dilute even such modest environmental cost The following table shows the various standards, and one put forward by Ford for 1975: Maximum emissions (grams per mile) HC CO 1974 standards ............ 3.4 39.0 Ford proposal ............. 1.6 19.0 NAS recommendation for Intermediate standards: No catalyst change..... 1.1 8.2 One catalyst change .... 0.8 6.3 1975 Standards............41 3.4 Our concern that the 1975 standards may possibly be counter-productive, due to decreased driveability and increased cost, is not to be extrapolated into a caution against any improvement, and concomitant reduction in permitted emissions. In such matters, as the NAS recommendation for interim standards implicitly suggests, a difference in degree may be critical, and the insistence on absolute 1975 standards, without suspension or intermediate level, may stretch for the increment that is essentially counter-productive. We also observe that Ford Motor Company is on record as to capability of greater emission controls, i. e., lower level of emissions, than those permitted for 1974 model year cars, and Ford proposed that, given certain regulatory assumptions, the Administrator adopt an interim standard of 1.6 gm/mi HC and 19.0 gm/mi CO levels, about one half those permitted for the 1974 model year cars. On balance the record indicates the environmental costs of a one-year suspension are likely to be relatively modest. This must be balanced against the potential economic costs — and ecological costs — if the Administrator’s prediction on the availability of effective technology is incorrect. B. Potential Economic Costs Theoretical possibility of industry shutdown If in 1974, when model year 1975 cars start to come off the production line, the automobiles of Ford, General Motors and Chrysler cannot meet the 1975 standards and do not qualify for certification, the Administrator of EPA has the theoretical authority, under the Clean Air Act, to shut down the auto industry, as was clearly recognized in Congressional debate. We cannot put blinders on the facts before us so as to omit awareness of the reality that this authority would undoubtedly never be exercised, in light of the fact that approximately 1 out of every 7 jobs in this country is dependent on the production of the automobile. Senator Muskie, the principal sponsor of the bill, stated quite clearly in the debate on the Act that he envisioned the Congress acting if an auto industry shutdown were in sight. The economic consequence of an approach geared to stringency, relying on relaxation as a safety valve A more likely forecast, and one which enlightens what influenced the EPA decision to deny the suspension, was articulated by George Allen, Deputy Assistant Administrator for General Enforcement and a member of EPA’s Hearing Panel: The problem really comes down to this: A decision has to be made next month, early next month. If the decision is to suspend the standards and adopt an interim standard . and in 1975 it turns out that technology exists to meet the statutory standard, today’s decision turns out to be wrong. * * * * * # If, on the other hand, a decision is made today that the standards cannot lawfully be suspended, and we go down to 1975 and nobody can meet the standard, today’s decision was wrong. In [the first] case, there is not much to do about the wrong decision; it was made, many people relied on it; it turns out the standard could have been met, but I doubt if we could change it. In the second case, if a wrong decision is made, there is probably a remedy, a re-application and a recognition by the agency that it is not technically feasible to meet the standards. You can correct the one; you probably can’t correct the other. Grave problems are presented by the assumption that if technical feasibility proves to be a “wrong decision” it can be remedied by a relaxation. Certain techniques available to the Administrator, through changes in the certification procedure, can be used in an even handed manner for all three auto companies to facilitate compliance with the 1975 standards. Already lower lead levels in fuel available for 1975 model year cars have been prescribed to increase the efficiency of the catalytic converter. Similarly certain changes in the regulatory system, through allowable maintenance and permitted change in the catalytic converter, have been made by EPA. These techniques work with reasonable impartiality as to the various auto companies. However, a relaxation of standards, and promulgation of an interim standard, at a later hour — after the base hour for “lead time” has been passed, and the production sequence set in motion — forebodes quite different consequences. The record before us suggests that there already exists a technological gap between Ford and General Motors, in Ford’s favor. General Motors did not make the decision to concentrate on what EPA found to be the most effective system at the time of its decision — the noble metal monolithic catalyst. Instead it relied principally on testing the base metal catalyst as its first choice system. In predicting that General Motors could meet the 1975 standards, EPA employed a unique methodological approach. Instead of taking emissions at 4000 miles of cars with preferred systems — with which none of the General Motors cars was equipped — and applying against this, adjustments for lead levels and deterioration, as had been done in the case of Ford and Chrysler, EPA took emissions at 4000 miles of GM cars which had no converters of any kind, and predicted how they would function with an Engelhard monolithic catalytic converter, based on auto manufacturers’ use of this device in a number of cars — principally Ford’s — when testing it for durability. In his Supplemental Decision the Administrator recognized that this was a departure from NAS methodology, stating : In its Interim Standards Report the National Academy recommended a methodology for predicting the emission levels achievable by manufacturers. This recommended methodology is the same methodology that was employed in the technical appendix to my decision in evaluating the test results of all manufacturers except General Motors. (Emphasis added.) The case is haunted by the irony that what seems to be Ford’s technological lead may operate to its grievous detriment, assuming the relaxation-if-necessary approach voiced by Mr. Allen, If in 1974, when certification of production vehicles begins, any one of the three major companies cannot meet the 1975 standards, it is a likelihood that standards will be set to permit the higher level of emission control achievable by the laggard. This will be the case whether or not the leader has or has not achieved compliance with the 1975 standards. Even if the relaxation is later made industry-wide, the Government’s action, in first imposing a standard not generally achievable and then relaxing it, is likely to be detrimental to the leader who has tooled up to meet a higher standard than will ultimately be required. In some contexts high achievement bestows the advantage that rightly belongs to the leader, of high quality. In this context before us, however, the high achievement in emission control results, under systems presently available, in lessened car performance — an inverse correlation. The competitive disadvantage to the ecological leader presents a forbidding outcome — if the initial assumption of feasibility is not validated, and there is subsequent relaxation — for which we see no remedy. C. Light Weight Trucks We now take up the serious contention of International Harvester (IH) that the EPA decision effectively rules out the production of 1975 model year IH light weight trucks and multi-purpose passenger vehicles (MPVs). This requires us to focus on the Administrator’s conception that the 1970 Clean Air Act envisioned restricting production of vehicles to that necessary to fill “basic demand.” The Administrator does not dispute International Harvester’s claim that it will not be able to produce the vehicles in question, and indeed the limited testing of one of its MPVs showed, even as evaluated by EPA methodology, that such standards could not be achieved. Yet a suspension was not granted, presumably for the reasons advanced by EPA to this court, that International Harvester was “required to alter the performance characteristics of its vehicles in the interest of meeting the 1975 emission standards.” The inability of IH vehicles to meet the standards seems accountable by the uses to which they are put, hauling large loads or towing heavy trailers. To serve this purpose vehicles must be designed with higher than normal axle ratios, thus requiring greater power from the engine and producing higher exhaust gas temperatures in order to attain any given speed. Therefore, for all practical purposes a redesign of performance characteristics will preclude the present uses to which IH vehicles are put. The Administrator, nonetheless, takes the position that International Harvester can be denied a suspension because he has found that “new car demand” will be satisfied by the production of the major auto companies, and thus apparently posits that the absence from the 1975 market of all light weight trucks and MPVs is fully consistent with the Act. We cannot agree. Section 202(b)(1) of the Act applies its drastic standards to 1975 models of “light duty vehicles.” It is our view that the legislative history reveals this term to mean “passenger cars.” In the Report of the Senate Committee on Public Works on S.4358, the Committee clearly distinguished between the automobile, which must “meet a rigid timetable and a high degree of emission control compliance,” and other vehicles, such as “trucks and buses and other commercial vehicles,” which are governed by a different authority to promulgate standards. At another point of the Senate Report, the legislative use of the term light duty vehicles, as interchangeable with passenger cars, is made even more clear; The authority provided in section 202 (a) would continue to be available to the [Administrator] to establish standards for light duty motor vehicles (passenger cars) during the period prior to and following the effective date of the standards established by subsection (b). References abound in Congressional debate to the same effect. This kind of legislative intent must be given priority, in interpreting this law, over any presumption of continuance of prior administrative definitions of this term or to the policy of upholding reasonable interpretations of statutes by administrative agencies in the absence of other discernible legislative intent. Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1967); Greater Boston Television Corp. v. FCC (I), 143 U.S.App.D.C. 383, 392, 444 F.2d 841, 850, cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). For the above reasons we cannot sustain the definition of “Light duty vehicle” as: any motor vehicle either designed primarily for transportation of property and rated at 6,000 pounds GVW or less or designed primarily for transportation of persons and having a capacity of 12 persons or less to the extent that it includes light weight trucks in the category that must meet the drastic emission reduction standards set for 1975 models. These light weight trucks will be governed by the standards duly promulgated by EPA for “trucks and buses and other commercial vehicles.” This is not to say that the modification of the “light duty vehicles” definition must exclude MPVs, which largely overlap in their usage with passenger cars. We merely hold the present regulation contrary to legislative intent. We have jurisdiction to decide this issue, even though the reasonableness of the regulation could be challenged in a separate proceeding in the District Court, because the validity of the regulation is a premise of the refusal to grant suspension. “It would be an empty and useless thing to review an order . . . based on a regulation the validity of which might be subsequently nullified.” Doe v. Civil Aeronautics Board, 356 F.2d 699, 701 (10th Cir. 1966). We decline the proposal of International Harvester, therefore, that only its vehicles be granted a suspension. Light weight trucks of other manufacturers, such as Ford, equally demonstrated an inability to comply with the 1975 standards. Under the view taken here, the light weight trucks of all manufacturers are properly exempted from the scope of “light duty vehicles.” This comports with competitive as well as statutory considerations, as the Administrator’s own brief delineates: If International Harvester is granted a suspension, it should be able to sell its vehicles at a lower cost than competitors who met the standards. This is so because International Harvester’s 1975 models would not include expensive catalytic devices to control emissions. Also the Company’s vehicles would probably perform better for the same reason. Thus, if suspension is granted, it is likely that International Harvester will gain a substantial competitive advantage over manufacturers who sacrificed the performance of their vehicles, and perhaps profits, in order to comply with the 1975 standards. Assuming light duty vehicles are defined by EPA to include MPVs a question may arise whether they are entitled-to a one-year suspension, for lack of feasibility, even though passenger vehicles generally should be denied a suspension. We shall not consider this question unless and until EPA has had an opportunity to address itself to the problems in the light of our opinion herein. D. The Issue of Feasibility Sufficient for Basic Auto Demand The foregoing conclusion is not to be misunderstood as amounting to an acceptance of another “basic demand” contention raised by the auto manufacturers. We are inclined to agree with the Administrator that as long as feasible technology permits the demand for new passenger automobiles to be generally met, the basic requirements of the Act would be satisfied, even though this might occasion fewer models and a more limited choice of engine types. The driving preferences of hot rodders are not to outweigh the goal of a clean environment. A difficult problem is posed by the companies’ contention that the production and major retooling capacity does not exist to shift production from a large number of previous models and engine types to those capable of complying with the 1975 standards and meeting the demand for new cars. The Administrator made no finding as to this problem. We believe the statute requires such a finding, explaining how the Administrator estimates “basic demand” and how his definition conforms to the statutory objective. The emission standards set for 1976 cannot be breached, since they represent an absolute judgment of Congress. But as to the decision on a one-year suspension, and the underlying issue of technological feasibility, Congress intended, we think, that the Administrator should take into account such “demand” considerations. A significant decrease in auto production will have a major economic impact on labor and suppliers to the companies. We have no reason to believe that “effective technology” did not comport within its meaning sufficient technology to meet a basic level of consumer demand. E. Balancing of Risks This case inevitably presents, to the court as to the Administrator, the need for a perspective on the suspension that is informed by an analysis which balances the costs of a “wrong decision” on feasibility against the gains of a correct one. These costs include the risks of grave maladjustments for the technological leader from the eleventh-hour grant of a suspension, and the impact on jobs and the economy from a decision which is only partially accurate, allowing companies to produce cars but at a significantly reduced level of output. Against this must be weighed the environmental savings from denial of suspension. The record indicates that these will be relatively modest. There is also the possibility that failure to grant a suspension may be counter-productive to the environment, if there is significant decline in performance characteristics. Another consideration is present, that the real cost to granting a suspension arises from the symbolic compromise with the goal of a clean environment. We emphasize that our view of a one year suspension, and the intent of Congress as to a one year suspension, is in no sense to be taken as any support for further suspensions. This would plainly be contrary to the intent of Congress to set an absolute standard in 1976. On the contrary, we view the imperative of the Congressional requirement as to the significant improvement that must be wrought no later than 1976, as interrelated with the” provision for one-year suspension. The flexibility in the statute provided by the availability of a one-year suspension only strengthens the impact of the absolute standard. Considerations of fairness will support comprehensive and firm, even drastic, regulations, provided a “safety valve” is also provided — ordinarily a provision for waiver, exception or adjustment, in this case a provision for suspension. “The limited safety valve permits a more rigorous adherence to an effective regulation.” WAIT Radio v. FCC, supra, 135 U.S.App.D.C. at 323, 418 F.2d at 1159. To hold the safety valve too rigidly is to interfere with the relief that was contemplated as an integral part of the firmness of the overall, enduring program. We approach the question of the burden of proof on the auto companies with the previous considerations before us. IV. THE REQUIRED SHOWING ON “AVAILABLE TECHNOLOGY” It is with utmost diffidence that we approach our assignment to review the Administrator’s decision on “available technology.” The legal issues are intermeshed with technical matters, and as yet judges have no scientific aides. Our diffidence is rooted in the underlying technical complexities, and remains even when we take into account that ours is a judicial review, and not a technical or policy redetermination, our review is channeled by a salutary restraint, and deference to the expertise of an agency that provides reasoned analysis. Nevertheless we must proceed to the task of judicial review assigned by Congress. The Act makes suspension dependent on the Administrator’s determination that: the applicant has established that effective control technology, processes, operating methods, or other alternatives are not available or have not been available for a sufficient period of time to achieve compliance prior to the effective data of such standards A. Requirement of Observed Data From Manufacturers Clearly this requires that the applicants come forward with data which showed that they could not comply with the contemplated standards. The normal rules place such a burden on the party in control of the relevant information. It was the auto companies who were in possession of the data about emission performance of their cars. The submission of the auto companies unquestionably showed that no car had actually been driven 50,000 miles and achieved conformity of emissions to the 1975 standards. The Administrator’s position is that on the basis of the methodology outlined, "he can predict that the auto companies can meet the standards, and that the ability to make a prediction saying the companies can comply means that the petitioners have failed to sustain their burden of proof that they cannot comply. B. Requisite Reliability of Methodology Relied on by EPA To Predict Feasibility Notwithstanding Lack of Actual Experience We agree with the Administrator’s proposition in general. Its validity as applied to this case rests on the reliability of his prediction, and the nature of his assumptions. One must distinguish between prediction and prophecy. See EDF v. Ruckelshaus, 142 U.S.App.D.C. 74, 89, 439 F.2d 584, 597 (1971). In a matter of this importance, the predictor must make a showing of reliability of the methodology of prediction, when that is being relied on to overcome this “adverse” actual test data of the auto companies. The statute does not contemplate use of a “crystal ball.” See National Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837 (1972). The Administrator, however, raises a different issue by contending that the companies, wholly aside from his methodology, did not submit sufficient evidence to enable him to make the required determination as to “available technology.” This goes to the standard rather than the burden of proof, and comes close to adoption of “beyond a reasonable doubt” as the required showing. Aside from a possible finding of bad faith, which the Administrator specifically eschews making, this position cannot stand. The companies came forward with all the data that there was to be had, and the Administrator did not specifically ask for more. Additionally, our perspective on the interests furthered by a sound EPA decision, and jeopardized by a “wrong decision,” are material to the issue of standard of proof. This is a situation where, as we have stated, the risks of an erroneous denial of suspension outweigh the risks of an erroneous grant. On the issue of burden of proof, the standard adopted must take into account the nature and consequences of risk of error. See In re Winship, 397 U.S. 358, 371-372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Mr. Justice Harlan, concurring); U. S. v. Brown, 155 U.S.App.D.C.—, 478 F.2d 606 (1973). This view of the standard of proof dictates the standard normally adopted in civil matters, a preponderance of the evidence. Our approach relates considerations of ecological and economic costs, dealt with above, to the legal issue of burden and standard of proof. Nominally the statute, in § 202(b)(5)(D), sets forth separate criteria as to “public interest,” in clause (i), and “available technology,” in clause (iii). But the assignment of the burden and standard of proof on “available technology” inescapably involves many of the same considerations as those involved in a “public interest” determination, and it would have been helpful to this court if the Administrator had expressly commented on the public interest in this connection. The underlying issue is the reasonableness and reliability of the Administrator’s methodology, for it alone offsets the data adduced by petitioners in support of suspension. It is the Administrator who must bear the burden on this matter, because the development and use of the methodology are attributable to his knowledge and expertise. When certain material “lies particularly within the knowledge” of a party he is ordinarily assigned the burden of adducing the pertinent information. This assignment of burden to a party is fully appropriate when the other party is confronted with the often-formidable task of establishing a “negative averment.” United States v. Denver & R.G.R. Co., 191 U.S. 84, 92, 24 S.Ct. 33, 48 L.Ed. 106 (1903). In the context of this proceeding, this requires that EPA bear a burden of adducing a reasoned presentation supporting the reliability of its methodology. C. Analysis of EPA Assumptions The multiple assumptions used by the Administrator in making his prediction are subject to serious doubts. The basic formula used to make the prediction that each of the manufacturers could meet the 1975 standards was based on 1975 certification requirements, so that in part it paralleled testing procedures which would be used in 1975 to certify automobiles for sale. The formula is: Four kinds of assumptions were used in making the 50,000 mile emission prediction: (1) regulatory, (2) engineering or scientific, (3) techniques of application of basic formula to particular companies, and (4) statistical reliability of the final prediction. 1. Regulatory assumptions First, EPA assumed that certain types of maintenance would have to be performed on 1975 model year cars, if its 50,000 miles emission predictions were to be meaningful. Subsequent to the issue of its Technical Appendix, a Proposed Rule Making formulated these requirements as part of 1975 certification procedure. This assumption was necessary because much of the data supplied by the companies was obtained from cars that were under rigid controls during testing. The problem with such maintenance assumptions is whether the ordinary driver will actually pay for this kind of maintenance just to reduce the emission levels of his automobile. It is one thing to build maintenance into the 1975 certification procedure, when fleet samples are durability tested. It is another to posit that such standards will be maintained, or are reasonably likely to be maintained, by consumers. A hard question is raised by the use of a methodological assumption without evidence that it will correspond to reality, or a reasonable and forthright prediction based on expertise. Secondly, the predicted emission level assumes that there will be one total replacement of the catalytic converter at some time after 25,000 miles. This entered into the formula as an adjustment to the predicted deterioration factor. The critical question is how much will the one replacement reduce emissions otherwise obtainable by use of a single catalyst. This relationship had to be assumed because manufacturers had not used catalytic converter replacements in their testing. The Administrator admitted that this factor was imprecise. Yet, in the ease of General Motors, the use of the assumed value of this factor was critical in allowing the Administrator to make a 50,000 mile emission prediction under the 1975 standards. The third regulatory assumption relates to the average lead level which will exist in gasoline available for 1975 model year cars. Lead levels in gasoline contribute to the levels of HC and CO both in terms of normal emission control achievable (the 4000 mile emission) and to the deterioration in emissions over time (deterioration factor). Thus, in the case of the Chrysler car used to predict conformity with the 1975 standards, a .03 lead in gasoline produced 4000 mile emissions of .27 grams HC and 1.51 CO, whereas a .05 level of lead resulted in .29 and 1.66 grams respectively. Similarly .03 lead produced a corrected deterioration factor of .67 HC and 1.5 CO, whereas a .05 level produced .73 HC and 1.65 CO. On December 27, 1972, a regulation was promulgated “designed to assure general availability by July 1, 1974, of suitable gasolines containing no more than .05 grams per gallon of lead. . ” It was the assumption of the Administrator that the .05 maximum would result in gas containing on the average .03 grams per gallon of lead. The discrepancy between the maximum and average is accounted for by the contamination of lead free gasoline from its point of production to its marketing outlet. Thus EPA will allow a maximum of .05 but anticipates that on the average fuel will be at .03. This assumption is, however, subject to testimony in the record indicating a difference between companies in their ability to achieve gasoline with a low lead level complying with the proposed regulation. Amoco said that its proposal for a .07 maximum “should result in effective lead levels of .02 to .03 grams of lead per gallon.” Texaco did not think it could deliver gas to service stations at a lead level below .07. We cannot resolve whether a differential ability really exists, but we also have no refinement and resolution by the EPA (as distinguished from the briefs of its counsel). We do not say this matter is a critical defect; still it leaves a residue of uncertainty that beclouds the EPA assumption of a .03 average, needed in its methodology to predict conformity with the 1975 standards. 2. Engineering and scientific assumptions Engineering or scientific assumptions are made in predicting 4000 mile emissions and deterioration factors, and we shall give separate consideration to each independent variable. a. The 4000 mile emission factor The use of 4000 mile emissions as a starting point is based on certification procedures. No challenge has been made to this mileage as a base point, largely because it appears that at this mileage the engine is broken in and emission levels are relatively stabilized. EPA decided to adjust raw data supplied, at least in the case of Ford and Chrysler, of emissions at 4000 miles to take account of a “Lead Adjustment Factor.” This was done because in most cases emissions data reflected fuels with a close to zero lead level which had been used by the manufacturers in their testing programs. Lead adjustment factor This Lead Adjustment Factor was calculated using only Ford cars, but the value of the factor was assumed to be the same in adjusting Chrysler 4000 mile emissions with this factor. The cars had been tested with a dynamometer, a type of test equipment used for laboratory testing of an engine. A measurement of the efficiency of the catalytic converter at the 4000 mile mark was the critical value which had to be obtained from the dynamometer since this would indicate what the proper lead adjustment factor would be. EPA assumed that 200 hours on the dynamometer corresponded to 4000 miles usage, based on a critical and contested EPA assumption that the tests were conducted at 1000 RPM. Petitioners claim that the high temperature readings on the dynamometer reflect a higher RPM, and hence that a testing below 200 hours corresponded to 4000 miles of use. EPA disputes the steps in that chain of reasoning, and argues that a higher temperature may be attributable not to a RPM in excess of 1000, but to a heavy load on the vehicle, and in the alternative contends that even if there was a RPM greater than 1000, the speed may not have increased, due to a shift in gear. The cause of higher than expected temperature readings cannot be ascertained from the record, and we are left with the alternative contentions of the parties. It is up to EPA, however, to support its methodology as reliable, and this requires more than reliance on the unknown, either by speculation, or mere shifting back of the burden of proof. b. Deterioration factor Methodological problems also existed with the calculation of the deterioration factor, which took account of possible deterioration in emission quality from 4000 miles to 50,000 miles. Different questions arose as to the calculation of this factor for Ford and Chrysler. In the case of Ford, the Administrator predicted that emissions would improve from 4000 to 50,000 miles, and arrived at a deterioration factor of less than l. He calculated average deterioration factors for Ford vehicles of .80 HC and .83 CO. This is to be compared with a deterioration factor of 2.5 used by NAS. The Administrator never explained why there should be no deterioration. Nor does EPA explain how this result can be squared with other data on Ford catalyst efficiencies, which was used in the case of the General Motors prediction, showing 50,000 mile catalyst efficiencies ranging from 21% to 53% for HC and 47% to 72% for CO. In the case of Chrysler, the deterioration factor was also calculated to be less than 1, but this figure was only arrived at after eliminating some data points from the emission measurement on the tested car #333, due to what EPA claimed were unrepresentative points resulting from non-catalyst malfunctions. Although it may be, as EPA argues here, that including the data points would still produce predicted 50,-000 emission levels in conformity with the 1975 standard, the fact remains that these data points were removed. Moreover, it is not apparent why one should ignore malfunctions of a car which contribute to high emissions, even if they are not malfunctions of the converter. Malfunctions of cars occur to some degree, and cars operating in 1975 will undoubtedly be subject to them. Lead adjustment factor A lead adjustment factor is applied to the deterioration factor, as well as to 4000 mile emissions. EPA estimated on the basis of the questionable Ford dynamometer data, that lead levels had no observable effect, which was contrary to industry testimony on the subject. The Administrator evidently had doubts as to the dependability of these results as well, and therefore assumed a 10% factor for lead adjustment. No explanation is given of the origins of this 10% figure. If the willingness to take some factor evidences distrust in the data, the question then becomes whether 10% is enough. 3. EPA methodology for General Motors In the case of General Motors an entirely different methodology from that used for Ford and Chrysler was employed. This was adopted due to limited testing by GM of noble metal catalysts. The methodology was to take the raw emission values produced by a GM car prior to catalyst treatment of any kind multiplied by a factor representing the efficiency of the catalyst, i. e., the percentage of a given pollutant that the catalyst converts to harmless vapor, in order to obtain the projected overall emission performance at 50,000 miles. These methods of" calculation were developed by the Administrator and were not used by NAS in their evaluation. The catalyst efficiency data were taken from Engelhard converters used principally on Ford cars and applied against the raw emissions of a General Motors engine. This assumed, with no explanation of the validity of such an assumption, that Engelhard catalysts will function as efficiently in General Motors cars as in those of Ford. A prediction was made on the basis of a hypothetical case. One cannot help be troubled by the adoption of this technique for General Motors. It was apparently recognized as at best a second best approach, in terms of the reliability of the prediction, or the same catalyst efficiency procedure would also have been used for Ford and Chrysler. 4. Statistical reliability of assumptions In this case the Administrator is necessarily making a prediction. No tests exist on whether this prediction is or is not reliable. It would, therefore, seem incumbent on the Administrator to estimate the possible degree of error in his prediction. The NAS, for example, said that the data of the manufacturers were subject to ± 20-30% margin of error, and this is separate from any margin of error that may be due to the various assumptions made by the Administrator. It is not decisive to say, as EPA argues in its brief, that this is just a matter of quality control in production. The first issue is whether the automobile built with rigid adherence to specifications will perform as predicted. The issue of quality control, whether cars will indeed be built in accordance with specifications, raises a separate and additional problem. The possibility of error must take into account that only 1 Ford car, 1 Chrysler car, and 1 hypothetical General Motors car form the foundation for predicted conformity with the 1975 standard. The Administrator would say that it is enough to validate the principle of the electric light bulb if only one is seen at work. But we do not yet have one that has worked; instead we have four predictions. Questions like these arise: (1) For how many different types of engines will these predictions be valid? (2) Does it make a difference that the tested cars were experimental and driven under the most controlled conditions? The best car analysis of EPA raises even further doubts when considered alongside the NAS Report which used 55 vehicles in arriving at its recommended interim standard. V. CONCLUSION AND DISPOSITION We may sensibly begin our conclusion with a statement of diffidence. It is not without diffidence that a court undertakes to probe even partly into technical matters of the complexity of those covered in this opinion. It is with even moré diffidence that a court concludes that the law, as judicially construed, requires a different approach from that taken by an official or agency with technical expertise. Yet this is an inescapable aspect of the judicial condition, though we stay mindful of the overarching consideration that a court’s role on judicial review embraces that of a constructive cooperation with the agency involved in furtherance of the public interest. A court does not depart from its proper function when it undertakes a study of the record, hopefully perceptive, even as to the evidence on technical and specialized matters, for this enables the court to penetrate to the underlying decisions of the agency, to satisfy itself that the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore the ascertainable legislative intent. In this case technical issues permeate the “available technology” determination which the Administrator made the focal point of his decision. In approaching our judicial task we conclude that the requirement of a “reasoned decision” by the Environmental Protection Agency means, in present context, a reasoned presentation of the reliability of a prediction and methodology that is relied upon to overcome a conclusion, of lack of available technology, supported prima faciely by the only actual and observed data available, the manufacturers’ testing. The number of unexplained assumptions used by the Administrator; the variance in methodology from that of the Report of the National Academy of Sciences, and the absence of an indication of the statistical reliability of the prediction, combine to generate grave doubts as to whether technology is available to meet the 1975 statutory standards. We say this, incidentally, without implying or intending any acceptance of petitioners’ substitute assumptions. These grave doubts have a legal consequence. This is customarily couched, by legal convention, in terms of “burden of proof.” We visualize the problem in less structured terms although the underlying considerations, relating to risk of error, are related. As we see it the issue must be viewed as one of legislative intent. And since there is neither express wording or legislative history on the precise issue, the intent must be imputed. The court must seek to discern and reconstruct what the legislature that enacted the statute would have contemplated for the court’s action if it could have been able to foresee the precise situation. It is in this perspective that we have not flinched from our discussion of the economic and ecological risks inherent in a “wrong decision” by the Administrator. We think the vehicle manufacturers established by a preponderance of the evidence, in the record before us, that technology was not available, within the meaning of the Act, when they adduced the tests on actual vehicles; that the Administrator’s reliance on technological methodology to offset the actual tests raised serious doubts and failed to meet the burden of proof which in our view was properly assignable to him, in the light of accepted legal doctrine and the intent of Congress discerned, in part, by taking into account that the risk of an “erroneous” denial of suspension outweighed the risk of an “erroneous” grant of suspension. We do not use the burden of proof in the conventional sense of civil trials, but the Administrator must sustain the burden of adducing a reasoned presentation supporting the reliability of EPA’s methodology. EPA’s diligence in this proceeding, fraught with questions of statutory interpretation, technical difficulties and burdensome time constraints placed on the decision-making process, has been commendable. The agency was presented with a prickly task, but has acted expeditiously to carry out what it perceived to be a drastic mandate from Congress. This statute was, indeed, deliberately designed as “shock treatment” to the industry. Our central difference with the Administrator, simply put, stems from our view concerning the Congressional intent underlying the one year suspension provision. That was a purposeful cushion —with the twin purpose of providing “escape hatch” relief for 1975, and thus establishing a context supportive of the rigor and firmness of the basic standards slated for no later than 1976. In our view the overall legislative firmness does not necessarily require a “hard-nosed” approach to the application for suspension, as the Administrator apparently supposed, and may indeed be furthered by our more moderate view of the suspension issue, particularly in assigning to the Administrator the burden of producing a reasoned presentation of the reliability of his methodology. This is not a matter of clemency, but rather a benign approach that moderates the “shock treatment” so as to obviate excessive and unnecessary risk of harm. Our decision is also responsive to the differences between the EPA decision and the NAS Report. Although in some instances “the factual findings and technical conclusions” are consistent with those of the Administrator, the NAS conclusion was that technology was not available to meet the standards in 1975. Congress called on NAS, with presumed reliance on the knowledge and objectivity of that prestigious body, to make an independent judgment. The statute makes the NAS conclusion a necessary but not sufficient condition of suspension. While in consideration of the other conditions of suspension, EPA was not necessarily bound by NAS’s approach, particularly as to matters interlaced with policy and legal aspects, we do not think that it was contemplated that EPA could alter the conclusion of NAS by. revising the NAS assumptions, or injecting new ones, unless it states its reasons for finding reliability — possibly by challenging the NAS approach in terms of later-acquired research and experience. These factors combine to convince us that, under our view of Congressional intent, we cannot affirm the EPA’s denial of suspension as stated. That is not necessarily to assume, as at least some petitioners do, that the EPA’s process must be brought to nullity. The procedures followed in this case, whether or not based on rulings that were “mistaken” when made, have resulted in a record that leaves this court uncertain, at a minimum, whether the essentials of the intention of Congress were achieved. This requires a remand whereby the record as made will be supplemented by further proceedings. In the interest of justice, see 28 U.S.C. § 2106, and mutual regard for Congressional objective, the parties should have opportunity on remand to address themselves to matters not previously put before them by EPA for comment, including material contained in the Technical Appendix filed by EPA in 1972 subsequent to its Decision. It is contemplated that, in the interest of providing a reasoned decision, the remand proceeding will involve some opportunity for cross-examination. In the remand proceeding — not governed by the same time congestion as the initial Decision process — we require reasonable cross-examination as to new lines of testimony, and as to submissions previously made to EPA in the hearing on a proffer that critical questions could not be satisfactorily pursued by procedures previously in effect. There is, however, still need for expedition, both by virtue of our order and the “lead time” problem, and the EPA may properly confine cross-examination to the essentials, avoiding discursive or repetitive questioning. Following our suggestion in Environmental Defense Fund, Inc. v. EPA, 150 U.S.App.D.C. 348, 465 F.2d 528 (1972), the Administrator may consider possible use of interim standards short of complete suspension. The statute permits conditioning of suspension on the adoption, by virtue of the information adduced in the suspension proceeding, of interim standards, higher than those set for 1974. We cannot grant petitioners’ request that this court order a suspension since determinations which Congress made necessary conditions of suspension, as to the public interest and good faith, have not been made by the Administrator. The Administrator’s decision did not reach these questions and accordingly we must remand for further consideration. The initial requirement that an EPA decision on the suspension, aye or nay, be made within 60 days of the application, obviously does not preclude further consideration following remand by the court. In the interest of justice, 28 U.S.C. § 2106, and the Congressional intention that decisions be made timely in the light of considerations of “lead time” for 1975 model year production, we require the suspension deliberations by EPA to be completed within 60 days. The Administrator’s decision on remand must, of course, be consistent with our legal rulings herein— including the need for redefinition of light duty vehicles, and promulgation of an appropriate regulation. Since our. disposition on remand requires a public interest determination, it disposes of the claim of petitioner Chrysler that the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., requires that an impact statement be filed by the Administrator pursuant to a suspension decision. The purpose of NEPA is to assure presentation to Congress and the public of the environmental impact of executive action. Here Congress has already decided that the environmental dangers require the statutory standards. The only executive decision is of a one year deferral, and the very stuff of such a decision, at least with a public interest determination, is to assess, inter alia, the environmental consequences of action and inaction. NEPA’s objective will be fully served. As we stated in National Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837 (1972), the requirements of NEPA should be subject to a “construction of reasonableness.” Although we do not reach the question whether EPA is automatically and completely exempt from NEPA, we see little need in requiring a NEPA statement from an agency whose raison d’etre is the protection of the environment and whose decision on suspension is necessarily infused with the environmental considerations so pertinent to Congress in designing the statutory framework. To require a “statement,” in addition to a decision setting forth the same considerations, would be a legalism carried to the extreme. In conformance to the Congressional contemplation of expedition, and our responsibilities as an appellate court, we further require that the Administrator render a decision, on the basis of the best information available, which extends to all the determinations which the statute requires as a condition of suspension. We do not preclude further consideration of the question of “available technology,” especially if developments in the art provide enlightenment. Last but not least, especially in view of Ford’s submission and the NAS Report concerning interim standards, we reiterate that the EPA’s determination may consist of a conditional suspension that results in higher standards than an outright grant of applications for suspension. The case is remanded for further proceedings not inconsistent with this opinion. BAZELON, Chief Judge (concurring in result): Socrates said that wisdom is the recognition of how much one does not know. I may be wise if that is wisdom, because I recognize that I do not know enough about dynamometer ■ extrapolations,. deterioration factor adjustments, and the like to decide whether or not the government’s approach to these matters was statistically valid. Therein lies my disagreement with the majority. The court’s opinion today centers on a substantive evaluation of the Administrator’s assumptions and methodology. I do not have the technical know-how to agree or disagree with that evaluation— at least on the basis of the present record. My grounds for remanding the case rest upon the Administrator’s failure to employ a reasonable decision-making process for so critical and complex a matter. At this time I cannot say to what extent I could undertake an evaluation of the Administrator’s findings if they were based on an adequate decisional process. I cannot believe that Congress intended this court to delve into the substance of the mechanical, statistical, and technological disputes in this case. Senator Cooper, the author of the judicial review provision, stated repeatedly that this court’s role would be to “determine the question of due process.” Thus the court’s proper' role is to see to it that the agency provides “a framework for principled decision-making.”2 Such a framework necessarily includes the right of interested parties to- confront the agency’s decision and the requirement that the agency set forth with clarity the grounds for its rejection of opposing views. The majority’s interpretation of the present statute and the administrative precedents would give us no right to establish these procedural guidelines. Their opinion maintains that the strict deadlines in the Clean Air Act preclude any right to challenge the Administrator until after the decision has been made. It indicates that, since this hearing was “rule-making” rather than “adjudicatory”, cross-examination and confrontation are not required under traditional. rules of administrative law. I understand this viewpoint, but I do not share it. I do not think the authors of the Clean Air Act intended to put such strict limits on our review of the Administrator’s decision-making process. Further, the interests at stake in this case are too important to be resolved on the basis of traditional administrative labels. We recognized two years ago that environmental litigation represents a “new era” in administrative law. We are dealing here not with an airline’s fares or a broadcaster’s wattage, but with all humanity’s interest in life, health, and a harmonious relationship with the elements of nature. This “new era” does not mean that courts will dig deeper into the technical intricacies of an agency’s decision. It means instead that courts will go further in requiring the agency to establish a decision-making process adequate to protect the interests of all “consumers” of the natural environment. In some situations, traditional rules of “fairness”— designed only to guard the interests of the specific parties to an agency proceeding — will be inadequate to protect these broader interests. This is such a case. Whether or not traditional admin-' istrative rules require it, the critical character of this decision requires at the least a carefully limited right of cross-examination at the hearing and an opportunity to challenge the assumptions and methodology underlying the decision. The majority’s approach permits the parties to challenge the Administrator’s methodology only through the vehicle of judicial review. I do not think this is an adequate substitute for confrontation prior to the decision. I reach this position not only out of concern for fairness to the parties (“ . . . for if a party first learns of noticed facts through the final report . . . the burden of upsetting a decision announced as final is a heavy one.”) but also out of awareness of the limits of our own competence for the task. The petitioners’ challenges to the decision force the court to deal with technical intricacies that are beyond our ken. These complex questions should be resolved in the crucible of debate through the clash of informed but opposing scientific and technological viewpoints. It is true that courts occasionally find themselves in the thick of technological controversies — e. g., in patent cases. But those are different circumstances. We do not review patent disputes until they have been through a full panoply of procedures involving full rights of confrontation. Further, unlike our decision in a patent case, our decision on the Administrator’s action here is sure to be tested by analysis and challenge in Congress, in the scientific community, and among the public. My brethren and I are reaching for the same end — a “reasoned decision”'— through different means. They would have us examine the substance of the decision before us. There are some areas of administrative law — involving issues of liberty and individual rights — where judges are on firm ground in undertaking a substantive review of agency action. But in cases of great technological complexity, the best way for courts to guard against unreasonable or erroneous administrative decisions is not for the judges themselves to scrutinize the technical merits of each decision. Rather, it is to establish a decision-making process which assures a reasoned decision that can be held up to the scrutiny of the scientific community and the public. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” If we were to require procedures in this case that open the Administrator’s decision to challenge and force him to respond, we could rely on an informed “market” rather than on our own groping in the dark to test the validity of that decision. Candor requires the admission that the process of confrontation and challenge might not be possible within the statutory decision period of 60 days. My response would be to permit an extension of the time limit — perhaps 30 days more. This would put less strain on the overall statutory scheme — and on the manufacturers’ lead time — than the months that have been expended in litigation, and now a remand, over the decision. Congress did not intend for us to enforce this relatively minor time restriction so strictly as to do major damage to the statute as a whole. My brethren argue that the 60-day time limit in the statute precluded any opportunity for cross-examination or confrontation at the time of the original decision. But their opinion would apparently permit these procedural rights on the remand. This bit of judicial legerdemain confounds me. I can find nothing in the statute or common sense to support this distinction. If anything, the statute, with its obvious emphasis on reaching a final decision quickly, would dictate procedures at the original decision which were sufficient to produce a reasoned decision without the need for a remand. Outside of the foregoing differences, I agree with much of the majority opinion. I would have preferred to make the “public interest” factor- — -the considerations set forth in Part III of that opinion — an independent ground for suspension. The court today deals with the public interest indirectly, through the device of burden of proof. I do not fully understand this approach, but I suspect it leads to essentially the same result I favor. . Under Section 307 of the Clean Air Act, 42 U.S.C. § 1857h-5 (b)(1), which provides for direct review of the Administrator’s decision by the United States Court of Appeals for the District of Columbia Circuit (all citations are to the 1970 edition of the U.S.Code). . 42 U.S.C. § 1857f-l (b)(5)(B). . Statement of Sen. Robert Griffin, 116 Cong.Rec. 33,081 (1970). . For the 60% figure, see H.R.Rep.No. 91-1146, 91st Cong., 2d Sess., 6 (1970) ; for 64% national figure and the 80% urban figure, see statement of Nat’l Assoc, of Professional Engineers in Hearings on S. 3229, S. 3466, and S. 3546, before Sub-comm. on Air and Water Pollution, Senate Comm, on Public Works, 91st Cong., 2d Sess., 114 (1970). . The Act of July 14, 1955, Ch. 360, §§ 1-7, 69 Stat. 322, authorized the Department of Health, Education and Welfare to provide research and assistance to local and state governments attempting to deal with air pollution. The Act of June 8, 1960, 74 Stat. 162, called for a federal study on the specific problem of automotive emissions. . Motor Vehicle Air Pollution Control Act § 202(a), P.L. 89-272, Oct. 20, 1965, 79 Stat. 992 (Amendments to Clean Air Act) ; National Emission Standards Act § 202(a), P.D. 90-148, Nov. 21, 1967, 81 Stat. 499 (part of Air Quality Act of 1967). . Hearings on Air Pollution — 1967, Hearings before the Subcomm. on Air and Water Pollution, Sen. Comm. On Public Works, 90th Cong., 1st Sess., pt. 3, 1155-1156 (1967). . The suit was settled by consent decree. United States v. Automobile Manufacturers Ass’n., 307 F.Supp. 617 (C.D.Cal. 1969), aff’d sub nom. City of New York v. United States, et al., 397 U.S. 248, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970). . 42 U.S.C. § 1857f-l(b) (1) (A) provides that “engines manufactured during or after model year 1975 shall contain standards which require a reduction of at least 90 per centum from emissions of carbon monoxide and hydrocarbons allowable under the standards . . . applicable to light duty vehicles and engines manufactured in model year 1970.” . Section 1201.21 of this regulation also prescribes an oxides of nitrogen standard of 3.0 grams per vehicle mile for 1975. That standard has apparently not been challenged. In any event, it is not before ns in the present case. . “Emission standards under paragraph (1), and measurement techniques on which such standards are based (if not promulgated prior to December 31, 1970), shall be prescribed by regulation within 180 days after such date.” 42 U.S.C. § 1857f-l(b)(2). . Sen. Muskie, 116 Cong.Rec. 32,904 (1970). . 116 Cong.Rec. 33,120 (1970) (newspaper report of statement of Senator Eagleton introduced into the record by Senator Muskie). . Evidently the Administrator decided to avoid separate suspension hearings for different applicants and awaited further filings which he anticipated. Volvo’s application triggered the time period on the assumption that all applications were to be considered together. For the subsequent filings, see 37 Fed.Reg. 7039 (April 7, 1972). . In re: Applications For Suspension of 1975 Motor Vehicle Exhaust Emission Standards, Decision of The Administrator, May 12, 1972 [hereinafter Decision], at 1. . Id. at 14. . Id. . This was Chrysler ear #333, but even this car had not been run 50,000 miles; and conformity with the 1975 standard depended on not taking into account certain emissions over the standards, claimed by the Administrator to be due to engine malfunction. See Appendix C to the Decision of the Administrator, Analysis of Vehicle Test Data [hereinafter Technical Appendix], at 17. . 42 U.S.C. § 1857f-l(d) provides that “The Administrator shall prescribe regulations under which the useful life of vehicles and engines shall be determined . . . . ” for purposes of the 1975 standards. “Such regulations shall provide that useful life shall — (1) in the case of light duty vehicles and light duty vehicle engines, be a period of use of five years or of fifty thousand miles (or the equivalent), whichever first occurs . Decision at 16-17. . Id. at 18. . See note 10 supra. . (Decision at 18. . Id. The choice of 4000 mile emissions as a base point corresponds to certification testing procedures. 37 Fed.Reg. 24,250, 24,263 (1972), § 85.073-28. . Decision at 20. . 37 Fed.Reg. 23,778 (November 8, 1972). . Decision at 20. . Id. at 9. . Id. at 30. . See Part III of the opinion where factors which might properly enter into such a determination are discussed. . The Administrator noted, however, that the “closest working relationship between a vehicle manufacturer and a catalyst company that has been brought to my attention has been the Ford technical interchange arrangement with Engle-hard.” Decision at 26. . In re: Applications For Suspension of 1975 Motor Vehicle Exhaust Emission Standards, Supplement to Decision of the Administrator, December 30, 1972 [hereinafter Supplement to Decision] at 1. . Committee on Motor Vehicle Emissions, National Academy of Sciences, Semiannual Report to the Environmental Protection Agency, January 1, 1972 [hereinafter NAS Report] at 49. . Id. . Supplement to Decision at 2-3. . Id. at 3-4. . Id. at 4, quoting from Decision at 11. . See Committee on Motor Vehicle Emissions, National Academy of Sciences, Interim Standards Report, April 26, 1972 [hereinafter Interim Standards Report]. . NAS Report at 30. . Although various estimates were made during the debate, the consensus seemed to be that two years is the most reasonable estimate. This was apparently the understanding of the Conference Committee. See 116 Cong.Rec. 42,522 (1970) (Rep. Staggers, Manager on the part of the House). . In testimony before the Administrator, Ford’s Vice President for Engineering and Manufacturing identified as the “last date for incorporation of proven new technology” November 1, 1973 — 16 months after the start of the tooling-up period. He testified that the companies could be “developing engineering solutions” until that date. Hearing Tr. at 1916; of. id. at 2033-4. Of. Statement of Lee A. Iacocca in Hearings on S. 3229, S. 3446, S. 3546, before Subcomm. on Air and Water Pollution, Senate Comm, on Public Works, 91st Cong., 2d Sess., pt. 5, 1620-1621 (1970). . Decision at 29. . See 116 Cong.Rec. 33,086-87 (1970) (Statement of Senator Gurney). . National Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 15, 458 F.2d 827, 837 (1972). . Remarks of Senator Gurney, 116 Cong. Rec. 33,086 (1970). . For instances in the Act where adjudicatory hearings are called for, see § 110(f)(2), 42 U.S.C. § 1857C-5 (f)(2) hearing on one-year postponement of a plan requirement on application of State Governor); § 206(b)(2)(B), 42 U.S.C. § 1857f-5(b) (2) (B) (hearing on suspension or revocation of motor vehicle certifications). Both determinations must be made “on the record”. . See S. 4358, 91st Cong., 2d Sess., printed in S.Rep. No. 91-1196, 91st Cong., 2d Sess. 103 (1970). . See United States v. Florida East Coast R. Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973) where the Court held that rule-making hearings, under 5 U.S.C. § 553, are sufficient where the agency’s statute provides for a “hearing.” The provision of 5 U.S.C. § 556(d) which gives the opportunity for cross-examination as a matter of right, would only be automatically applicable if “rules are required by statute to be made on the record after opportunity for an agency hearing . . . .” (emphasis added). Without the precise words “on the record,” § 556 does not automatically apply. At 241, 93 S.Ct. 810. The words “on the record” are not incorporated into Section 202(b)(5)(D). Only a “public hearing” is required. Moreover, subsection (iv) of that provision allows consideration by the Administrator of “other information available to him” in reaching a conclusion on “available technology.” . The procedure adopted may be justified, in part, on grounds like those supporting voir dire by the trial judge, using ccues-tions submitted by counsel. See United States v. Bryant, 153 U.S.App.D.C. 72, 471 F.2d 1040 (1972). . E. g., Permian Basin Area Bate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). . A contrary rule would lead to the absurdity that in rule-making under the APA the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary. As we have stated in an analogous context of rule-making proceedings before the Federal Communications Commission, where petitioners have argued that the Commission was “changing the rules in the middle of the game” when it took into consideration factors not specifically indicated in its Section 4(a) notice under the Administrative Procedure Act, 5 U.S.C. § 1001(a), “[s]urely every time the Commission decided to take account of some additional factor it was not required to start the proceedings all over again. If such were the rule the proceedings might never be terminated.” Owens-boro On the Air v. United States, 104 U.S.App.D.C. 391, 397, 262 F.2d 702, 708 (1958) ; Logansport Broadcasting Corp. v. United States, 93 U.S.App.D.C. 342, 346, 210 F.2d 24, 28 (1954). . Burlington Truck Lines v. United States, 371 U.S. 156, 168-9, 9 L.Ed.2d 207 (1962) ; Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411, 379 F.2d 453, 465 (1967). . 90 U.S.App.D.C. 178, 194 F.2d 349 (1952). See also Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 463 F.2d 268 (1971). . An amendment to Senate Bill 4358 proposed by Senator Dole of Kansas, which would have made the suspension decision reviewable by Congress instead of the court, as proposed by the Committee, 116 Cong.Rec. 33,078 (1970), was rejected by the Senate, 116 Cong.Rec. 33,089 (1970). . NAS Report at 45-48. . Id. at 29. . Id. . Id. . Id. at 30. . The NAS estimated an increase in initial cost of about $214, Id. at 42, over the 1973-74 model year system, and $288 over the 1970 system. To this must be added the EPA assumption of at least one catalytic converter replacement during 50,000 miles of vehicle operation, see text at note 35, supra, and the possibility that considerable maintenance may be needed to keep converters at required level of efficient operation. . See, e. g., U.S. General Accounting Office, Report to the Congress: Cleaner Engines for Cleaner Air, at 45 — 47 (May 15, 1972) (hereinafter “G.A.O. Report”) ; statement of Fred C. Hart, New York City Environmental Protection Agency, in Implementation of the Clean Air Act Amendments of 1970, Hearings before the Subcomm. on Air and Water Pollution, Senate Comm, on Public Works, 92nd Cong., 2d Sess., pt. 3, 1597 (1972). . The General Accounting Office reported in 1972 that the industry was “entrenched” in efforts to retain the conventional engine. G.A.O. Report at 45. . 116 Cong.Rec. 32,906 (1970) (Sen. Muskie) ; H.R.Rep. No. 91-1146, 91st Cong., 2d Sess. 6 (1970). . Congress made clear that it would be ready to exercise its right to intervene if it did not agree with the results its statutory “shock treatment” produced. See 116 Cong.Rec. 32,905 (1970) (Senator Muskie). Congress, through Oversight Hearings conducted by the Sub-mittee on Air and Water Pollution of the United States Senate, continues to keep a watchful eye on the implementation of the Act. See Implementation of the Glean Air Act Amendments of 1970, Hearings before the Subcomm. on Air and Water Pollution, Senate Comm, on Public Works, 92d Cong., 2d Sess., pts. 1-3 (1972). . The Act provides for various progress reports to be made by the Administrator to the Congress, 42 U.S.C. § 1857j-l and 2. Additional information is supplied by the Semiannual Reports of the National Academy of Sciences. 42 U.S.C. § 1857f-1(e). More particularly, the Act provides, 42 U.S.C. § 1857f-1 (b) (4), for the EPA to make “recommendations for additional congressional action” which he deems advisable. . Interim Standards Report at 8. . JA at 954-59; Doc. No. 135, Yol. II at 5-18 to 5-23. . Ford’s proposals were qualified by the following regulatory assumptions: (1) maximum lead grams per gallon of gasoline .03; (2) averaging of emissions for certification test procedures; (3) a methane allowance in interpreting hydrocarbon data; and (4) reasonable maintenance on durability test cars used in determining certification. Only the reasonable maintenance assumption corresponds to actual EPA regulations now in effect or proposed. Doc. No. 135, Vol. II, at 5-28 to 5-33. . 116 Oong.Rec. 32,905 (1970). . Estimate provided by Senator Griffin, 116 Oong.Rec. 32,906 (1970). . 116 Oong.Rec. 32,905 (1970). . Transcript at 2034-2035. . For purposes' of a comparison, Chrysler is omitted from this comparison, although on the basis of the performance of car #333 and its testing of noble metal catalysts, Chrysler seems closer in technological advancement to Ford than to General Motors. See Technical Appendix at 17. . Id. at 44. . The data on the efficiency of the Engel-hard converter was from converters tested principally on Ford vehicles. Id. at 53. . Supplement to Decision at 1. . See also discussion of good faith in Administrator’s Initial Decision at 26, where Ford was singled out as the only auto company which has developed a close relationship with a vendor of emission control devices, in its case Engelhard. . We are not unaware of 42 U.S.C. § 1857h-6 which provides under certain specified procedures for the mandatory licensing of patents on pollution control devices to obviate competitive advantages. It provides: Whenever the Attorney General determines, upon application of the Administrator— (1) that— (A) in the implementation of the requirements of section 1857c-6, 1857c-7, or 1857Í-1 of this title, a right under any United States letters patent, which is being used or intended for public or commercial use and not otherwise reasonably available, is necessary to enable any person required to comply with such limitation to so comply, and (B) there are no reasonable alternative methods to accomplish such purpose, and (2) that the unavailability of such right may result in a substantial lessening of competition or tendency to create a monopoly in any line of commerce in any section of the country, the Attorney General may so certify to a district court of the United States, which may issue an order requiring the person who owns such patent to license it on such reasonable terms and conditions as the court, after hearing, may determine. Such certification may be made to the district court for the district in which the person owning the patent resides, does business, or is found. No apjjlication has, however, been made by the Administrator, presumably because his methodology predicts all three manufacturers can meet the 1975 standards. Moreover, there is no evidence on the record to show that converters will perform equally well on different vehicles. This option may be effectively foreclosed as the lead time for production is approached, at which point the companies will be committed to their own individually developed systems. . One could imagine some form of regulation through interim standards, whereby the laggard could be deprived of an expected windfall, through requiring some percentage of his vehicles to meet a standard which can only be met by the leader; but this form of economic regulation does not seem contemplated by Congress and would be subject to innumerable regulatory problems. Congressional indemnities might present a possibility. Obviously neither possibility could reasonably be taken into account as a basis for decision. . Decision at 9-10. . See Technical Appendix at 58-60. . (1) Brief of Respondent at 37. (Respondents submitted two briefs to this court, one responsive only to the petition of International Harvester in case No. 72-1517, the other responsive to all four petitioners. For reference the former is denoted as (1), the latter as (2).) . Brief of IH at 24-25. Also see Transcript at 1167 et seq. . S.Rep. No. 91-1196, 91st Cong., 2d Sess. 23 (1970). . Id. at 24. . See, e. g., 116 Cong.Rec. 42,383 (Senator Muskie) ; 116 Cong.Rec. 32,921-22 (Senator Baker) (standards envisioned to be for automobiles). . EPA points out that prior regulation under the Clean Air Act in June 1968 had defined light duty vehicles as motor vehicles “designed for transportation of persons or property on a street or highway and weighing 6,000 pounds GVW or less” 33 Fed.Reg. 8305 (1968), but this cannot be conclusive, given the legislative intent to the contrary. Moreover, the prior regulation did not have the effect of eliminating IH vehicles from the market because the emission standards were within the reach of heavier vehicles at that time. . The policies behind the decision in Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) are thus inapplicable. . 36 Fed.Reg. 22,448 (1971). . See 42 U.S.C. § 1857h-5(b) (1). . See e. g., Technical Appendix at 33-43 where no predictions as to conformity were made for any Ford trucks. . (1) Brief of Respondent at 44. . Permian Basin Area Rate Cases, 390 U.S. 747, 781, 88 S.Ct. 1844, 20 L.Ed.2d 312 (1968) ; WAIT Radio v. FCC, 135 U.S.App.D.C. 317, 321, 418 F.2d 1153, 1157 (1969) and cases cited. . IX Wigmore, On Evidence § 2486 (3d ed. 1940). . The fact that a preponderance of evidence standard was originally in Senate Bill 4358, but deleted in Conference, offers no basis for an opposite conclusion. No affirmative indication exists that Congress wanted a higher standard and the Conference delegation may simply have been intended to eliminate a requirement which is mere . surplusage in the civil litigation context. See S. 4358, 91st Cong., 2d Sess., printed in S.Rep. No. 91-1196, 91st Cong., 2d Sess. 103 (1970), § 202(b)(4)(C) (iii). See also Conference Report, H.R.Rep. No. 91-1783, 91st Cong., 2d Sess. 48-49 (1970), U.S. Code Cong. & Admin.News, 1970, p. 5374. . Compare Commonwealth of Puerto Rico v. FMC, 152 U.S.App.D.C. 28, 468 F.2d 872 (1972). . Technical Appendix at 3. . See note 26 supra. . Car # 333, used as the basis for the Chrysler prediction, is the outstanding example. See Transcript at 2095-2107; JA 1331, Doc. 143. . Technical Appendix at 10. . This statement was made in the context of the application of this assumption to predicting the conformity of General Motors with prescribed standards. Technical Appendix at 47. . Id. at 51. . Id. at 22. . Supplement to Decision at 2. . Letter, B. J. Yarrington, Amoco, to EPA, May 9, 1972, at 2, JA at 1539. . JA at 1704-1705. . See note 24 supra. . Joint Supplement to Briefs of Petitioners General Motors Corporation, Chrysler Corporation and Ford Motor Company at 8. . Technical Appendix at 22 (Chrysler) ; at 36 (Ford). . Id. at 6. . The parties are apparently agreed that it would be to the advantage of the companies to take fewer hours than 200 on the dynamometer to represent 4000 mile emissions, presumably on the assumption that this will mean that emissions would be higher. This is not readily apparent to the court, given its limited understanding, from the graphs or equations provided in the Technical Appendix, at 5-6, 11-12, 18, 34. If this were a critical issue it might be necessary to arrange further submission on this point, but since it relates to one of many problems with EPA methodology we do not deem it necessary. A lacuna in judicial understanding is to some extent inescapable in matters of such technical difficulty, and here it does not seem critical for the court to refine this particular problem. . A scientific paper was cited by petitioners to establish that RPM was in fact 1750, JA 1616. Apparently this was not in the record made before EPA. In any event, we do not discern how this paper supports the claim made, though we are aware that this statement may merely reflect the court’s lack of scientific ft understanding. . Technical Appendix at 34. . Interim Standards Report at 8. . JA at 957, Doc. 135. . Technical Appendix at 17. . EPA merely responds to the testimony by stating that it was unaccompanied by data, but offers no expert opinion which indicates that such a relationship does not exist. (2) Brief of Respondent, App. A and B at 24, n. 35. : Technical Appendix at 7. . Id. at 3, 44-55. . No mention of this possible methodology is mentioned in the NA8 Interim Report, and the Administrator admits this in Supplement to Decision at 1. See text at note 76. . Interim Standards Report at 7. . Technical Appendix at 41 (Ford 351 O) ; at 22 (Chrysler car 333) ; at 51 (General Motors engine 455/full size). . Interim Standards Report at 8. EPA, moreover, offers no explanation as to whether there were “best system” cars besides those included in the Appendix which did not meet the standards, and why one should not be concerned about the fact that the “best system” cars which are in the Technical Appendix, other than those cited in note 103, supra, do not meet the standard. . Compare Blair v. Freeman, 125 U.S.App.D.C. 207, 210, 370 F.2d 229, 232 (1966). . Morgan v. United States, 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129 (1938) ; Greater Boston TV v. FCC (I), supra. . Greater Boston TV v. FCC, supra, 143 U.S.App.D.C. at 392; 444 F.2d at 850. . Montana Power Co. v. FPG, 144 U.S.App.D.C. 263, 270, 445 F.2d 739, 746 (en banc, 1970), cert. denied 400 U.S. 1013, 91 S.Ct. 566, 27 L.Ed.2d 627 (1971). . Supplement to Decision at 1. . Thus, Section 202 (b) (5) (A), 42 U.S.C. § 1857f-l(b) (5) (A), provides, in part: If he determines, in accordance with the provisions of this subsection, that such suspension should be granted, he shall simultaneously with such determination prescribe by regulation interim emission standards. . . . (Emphasis added.) . This obviates the possibility of delay if, for example, on remand the Administrator denied the suspension on the basis of only one of the four statutory findings, and this court subsequently reversed. . Plato, Apology of Socrates, § 57B. . 116 Cong.Rec. 33,086 (1970) ; of. 116 Cong.Rec. 33,080, 33,084 (1970). One Senator referred to the court’s “fact-finding function”; his remarks make it dear that he could not have been referring to the review function of courts of appeal. 116 Cong.Rec. 33,085 (1970) (Senator Baker). . Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 88, 439 F.2d 584, 598 (1971). . Id. 142 U.S.App.D.C. at 87, 439 F.2d at 597. To the same effect is Mr. Justice Blackmun’s opinion in Sierra Club v. Morton, 405 U.S. 727, 755, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (dissenting opinion). . Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 395, 428 F.2d 1093, 1097 (1970). . 2 Davis, Administrative Law Treatise, § 15.14 (1958). . Cf. this court’s dictum, in Constructores Civiles de Centro-Americana v. Hannah, that “These forebodingly fecund matters were wisely placed beyond the ken of the judiciary.” 148 U.S.App.D.C. 159, 168, 459 F.2d 1183, 1192 (1972). . Cf. Citizens’ Association of Georgetown v. Zoning Commission, 155 U.S.App.D.C.—, 477 F.2d 402 (1973). . Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, X, dissenting).

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William S. COOPER, Appellant, v. William R. GOODWIN et al. No. 71-1100. United States Court of Appeals, District of Columbia Circuit. Argued April 21, 1972. Decided Feb. 12, 1973. M. Michael Cramer, Washington, D. C., with whom Paul H. Weinstein and Laurence Levitan, Chevy Chase, Md., were on the brief, for appellant. Patrick J. Attridge, Washington, D. C., for appellees. Before BAZELON, Chief Judge, SIMON E. SOBELOFF, Senior Circuit Judge for the Fourth Circuit, and LEVENTHAL, Circuit Judge. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). BAZELON, Chief Judge: This is an appeal from a directed verdict for the appellees on appellant Cooper’s claim that he was injured by reason of Mr. and Mrs. William Goodwin’s negligent maintenance of their basement stairs. We reverse and remand this case for trial under the standard established by this court’s opinion in Smith v. Ar-baugh’s Restaurant, Inc. I. The relevant facts are not in dispute. On November 26, 1967, the appellant Cooper was invited for a social visit at the home of his friends the Goodwins. At the conclusion of his call, the Good-wins indicated to Cooper that he should leave through the basement area of the house. As Cooper started to descend the final three stairs down into the basement, he slipped. He reached for a handrail, but there was none. He fell and injured his back. Cooper subsequently underwent disc surgery and contends that he has suffered a serious, incapacitating injury as a result of the Goodwins’ negligence. Cooper filed suit in the District Court, claiming damages for his medical expenses, loss of earnings, and pain and suffering. He alleged that the Good-wins had been negligent in several respects: their failure to have a handrail on the stairs; failure to have stair treads; maintaining a highly slippery coat of wax on the stairs; and their failure to warn of such conditions. The Goodwins denied these allegations, and raised as a defense that Cooper had been contributorily negligent in failing to “exercise reasonable care for his own safety while descending the stairs in the light of the obvious conditions.” On the first day of trial, January 7, 1971, Cooper testified that as he placed his foot on the fatal step, it felt “very slippery just like you step on a sheet of ice;” that he “tried to grab ahold of something, but there wasn’t anything to grab hold of.” He also stated that Mr. and Mrs. Goodwin had not warned him that the stairs were waxed, or that the handrail, which was on the stairs when he had visited the year before, was missing. Cooper’s counsel also introduced into evidence a portion of section 2508 of the Housing Code of the District of Columbia: Interior stairs more than two risers high shall have an enclosing wall, balustrade, or other guard on each side and shall have a hand rail on at least one side. The trial court correctly ruled that this regulation was “admissible, but solely for the purpose of permitting the jury to consider it in determining whether or not there was exercise of due care on the part of the defendant” and not as negligence per se.4 The judge stated that at the close of the trial, he would charge the jury in detail as to the consideration it should give this housing regulation. On the following day, at the close of Cooper’s case, the Goodwins moved for a directed verdict on the ground that since Cooper was a social guest toward whom the homeowners owed only the duty of refraining from active negligence, no actionable negligence had been shown. The trial court agreed, stating “in my opinion there is no evidence of negligence in the case which would warrant it to go to the jury” and granted the motion. Prom this ruling, Cooper now appeals. II. This ease illustrates the problems which, as we pointed out in our recent ruling in Smith v. Arbaugh’s, result from rigid applications of the common law classifications of trespasser, licensee and invitee to determine the duty of care owed by a landowner/occupier to persons entering upon his property. Harshness inheres because the trial judge removed from the province of the jury the determination of crucial factual issues and resolved them himself. Confusion over the exact duty owed to Mr. Cooper, a social guest responding to an explicit invitation to use the basement stairs, is apparent in the cases cited by counsel for their respective contentions. The trial court undoubtedly relied on the legal rule that a social guest may recover for active negligence only. This ruling, while it may have once comported with existing case law, we now hold to be in error. The standard adopted in Smith — that “a landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances,” seeks to eliminate the harshness of and confusion over the common law classifications. Furthermore, as discussed in Smith, we believe that this standard places the crucial determination — whether Cooper suffered from an unfortunate accident, from his own carelessness, or from the Goodwins’ negligence — where it should be, with the jury and not the court. It is for the jury to consider and weigh all the circumstances of Cooper’s fall, including those which affect the foreseeability of the injury, the burden of avoiding the injury, and the care which appellant as a reasonable man could be expected to take for his own safety. There may be some concern that less-affluent home owners and apartment dwellers will be severely penalized for the hazards of their dwelling places which they cannot afford to repair or remove. However, the financial capacity of the occupant to undertake safety precautions should be taken into account in determining what was, for him, reasonable maintenance conduct. Financial hardship should be no excuse for failing to take those measures which are within a defendant’s capacity — for example, an adequate warning. Despite the fears expressed in the concurrence, both this and the Smith opinion hold that the duty to maintain one’s property might be fully discharged by a warning of a dangerous condition. We are therefore not persuaded that owners of residential property should be excluded from the standard of reasonable care under all the circumstances. Under this standard, the jury will have wide latitude to exercise its own rough common sense as to the degree of care which was reasonable for particular home owners or dwellers to take toward their guests. As we said in Smith this standard cannot be set in the abstract but will vary according to the circumstances of each and every case. Rather than rely on rigid labels and rules of law to provide the illusion of certainty and fairness, we choose the jury as the mature institution to take account of the infinite variety of fact situations which affect the reasonableness of human conduct. Accordingly, appellant Cooper is entitled to a new trial at which the jury is instructed that the Goodwins owed him the duty of maintaining their property in a condition reasonably safe under all the circumstances. Whether or not the Goodwins breached this duty is a question for the jury. Reversed and remanded. LEVENTHAL, Circuit Judge, concurring: The rule established by this court prior to Smith v. Arbaugh’s Restaurant requires reversal of the judgment of the District Court. Plaintiff’s counsel called the court’s attention to the proposed Jury Instructions prepared by the Bar Association which set forth, insofar as pertinent: “A Landowner owes to a guest (or licensee by invitation) the duty to avoid injuring him through negligence. In addition, he owes him the duty to repair dangerous conditions which are known to the owner and which would not be discernible to the guest or licensee, or to warn him of the existence of such dangerous conditions.” This suggested instruction was annotated with a reference to Firfer v. United States which clearly supports the wording in the text. However, the defendant’s counsel persuaded the District Court to read Firfer in such a way so as to require active negligence, and to dismiss the case for lack of showing of active negligence. In my view this was a most strained reading, and the dismissal was error. As for the retrial, I agree with the majority that the sound evolution that is the hallmark of the common law has brought it at the present time to the point where the traditional distinction between licensees and invitees is properly considered the relic of a bygone age. The often technical and arbitrary classifications — including Firfer’s further subdivision into invitees; licensees by invitation (social guests) and bare licensees — seem to promote confusion, and to strait jacket the courts in pursuit of good sense and justice. In England the legislature adopted the recommendation of the Law Reform Committee to abolish the significance of the common law distinction between invitees, licensees, and contractual visitors, and to place on an occupier of premises the same duty — described as the “common duty of care” — to all lawful visitors. However, the English reflection is not necessarily precedent for revision of instructions to the jury as a “mature institution.” Indeed, it appears that the fact that the jury has virtually disappeared from negligence actions in England may have played some part in encouraging passage of the law. But the concept was ripe for extension, and has been applied in the United States by the Supreme Court in an admiralty decision, and then by the courts of California, Hawaii, Colorado, and recently, after our Smith opinion, by the Minnesota Supreme Court. This does not, however, mean that the requirements of judicial administration in a modern, largely urban, industrialized society necessarily extend so far as to require a change in the liability of an occupant of land to a trespasser. I would follow the example of the Minnesota court, and defer, as a separate question, the issue of liability to trespassers, which was left unchanged in England. This was the problem that particularly prompted my separate opinion in Smith. The restraint counseled by the Minnesota court, on the ground that the issue of a plaintiff-trespasser was not before the court, is enhanced as to this court by the circumstances that it is no longer the authoritative expositor of the common law of the District of Columbia. So long as our modification of doctrine is not automatically extended for the benefit of trespassers, I agree that the general statement of doctrine need not distinguish between business and residential properties. In the case of trespassers, a higher duty may rightly be put on the occupier of a business property by virtue of both accessibility of insurance and the business reasons that tolerate what is technically a trespass. As for the majority’s comment that owners of residences may soundly be put under an obligation to trespassers because the owners’ financial position can be taken into account, if this means what it says, and owners of side-by-side residences may have different legal obligations depending on their financial means, it is an extraordinary statement for a judicial opinion, and in my view it is, as stated, an unsound proposition. I don’t think it is proper to instruct the jury that the Goodwins owed plaintiff Cooper “the duty of maintaining their property in a condition reasonably safe under all the circumstances.” To begin with, language should be selected so as to provide in the direct statement of the rule for awareness that the liability may be discharged by giving a warning. More important, I would limit myself, at this time, to a statement of duty that is focused both on a person invited or permitted on the premises and on his reasonably expected use. I would follow the Minnesota opinion (fn. 7), and instruct the jury that a person who occupies land (or is otherwise responsible for its condition) has the duty to take such care, as in all the circumstances of the case is reasonable, to see that any person invited or permitted on the premises will be reasonably safe in using the premises for a purpose that was reasonably to be expected. SOBELOFF, Senior Circuit Judge, concurring: My brethren, Judges Bazelon and Lev-enthal, are in agreement that the traditional distinctions between licensees and invitees are an archaic remnant of the common law and tend to confuse rather than assist in reaching a just resolution of disputed questions of liability. They agree further that with regard to all but trespassers no distinction should be made in the standard used to adjudicate the liability of occupiers of business and the occupiers of residential properties. In these sentiments, I fully concur. Judge Bazelon would have the trial judge instruct the jury that the Good-wins owed Cooper “the duty of maintaining their property in a condition reasonably safe under all the circumstances.” Judge Leventhal, on the other hand, would phrase this instruction as “the duty to take such care, as in all circumstances is reasonable, to see that any person invited or permitted on the premises will be reasonably safe in using the premises for a purpose that was reasonably to be expected.” In respect to all but the question of the duty owed a trespasser, I see no meaningful distinction between the two formulations, although Judge Bazelon’s seems preferable as it is a simpler, more lucid explanation of the law and will be more easily understood by a jury. Under either proposed instruction, the jury is to consider in its deliberations all the circumstances surrounding the injury. Only on the question of liability to a trespasser do Judges Bazelon and Leven-thal lock horns. Judge Bazelon would extend the “all the circumstances” test to include the duty of care owed a trespasser. See Bazelon Opinion at Footnote 13. Judge Leventhal seemingly would have the circumstances test govern only the liability to trespassers upon business property, but would maintain the rule that “a householder has no legal duty, as to trespassers entering without his consent, * * * subject to limited exceptions.” Actually, the question of the degree of care owed by property owners to trespassers is not presented in this case; it was neither briefed nor argued. The discussion about the duty to trespassers is entirely gratuitous and without foundation in the record. I would refrain, under these circumstances, from fully endorsing the position of either of my two distinguished colleagues in respect to the property owner’s liability to trespassers and would defer deciding this question until it is properly before the court and has been maturely developed in briefs and arguments upon a record that squarely raises the issue. . 152 U.S.App.D.C. 86, 469 F.2d 97 (1972). . The judgment sought in his complaint was $100,000 plus interest and costs. . Pretrial Proceedings, November 16, 1970, p. 3. . Appellant’s Appendix at pp. 3-4. . Appellant’s Appendix at p. 17. In order to facilitate our own ruling on this issue, this court requested appellees to file a supplemental memorandum on the question of whether this regulation, promulgated in 1966, is applicable to owner-occupied single-family homes constructed prior to its enactment; and whether it is strictly enforced. Both parties filed memoranda. On the basis of these submissions, we have determined that, while the regulation technically applied to ap-pellees’ home, in view of the Corporation Counsel’s enforcement practices, the regulation is admissible only as evidence of negligence. . Appellant’s Appendix at p. 18. The judge stated to the jury: “[T]he plaintiff has not established a case of liability on the part of the defendants. True, he was injured, but there has to be more than that. There must be a showing of actionable negligence by the defendants, and I have ruled as a matter of law that there is no showing of negligence on the part of the defendants.” Id. at 19. . Supra note 1. . See Smith v. Arbaugh’s Restaurant, Inc., supra note 1, 152 U.S.App.D.C. at 92, 469 F.2d at 103. In this case, the judge took from the jury the question of the degree of danger created by the waxed steps and the missing handrail; and the question whether these dangers were not discernible and should therefore have been the subject of a warning. . Both parties rely primarily on Firfer v. United States, 93 U.S.App.D.C. 216, 208 F.2d 524 (1953). The definition of the duty owed to a licensee by invitation is not only confusing, but conflicted. He “may expect the owner and his agents to exercise reasonable and ordinary care and to provide reasonably safe premises . . . and he may hold the owner liable for injuries resulting from active negligence.” (citations omitted) Id. at 219, 208 F.2d at 527. Understandably, Cooper relies on the first phrase, the Goodwins on the latter. . Since the trial judge himself admitted the D.C. housing regulation as evidence of a standard of reasonable conduct from which the Goodwins deviated, liis ruling of no negligence must have been premised on a different standard of care. There is, of course, some controversy as to what constitutes active negligence. Gleason v. Academy of the Holy Cross, 83 U.S.App.D.C. 253, 168 F.2d 561 (1948) establishes that property owners do owe to their social guests the duty of warning them of known but latent dangers. The trial judge’s refusal to allow this issue to go to the jury may thus have violated existing case law. . Although appellant did not have the benefit of the Smith opinion when preparing his appeal, he asserts that by a series of decisions in the District of Columbia, the discrete categorization of a social guest has been abandoned. In Smith, this process was brought to fruition. . Smith v. Arbaugh’s Restaurant, Inc., supra note 1, 152 U.S.App.D.C. at 89, 469 F.2d at 100. . Such as, in this case, the condition of the stairs, the absence of the handrail, the visibility of these factors, the hosts’ knowledge of any danger, and the guest’s familiarity with the premises and expectations toward his hosts. It would appear, although we need not decide, that the question of what degree of care should be exercised toward those traditionally labelled “trespassers” will, under the logic of this standard, depend to a large extent on the foreseeability of their presence and hence the foreseeability of the injury. . See Smith v. Arbaugh’s Restaurant, Inc., supra note 1, 152 U.S.App.D.C. at 89-92, 94, 469 F.2d at 100-103, 105. . 152 U.S.App.D.C. 86, 469 F.2d 97 (1972). . Revised Standardized Jury Instruction for the District of Columbia, of the Bar Association of the District of Columbia (rev. ed. 1968) #143 prepared by Junior Bar Association. The same wording appears in the 1963 edition, #128. . 93 U.S.App.D.C. 216, 208 F.2d 524 (1953). . Payne, The Oeeupier’s Liability Act, 21 Modern L.Rev. 359 (1958). . Prosser, Torts § 58 (3d ed.). . Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). . Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972). . In the case of trespassers, a higher duty may rightly be put on the occupier of a business property by virtue of both accessibility of insurance and the business reasons that tolerate what is technically a trespass. Leventhal Concurring Opinion at p. 658. . Smith v. Arbaugh’s Restaurant, Inc., 152 U.S.App.D.C. 86, 97, 469 F.2d 97, 108 (1972) (Leventhal concurring).

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UNITED STATES of America v. Clifton L. PERSON, Appellant. No. 72-1422. United States Court of Appeals, District of Columbia Circuit. March 26, 1973. David I. Granger, Washington, D. C. (appointed by this Court), was on the brief for appellant. Harold H. Titus, Jr., U. S. Atty., John A. Terry, William H. Collins, Jr., and James W. Diehm, Asst. U. S. Attys., were on the brief for appellee. Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM JAME-SON, United States Senior District Judge for the District of Montana. Sitting by designation pursuant to 28 U.S.C. § 294(d). PER CURIAM: Appellant, Clifton L. Person was convicted on a six count indictment, including felony-murder, 22 D.C. § 2401, attempted robbery, 22 D.C. § 2902, and assault with a dangerous weapon, 22 D.C. § 502, involving the robbery of Carolyn Triplett and Jeffrey Crandell, and the shooting of Crandell when he came to the defense of Miss Triplett. Appellant presented no witnesses or other evidence, but raises two issues on appeal: (1) prejudice arising from the loss of grand jury minutes by the court reporter, and (2) the admission of pre-trial and in-court identification by Miss Triplett. We affirm. It was established at a pre-trial hearing that the court reporter labelled her notes and filed them in her office after recording the grand jury proceedings. The only witness before the grand jury was Detective Fickling of the homicide squad. In his pre-trial testimony he summarized the statements of the other witnesses and the results of his investigation. Before giving this testimony, he read the statements of the witnesses whom he had not personally interviewed, and he based some of his testimony on a case summary he had prepared. He did not, however, read anything to the grand jury. The court reporter made every effort to locate the notes, to no avail. Because of this development, the prosecutor voluntarily proffered that Detective Fick-ling would not be called to testify at trial. He also gave appellant all possible discovery, including the names of witnesses, statements of all witnesses, FBI material, and all physical and tangible evidence. He also turned over the resumé prepared by Detective Fickling, from which the detective testified to the grand jury. It was not error for the court to proceed in the circumstances. Given the full disclosure by the prosecution, the fact that Detective Fickling was not called to testify, the orderly procedures established for preserving minutes, and the good faith efforts made to retrieve them when lost, there is no showing of bad faith, or the kind of negligence, going beyond the mishap all of us may encounter, that warrants a sanction as extreme as dismissal of the indictment, or the exclusion of the witnesses whose statements were summarized to the grand jury. See United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff’d after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971). There is no realistic basis, beyond extrapolated speculation, for supposing that the availability of the lost minutes would have undercut the prosecution’s case. Miss Triplett was the only eyewitness to the robbery and shooting. There were three robbers, and appellant, whom Miss Triplett testified fired the shot which killed her escort, was identified by her for the first time at a line-up. At trial she testified that she had gotten a clear look at appellant during the robbery for about one minute, that his face was illuminated by a light across the street, and at one point his face was two feet from her. Prior to the line-up, Miss Triplett had seen no photographs of the accused, but she knew three men, including someone named Person, had been arrested for the crime. She identified appellant at the line-up. She felt “very strongly” about her identification, and indicated that she wished to make an accurate identification. Despite this perfectly good line-up identification and the independent basis she had for the identification from her view of the offender during the commission of the crime, appellant would like to suppress the identification because after the line-up Detective Fickling told her she had “done well” and because she would suspect that the three men previously arrested would be in the line-up. The only reason advanced as to why the line-up might be unduly suggestive, under Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), was that she knew from the newspapers that three persons had been arrested. While that knowledge may be taken into account where there is other indication of suggestivity, the mere fact that suspects are included within the line-up, and that witnesses know or assume this to be the case, is an inescapable aspect of line-up identification procedure. See United States v. Gambrill, 146 U.S.App.D.C. 72, 75, n. 3, 449 F.2d 1148, 1151, n. 3 (1971). As to the pat on th,e back from Detective Fickling, while it might conceivably reinforce and strengthen a resolve to identify appellant in court, realistically such a remark would add little in that respect to the fact of being called as a trial witness. There is no reason to suppose that the detective’s remark was more than a comforting gesture to a witness, who was, quite naturally, on edge. It was better left unsaid, but does not seem to us to be the kind of action that materially affected her certainty as to the identification. The jury had before it the testimony as to the (slightly more tentative) line-up identification and was likely to credit this — which was uninfluenced by the subsequent remark — far more than the taken-for-granted in-eourt identification. Clemons v. United States, 133 U.S.App.D.C. 27, 40, 408 F.2d 1230, 1243 (en banc 1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). This problem was available for argument to, and consideration by, the jury. The interest of justice does not require a rule of conclusive prejudice. Affirmed.

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UNITED STATES of America v. Walter E. ASHE, Appellant. UNITED STATES of America v. Walter E. ASHE, Appellant. Nos. 71-1033, 71-1509. United States Court of Appeals, District of Columbia Circuit. Argued April 12, 1972. Decided March 26, 1973. Michael Nussbaum, Washington, D. C. (appointed by this Court) for appellant. James P. Davenport, Washington, D. C., also entered an appearance for appellant, in No. 71-1033. Herbert M. Silverberg, Washington, D. C. (appointed by this court) for appellant in No. 71-1509. Guy H. Cunningham, III, 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. John D. Aldock, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee. Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges. LEVENTHAL, Circuit Judge: This is the third time that we have been asked to review some phase of the Government’s case against Walter Ashe. In this latest chapter of the proceedings, Ashe was found not guilty by reason of insanity of a violation of 22 D.C. Code § 2801, carnal knowledge of a female child under sixteen years of age. In 71-1033, Ashe appeals the finding of guilt of the commission of the act, which is implicit in an acquittal by reason of insanity. In 71-1509, he appeals from the determination, following a Bolton hearing for his continued custody on the basis of dangerousness because of mental illness. I. The indictment charges that on October 14, 1967, Walter Ashe had sexual relations with his daughter Mary, then age ten. The Government’s evidence consisted of the testimony of Mary Ashe; the corroborative evidence of Mary’s then eight or nine year old brother Walter, Jr. and of their mother Mrs. Ashe, both of whom were witnesses to the incident; the testimony of Thomas Ashe, a still-younger brother, who was not a witness to the event itself; and the expert testimony of a pediatrician who examined Mary after the incident. On May 9, 1968, Ashe was brought to trial. Mrs. Ashe invoked her marital privilege. Mary and Walter, Jr. were questioned in order to judge their competency to give evidence. Walter, Jr.’s responses were unclear, and he eventually became unresponsive. At length, defense moved for a mistrial in order that a more thorough examination of Ashe’s capacity to stand trial be undertaken. This motion was granted by District Judge Smith. Ashe was determined fit to stand trial and on October 2, 1968, a second trial was begun before District Judge Green. At this trial, the Government rested its case substantially upon the evidence of Mary and Walter, Jr. Mary’s testimony was elicited only with the greatest of difficulty. The first time she took the stand, she did not give damaging testimony. She was excused and later recalled and eventually, after she refreshed her recollection by reading over the statement she had made to the police, her testimony did establish a corpus delicti. The Government sought corroboration from Walter, Jr.; the child’s response to the questions he was asked were badly garbled and generally difficult to understand. Walter, Jr. did not seem able to place himself at a particular place at a particular time, and his testimony taken as a whole did not specifically corroborate the incident charged in the indictment. The District Court, sum sponte and over the objection of Ashe, raised the question of insanity, and Dr. Mauris Platkin, a St. Elizabeths psychiatrist, testified that Ashe had a personality structure which was not inconsistent with committing deviant sexual acts. (Tr. p. 544: “. . . it is not at all improbable that he could have committed this kind of act. It certainly relates to this condition.”) The jury found Ashe guilty, rejecting the insanity issue. Appeal was taken to this court, and on May 12, 1970, we vacated the conviction and remanded. United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970). We noted that the Government’s case on corroboration was very thin, and that the real corroboration had come from Dr. Platkin. This we held to be unduly prejudicial. “[T]he judge interposing an insanity defense did have the obligation to establish bifurcated trial or some other protective procedure to avoid prejudice to the defendant from the court’s insistence of airing a defense interposed contrary to the defendant’s will.” On August 20, 1970, the Government began civil commitment proceedings against Ashe under 21 D.C.Code § 541 et seq., but the Commission on Mental Health found that Ashe was not dangerous because of mental illness. A third trial was consequently begun on November 30, 1970. The proceedings were bifurcated, ánd the Government’s case developed much more smoothly than it had in the trial of October, 1968. Mary Ashe’s testimony was direct and to the point, Walter, Jr. coherently corroborated her story, and Thomas Ashe also gave evidence which was generally corroborative as well. After hearing the evidence, the jury brought in a verdict of guilty, whereupon the second stage of the trial — dealing with the insanity issue — was begun. Only one witness was presented, Dr. Robert Robertson of St. Elizabeths. After Dr. Robertson was heard, the jury retired and quickly brought back a verdict of not guilty by reason of insanity. Ashe was committed to St. Elizabeths for observation, and on February 16, 1971, a Bolton hearing was begun before Judge Green, testing the question of whether continued retention in custody should be ordered due to Ashe’s dangerousness because of mental illness. The Bolton jury found, after hearing almost a dozen witnesses, that Ashe was dangerous due to his mental illness. Judge Green thereupon remanded him to the custody of St. Elizabeths until such time as he was no longer dangerous. Ashe petitioned for habeas corpus, claiming that his detention for observation at St. Elizabeths was longer than that authorized by Judge Green and that he had not been accorded treatment nor the “least-restrictive alternative” in his disposition. This petition was summarily dismissed by the District Court. We vacated the dismissal in Ashe v. Robinson, 146 U.S.App.D.C. 220, 450 F.2d 681 (1971), and remanded for further proceedings. Nothing has been done about this remand to date, and counsel informed us at oral argument that no further action in that matter is contemplated. II. The Notice of Appeal in 71-1033 was somewhat ambiguous as to what decision was being appealed from. The Government argues that this appeal is evidently from the interlocutory finding of “guilty” by the jury, but that a “guilty” verdict in a bifurcated proceeding, if followed by a verdict of not guilty by reason of insanity, is not a “final decision” within the meaning of the rule that permits appeals only from such decisions. The Government further argues that Ashe failed to file his notice of appeal within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure. The appeal was noted 13 days after the insanity verdict of the jury and several months prior to the Bolton hearing. We disagree with the Government’s contention. We conclude that we have jurisdiction to hear the appeal, and to consider both the sufficiency of the Government’s case underlying the implicit finding of guilt and the validity of the detention order. We need not determine whether a bare verdict of not guilty by reason of insanity is “freighted with sufficiently substantial indicia of finality to support an appeal” see Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969). Certainly the court ordered Ashe’s commitment for examination based solely on the jury verdict, and this culminated in an order for continuation of commitment following a Bolton hearing. Since we have consolidated the appeal from the verdict of not guilty by reason of insanity, and the appeal 71-1509, from the order of continued commitment, we do not have to decide the technical question as to whether our consideration of the question presented derives from one appeal, or the other, or both. III. Appellant contends that Walter Ashe, Jr. was not a competent witness. For support, appellant cites Walter, Jr.’s performance at the voir dire before Judge Smith in the mistrial and his testimony, upon which we commented in Ashe-I, at the trial before Judge Green in 1968. In both of these instances, Walter — in startling contrast to his performance at the third trial — was almost an unreachable witness. Although it is difficult to isolate any determinative single reason therefor, it is reasonably plain that poor language skills, together with the intimidation of the courtroom and the obvious painfulness of the subject — which precipitated the dissolution of the Ashe family and the childrens’ dispersion into Junior Village and various foster homes —worked a severe inhibition on the child. Counsel submits that our first opinion, Ashe-I, in effect held that Walter, Jr. was not competent to testify, or that at least his testimony was non-corroborative. If it was non-corroborative, then of course the Government’s proof in Ashe-I failed for want of the corroboration we require in proof of sex offenses. And if, in turn, the Government’s proof failed in Ashe-I, then the rule in our circuit is clear that another trial cannot be brought. The Government’s response to this chain of reasoning is that even if there had been no corroboration, there was still ample evidence to convict Ashe of simple assault. We do not need to pass upon this response. We believe that Walter, Jr.’s testimony in Ashe-I was sufficient to meet the corroboration requirement. That rule must be applied in light of its purpose, to prevent fabrication of easily-fabricated crimes, and not to interpose a technical barrier that rejects a substantial showing of guilt. We attribute most of the deficiencies of Walter, Jr.’s testimony in Ashe-I to inferior language skills and emotional turmoil which have since substantially abated. The transcript from Ashe-11 certainly suggests a child functioning well within the limits of intellectual normality. We are sensitive to the point that Walter, Jr.'s testimony in Ashe-1 was weak and garbled, but we attribute the weakness to interference factors rather than to any fundamental inability to observe with accuracy. A family where a father is having indecent or incestuous traffic with his children is surely a family in turmoil. In addition to the ordinary and normal testimonial inadequacies which are a part of immaturity, the children of such families are likely to exhibit all sorts of emotional abnormalities which may often prevent their effective communication, especially in a context as intimidating as g crowded, unfamiliar courtroom. Unless we want in effect to wipe the enforcement of the carnal knowledge statute out of the incest situation, we must be prepared to accept evidence from some seriously mixed-up young witnesses, and to be flexible in assessing their competency and evidentiary sufficiency. Our opinion in Ashe-I recognized that the Government’s case was thin, but we did not hold it legally insufficient. The thin Government evidence meant that the error of permitting Dr. Platkin’s testimony in evidence, without protecting precautions such as bifurcation having first being taken, could not be harmless. We are satisfied that the retrial cured this prejudice. The record in Ashe-I indicates that the competency determination was made in open court outside the presence of the jury. The transcript shows that the defendant was present, as is his right under the Sixth Amendment. The procedure was sound. The jury’s finding of guilt, which is a part of its total determination of not guilty by reason of insanity, is not infected by legal insufficiency or error, and will not be disturbed. IV. We now address the issues raised in 71-1509, which attacks certain aspects of the Bolton hearing. At the end of that hearing, the jury found that Ashe was dangerous because of mental illness and Judge Green thereupon ordered his commitment. A. Appellant claims that the jury voir dire was not adequate for purposes of discovering whether there were some prospective jurors who, knowing that Ashe had recently been found to have committed a felonious sex crime and had been declared insane, might be prejudiced on the question of whether Ashe was now “dangerous as a result of mental illness.” Counsel submitte'd twelve questions, which are set out in footnote 2. The questions Judge Green asked were these (Tr. pp. 27, 28) : 1. Are there any of you who feel any sort of prejudice toward people who have been confined in jail, mental hospitals, Saint Elizabeths, or would this be such that it would prevent your reaching a fair decision in this case? 2. Do any of you feel that the conviction of a crime, committing an act of sex with one’s own daughter, would necessarily make one committable to a mental hospital ? 3. Do any of the members of the panel have any employment or patients or anyone in their family who has ever been employed at Saint Eliza-beths Hospital or been a patient there ? 4. Does any member of the panel have anyone in their family or have ever themselves suffered from any mental disease or defect? 5. Are there any reasons at all why any member of the panel would prefer not to sit on a case of this kind ? Seven of the prospective jurors told the court of some misgiving they had, based on the questions asked, and six of these were, upon further questioning by the court, excused. While the questions probing the ability of the jurors to render a fair verdict might have been improved, we are satisfied that they did an adequate job of discovering possible prejudice. Certainly appellant cannot claim reversible error for the denial of the argumentative — and equally unfocused — questions requested by appellant. B. Appellant also argues that the experts were improperly asked whether, in their opinion, Ashe was or would be dangerous. Ashe relies on our decision in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967). As counsel succinctly put it at argument, “Expert witnesses should never be allowed to speak the magic words.” There are different vectors of considerations that culminate in a psychiatrist’s resultant conclusion as to “dangerousness,” yea or nay. Some aspects are primarily determined by his expertise, and others by his value preferences in matters involving community values where the ultimate decisions must be made by the court and jury. The same may also be said of “mental illness” as a legal concept, for this is not controlled by the medical conception. Yet it has not been suggested that a psychiatrist may not speak, in parlance that is natural and understandable, of mental illness. The possibility of confusion must be obviated by attentive explanation, sorting out of factors, and cross-examination. The issue of “dangerousness” is different from the issue of “productivity.” Washington held that experts called to testify on the issue of insanity must not speak in terms of productivity. Our concern was against oversteering of the jury on the ultimate decision of criminal responsibility, one that “intertwine[s] moral, legal and medical judgments,” King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). The problem of “oversteering,” identified in Washington, is not avoided completely but it is substantially diluted here, in a Bolton hearing on the issue of dangerousness. As we pointed out in Brawner a critical reason for the Washington opinion was the lack of a generally accepted meaning for the “product” term. But we specifically held that the expert could testify on the causal relationship between mental disease and the existence of substantial capacity for control at the time of the act. And so in the case at bar, where there is no use of a term like “product” that has no accepted meaning, the expert can testify on the ultimate causal issue. The jury can be expected, with reasonable confidence, to assess the concept of “dangerousness” for itself and in such a way as to reflect community values. In a Bolton hearing, the jury is aware that the witness is not making a scientific finding as to a past fact, but is making an estimate as to the future— the kind of judgment that doubtless reflects some margin of doubt yet is part of his clinical function. Of course the judge clearly charges it is the jury’s role to make the determination. Such steering by experts as exists is due not to words and misunderstandings as to the natural tendency to be respectful of the comments of those who have given special study to a subject. It would likely persist ‘to substantially equivalent degree if the expert were merely asked to give his conclusions as to the consequences he foresaw if the individual were released to the community. The substantive criterion for committability is fixed by the statute. It uses terms and concepts that are common parlance for both experts and laymen. The jury needs whatever help the experts can provide, and that should not be cramped by interdicting the use of these terms in the testimony. On the other hand, the jury hearing a psychiatrist’s testimony of dangerousness, should be informed of its various components: to what extent it reflects a predicting of behavior (often palpably dangerous); whether it is prediction of an occurrence of a kind of behavior that, however deviant, might be considered by the jury to lie in the realm of the private, the eccentric, or the offensive, but not the dangerous. The expert must be prepared to state the bases for his conclusion and be aware that the attorney, seeking to expose the predicate of the expert’s conclusion is not necessarily challenging his expertise within its proper realm, but may properly be seeking to ask the jury to come to a different ultimate conclusion on the basis of the community-value factor involved. Following the lead of our Brawner opinion we hold that henceforth the Washington Appendix should be used in Bolton hearings, following adjustment for the difference in issues, should be sent to the experts in advance of hearing, and should be read at least once to the jury. C. Appellant strongly contends that Dr. Reisen should have been qualified as an expert in psychiatry and allowed to testify as such. Dr. Reisen is a physician with several years of background — both practical and academic — in psychiatry. He is not a board-certified psychiatrist or neurologist, but of all the physicians who testified, Dr. Reisen knows Ashe best. At oral argument, we were advised that Dr. Reisen is in charge of the observation ward at St. Elizabeths, and is entrusted by the Hospital with considerable unsupervised responsibility. Based on what we glean from the record and what we heard at oral argument, we conclude Dr. Reisen could have qualified as an expert in psychiatry. We do not however find reversible error, for these reasons: First, counsel at trial did not detail the extent of the responsibility which St. Elizabeths has entrusted to Dr. Reisen. More important, Dr. Reisen was permitted to testify as a physician and to express his opinion on Ashe’s probable future dangerousness. He was not allowed to testify directly on Ashe’s mental status. But other questions, intimately related to mental status, were allowed. Specifically, he was allowed to testify about how, in his opinion, Ashe would function in the community if released from the hospital. The thrust of that question operates, in effect, in the same way as a question put in terms of mental illness and dangerousness. The witness’s projection of the individual’s functioning, in the absence of commitment, necessarily embraces an appraisal of the individual’s mental and emotional capacities and behavioral controls. Finally, Ashe’s counsel was able to present the testimony of Dr. Paul Weis-berg, who did qualify as a psychiatric expert, that appellant was not suffering from mental illness. Dr. Weisberg’s testimony on direct was clear and unequivocal, and the skillful cross-examination by the Assistant U.S. Attorney did little to dislodge or becloud any of that testimony. Dr.. Reisen’s greater familiarity and contacts with Ashe might have given his opinion more weight with the jury. But in a context where the judge was not advised of critical aspects of Dr. Reisen’s responsibility at St. Elizabeths, and permitted Dr. Reisen to give testimony concerning the functioning of Ashe if released, we do not think the interest of justice would be served by a finding of reversible error because he did not expressly corroborate Dr. Weis-berg’s testimony on the absence of present mental illness. D. Appellant’s last major argument challenges the “preponderance of evidence” standard which the Bolton jury was charged it must use in its findings of mental illness and dangerousness. Our opinion in United States v. Brown is the contrary. We have considered appellant’s other arguments and find them without merit. Affirmed. . Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968). . Appellant’s proposed voir dire questions were: 1. The law controlling this case requires that a person be both mentally ill and likely to, injure himself or others before lie’s involuntarily confined in a mental institution. 2. Are there any of you who do not agree that there are many so called mentally ill or disturbed persons who are walking the streets, enjoying their liberty, and not harming anyone (including themselves) ? 3. Are there any of you who, after searching your feelings, feel any sort of prejudice towards people who have been confined in jail, mental hospitals — St. Elizabeths— which might render you unable to reach a fair decision in this case. 4. Are there any of you who do not agree that the burden is on the government to establish that the defendant is mentally ill and likely to injure himself and others, and the fact that he is in the courtroom today does not raise a presumption of either? 5. Are there any of you who feel that the conviction of a crime of incest, or committing an act of sex with one’s daughter, necessarily should make one committable to a mental hospital? 6. Do you jurors agree that the burden is on the government to establish in this case that as the result of a mental illness the defendant is likely to repeat the act of which he stands convicted, or commit some other dangerous act, in order to commit him to SEH? 7. Do you jurors agree that while psychiatrists may testify as to their opinion in this case, it is not binding on you and you may choose to disregard it, or weight it lightly, if your own experience and intuition and judgment lead you to another conclusion? 8. Do you jurors agree that patients at St. Elizabeths Hospital are not presumptively dangerous? 9. Do you jurors agree that mental patients — or people suffering from some mental disturbance — are not necessarily dangerous to society, or themselves, and should not necessarily be confined in mental institutions? 10. Do any of you have any mental illness in your family or among your close friends, which might prevent you from rendering a fair decision in this case? 11. Do any of you have policemen or law enforcement officers in your family? 12. Are there any reasons — perhaps reasons which you may find hard to articulate — which would make any of you uncomfortable in sitting on this kind of case and rendering a fair decision? . J. Goldstein and J. Katz, Dangerousness and Mental Illness; Some Observations on the Decision to Release Persons Acquitted By Reason of Insanity, 70 Yale L.J. (1960) 225. . United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972, en banc). . See opinion at p. 38, 471 F.2d at p. 1006: “It is the responsibility of all concerned — expert, counsel and judge — to see to it that the jury in an insanity case is informed of the expert’s underlying reasons and approach, and. is not confronted with ultimate opinions on a take-it-or-leave-it basis. The Appendix to Washington is useful in this regard— assuming appropriate modification. . 155 U.S.App.D.C.—, 478 F.2d 606 (1973).

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UNITED STATES of America v. Alan CRAWFORD, a/k/a Alan V. Crawford, Appellant. No. 72-1480. United States Court of Appeals, District of Columbia Circuit. Argued March 8, 1973. Decided March 29, 1973. Edgar W. Holtz, Washington, D. C., with whom Dorothy J. Glancy (both appointed by this Court), was on the brief, for appellant. Frederick C. Moss, 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 LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAME-SON, Senior United States District Judge for the District of Montana. Sitting by designation pursuant to 28 U.S.C. § 294(d). PER CURIAM: There was a witness confrontation close to the time and place of the offense. The witnesses, Mr. Gripper, the victim of the robbery, and Mr. Sprow, who observed the crime from across the street, accompanied the police in their cars in an effort to locate the suspect. One witness spotted on the street what he believed to be two of the (four) robbers, and these suspects were presented to the witnesses for identification. Our opinions have established that such a showup is permissible even though it has inevitable elements of suggestivity, because of the general reliability of such identifications close in time to the offense. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). Appellate counsel argued to us that the suggestivity of these confrontations was “undue,” was greater than need be, in view of the fact that (a) the witnesses were not separated at the crucial time when they, one after the other, set forth their identification, and (b) because the two suspects were presented together, although one of them, Barksdale, was clearly in the mind of Sprow as having been one of the robbers, raising the possibility that appellant Crawford was identified merely by association at the time of apprehension. We have accepted the inherently suggestive aspect of prompt confrontation showups as a tradeoff in the need to promote efficient police work, and indeed to enhance this: with the general reliability of prompt identifications. This acceptance of suggestivity in prompt confrontations as an inescapable cost of effieient police administration is subject to the limitation that the showups not be more suggestive than necessary. It is for that reason that we have set forth the need for separate identifications by the witnesses. See United States v. Wilson, 140 U.S.App.D.C. 331, 435 F.2d 403 (1970). However, we need not in this case pursue these questions, or what they portend as to the propriety of the street presentations made in this case, since in any event there is a determination by the District Court, supported by the evidence, that the observation at the time of the offense suffices to support the in-court identification, and that any question as to the street confrontations imposed no intervening taint. Affirmed.

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UNITED STATES of America, Appellant, v. Louis MANTELLO et al. UNITED STATES of America, Appellant, v. John Constantine COMMINGS et al. Nos. 72-1519 to 72-1521. United States Court of Appeals, District of Columbia Circuit. Argued March 13, 1973. Decided March 30, 1973. John J. Robinson, Atty., Dept, of Justice, of the bar of the Supreme Court of Texas, pro hae vice, by special leave of court with whom Harold H. Titus, Jr., U. S. Atty., and Sidney M. Glazer, Atty., Dept, of Justice, were on the brief, for appellant. John A. Terry and Stephen W. Grafman, Asst. U. S. Attys., also entered appearances for appellant. William A. Borders, Jr., Washington, D. C., for appellee Simkins in No. 72-1520 and also argued for all appellees. Francis X. Grossi, Jr., Washington, D. C., with whom Vincent J. Fuller, Washington, D. C., was on the brief, for appellees in No. 72-1521 and also argued for all appellees. H. Clifford Allder, Washington, D. C., was on the brief for appellees Smyrnas, Bellosi and DiNenna. Lawrence Speiser, Washington, D. C. (appointed by this Court), entered an appearance for appellee Berman and certain other appellees. Edward Menard, Oxon Hill, Md., entered an appearance for appellee Man-tello. Kurt Berlin and Frank Smith, Washington, D. C., for appellee Henry Johnson. Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAMESON, Senior United States District Judge for the District of Montana. Sitting by designation pursuant to 28 U.S.C. § 294(d). PER CURIAM: This is an interlocutory appeal by the Government from the order of the District Court, dated March 29, 1972, which granted the defendants’ motion to suppress four intercepts of telephone conversations. The intercepts followed the issuance of judicial authorizations secured under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. However, the District Court held that the evidence received on these intercepts was inadmissible, and subject to motion to suppress because of the failure to comply with 18 U.S.C. § 2516(1) which requires that the decision to seek a judicial “wiretap” order be authorized by “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General . . . ”. We affirm. Despite affidavits to the contrary presented to the United States District Court in support of the application for an order authorizing the intercepts, neither Attorney General Mitchell nor his “designated” deputy Will Wilson personally authorized, or indeed had any knowledge of, three of the four intercepts in question. Instead Mr. Sol Lindenbaum, Executive Assistant to the Attorney General, decided to designate Will Wilson to authorize the wiretaps, and affixed Attorney General Mitchell’s signature to that designation. Subsequently, one of two different Deputy Assistant Attorney Generals, either Harold Shapiro or Henry Petersen, affixed Will Wilson’s signature to the authorization. The Government seeks to support this procedure as a “substantial” compliance with the law, urging e. g., that Mr. Lindenbaum was the “alter ego” of the Attorney General. We cannot agree. The statutory language before us is clear. Only the Attorney General or an Assistant Attorney General designated by the Attorney General is permitted to make the determination of the Executive Branch that it requires intercepts, and to authorize applications to courts for intercept authority. Congress intended to limit the power to authorize the making of applications for wiretaps to these designated individuals, officials who had been nominated to high office and confirmed by the Senate for such office. The Congress deliberately limited the authority of the Attorney General to delegate this responsibility. That limitation on his authority to delegate cannot be circumvented by “alter ego” rationalization. The legislative history and policy behind this congressional enactment have been extensively reviewed by Judge So-beloff in United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), and Judge Duniway in United States v. King, 478 F.2d 494 (9th Cir., decided February 28, 1973). Both Circuits suppressed wiretaps on similar facts, and we adopt their results and rationale. To the extent United States v. Pisacano, 450 F.2d 259 (2d Cir. 1972), is to the contrary, we respectfully disagree. In the ease of the Commings tap, we also affirm the District Court. Although Attorney General Mitchell personally designated Will Wilson to authorize the tap, Wilson did not himself do so. The Government has not disputed that the probable cause affidavit submitted in support of the application for the tap relied almost entirely upon evidence seized in the Mantello taps which the District Court held were illegally obtained. This was clearly “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Affirmed. District Judge JAMESON dissents, for the reasons stated in his dissenting opinion in United States v. King, 478 F.2d 494 (9th Cir., decided February 28, 1973).

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PPG INDUSTRIES, INC., Plaintiff-Appellant, v. CONTINENTAL OIL COMPANY, Defendant-Appellee. No. 72-3148. United States Court of Appeals, Fifth Circuit. May 9, 1973. Rehearing Denied June 7, 1973. Oliver P. Stockwell, Fred H. Sievert, Jr., Lake Charles, La., Raymond A. Cook, Alfred H. Ebert, Jr., Houston, Tex., David A. Cort, Richard C. Packard, Pittsburgh, Pa., for plaintiff-appellant. Austin W. Lewis, Gene W. Lafitte, New Orleans, La., John C. Snodgrass, Keith W. Blinn, Harry M. Reasoner, John E. Kennedy, Joseph C. Johnson, Houston, Tex., for defendant-appellee. Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge. THORNBERRY, Circuit Judge. Appellant PPG Industries (PPG) filed this diversity action below in a Louisiana federal court against appellee Continental Oil Company (Conoco) for a declaration of the parties’ rights under a gas sale contract and for an injunction to restrain Conoco from performing certain acts which would constitute a breach of the contract or impair Conoco’s ability to perform it. On Conoco’s motion the district court stayed further proceedings pending final determination of an action for a declaratory judgment previously filed by Conoco against PPG and one other party in a Texas state court which raised the same issues as the federal suit. PPG appeals from the stay order under 28 U.S.C.A. § 1292(b), having obtained the requisite certificate from the district court and permission from this court to take this interlocutory appeal. We affirm the ruling of the district court. Under a 1963 contract, last amended in 1969, Conoco agreed to sell to PPG on a continuing basis until 1987 large quantities of natural gas which PPG needed for operation of its large chemical plant at Lake Charles, Louisiana. PPG planned to rely heavily on this gas to support expanded operations at the Lake Charles plant, and it so informed Conoco when the contract was amended in 1969. By 1972, however, Conoco had realized that the contract had become “impossible or commercially impracticable of performance because of the drastic national shortage of natural gas and government regulation,” and it notified PPG that in 1973 or 1974 it would be unable to supply the amounts of gas agreed upon. PPG and Conoco representatives arranged to meet on May 22, 1972 to discuss the contract and to seek solutions to the problem caused by the gas shortage. On May 10, 1972, about two weeks before the meeting, Conoco filed suit in a state district court in Harris County, Texas against PPG and Olin Corporation, another of its major gas customers, for a declaratory judgment that its failure to supply the amounts of gas originally contemplated would not be a breach of its contractual duties. Subsequently, Olin Corporation was granted a severance, and Conoco amended its original petition to add other gas customers as declaratory defendants. Since the filing of the original Texas suit by Conoco, PPG has undertaken several manuevers designated to relocate the litigation on the contractual questions in Louisiana, where it believes the applicable choice-of-law rule and the substantive contracts law are more favorable, and Conoco has battled — successfully so far — to confine the litigation to the Texas forum. PPG has sought three times to remove the Texas suit to a federal court in Texas, which might then transfer the case to a federal court in Louisiana; finding a slightly different set of defendants on each removal attempt due to severances of some defendants and additions of others, the federal district court in Texas each time remanded to the state court, either because the requisite diversity did not exist between Con-oco and each of the defendants or because one of the declaratory defendants was a Texas resident. See 28 U.S.C.A. § 1441. PPG also filed suit on May 31, 1972 against Conoco in a Louisiana court in Calcasieu Parish, but that court dismissed the action in deference to the Texas court, which had issued a temporary restraining order prohibiting PPG from proceeding further in the Calcasieu Parish suit. The instant action for declaratory and injunctive relief, filed by PPG on June 29, 1972 in the federal district court in Lakes Charles, Louisiana represents PPG’s latest tactic to gain access to a Louisiana forum, and the district court’s order staying further proceedings pending the outcome of the Texas suit is the barrier which presently blocks this route. Whether the stay order was properly entered depends on the answers to two questions: (1) Whether the district court had discretionary power to stay further proceedings in a diversity suit for declaratory and injunctive relief in deference to a pending state declaratory judgment action, and (2) if so, whether the district court properly exercised its discretion in this case. Upon consideration, we believe both questions must be answered in the affirmative. I. Discretionary Power to Stay Where federal action and a parallel state action involving the same controversy are both proceedings in rem or quasi in rem, so that the granting of effective relief requires possession or control of the res, the court which first assumes jurisdiction acquires exclusive jurisdiction and deprives the other court of power to decide the case. Princess Lida of Thurn and Taxis v. Thompson, 1939, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed. 285. This virtually mechanical in rem rule does not apply to actions in personam, however, such as the instant federal action and the corresponding Texas suit, which do not center about an identifiable res. Where both suits are in personam, as here, each court may proceed to adjudicate the controversy independently despite the pen-dency of a similar suit in the other court: Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res ad-judicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case. Kline v. Burke Construction Company, 1922, 260 U.S. 226, 230, 43 S.Ct. 79, 81, 67 L.Ed. 226. Thus, the district court below clearly had power to proceed in the instant case. This power is not at issue here. The issue is whether in view of the pendency of a parallel state proceeding, the district court could properly stay its hand when it had power to proceed. PPG, to support its argument that the stay order was improper, relies principally on Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. In that case the plaintiffs, invoking the federal court’s diversity jurisdiction, sought a declaration that under Florida law the City of Winter Haven could not retire certain bonds without providing for the payment of deferred interest coupons and an injunction restraining the City from doing so, as well as other declaratory and injunctive relief. The Court of Appeals had directed that the action be dismissed and the plaintiffs be left to litigate their claims in state courts because no federal questions were presented and the questions of state law were unsettled. The Supreme Court reversed, holding that difficulty of questions of state law could not alone justify refusal to exercise the diversity jurisdiction conferred on the federal courts by Congress. The Court stressed initially that the prayer for declaratory relief, which accompanied the prayer for in-junctive relief, did not stamp the suit with a special overriding declaratory character or eclipse the prayer for an injunction. It noted that a declaration of rights is normally a prerequisite to an award of injunctive relief and concluded that, although the court of appeals had referred to the suit as one for declaratory judgment, it should properly be treated as “ordinary equity suit.” 320 U.S. at 231, 64 S.Ct. at 9. The Court then affirmed the mandatory nature of diversity jurisdiction conferred on the federal courts by Congress and made clear that in equity suits only “exceptional circumstances” could justify a discretionary refusal to exercise that jurisdiction : 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 right 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. . . . When such exceptional circumstances are not present, denial of that opportunity by the federal courts merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the state, would thwart the purpose of the jurisdictional act. The exceptions relate to the discretionary powers of courts of equity. An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity. 320 U.S. at 234, 64 S.Ct. at 11. The Court listed several established policies which would warrant the exercise of discretion to withhold equitable relief in some circumstances, including the policies against federal intervention in state criminal prosecutions and federal interference with the collections of state taxes, and the abstention doctrine established in Railroad Commission v. Pullman Company, 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, under which a federal court may require the parties before it to secure in state courts determinations of unsettled state law which may avoid the necessity for constitutional decision. The list did not include the mere pend-ency of a parallel state action as a circumstance which would warrant the withholding of equitable relief if it were otherwise proper, but in concluding that no circumstances were present in Meredith to justify the non-exercise of diversity jurisdiction, the Court did note that no state action was pending in which the questions presented in the federal case could be answered. PPG’s position in this suit is that pendency of a parallel state action is not a special circumstance under Meredith, and that the district court in this case should therefore proceed to adjudicate the controversy before it. We do not believe, however, that Meredith can fairly be read as forbidding a federal court to stay an equity suit pending the outcome of a parallel state action. In Meredith there was no pending parallel state action, and the Court did not directly consider the question of whether such a state action might warrant a federal stay. Nor did the “special circumstances” list purport to be exhaustive. Apparently to avoid the force of Meredith, Conoco attempts to characterize this case as a declaratory judgment action, in which the injunctive relief sought is only “ancillary” or is “premature,” and thus to bring it under the rule of Brillhart v. Excess Insurance Company, 1942, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620, which established the discretionary power of a federal court to abate an action solely for a declaratory judgment in deference to a parallel state action. We cannot agree with Conoco that the instant case falls under the strict holding of Brillhart, which dealt with an action seeking only a declaratory judgment. Like the suit reviewed in Meredith, this action for declaratory and injunctive relief must be treated as “an ordinary equity suit.” To label the claim for an injunction “ancillary” does not advance analysis; PPG expressly requests both remedies in its complaint and the prayer for a declaratory judgment cannot obscure or weaken the prayer for an injunction. If the prayer for injunc-tive relief could be determined to be frivolous or premature or otherwise “wanting in equity,” then the suit could be considered solely a declaratory action and the Brillhart holding would clearly apply. See Public Service Commission v. Wycoff Company, 1952, 344 U.S. 237, 240-241, 73 S.Ct. 236, 238, 97 L.Ed. 291. But the district court made no such determination, and on the record before us we cannot do so. Both parties have repaired to the courts to settle their dispute and have alleged that in the relatively near future Conoco definitely will be unable or unwilling to perform fully its gas sale contract with PPG. This state of affairs tends to indicate that a sufficiently concrete case or controversy exists between the parties and that the threatened harm is sufficiently imminent and certain that the prayer for an injunction is not premature. See Pierce v. Society of the Sisters of the Holy Name of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. If Conoco’s conduct in failing to supply the amounts of gas agreed upon constitutes a breach of contract — an issue which we, of course, do not decide — then an injunction might ultimately be a proper remedy. See Standard Oil Company v. Lo-peno Gas Company, 5th Cir. 1957, 240 F.2d 504. While we are thus unable to agree with Conoco that Brillhart controls this case, we do believe that Brill-hart and cases decided after it and after Meredith have made manifest a policy against dual litigation which applies with equal force to declaratory actions and to ordinary equity suits, and which, though not included in the Mededith list of exceptional circumstances, has given rise to a discretionary power in the federal courts to stay proceedings in equity suits in deference to a parallel state action. Two of the bases underlying the policy to which we refer are seen in the Brill-hart opinion: Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided. 316 U.S. 495, 62 S.Ct. 1175. This language recognizes that duplicate litigation in federal and state courts abrades to some extent the spirit of federal-state comity' — -that even when the two courts of concurrent jurisdiction do not require control over an identifiable res, concurrent litigation of the same controversy is perceived as interference. Secondly, the quoted sentences show concern for economy of judicial time and a disinclination to encourage duplication of effort. See also Kerotest Manufacturing Company v. C-O-Two Fire Equipment Company, 1952, 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200. In the decades since Brillhart, of course, the increasingly crowded dockets of the federal courts have magnified the importance of this practical consideration. See Aetna State Bank v. Altheimer, 7th Cir. 1970, 430 F.2d 750, 756. A parallel consideration supporting the policy against dual litigation is the undesirability of imposing on the litigants and the witnesses the double burden of two trials. See id at 758. Finally, the courts have recognized as generally “unwanted and highly undesirable [the] race by each party to obtain a decision from the particular . . . court reacting most favorably to its position.” ACF Industries, Inc. v. Guinn, 5th Cir. 1967, 384 F.2d 15, cert. denied 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140. In the context of federal actions attacking state criminal proceedings or the collection of federal taxes the Supreme Court has explicitly held that the factors governing the decision to grant or withhold an injunction or declaratory relief are largely the same, see Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Great Lakes Dredge & Dock Company v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, and in our view it is logical that similar considerations should underlie the decision to grant either form of remedy in a diversity action involving only private rights as well. As the Supreme Court observed in Meredith, a declaration of rights is normally a prerequisite to an award of injunctive relief, whether or not the plaintiff prays for a declaratory judgment. Likewise, a declaratory judgment, though not itself coercive, may serve as the basis for subsequent injunctive relief in an appropriate case. See 28 U.S.C.A. § 2202. The close relationship of the two remedies, both of which are discretionary, logically and properly calls for consideration of similar factors in deciding whether either should be granted. Since Meredith was decided in 1943, the cases have relied increasingly on the same criteria in considering the appropriateness of the two remedies when they are both sought in the same case. In Lear Siegler v. Adkins, 9th Cir. 1964, 330 F.2d 595, an action by a patent licensee against a patent holder for a declaratory judgment that the patent was invalid and an injunction, the district court had stayed proceedings pending the outcome of a state suit filed three years earlier by the patent holder against the licensee for damages. The issues and parties in both suits were the same. The Ninth Circuit, in affirming the stay, relied heavily on Brillhart and other declaratory judgment cases and made no distinction between the Brillhart considerations applicable to a declaratory suit and those applicable to a suit for both declaratory and injunctive relief. In Occidental Life Insurance Company v. Nichols, 5th Cir. 1954, 216 F.2d 839, this court ordered that an action by an insuror against its insured for a declaration of non-liability and the equitable relief of recision be stayed pending the outcome of a prior state action by the insured for payment of benefits due under the contract. The court recognized that the prayer for recision made the strict holding of the Brillhart line of cases inapplicable and reversed the district court’s dismissal of the action, but concluded nevertheless that a stay pending final disposition of the state suit was the appropriate course. See also Milk Drivers and Dairy Employees Local Union, Local No. 338 v. Dairymen’s League Co-operative Association, Inc., 2nd Cir. 1962, 304 F.2d 913. Language in Supreme Court cases since Meredith indicates that that tribunal has also decided the propriety of granting or withholding injunctive relief under criteria similar to those applicable when only a declaratory judgment is sought. In Eccles v. Peoples Bank of Lakewood Village, 1947, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784, the plaintiff bank prayed for a declaratory judgment that a condition under which it became a member of the Federal Reserve System was invalid and an injunction against its enforcement. No parallel state action was pending. The court stated, “A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest,” 333 at 431, 68 S.Ct. at 644, and it ultimately held “the Bank’s grievance here is too remote and insubstantial, too speculative in nature, to justify an injunction against the Board of Governors, and therefore equally inappropriate for a declaration of rights.” 333 U.S. at 434, 68 S.Ct. at 645. Mr. Justice Reed, dissenting from the Court’s holding of prematurity, stated: This Court has disci'etion to refuse to consider a petition for a declaratory judgment and an injunction to stop a threatened or existing injury. That discretion is not unfettered. . . There is no difference between declaratory suits involving an equitable remedy and other equity suits. Where an actual controversy with federal jurisdiction exists over the legal relations of adverse parties, discretion usually cannot properly be exercised by refusing an adjudication. Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9; cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. Unusual circumstances, not here present, such as other pending suits, Brillhart v. Excess Insurance Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620, or super-session of state authority, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, sometimes justify refusal of relief. 333 U.S. at 436, 68 S.Ct. at 646-647. Significantly, both the majority and the dissent considered the propriety of granting declaratory and injunctive relief under the same criteria, and the dissent clearly indicated an understanding that the Brillhart considerations would apply to a suit for both remedies and that the pendency of another suit should be regarded as an “unusual circumstance,” which might warrant the withholding of equitable relief. The Supreme Court grouped the declaratory and injunctive remedies together more recently in Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681: The injunctive and declaratory remedies are discretionary. . Further, the declaratory judgment and injunctive remedies are equitable in nature, and other equitable defenses may be interposed. If a multiplicity of suits are undertaken in order to harass the Government or to delay enforcement, relief can be denied on this ground alone. Truly v. Wanzer, 5 How. 141, 142, 12 L.Ed. 88; cf. Brillhart v. Excess Ins. Co., . . . 387 U.S. at 148, 155, 87 S.Ct. at 1515, 1519. Upon consideration of the authorities, we conclude that in an equity suit, the federal district court has discretionary power to stay its hand pending the outcome of a parallel state action. We are aware that stays have been upheld in some cases which were legal rather than equitable or declaratory in nature. See, e. g., Aetna State Bank v. Altheimer, 7th Cir. 1970, 430 F.2d 750; Thompson v. Boyle, 5th Cir. 1969, 417 F.2d 1041, cert. denied, 397 U.S. 972, 90 S.Ct. 1088, 25 L.Ed.2d 266; Amdur v. Lizars, 4th Cir. 1967, 372 F.2d 103; Ray v. Hasley, 5th Cir. 1954, 214 F.2d 366; Beiersdorf & Company, Inc. v. McGohey, 2nd Cir. 1951, 187 F.2d 14; Mottolese v. Kaufman, 2nd Cir. 1949, 176 F.2d 301. And some of these suggest that the court’s power to stay pending determination of a state action is not dependent on the equitable or declaratory character of the relief sought but is part of the court’s inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Company, 1936, 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153. This court has previously declined to express its full assent to this broader view, Thompson v. Boyle, supra, and we need not do so today. We recognize that a stay pending final determination of a state suit between the same parties and the same issues will probably have the same practical effect as a dismissal would have, since the state judgment when final may be pleaded as res judicata in the federal action. Amdur v. Lizars, supra; Mottolese v. Kaufman, supra; cf. McClennan v. Carland, 1910, 217 U.S. 268, 282, 30 S.Ct. 501, 504-505, 54 L.Ed. 762. Despite the probability that the stay of the federal suit will have this effect, we do not believe the action should be dismissed. A stay is the preferable order because: Conceivably state action could be quite unreasonably delayed or other factual situations not now anticipated might develop in the state litigation which would cause the district court on appropriate petition to desire to reactivate and to go forward with the pending but presently stayed action. Aetna State Bank v. Altheimer, supra 430 F.2d at 756. II. Proper Exercise of Discretion to Stay Conoco argues that the district court’s decision to stay should not be disturbed on appeal except for an abuse of discretion. We agree with this proposition generally, but because of the probable dismissal-like effect of a stay to permit a state court to decide the case first, we think the appellate court must subject the district court’s exercise of discretion to a relatively strict standard of review. Many discretionary decisions may be reversed on appeal only if the appellate court finds they were arbitrarily made or that no reasonable man would have decided the question as the trial judge did. See Delno v. Market Street Railway Company, 9th Cir. 1942, 124 F.2d 965, 967. Other types of actions, including the decision to grant or withhold declaratory relief, are discretionary in the sense that no single rule governs all situations, but are subject to a stricter standard of review which permits an appellate court to substitute its judgment for that of the trial court, even though the latter’s action was not arbitrary and capricious. Broadview Chemical Corporation v. Loctite Corporation, 2nd Cir. 1969, 417 F.2d 998, cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970); see 6A Moore’s Federal Practice j[ 57.08 [2] (1972). This stricter standard of review must logically apply to our examination of the district court’s decision to withhold equitable relief pending a state determination as well. In exercising its discretion to grant or deny a stay in an equity suit pending a determination of a parallel state suit — one involving the same parties and the same issues as the federal suit — the district court should consider several factors. Fundamentally, the district court should determine whether the state action provides an adequate vehicle for adjudicating the claims of the parties and whether the federal action serves some purpose beyond mere duplication of effort. [A] district court . . . should ascertain whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law can better be settled in the proceeding pending in the state court. This may entail inquiry into the scope of the pending state court proceeding and the nature of defenses open there. The federal court may have to consider whether the claims of all parties and interests can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc. Brillhart v. Excess Insurance Company, 1942, 316 U.S. 491, 496, 62 S.Ct. 1173, 1176, 86 L.Ed. 1620. The advantages of obtaining in one suit or the other joinder of more parties affected by the controversy, even though they are not indispensable parties to the litigation, may be decisive in a given case. E. g., Thompson v. Boyle, supra. The chronological order in which the suits were filed is not controlling, when the suits are in personam rather than in rem, but priority is a factor entitled to some consideration. See Employers’ Liability Assurance Corporation v. Mitchell, 5th Cir. 1954, 211 F.2d 441, cert. denied, 347 U.S. 1014, 74 S.Ct. 869, 98 L.Ed. 1137; Carbide & Carbon Chemicals Corporation v. United States Industrial Chemicals, 4th Cir. 1944, 140 F.2d 47, 49. The prospects of early completion of the state suit should also be considered, Mottolese v. Kaufman, supra 176 F.2d at 303, as should any unique factors in the particular case which bear on the fairness of a stay to the parties, particularly to the party or parties opposing the stay. Aetna State Bank v. Altheimer, supra 430 F.2d at 758. The federal district court in this case determined that the Texas state suit and the Louisiana federal suit “presented for judicial determination the same controversy,” and that the “Texas court is perfectly capable of deciding whether Louisiana or Texas law should control in the adjudication of the matter, and of correctly applying whichever law is applicable.” The court named as its sole ground for granting the stay “the generally recognized rule that the court first acquiring jurisdiction should be permitted to proceed without interference from a court of another jurisdiction.” These determinations made by the district court, and borne out by the record, tend to support the discretionary decision to stay pending the outcome of the Texas suit. In addition, the record reflects that at least three of Conoco’s other gas customers with contract and supply difficulties similar to those of PPG have been joined as declaratory defendants in Texas, but could not be joined in a federal suit in Louisiana without destroying diversity; the presence of these additional parties in the Texas suit, while not strictly necessary to a declaration of rights under the PPG-Conoco contract, will permit a more advantageous perspective on what may be viewed as a single, multi-party controversy. Nothing has come to the attention of this court which would indicate a stay would be unfair to PPG. We understand PPG’s desire to litigate the controversy in a Louisiana forum under a choiee-of-laws rule, which it believes is more favorable to its position, and Conoco’s desire to litigate in Texas, and we do not fault PPG or Conoco for the procedural fencing and maneuvering in which each has engaged for the purpose of advancing its interests. But we cannot say that either the Texas or the Louisiana choice-of-law rule is more or less fair than the other, and we perceive no unfairness in requiring PPG to pursue settlement of this controversy in only a single forum, which we are confident is equal to the task presented to it. PPG has not suggested that adjudication by the Texas court will be unduly delayed or that it cannot secure the same coercive relief in the Texas suit, if it should ultimately prevail, which it has sought in the federal suit, either by way of counterclaim or by a subsequent suit or application to the Texas court based on the declaratory judgment which will be rendered. Accordingly, we believe the exercise of discretion by the district court in this instance was proper, and its judgment is Affirmed. . Since we conclude 28 U.S.C.A. § 1292 (b) supplies appellate jurisdiction here, we need not consider whether § 1292(a). (1) provides an independent jurisdictional basis. Lear Siegler, Inc. v. Adkins, 9th Cir. 1964, 330 F.2d 595; see also Amdur v. Lizars, 4th Cir. 1967, 372 F.2d 103, 106. . The quoted language is from Conoco’s petition for a declaratory judgment filed in the 157th District Court of Harris County, Texas, filed May 10, 1972 and numbered 907308 in that court. . While the parties apparently agree that a state or federal court in Louisiana, using the Louisiana choice-of-law rule, would apply Louisiana substantive contract law, it is uncertain whether the Texas court will apply Texas or Louisiana contract law. . The Uniform Commercial Code forms a part of the Texas law of contracts, but Louisiana has not adopted the UCC. Apparently, the UCC provision which PPG hopes to escape by litigating in a Louisiana forum is § 2-615, which provides in part: Delay in delivery or non-delivery in whole or in part by seller is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency, the non-occurrence of which was a basic assumption on which the contract was made. . . In addition to a declaration that Conoco is strictly bound to supply the amounts of gas specified in the contract, PPG sought a permanent injunction restraining Conoco from “(1) Entering into any new gas sale contract that would adversely affect Conoco’s ability to perform its contract with PPG; (2) Failing to purchase gas or substituting fuel to satisfy its contractual obligations with PPG, if such purchase is required for Conoco to perform its contract commitment with PPG; (3), Threatening to breach its contract with PPG;” and ordering Conoco “(4) ... to perform its obligations under the contract to deliver natural gas in the quantities, at the times, and for the prices set forth in said contract as demanded by PPG.” . The lack of a i>arallel state suit xiend-ing at the time the federal action was abated is a factor which also distinguishes County of Allegheny v. Frank Mashu-da Company, 1959, 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163, and McClellan v. Carland, 1910, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762. But see Ermentrout v. Commonwealth Oil Company, 5th Cir. 1955, 220 F.2d 527, 530 (dictum). . See, e. g., Provident Tradesmens Bank & Trust Company v. Patterson, 1968, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936; Abbott Laboratories, Inc. v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Mechling Barge Lines v. United States, 1961, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317; Public Service Commission v. Wycoff Company, 1952, 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291; Eccles v. Peoples Bank of Lakewood Village, 1948, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784; Alabama State Federation of Labor v. McAdory, 1945, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Great Lakes Dredge & Dock Company v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407. . While the discretionary nature of traditional equitable remedies derives from history, the source of the discretionary power to abate a declaratory action is the Declaratory Judgment Act itself, which “was an authorization, not a command.” Public Affairs Associates, Inc. v. Rickover, 1962, 369 U.S. 111-112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America ex rel. Tilden Louis CONDON, Appellee, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Appellant. No. 72-1529. United States Court of Appeals, Eighth Circuit. Submitted Jan. 11, 1973. Decided April 25, 1973. Rehearing and Rehearing En Banc Denied May 29, 1973. Thomas R. Vickerman, Asst. Atty. Gen., Pierre, S. D., and Andrew Aberle, Timber Lake, S. D., for appellant. Richard A. Smith, Rosebud, S. D., for amicus. John Simko, Sioux Falls, S. D., for ap-pellee. Before LAY, HEANEY and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. This appeal presents the question of whether Eagle Butte, South Dakota is located within the boundaries of the Cheyenne River Indian Reservation. If it is, then South Dakota had no jurisdiction to charge and convict appellee Con-don, an enrolled member of the Cheyenne Indian Tribe, for the rape of a 70 year old librarian at Eagle Butte. Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) and City of New Town, North Dakota v. United States, 454 F.2d 121 (CA8 1972). 18 U.S.C. § 1153 provides, among other offenses, that an Indian who commits rape against another Indian or other person within the “Indian Country” shall be subject to punishment within the exclusive jurisdiction of the United States. Indian Country, defined in 18 U.S.C. § 1151, means “ . . . all land within the limits of any Indian reservation under the jurisdiction of the United States government . . . ” *3 The boundaries of the Cheyenne River Indian Reservation were originally established by the Act of March 2, 1889, 25 Stat. 888. It has been held, however, that the portion of the reservation opened up to settlement (of which Eagle Butte is a part) by the Act of May 29, 1908, 35 Stat. 460 was severed from the reservation by the 1908 Act and no longer “Indian Country.” United States v. LaPlant, 200 F. 92 (D.S.D.1911) and Lafferty v. State, 80 S.D. 411, 125 N.W.2d 171 (1963). See also, State v. Barnes, 81 S.D. 511, 137 N.W.2d 683 (1965). Compare, State v. Molash, 199 N.W.2d 591 (S.D.1972). The rape was committed on November 2, 1964. Condon thereafter was arrested on federal charges and held in federal custody until April 16, 1965, when South Dakota arrested him on charges of first degree rape. Condon pleaded guilty in state court and received a fifteen-year sentence. Post-conviction efforts in state courts failed. State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970). Condon then petitioned the United States District Court for the District of South Dakota claiming that (1) he had been denied effective assistance of counsel and (2) the state was without jurisdiction to try him since the crime was committed on “Indian country,” where federal jurisdiction is exclusive. We agreed with the trial court’s denial of relief on the first issue but remanded with directions to hold an evidentiary hearing on the jurisdictional question. United States ex rel. Condon v. Erickson, 459 F.2d 663 (CA8 1972). On remand, Judge Nichol granted Condon’s petition for writ of habeas corpus holding that although it appeared that Congress diminished the boundaries of the Cheyenne River Reservation by implication in the Act of May 29, 1908, 35 Stat. 460 (thereby excluding Eagle Butte from the reservation), decisions by the Supreme Court and this Court commanded a contrary result. United States ex rel. Condon v. Erickson, 344 F.Supp. 777 (D.S.D.1972). On appeal, the State and the United States by amicus curiae urge that the 1908 Act changed the boundaries of the reservation so as to exclude from the reservation the portion in which Eagle Butte is located. BACKGROUND “Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored.” F. Cohen, Handbook of Federal Indian Law, XIII (Introduction by N. Margold) (1942). Prior to 1850 the Mississippi River was considered to be the general dividing line between “civilization” and the “Indian Country.” See, Act of June 30, 1834, 4 Stat. 729. The Sioux, who were driven west of the Mississippi by the Chippewa in the early 18th century, roamed the Missouri Valley freely. They followed the buffalo herds which provided them food, shelter and clothing. At this time their lands were definitely unwanted and considered worthless by their neighbors to the east. Soon, however, farming settlers began crossing the Mississippi pushing westward and others carved out great trails through Sioux lands heading for the Oregon’s Willamette valley and western gold fields. The Sioux and their buffalo herds were then threatened by the invaders and constant conflict followed. Finally, in the Treaty of April 29, 1868 at Fort Laramie, the Sioux agreed to a territory encompassing approximately the western one-half of present-day South Dakota, bordered on the east by the Missouri River and portions of present-day Nebraska on the south. This area was known as the Great Reservation of the Sioux Nation. The demand for Indian lands grew with immigrant settlers flooding in by the thousands. The buffalo became nearly extinct by 1885 and the Sioux had to adjust to a life on the reservation which consisted almost entirely of residing adjacent to government agencies and eating government furnished food. An alliance arose between easterners sympathetic to the Indians and western politicians. From this alliance came an Indian policy by which the Indians allegedly were to become “civilized” in part by receiving allotments or parcels of land and agriculture tools to enable them to create a subsistence of their own. After the Indians commenced farming on their allotments, a large portion of their reservation was no longer necessary for their purposes and became “surplus.” In the Act of March 2, 1889, 25 Stat. 888, the Great Sioux Reservation was divided into seven separate reservations, one of which is the Cheyenne River Indian Reservation. The new reservations were to be “permanent” and the lands outside the new boundaries were expressly restored to the public domain. 25 Stat. 888, 896, (§ 21) and Act of April 30, 1888, 25 Stat. 94 (§ 21). As of 1904 the Indian population on the Cheyenne River Reservation was 2,557, and by 1908 the reservation encompassed 2,867,840 acres of which 320.-631 had been allotted to 934 Indians, leaving unallotted and theoretically “surplus” some two and one-half million acres. F. Webb, Handbook of American Indians North of Mexico, H.R.Doc.Ño. 926, Part 2, 59th Cong., 1st Sess. 386 (1910). By the Act of May 29, 1908, 35 Stat. 460, Congress opened to settlement the surplus or unallotted lands in the Cheyenne River and Standing Rock reservations. 80,142 persons registered to homestead. South Dakota Legislative Manual, 131 (1911). The area opened includes the site where Eagle Butte is now located. THE 1908 ACT We cannot say that the 1908 Act on its face affected the exterior boundaries of the reservation, although it is admittedly a close question. The Act authorized the Secretary of the Interior “to sell and dispose of all that portion of the Cheyenne River and Standing Rock Indian reservations . . . being within the following described boundaries, . . except such portions thereof as have been allotted to Indians: . . . . ” The lands were to be disposed of by presidential proclamation under the prevailing federal homestead and town-site laws. In nearly all respects, the language of the 1908 Act is identical to other contemporaneous acts held not to have changed the boundaries of the respective reservations involved. See, Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) and City of New Town, North Dakota v. United States, 454 F.2d 121 (CA8 1972). Appellee thinks it significant that the 1908 Act provided for the proceeds from the sale of the lands to be deposited into the Treasury of the United States and credited to the Indians as was the case in the 1906 (Seymour) and 1910 (New Town) acts. This method contrasts with prior acts wherein payment for the lands was made directly to the Indians. It has been aptly pointed out, however, that this was simply a new method utilized by a Congress that no longer favored purchasing Indian lands and providing them free of cost to settlers. “New Town et al: the Future of an Illusion,” 18 South Dakota L.Rev. 85, 94-98 (1973). Appellant relies primarily on two provisions found within the 1908 Act which are not present in either the 1906 or 1910 Acts. In § 2 of the 1908 Act it is stated as a proviso that the Secretary may permit Indians who have received allotments in the area opened to settlement to relinquish such and receive a new allotment “within the respective reservations thus diminished. ...” (emphasis added). This proviso is subject to two competing constructions. The reservation thus diminished, as contended by appellant, means a smaller reservation with adjusted boundaries. On the other hand, the reservation could have retained its original exterior boundaries even though the portion held by Indians was diminished by virtue of the sale of lands within the boundaries to outsiders. Indeed, this would be consistent with 18 U.S.C. § 1151 defining Indian country as lands within the limits of a reservation notwithstanding the issuance of any patent. More persuasive from appellant’s standpoint is the final sentence of the act, the second proviso of § 9. This section provides that Indians residing upon allotments in a northern strip of townships may use the timber thereon for domestic purposes “only as long as the lands remain part of the puiblic domain.” (emphasis added.) Since the townships are located within the area opened to settlement, appellant asserts that this proviso is declaratory of Congress’ intent that the entire area be restored to the public domain and therefore it is no longer within the 1889 boundaries of the reservation. Appellee argues poor draftsmanship by the authors of the Act. Both are plausible, but Congress may have intended to restore only this Northern strip of townships to the public domain for a limited period until the lands were sold to the homesteading set-tiers. If such were the case, the remaining open area in which Eagle Butte is now a part would not have been affected. LEGISLATIVE HISTORY Resort to the applicable contemporaneous and subsequent legislative history is not helpful. Both the House and Senate Committee reports are silent as to the 1908 Act’s effect upon the boundaries of the Cheyenne River Reservation. Appellant points out the various references in the reports and attached documents to a diminished reservation and a relinquishment of land by the Indians. A reservation, however, as already pointed out, may be diminished in land size by sale of portions thereof to non-Indians without changing the reservation’s boundaries. As in Seymour and New Town, the subsequent Congressional treatment of the reservation has been inconsistent. In the Act of July 11, 1940, 54 Stat. 1336, pt. 2, Congress referred to the opened areas as the ceded areas of the reservation. In 1952, The Secretary of Interior restored to the reservation part of the opened lands, “. . . being within the boundaries of the former Cheyenne River Reservation. . . . ” 17 Fed.Reg. 1065, 1066 (1952). Congress, however, in the Act of June 23, 1910, 36 Stat. 602, pt. 1, authorized the sale of certain of these lands within the opened area to the Milwaukee Land Company, referring to the property as “surplus and unallotted lands in the Cheyenne River Reservation. ...” The historical relationship between the United States and the Sioux was primarily one of a continuous conflict over the acquisition of Sioux lands by the settlers and their government. The Sioux’s land was acquired by conquest, by treaty and then by Act of Congress. In the earlier acts and treaties, Congress restored the lands acquired to the public domain and then allowed homesteading by settlers free of cost. Later, Congress opened the lands to settlement, selling the lands to homesteaders and depositing the funds in the Treasury to the credit of the Indians. In these later acts, in which the 1906 {Seymour), 1910 {New Town) and the 1908 Acts are included, Congress did not expressly restore the opened lands to the public domain. It was originally held that Indian Country ceased to be such whenever Indians lost title to the land, Dick v. United States, 208 U.S. 340, 359, 28 S.Ct. 399, 52 L.Ed. 520 (1908); United States v. LaPlant, 200 F. 92 (D.S.D. 1911); Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877); and F. Cohen, Handbook of Federal Indian Law, 7 (1942). This view has been laid to rest by the present definition of “Indian Country” which includes all land within an Indian reservation notwithstanding the issuance of any patent. See Seymour, supra, 368 U.S. at 357-358, 82 S.Ct. 424. See also, Kills Plenty v. United States, 133 F.2d 292 (CA8 1943). Therefore, the fact that the 1908 Act removes title to reservation lands from the Indians and places it into the hands of non-Indians does not, by itself, affect the exterior boundaries of the reservation. We cannot say, as we did in New Town, that the 1908 Act “clearly by its own terms does not purport to alter the reservation boundaries” established by the 1889 Act. (emphasis added) 454 F.2d at 125. Nor does a reading of the Act, its legislative history and its subsequent legislative treatment require the opposite conclusion. The Congressional intent underlying the 1908 Act with respect to the reservation’s boundaries is not clearly discernible by application of the traditional methods of statutory construction. In the final analysis, we conclude that in view of the principles expressed in Seymour, New Town and McClanahan v. State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), LaPlant is no longer viable to the extent that it holds that the 1889 boundaries of the reservation were changed by the 1908 Act. See also, United States ex rel. Miner v. Erickson, 428 F.2d 623, 637-638 (CA8 1970) (Judge Lay, dissenting) and Putnam v. United States, 248 F.2d 292 (CA8 1957). Seymour holds that the opening of an Indian reservation for settlement by homesteading is not necessarily inconsistent with its continued existence as a reservation. The Suprtme Court in Seymour also approved its prior statement in United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 95, 54 L.Ed. 195 (1909) that “when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.” Finally, in MeClanahan, supra, the Court reaffirmed the long standing “policy of leaving Indians free from state jurisdiction and control [which] is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945). See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832) and Beardslee v. United States, 387 F.2d 280, 285 (CA8 1967) (Blackmun, J.). Each case, of course, must be decided under the applicable statute and upon its own facts. Where as here, however, the question presented is close, we conclude that a holding favoring federal jurisdiction is required unless Congress has expressly or by clear implication diminished the boundaries of the reservation opened to settlement. We therefore affirm the trial court’s decision that the original boundaries of the Cheyenne River Indian Reservation as established by the 1889 Act were unaffected by the 1908 Act. Eagle Butte, therefore, lies within “Indian Country,” as defined by 18 U.S.C. § 1151 and the State Courts of South Dakota had no jurisdiction to try Condon for the offense. The writ of habeas corpus was properly granted. Affirmed. . As a condition to achieving statehood, South Dakota incorporated into its State Constitution, adopted on October 1, 1899, Article XXII in which the State disclaimed all right and title to lands owned or held by Indians or Indian tribes. In 1901, the State relinquished to the United States exclusive jurisdiction and authority to arrest, prosecute, convict and punish all persons in violation of federal laws when committed upon any Indian Reservation. By the Act of February 2, 1903, 32 Stat. 793, Congress granted jurisdiction to the United States District Court for the District of South Dakota to hear and try persons committing certain crimes on Indian reservations. See, Kills Plenty v. United States, 133 F.2d 292 (CA8 1943). For fifteen years Congress offered to the states, South Dakota included, to turn over civil and criminal jurisdiction of persons within Indian reservations. Act of August 15, 1953, § 7, 67 Stat. 588 (18 U.S.C, § 1162 and 28 U.S.C. § 1360), repealed, Pub.L. 90-284, Title IV, § 403(b), April 11, 1968, 82 Stat. 79 (25 U.S.C. § 1323). South Dakota apparently could never muster sufficient popular support in order to accept the United States’ offer of jurisdiction. See, Staff Report, “Jurisdiction Over Indian Country in South Dakota,” (South Dakota State Legislative Research Council, March 5, 1964) and State v. Molash, 199 N.W.2d 591, 593 (S.D.1972). . See, General Allotment Act (Dawes Act), Act of February 8, 1887, 24 Stat. 388. It has been estimated that the Indian farmers achieved a minimally successful crop only one out of every five years, the other four were destroyed by drought or flood. See G. Hyde, A Sioux Chronicle (1956). See also, Annual Reports of the Dept, of Interior, 328-333 (1905). . For an account of the methods used in the 1880’s by the agents of the “Great White Father” to obtain the consent of the Indians to the agreement, see G. Hyde, A Sioux Chronicle (1956). . 1 Kappler, Indian Affairs — Laws and Treaties, 1030 (1904). . In § 7, Congress made a specific grant of sections 16 and 36 of each township to the states for the use of the common schools. . This method became quite unpopular from the standpoint of the Indian, who wanted the money in his pocket rather than deposited for his “benefit” in the Treasury of the United States. See G. Hyde, A Sioux Chronicle (1956) and H.It.Rep.No. 1539, 60th Cong., 1st Sess., 21-28 (1908). . H.R.Rep.No.1539, 60th Cong., 1st Sess. (Misc. Vol. No. 2, April 20, 1908) and Sen.Rep.No.439, 60th Cong., 1st Sess. (Misc. Vol. No. 2, April 1, 1908).

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UNITED STATES of America, Appellee, v. Richard J. TAYLOR, Jr., Defendant, Appellant. No. 72-1231. United States Court of Appeals, First Circuit. Argued April 10, 1973. Decided May 14, 1973. Roger C. Park, Boston, Mass., by appointment of the Court, with whom Zalkind & Silverglate, Boston, Mass., was on brief, for appellant. Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Appellant Taylor was charged with four counts of selling cocaine in violation of 26 U.S.C. § 4705(a). His trial began on April 4, 1972. At the expiration of the morning session, at which appellant was present and during which the prosecution had presented testimony from one of its agents who had purchased the cocaine from appellant, the district court announced that there would be a lunch recess until 2 p.m. Appellant was also told by his attorney to return to the courtroom at that time. Despite this knowledge, appellant failed to return and after the neighboring halls and courtrooms were searched, the judge recessed the trial until the following morning. That morning appellant’s wife testified that she had left the courtroom the previous day with her husband, that they separated after taking a cab to Roxbury, that he did not appear to be ill, and that she had not heard from him since. Appellant's trial counsel then moved for a mistrial on the grounds that the jurors’ minds would be tainted by appellant’s absence and that to continue the trial would deprive appellant of the Sixth Amendment right to confront witnesses against him. This motion was denied, as the judge found appellant to have absented himself voluntarily from the proceedings and, pursuant to F.R.Crim.P. 43, continued the trial. Throughout the remainder of the trial, the court scrupulously and more than once told the jury that they could not draw any inference of guilt from appellant’s absence. Another motion for a mistrial on Fifth and Sixth Amendment grounds was denied before the jury was given the case. After deliberation, the jury found against appellant on all four counts. He was subsequently arrested and sentenced to the statutory five year minimum, to be served concurrently with a state court sentence, on July 6, 1972. On appeal, appellant’s main contention is that he was deprived óf the right to confront witnesses against him under the Sixth Amendment and of due process of law under the Fifth Amendment as a result of the trial having continued in his absence. While recognizing the right to be present at every stage of one’s trial may be waived, except in capital offenses, Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), appellant contends that generally a waiver of constitutional rights cannot be found in the absence of “an intentional relinquishment or abandonment of a known right or privilege”, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and that in the context of the right of confrontation, appellant must have been warned of or be shown to have otherwise known the consequences of his absence — viz., that if he “voluntarily absented himself he would be deemed to have waived his constitutional right to testify and to confront witnesses against him so that the trial could continue without him.” United States v. McPherson, 137 U.S.App.D.C. 192, 421 F.2d 1127 (1969). When we examine appellant’s contention in regard to the Sixth Amendment right to confrontation in the circumstances of this case, his claim must be rejected. We agree with Judge Tamm in his dissent in McPherson, supra at 1131, that “the right that was involved was the right to be present. Thus it follows that if the defendant knew or should have known that he had a right to be present, his voluntary absence (and there is no doubt that his absence was voluntary) was a waiver of that ‘known right.’ ”2 We deem this reasoning dispositive here since there is no claim, nor do we think there can be under the facts before us, that appellant did not know that he had a right to be present in court during every stage of his trial, cf. Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046 (1971), nor that his absence was due to anything but his voluntary choice. Appellant protests that this formulation of the confrontation right and its attendant waiver here is too narrow, since there is no indication that it was forfeited “with sufficient awareness of the relevant circumstances and likely consequences”. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). He would have us believe that a defendant who flees from a courtroom in the midst of a trial —where judge, jury, witnesses and lawyers are present and ready to continue —would not know that as a consequence the trial could continue in his absence. We think that “this is one of those cases in which the imagination is baffled by the facts.” Sir Winston Churchill, Bartlett’s Familiar Quotations at 922 (14th ed. 1968). The very statement that a trial will continue or commence at a fixed time, when coupled with knowledge of one’s right to be present at trial, implies that the continuation of the trial, at least in non-capital eases, does not depend on his presence. More pertinent, and more specific here, we note that at sentencing, when appellant was questioned regarding his flight from the trial, he made no contention that he was unaware of the fact that as a consequence of his flight the trial could continue in his absence. Moreover, we note that any Supreme Court precedent on this specific issue is supportive of our formulation of the right and its waiver in such cases.' In Diaz, swpra, a case in which the defendant expressly consented to the continuance of the trial in his absence, the Court cited with approval many relevant state and federal decisions, among them Fight v. State, 7 Ohio 181 (1835) and Falk v. United States, 15 App.D.C. 446 (1899), both involving a situation where the defendant left in the midst of a trial which the Court agreed was properly continued in the defendant’s absence. Although we recognize that these cases antedate Johnson v. Zerbst, supra, we do not feel that we can overlook them. In any event, even if we were free to write on fresh foolscap, when we more closely examine the Supreme Court cases on which appellant relies, we see that their rationale does not support the position, here advocated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), required that one being interrogated by police authorities must not only be told that he has a right to remain silent, but must be told an important consequence of a waiver of that right — that anything that is said may be held against him. Brady, supra, and other eases involving guilty pleas require that a defendant be told exactly what rights he forfeits in foregoing a trial. In both cases we think that the consequences of the waiver were not so obvious or direct as those in a situation like the one before us. But, more important, those cases extended the constitutional umbrella so broadly because of other underlying problems. In Miranda the Court was concerned with the problems of direct coercion, the charged emotional atmosphere in many in-custody interrogations and the understandable fear held by an accused that he had better cooperate with the police if he hopes for any leniency later. In Brady the Court recognized that a multitude of extraneous factors, some of which might include improper prosecutorial activity, have, frequently induced a decision to plead guilty. Thus, in both instances it was thought that the constitutional rights at stake could be meaningfully exercised only if the consequences of waiver were expressly told to the accused. These or similar underlying fears are simply absent in our case. A defendant free on bail, and thus not in custody, is not subject to any direct coercion to waive his right to be present at his trial. Nor might a defendant free on bail be led to believe that he could gain anything, certainly not favor with the authorities, by absenting himself from his own trial. We do not feel that the situation before us calls for an expansion of the holdings in Miranda and Brady. An additional reason for our decision is what we perceive to be the enormous practical problems which adoption of the appellant’s position could cause, so as to make the solution unworkable. While appellant contends that the explicit warning requirement he seeks to impose on the judicial system is salutary and would be easy to administer, in that only a few more words at the time bail is effectuated would be sufficient to satisfy the suggested requirement, we do not view the matter so simply. We well an-tieipate the argument that a defendant who did not appear at his trial several months after bail was provided should not be expected to remember the initial admonition given by the magistrate who enlarged him. Aside from such problems relating to timing, we wonder exactly what consequences of waiver might be incorporated into a warning to a defendant. He might be told that he would waive his right to confront witnesses against him. He might also be told that although relevant testimony given in his absence might be capable of being rebutted by any witnesses or evidence the defendant desires to introduce, his leaving the trial would, as a practical result, leave him without compulsory process for obtaining important witnesses in his favor. He might be told that his counsel would be unable to properly continue his defense without his aid, and so he would thereby be waiving the effective assistance of counsel. He might also be told that he would waive his right to testify in his own behalf. We hesitate to catalogue the various consequences which could result when a defendant absconds from trial. It is sufficient to state that we are disinclined to go beyond what the Supreme Court has thus far required in this situation, and, in effect, impose upon a trial court an added ritual of explanation which would be comparable to that administered to a defendant before accepting a plea of guilty. Lastly, we are not without any Congressional guidance in this matter. Rule 43 of F.R.Crim.P. allows the continuation of a trial despite “the defendant’s voluntary absence”. There is no indication that the rule requires anything more than what we have found to be the present constitutional standard for waiver in this case, i.e., simply knowledge of the right to be present and voluntary absence. In fact, the rule may work an even more absolute forfeiture of the right of confrontation than we have suggested, see generally, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), though we are not called upon to decide that issue at this time. We therefore conclude that the district court did not violate the Sixth Amendment in continuing the trial pursuant to F.R.Crim.P. 43 in appellant’s voluntary absence. Additionally, whatever might be the result in other cases where actual prejudice amounting to a miscarriage of justice could be demonstrated, we do not believe that the continuation of the trial here constituted a denial of due process. Appellant’s second basis for this appeal is that the court committed plain error when it charged the jury as to reasonable doubt. He relies particularly on United States v. MacDonald, 455 F.2d 1259 (1st Cir. 1972), decided three weeks before the charge here was given, in which we cautioned district courts not to deviate from the consistently approved stock of charges on reasonable doubt. We did not, however, find the charge in MacDonald, which included two references to “intelligent reason” and one to “proof to a moral certainty, proof beyond a doubt for which you can give a reason”, to constitute plain error. A fortiori, we think that in the context of the entire charge here the solitary, off-handed reference to “valid reason” does not call for reversal as a matter of law. Affirmed. . Rule 43 reads in part: “The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. . This issue is apparently still open for a definitive Supreme Court ruling. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). . The majority opinion in McPherson stands alone in sharp contrast to other cases which have defined the scope of the right to confrontation more in accordance with Judge Tamm’s views, including our implicit rulings on this point in Goitia v. United States, 409 F.2d 524 (1st Cir. 1969) and United States v. Miller, 463 F.2d 600 (1st Cir. 1972). See also United States v. Partlow, 428 F.2d 814 (2d Cir. 1970) ; United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972) ; United States v. Eskew, 460 F.2d 1028 (9th Cir. 1972) ; United States v. Garcia-Turino, 458 F.2d 1345 (9th Cir. 1972) ; United States v. Cox, 459 F.2d 986 (5th Cir. 1972). . The court has made an independent finding on the issue of voluntariness, after examining transcripts from the trial and sentencing hearing, as we did in Miller, supra, 463 F.2d at 603 n. 4; see also Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 n. 4 (1966). . At the sentencing hearing, appellant went into his reasons for absconding. “The reason I left out of the courtroom is because it is not my lawyer’s fault or anybody else’s, it is just how things were coming out and I knew they were wrong and I don’t you know, I didn’t have a voice of saying whatever I wanted to say.” “I got scared he couldn’t defend me right because I left out of here.” . Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) in which the Court said that before an unruly defendant could be said to lose his right to be present at his own trial, he must be specifically so warned and told that the trial would continue in his absence, is significantly distinguishable from the instant case. It involves, most fundamentally, a removal from the courtroom which is effectuated by a physical act or threat of a governmental agent and not, as here, a voluntary and uncoerced flight. Moreover, the therapeutic value of a warning in a case like Allen, whereby the unruly defendant’s course of action may be immediately and voluntarily terminated, is totally absent here where the wrongful act, the decamping, leaves no one to warn. . The warning might, according to appellant, consist of the following: “I inform you that you have a right to be present at every stage of your trial, but that if you voluntarily absent yourself at any stage of the proceedings, they may be continued in your absence.” . In Davis, Mr. Justice Rehnquist, speaking for a majority of tlie Court, wrote that F.R.Crim.P. 12(b)(2), which requires certain defects in the institution of a prosecution or indictment to be raised before trial and that failure to do so constitutes a waiver thereof, precludes subsequent raising of a claim of unconstitutional composition of the grand jury which returned the indictment. Noting that the jury selection system there attacked “had been openly followed for many years prior to petitioner’s indictment”, id., at 235 of 411 U.S., at 1579 of 93 S.Ct., the Court did not utilize the proffered standard of Johnson v. Zerbst, supra, that waiver must be “understandingly and knowingly” effectuated, in ruling that the petitioner had forfeited his right to raise the constitutional claim pursuant to Rule 12(b) (2). . The charge, not objected to, stated in part: “If you do not accept the testimony as clear evidence of his guilt, if you find that from the testimony you cannot make up your minds, that you are wavering back and forth l>ecause of some reason, some valid reason; or if after reaching a judgment it does not remain, so that you say: ‘I’m not so sure, I can’t, I can’t accept that’ — then the government has failed to prove the commission of the crime beyond a reasonable doubt.” [Emphasis added.]

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Jesse FOWLER, Individually and on behalf of all others similarly situated, Appellant, v. Abner ALEXANDER, Chief District Judge, 21st Judicial District of North Carolina, et al., Appellees. No. 72-1471. United States Court of Appeals, Fourth Circuit. Argued Nov. 2, 1972. Decided May 7, 1973. Michael Sheely, Winson-Salem, N. C. and Herman L. Stephens, Kernersville, N. C. (Thorns Craven and Nonnie F. Midgette, Winston-Salem, N. C., on brief) for appellant. Jacob L. Safron, Asst. Atty. Gen. of N. C. (Robert Morgan, Atty. Gen. of N. C. and P. Eugene Price, Jr., County Atty., for Forsyth County, N. C., on bi'ief) for appellees. Before CRAVEN, RUSSELL and WIDENER, Circuit Judges. DONALD RUSSELL, Circuit Judge: Contending that certain North Carolina statutes, under the terms of which he has been temporarily confined earlier, were unconstitutional, the plaintiff seeks declaratory relief finding such statutes invalid, an injunction against their future enforcement, and damages for his short confinement. The defendants are the judges of the court who ordered the plaintiff confined under the provisions of the challenged statutes, the sheriff and the jailer who executed the order of the court in confining the plaintiff temporarily, and the director of the Administrative Office of the Courts of North Carolina. The plaintiff requested the convening of a three-judge court to hear his constitutional attack on the statutes. The district court, 340 F.Supp. 168, denied the request and proceeded to dismiss the complaint. We affirm. The plaintiff’s connection with the statutes of which he complains in this action began by his procuring the issuance of a warrant against a Mrs. Gentry, charging her with the theft of his watch. When subpoenaed to testify at Mrs. Gentry’s trial, he appeared and asked that the charges be dismissed. The Court dismissed the charges and without a hearing assessed costs against him under the terms of the statutes, whose validity he attacks. Claiming inability to pay, he was placed in the county jail by order of the court. The next day a relative paid the costs and he was released. He thereupon filed this action. He makes no claim that he contemplates now or in the future procuring the prosecution of any person in North Carolina —certainly not any prosecution for which a finding of want of “reasonable-ground for the prosecution” could be made. So far as the present prospects of the plaintiff appear, the enforcement of the statutes assailed by him presents no present or even likely threat of harm or injury to him. By his action, it is rather plain he is not seeking protection against any real probability of present or future enforcement of the statutes against him, but seeks to express his resentment at their past use against him on the occasion when he procured a prosecution, the good faith of which the trial court, without hearing, found lacking. We may quickly dispose of plaintiff's claim for damages. It is plainly without merit. The defendants were cloaked with immunity. Pierson v. Ray (1967) 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. Such immunity, however, does not extend to plaintiff’s action for injunctive and declaratory relief under Section 1983, 42 U.S.C. Littleton v. Berbling (7th Cir., 1972), 468 F.2d 389. We are of opinion, however, that the district court correctly dismissed these aspects of plaintiff’s action for lack of standing. Standing is not a procedural issue in the exercise of federal judicial power. Article III, Section 2 of the Constitution limits the judicial power of federal courts to the adjudication of “cases” or “controversies”. The existence of a case or controversy within this constitutional concept “depends upon whether the persons seeking relief have alleged a sufficient personal stake in the outcome to assure that the court will be called upon to resolve real issues between genuine adversaries rather than merely to give advisory opinions with respect to abstract or theoretical questions.” Abele v. Markle (2d Cir. 1971) 452 F.2d 1121, 1124. Specifically, “the constitutionality of laws may be challenged only by those litigants who will suffer some actual or substantial injury from their enforcement, as distinguished from a remote, general, or hypothetical possibility of harm.” Id. These principles were given practical application by the Supreme Court in the recent decision of Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, where the standing of a non-pregnant wife, who had received medical advice that pregnancy would endanger her health, to maintain an attack on a state anti-abortion statute was at issue. The Court said, in denying standing: “This very phrasing of the Does’ position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does’ estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy.” (at 128, 93 S.Ct. at 714). The same conclusion was reiterated by Mr. Justice Marshall in Linda R. S. v. Richard D. and Texas et al., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536, 1973: “The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Earlier in Laird v. Tatum (1972) 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154, involving a claim of a preferred First Amendment right, the Court emphasized that, “[A]negations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.’ ” It is true that there are some instances in which standing will be upheld even though the complainant may not allege present harm. Those instances, however, are limited to situations where, because of the complainant’s vocation or some other unique condition, the threat of future prosecution of the plaintiff represents a real present and future threat or hazard. That was the situation of the physician in Doe v. Bolton (1973) 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, filed January 22, 1973, who in his normal practice, it would be reasonably anticipated, would be consulted by pregnant women patients seeking an abortion. 410 U.S., at 187-188, 93 S.Ct., at 745-746. It was, also, the situation in Wulp v. Corcoran (1st Cir. 1972) 454 F.2d 826, where plaintiffs engaged in the sale and distribution of newspapers and other printed material, although not yet arrested or threatened, were threatened with prosecution under a permit ordinance. Applying these rules to the facts of this case, it would appear plain that the plaintiff lacks standing to put in issue the constitutionality of the North Carolina statutes. He is under no present threat of prosecution under these statutes. The likelihood that he will run afoul of them in the future is remote and speculative in the extreme. It can be safely assumed — and he does not allege otherwise — that he does not contemplate either presently or in the future the institution of a prosecution in North Carolina. Unlike the physician in Bolton, he is not engaged in a business in connection with which it is reasonably to be anticipated he will be called on to prosecute in North Carolina some individual without probable cause. Similarly, unlike the situation faced by the complainants in Wulp, he is not threatened with a present prosecution under the statutes he challenges. The most he can contend is that the statutes represent an intangible “chill” on his possible exercise of a right to prosecute undei North Carolina law. But the mere fact that the statutes may chill in some indefinable way his urge to prosecute is of no moment in the absence of any real likelihood that he has or will have reason to prosecute some one in North Carolina. As Mr. Justice Black in Younger v. Harris (1971) 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, summed it up: feelings of “inhibition”, without any claim of a threat of prosecution, or that a prosecution was likely, or even remotely possible, are entirely too “imaginary or speculative” to establish standing. (401 U.S. at 42, 91 S.Ct. 746). The mere fact that earlier the plaintiff was caught in the net of the challenged statutes gives him no standing. His earlier encounter with the statutes has become moot. The costs assessed have been paid, not by the complainant but by others. He is no longer restrained. He is plainly not subject to any “specific present objective harm”. His claim to relief in this proceeding relates not to a present claim of harm but to a “chill” resulting from the possible future enforcement of the statutes. Affirmed. CRAVEN, Circuit Judge (dissenting) : Has Fowler “established that ‘personal stake in the outcome of the controversy,’ Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that insures that ‘the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,’ Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972)?” Roe v. Wade, 410 U.S. 113, 123, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). I think so. Fowler has been incarcerated pursuant to the statute in question in the past and may be again should he execute another criminal warrant. This case is not like Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971) where: Not a single one of the citizens who brought this action had ever been prosecuted, charged, or even arrested under the particular intimidation statute which the court below held unconstitutional. . . . Rather, it appears from the allegations that those who originally brought this suit made a search of state statutes and city ordinances with a view to picking out certain ones that they thought might possibly be used by the authorities as devices for bad-faith prosecutions against them. 401 U.S. at 80-81, 91 S.Ct. at 760. That Fowler is not now being prosecuted or imminently threatened with prosecution is not dispositive of this case. Kirkland v. Wallace, 403 F.2d 413, 415 n.4 (5th Cir. 1968). Fowler can “present a justiciable controversy and . have standing despite the fact that the record does not disclose that [he] has been prosecuted, or threatened with prosecution, for violation of the State’s . . . statutes.” Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). The majority opinion states that standing will be upheld, absent present harm, only in those cases where because of the plaintiff’s vocation or other unique condition there is a real and present hazard. However, that is the rule where one person is found to have standing to assert the rights of another, Eisenstadt v. Baird, 405 U.S. 438, 445-446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and is not applicable here where Fowler challenges the statute in his own right. Because of Fowler’s past involvement with the statute, I think he is a proper party to request an adjudication of the issue. See Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). That the doctrine of abstention may be applicable, e. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is not relevant to the standing issue. Arrington v. City of Fairfield, 414 F.2d 687, 691 (5th Cir. 1969). Indeed, such an equitable decision is beyond the power of a single judge and is to be determined by the three-judge court. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Abele v. Markle, 452 F.2d 1121,1126 (2d Cir. 1971). Therefore, for the reasons stated above, I would reverse the district court and remand with directions to request the convening of a three-judge court. . N.C.Gen.Stats. §§ 6-49, 6-50, which are statutes of statewide application. At the time of Fowler’s incarceration, § 6-49 provided in relevant part: In all criminal actions in any court, if the defendant is acquitted, nolle prosequi entered, or judgment against him is arrested, or if the defendant is discharged from arrest for want of probable cause, the costs, including the fees of all witnesses whom the judge, court or justice of the peace before whom the trial took place shall certify to have been proper for the defense and prosecution, shall be paid by the prosecutor, whether marked on the bill or warrant or not, whenever the judge, court or justice is of the opinion that tbere was not reasonable ground for the prosecution, or that it was not required by the public interest. N.C.Gen.Stats. § 6-49 (Repl. Vol. 1969). Also, § 6-50 provided: Every such prosecutor may be adjudged not only to pay the costs, but he shall also be imprisoned for the nonpayment thereof, when the judge, court, or justice of the peace before whom the case was tried shall adjudge that the prosecution was frivolous or malicious. N.C.Gen.Stats. § 6-50 (Repl. Vol. 1969). These statutes were amended in 1971 so that incarceration may only be imposed when the nonpayment of costs is willful. N.C.Gen.Stats. § 6-50 (Repl. Vol. 1969), as amended (Supp. 1971). . This analysis of Younger follows the language of the Court in Wulp v. Corcoran, supra, at 830 of 454 F.2d.

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Mrs. Patricia DEWRELL, as Administratrix of the Estate of Mrs. Lonie S. Jackson, Deceased, Plaintiff-Appellant, v. Caspar W. WEINBERGER, as Secretary of Health, Education and Welfare, Defendant-Appellee. No. 73-1058 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 2, 1973. Frank J. Mizell, Jr., Montgomery, Ala., for plaintiff-appellant. Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., for defendant-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: In this suit for review of a denial of Social Security benefits, claimant alleges that there was no substantial evidence to justify denial of her claim and that she was denied procedural due process in her disability hearing. The District Court, relying on its Magistrate’s recommendations, affirmed the administrative decision. We affirm. The Social Security Act provides that the Secretary’s factual findings which are supported by substantial evidence shall be conclusive. 42 U.S.C.A. § 405 (g). This Court’s task, therefore, is limited to review of the administrative record to determine if there is such substantial evidence to support the Secretary’s decision. See Jackson v. Richardson, 449 F.2d 1326 (5th Cir. 1971). Section 223(d)(2)(A) of the Social Security Act, 42 U.S.C.A. § 423(d)(2) (A) provides that an individual . . . shall be determined to be under a disability only if his physical or mental . . . impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy .... Careful review of the record reveals substantial medical evidence that claimant did not qualify for benefits under this definition of “disability.” We find no merit in appellant’s claim that she was denied procedural due process in her disability hearing. Affirmed.

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DeKALB COUNTY, GEORGIA, Plaintiff-Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellee. No. 72-3783. United States Court of Appeals, Fifth Circuit. May 29, 1973. George P. Dillard, Robert E. Mozley, Herbert O. Edwards, Decatur, Ga., for plaintiff-appellant. Harry S. Baxter, J. Rodgers Lunsford, III, A. Stephens Clay, Albert C. Tate, Jr., Atlanta, Ga., Murphey Candler, Jr., Gary M. Sams, Decatur, Ga., for defendant-appellee. Before AINSWORTH, DYER and INGRAHAM, Circuit Judges. PER CURIAM: We are in agreement with the well reasoned opinion of the district court, DeKalb County, Georgia v. Southern Bell Telephone and Telegraph Company, 358 F.Supp. 498 (N.D.Ga.1972), and its judgment is affirmed.

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Kenneth R. LaLONDE, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees. No. 72-1699. United States Court of Appeals, Eighth Circuit. Submitted June 11, 1973. Decided June 21, 1973. Robert J. Milzavetz, Minneapolis, Minn., for plaintiff-appellant. William A. Whitledge, Atty., Tax Div., Dept, of Justice, Washington, D.C., for defendants-appellees. Before CLARK, Associate Justice, Retired, and HEANEY and BRIGHT, Circuit Judges. United States Supreme Court, sitting by designation. PER CURIAM. Upon a careful consideration of the record, briefs and arguments of the parties, the Court has concluded that the judgment of the District Court should be affirmed for the reasons stated in that court’s opinion. LaLonde v. United States, 350 F.Supp. 976 (D.Minn. 1972).

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EXTENDICARE OF KENTUCKY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-2049. United States Court of Appeals, Sixth Circuit. Argued June 8, 1973. Decided June 15, 1973. John S. Greenebaum, Louisville, Ky., for petitioner; Boyce F. Martin, Jr., Barnett, Greenebaum, Martin & McConnell, Louisville, Ky., on brief. Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D.C.; John C. Getreu, Director, Region 9, N.L.R.B., Cincinnati, Ohio, Margery Lieber, N.L.R.B., Washington, D.C., for respondent; William Wachter, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Washington, D.C., on brief. Before PHILLIPS, Chief Judge, O’SULLIVAN, Senior Circuit Judge, and LIVELY, Circuit Judge. ORDER This matter is before the Court upon the petition of Extendicare of Kentucky, Inc. to review and set aside an order issued by the National Labor Relations Board and the cross application by the Board for enforcement of its order. The Board’s decision and order are reported at 199 NLRB No. 47. With respect to all issues except the termination of the employment of Rita Doyle there is substantial evidence to support the findings and the order of the National Labor Relations Board and enforcement is granted. We further conclude that the findings of the Board with respect to the discharge of Rita Doyle are not supported by the evidence as a whole and enforcement of the order of the Board insofar as it finds the discharge of Rita Doyle to violate the National Labor Relations Act and directs her immediate reinstatement is denied. It is further ordered that the notice to employees prepared by the trial examiner and filed as an appendix to his decision be substituted for the notice to employees filed as an appendix to the decision and order of the Board.

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CHARTERED NEW ENGLAND CORPORATION, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants-Third-Party Plaintiffs-Appellees, v. Milton BOMBACH et al., Third-Party Defendants. No. 72-2214. United States Court of Appeals, Fifth Circuit. June 22, 1973. Lawrence B. Clark, James F. Trucks, Jr., Birmingham, Ala., for plaintiff-appellant. James E. Clark, Birmingham, Ala., William P. Sullivan, Jr., New York City, for Hartford. Ferris S. Ritchey, Birmingham, Ala., for Fadwa Adrey and others. Sydney Lavender, Birmingham, Ala., for N.B.C. Before COLEMAN, MORGAN and RONEY, Circuit Judges. PER CURIAM: In this suit on a broker’s employees blanket fidelity bond, we are asked to review a summary judgment for the defendant. The question is whether the insured’s negotiations with and entry into agreements with the employee and third person debtors regarding the loss were of such import as to relieve the insurer of liability on the bond, and, more particularly, whether there is a genuine issue as to any material fact which requires reversal. Having studied the briefs, considered extended oral argument,_ reviewed the record, and conducted substantial independent legal research, the Court is of the opinion that there is no error in the trial court proceedings or in the trial judge’s disposition of the case. Affirmed.

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Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Edward F. MAULDIN, in his Individual capacity and as Administrator of the Estate of Leonard S. Preuit, Defendant-Appellee. No. 72-3517. United States Court of Appeals, Fifth Circuit. June 15, 1973. Rehearing and Rehearing En Banc Denied Aug. 7, 1973. Richard F. Schubert, Sol. of Labor, U.S.; Dept, of Labor, Washington, D.C., Beverley R. Worrell, Regional Sol., U.S. Dept, of Labor, Atlanta, Ga., Sandra P. Bloom, Dept, of Justice, Washington, D.C., Norman H. Winston, Associate Regional Sol., George D. Palmer, Atty., U.S. Dept, of Labor, Birmingham, Ala., Carin Ann Clauss, Donald S. Shire, Dept, of Labor, Washington, D.C., for plaintiff-appellant. E. B. Haltom, Jr., Donald H. Patterson, Florence, Ala., for defendant-appellee. Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges. PER CURIAM: We are in agreement with the well reasoned Memorandum Opinion of the district court, Hodgson v. Mauldin, 344 F.Supp. 302 (1972), and its judgment is affirmed.

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Evelyn HOLLMAN, etc., Plaintiff-Appellant, v. Max V. COGEN and Peter M. Cogen, d/b/a 187 Street Apartments, Ltd., Defendants-Appellees. No. 73-1421 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 19, 1973. Robert F. Williams, Miami, Fla., John Lazarus, Opa-locka, Fla., for plaintiff-appellant. Peter M. Cogen, Opa-locka, Fla., 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. ORDER: Appellee’s answer to a motion for reconsideration filed with the District Court below stated that appellant had since paid her rent and her tenancy was then in good standing. Appellee stated that it had not brought an action against appellant nor does it intend to do so. The case is therefore moot and the order of the District Court is vacated with directions to dismiss the complaint.

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS FREIGHT EMPLOYEES LOCAL UNION NO. 480, INT’L BHD. OF TEAMSTERS, etc., Respondent. No. 73-1058. United States Court of Appeals, Sixth Circuit. Argued June 11, 1973, Decided June 15, 1973. Richard A. Cohen, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., John J. A. Reynolds, Jr., Director, Region 16, N.L. R.B., Memphis, Tenn., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, Washington, D.C., for petitioner. Cecil D. Branstetter, Nashville, Tenn., for respondent; Carrol D. Kilgore, Nashville, Tenn., on brief. Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge. ORDER Upon consideration of the record, briefs and arguments of counsel for the parties, the Court finds that there is substantial evidence to support the findings of fact of the Board and the inferences to be drawn therefrom, the decision and order of the Board being reported at 197 NLRB #162. The Court further finds that the respondent has violated Section 8(b)(2) of the National Labor Relations Act as amended by attempting to cause the company to employ only union members as casual drivers, and has violated Section 8(b)(2) and (1)(A) of the Act by causing the company to drop from its list of casual drivers, James and Kenneth Bonds, because they were not union members. It is therefore ordered that the Order of the Board be and it is hereby enforced.

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UNITED STATES of America, Plaintiff-Appellee, v. James FRANKLIN, Defendant-Appellant. No. 72-3558. United States Court of Appeals, Fifth Circuit. June 14, 1973. Henry Gonzales, Tampa, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appel-lee. Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges. PER CURIAM: This is a conviction for perjury. We are of the clear opinion that the questions asked and the answers given did not constitute perjury. Cf. Bronston v. United States, 1973, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568. Reversed.

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Glen A. WILSON, Petitioner-Appellant, v. STATE OF LOUISIANA, Respondent-Appellee. Donald MIMS, Petitioner-Appellant, v. STATE OF LOUISIANA, Respondent-Appellee. Nos. 73-2274, 73-2172. United States Court of Appeals, Fifth Circuit. June 13, 1973. Donald Mims, pro se. Glen A. Wilson, pro se. William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. PER CURIAM. These are appeals from orders imposing conditions of pre-trial release, taken under 18 U.S.C. § 3147. Previously we remanded the causes for entry of written statement of reasons for imposing conditions of release, Rule 9(a), F.R.A. P., and the statements have been filed as a supplemental appendix. The motion of appellant Wilson to appeal in forma pauperis is granted with respect to only this appeal from order imposing conditions of release. The orders of the District Court are supported by the proceedings below, and thus they are affirmed. 18 U.S.C. § 3147.

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James LAWRENCE L.S.P. #66555, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Respondent-Appellant, No. 72-2553. United States Court of Appeals, Fifth Circuit. June 5, 1973. Rehearing and Rehearing En Banc Denied July 11, 1973. Clement Story, III, Asst. Dist. Atty., Louise Korns, New Orleans, La., for respondent-appellant. Louis B. Merhige, New Orleans, La., for petitioner-appellee. Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge. THORNBERRY, Circuit Judge: Appellee Lawrence was convicted in 1968 in a Louisiana court of heroin possession and sentenced to a twelve-year term of imprisonment. He petitioned the district court below for a writ of habeas corpus, which was granted conditionally. ***The Louisiana Prison Warden appeals. Finding his five assignments of error to be without merit, we affirm. The facts which led to the conviction are summarized in the district court’s opinion: On January 15, 1968, James Lawrence, John Mosby, and Ella Washington were seated in Porter’s, a combination bar and pool room, at 2135 Washington Avenue in New Orleans watching a game of pool. Two policemen entered and frisked Lawrence on the grounds that he fit the description of an armed robbery suspect. No contraband or weapons were found on Lawrence’s person. During the frisk, he was questioned by the officers who, upon learning that he was unemployed and had no money arrested him for vagrancy. Washington and Mosby were arrested on the same charge, and the three were placed in a police car for transportation to Central Lockup. Because no police matron was present at the time of arrest, Miss Washington was not searched before entering the vehicle although Mosby was. At Central Lockup Lawrence, Mosby and Washington were then booked for vagrancy. Either during or after the booking procedure one of the arresting officers searched the police car and found a narcotics “outfit” under the back seat. Since he claimed that he had seen Lawrence take the paraphernalia out of his pants and place it under the seat while the three “vagrants” were in the police car, Lawrence was additionally charged with possession of narcotics. Lawrence v. Henderson, E.D.La.1972, 344 F.Supp. 1287, 1289-1290. Appellee attempted to subpoena as a witness in his defense Ella Washington, who would have testified that the narcotics “outfit” belonged to her rather than to appellee. The subpoena was sent to the Parish Prison where the witness was awaiting arraignment, but due to an apparent mistake it was not served. Instead, it was returned with the notation, “Subject Does Not Reside Here.” The district court granted the writ on the basis of its determinations (1) that appellee’s arrest for vagrancy was made without probable cause, (2) that the narcotics paraphernalia should have been excluded from evidence at appellee’s trial as the fruit of an unlawful arrest, and (3) that appellee was denied compulsory process for obtaining a witness in his favor in violation of the Sixth and Fourteenth Amendments. On appeal appellant contends that the district court erred (1) in failing to rule that appellee’s objection to the admission of the narcotics paraphernalia was untimely, (2) in failing to determine that the discovery of the new pair of pants in appellee’s possession supplied probable cause for his arrest, (3) in failing to overturn Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (4) in failing to rule that appellee’s abandonment of the “outfit” in the police car deprived him of standing under the Fourth Amendment to challenge its admission into evidence, and (5) in concluding that appellee was denied compulsory process to secure a witness in his defense. Appellant’s first contention — that ap-pellee’s challenge to the admission of the narcotics paraphernalia into evidence came too late — is an argument that the district court should not have considered the constitutional validity vel non of the seizure because the admission of the evidence rested on an adequate independent state procedural ground. Appellee made a pretrial motion to suppress, but that motion was not aimed at the narcotics paraphernalia; only after the trial was in progress did he object to the admission of the “outfit” into evidence; The defendant here made only one motion to suppress, an oral motion, which sought only to suppress evidence having no connection with this offense. This motion therefore in no respect addressed itself to the narcotics evidence to which the defendant objected when it was proffered at the trial. He did not move to suppress the narcotics paraphernalia; he simply objected, after predicate and foundation had been laid, to the admissibility of these articles as evidence at his trial before the jury. The defendant’s objection under these circumstances came too late to raise the issue of an unconstitutional search and seizure. State v. Lawrence, 1971, 260 La. 169, 255 So.2d 729, 731-732. Since the Louisiana Supreme Court approved the overruling of appellee’s objection on the theory that it was untimely, State v. Lawrence, supra, 255 So.2d at 732, we will assume that the state trial court’s original ruling was also made on this basis. If a state evidentiary ruling rests on adequate independent state procedural grounds, the federal courts will not go beyond these grounds to reach the constitutional issues; but “the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.” Henry v. Mississippi, 1965, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, rehearing denied 380 U.S. 926, 85 S.Ct. 878, 13 L.Ed.2d 813. To be “adequate” to preclude review of the federal question, the state procedural requirement with which a defendant has failed to comply must be one which “serves a legitimate state interest.” Id., 379 U.S. at 448, 85 S.Ct. at 567. We have no doubt that the rule requiring that motions to suppress be made before the beginning of a trial does serve a legitimate state interest. A similar rule obtains in the federal courts, Fed.R.Crim.P. 41(e), and where a defendant fails to make the motion before trial as required, the district court has discretion to refuse to entertain it at trial. See, e. g., Rosen v. United States, 5th Cir. 1961, 293 F.2d 938. As summarized by the Louisiana Supreme Court, the purposes of the rule are: to eliminate from the trial before the jury all disputes over police conduct unrelated to the guilt or innocence of the accused; to avoid unwarranted delay of the trial and confusion of the jury; to spare the State as well as the defense the expense of a useless trial in cases where a purely legal determination by the judge alone is required; to avoid the necessity of declaring a mistrial because the jury has been exposed to unconstitutional evidence, with resulting repetitive litigation; and to afford the State and the accused advance knowledge of the rules of evidence which must be followed during the course of the trial. State v. Lawrence, supra, 255 So.2d at 732; see also Jones v. United States, 1960, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697. Our determination that the rule generally serves a legitimate purpose does not, however, finally answer the question whether non-compliance in a given case furnishes an “adequate” state ground. In Henry v. Mississippi, supra, the Supreme Court, while recognizing the validity of the Mississippi contemporaneous-objection rule, held it necessary to inquire further whether the purpose of the rule was “substantially served” by the petitioner’s untimely motion in that case. 379 U.S. at 448, 85 S.Ct. at 568. Thus, we should determine in each particular case whether the procedural default committed defeated the purpose of the rule. In the instant case, the question becomes whether the purpose of the rule requiring that motions to suppress be made before trial when possible was substantially served by appellee’s contemporaneous trial objection. We are persuaded that it was. The facts surrounding appellee’s arrest upon which the motion was based were well developed in the pre-trial suppression hearing, even if that motion was not aimed at the narcotics paraphernalia to whose admission appellee later objected. A ruling on the basis of the facts already developed at the suppression hearing would not have required delay or interruption of the trial. Appellant has not argued, and the record does not suggest, that appellee’s failure to move to suppress earlier resulted from a strategic decision or intentional by-passing of the rule. Under these circumstances the denial of appellee’s later objection on the basis of untimeliness cannot be said to rest on an independent state ground adequate to preclude review of the federal question involved by the federal courts. In the absence of an intentional default strict application of the procedural rule by a trial court to refuse to consider a motion to suppress is generally inappropriate in a case such as this one where the challenged evidence constitutes virtually the whole case against the defendant; refusal to consider the motion deprives defendant of what may often be his only defense. The procedural rule should not be administered to compel an injustice. Cf. Jones v. United States, supra, 362 U.S. at 264, 80 S.Ct. at 733. Appellant’s second argument— that appellee’s arrest was based on probable cause — does not challenge the district court’s determination that no probable cause existed to arrest appellee for vagrancy, but contends that the police officers’ discovery of the new pair of pants in Lawrence’s possession supplied the probable cause to arrest for theft or receiving stolen property. Possession of new uncuffed trousers still bearing the store label may have aroused the officers’ suspicion, but we agree with the district court that it did not amount to probable cause in itself or in combination with the other information known to the arresting officers. Appellant’s contention that the district court should have overruled Mapp v. Ohio, supra, is patently frivolous and needs no discussion. Since we find no error in the district court’s determination that appellee was arrested in violation of his Fourth Amendment rights, appellant’s abandonment argument must also fail. If it is assumed that Lawrence possessed the narcotics paraphernalia at one time, the facts make clear that the illegal arrest prompted him to conceal it in the police vehicle. Under such circumstances it cannot be said that Lawrence voluntarily abandoned the “outfit:” Fletcher v. Wainwright, 5th Cir. 1968, 399 F.2d 62. Because we think it clear that appel-lee’s arrest was invalid and that admission of the “outfit” into evidence against him was constitutional error, we find it unnecessary to consider the compulsory-process issue. The judgment of the district court is therefore Affirmed. . As a result of the frisk in the bar, a new pair of trousers was found under Lawrence’s coat but no charges were brought in connection with the pants. . When appellee applied for the writ originally, the district court ordered that he be granted an out of time appeal to the Louisiana Supreme Court in order to permit the state court to rule first on the constitutional issues presented. Lawrence v. Henderson, E.D.La.1970, 318 F.Supp. 230. After the Louisiana Supreme Court affirmed appellee’s conviction, State v. Lawrence, 1971, 260 La. 169, 255 So.2d 729, he again applied to the district court, which ordered this time that the writ would issue unless the state chose to vacate the conviction and retry appellee within forty-five days. Lawrence v. Henderson, E.D.La.1972, 344 F.Supp. 1287.

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Lassie Fay WILKERSON et al., Appellants, v. The CITY OF CORALVILLE, IOWA, et al., Appellees. No. 72-1514. United States Court of Appeals, Eighth Circuit. Submitted Feb. 13, 1973. Decided April 30, 1973. J. Jane Fox, Iowa City, Iowa, for appellants. John P. Sizemore, Iowa City, Iowa, for apellees. Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge. Benson, Chief Judge, United States District Court, District of North Dakota, sitting by, designation. BENSON, District Judge. This is an appeal from a summary judgment of dismissal in a class action brought under 42 U.S.C. § 1983. Appellants (residents) reside in an unincorporated platted area of Johnson County, Iowa, known as Summit Hills. The territory adjacent to and surrounding Summit Hills, with the exception of one small farm, has been annexed by the City of Coralville (Coralville). It is not disputed that the conditions in Summit Hills are as described by the District Court: “Its 119 lots are owned by 31 persons individually or jointly with their spouses. It contains 11 dwelling houses and two trailers. There are no dedicated public streets or roads. The private roads are not paved, and are not maintained by Coralville or Johnson County. They become impassable in rain or snow. There are no sidewalks or rain gutters. Fire protection is inadequate because of lack of fire hydrants, although the Coralville Fire Department answers calls from that area. The only two street lights are maintained by residents who installed them. Only three houses have city water. The water supplies and sewage facilities are inadequate and constitute an inconvenience to the residents, and a danger to health, safety and property. There is no trash or garbage pickup in Summit Hills.” The Iowa Code provides that annexation proceedings may be initiated by resolution of the governing body of the annexing municipality, Section 362.26 (Supp.1972); or by application signed by all of the owners of the territory to be annexed, Section 362.30 (1946); or by petition of 10% of the owners of the territory to be annexed, Section 362.31 (Supp.1972). In proceedings initiated by Coralville, the voters of the city, on April 19, 1966, approved the annexation of certain territory, which included Summit Hills. On April 1, 1969, the Coralville City Council deleted part of the total annexation package, including Summit Hills. The Johnson County Iowa District Court, on June 23, 1969, entered its judgment which approved the proposed annexation, excluding Summit Hills. Residents then filed this action in United States District Court for the Southern District of Iowa. Coralville defendants moved for dismissal on the grounds that the complaint failed to state a claim upon which relief could be granted. Matters outside the pleadings were presented without objection, and the Court treated the motion as one for summary judgment. It found the action to be barred by the Iowa Statute of Limitations, but also concluded plaintiffs had presented no cause of action upon which relief could be granted, and entered its summary judgment of dismissal. Residents have taken this appeal as against the Coralville defendants only. Without considering the statute of limitations issue, we affirm on the basis that the complaint fails to state a claim upon which relief can be granted. Residents, in seeking relief under 42 U.S.C. § 1983, have alleged, in effect, that Coralville and the individual defendants in their representative capacity as officials of Coralville, under color of authority vested in them by the laws of Iowa, discriminated against residents by refusing to annex Summit Hills by reason of the poverty of the residents. They contend that the failure to annex subjects them to discrimination in that it deprives residents of municipal services in violation of their rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. They demand affirmative and injunctive relief, and actual and punitive damages. The basic requirements of a § 1983 complaint are: (1) that complained conduct was under color of state law, and (2) that such conduct subjected plaintiff to a deprivation of rights, privileges or immunities secured by the Federal Constitution and laws. Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963); Elmwood Properties, Inc. v. Conzelman, 418 F.2d 1025 (7th Cir. 1969); Morey v. Independent School District, 312 F.Supp. 1257 (D.C.Minn.1969), aff’d 429 F.2d 428 (8th Cir. 1970). The allegations necessary to state a § 1983 claim are not to be held insufficient unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Jones v. Hopper, supra. For purposes of examining the sufficiency of the complaint, we assume residents could prove Coralville excluded the Summit Hills area from annexation because of the poverty of the residents, and we must determine whether those facts would entitle residents to relief. The record discloses that the annexation proceedings which resulted in Summit Hills being excluded from annexation were initiated by the governing body of Coralville, and related to a total annexation package of which Summit Hills was but a part. There is no indication that any effort has been made by the owners of the Summit Hills territory to achieve annexation by pursuing the procedures available under the Iowa Code, § 362.30 (1946), or § 361.32 (Supp. 1972) . Residents do not allege, and there is nothing in the record to indicate, that Coralville would be required to extend municipal services to annexed territory, and there is a serious question as to whether this is a proper class action. 3 Overlooking these obvious deficiencies in residents’ case as it comes before this Court, and assuming that the right to municipal services would arise from annexation and that all procedural remedies to achieve annexation had been exhausted, the complaint still fails. In seeking relief under the Equal Protection Clause, residents are not questioning a classification created by state law, nor have they alleged that a state law impinges upon a substantive right or liberty created by the Constitution. Their claim is simply that the Equal Protection Clause prohibits Coralville from exercising its powers derived under state law from refusing to annex Summit Hills, because the residents thereof are impoverished. Residents’ counsel has expressed it thusly: “Plaintiffs do not contend that the City of Coralville is required to provide municipal services to persons who are not residents of that city. Plaintiffs contend that the fact they are outside the City of Coralville is an overt act’ of discrimination by Defendants in violation of Plaintiffs’ Civil Rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. It is because Plaintiffs have thus been discriminated against that they do not receive municipal services. Plaintiffs have the right not to be excluded from annexation on the basis of their poverty.” (Emphasis added) From a search of the Constitution, statutes, cases, and Iowa laws, this Court cannot find the right which residents assert. We find no right of annexation available to anyone, owners or residents, regardless of economic status. Whether Coralville, in the exercise of its powers relating to the annexation of territory, should be permitted to encircle and exclude an impoverished area is a matter of legislative policy for the State of Iowa. The cases upon which appellants rely relate to poverty as a suspect classification when it results in the denial of the exercise of fundamental rights as in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The relative hardships endured by the residents of Summit Hills, by reason of the absence of municipal utilities, evokes concern. However, appellants’ argument in the case before us is not unlike that addressed to the Supreme Court in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), wherein the Court found the law of the State of Oregon did not violate the Equal Protection Clause. Mr. Justice White, in his opinion for the Court, said: “Appellants argue, however, that a more stringent standard than mere rationality should be applied both to the challenged classification and its stated purpose. They contend that the ‘need for decent shelter’ and the ‘right to retain peaceful possession of one’s home’ are fundamental interests which are particularly important to the poor and which may be trenched upon only after the State demonstrates some superior interest. They invoke those cases holding that certain classifications based on unalterable traits such as race and lineage are inherently suspect and must be justified by some ‘overriding statutory purpose.’ They also rely on cases where classifications burdening or infringing constitutionally protected rights were required to be justified as ‘necessary to promote a compelling governmental interest.’ We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide idicial remedies for every social and nomic ill. We are unable to per- ■> in that document any constitu- ' guarantee of access to dwellings rticular quality or any recogni-he right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions.” at 73, 92 S.Ct. at 874. It is . not the province of this Court to create substantive Constitutional rights in the name of guaranteeing equal protection of the laws. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Affirmed. . The District Court noted the Iowa Statutes provide for financing of most improvements by special assessments. Iowa Code Ann. § 391.45 (1949). It is conceivable that owners do not desire to assume burdens which would be created by extending municipal services to the area which the residents seek. . The residents (plaintiffs-appellants) purport to represent all of the residents of Summit Hills. On the record, it is questionable they fairly and adequately represent the interest of all members of the class, or that their claim is typical of the claim of the representative class. We note two of the original plaintiffs-residents withdrew because they no longer wished to be plaintiffs in this action. See Ihrke v. Northern States Power Company, 459 F.2d 566 (8th Cir. 1972) ; Crawford v. Texaco, Inc., 40 F.R.D. 381 (S.D.N.Y. 1966).

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GOVERNMENT OF the VIRGIN ISLANDS v. Roberto CRUZ, Appellant. No. 72-1274. United States Court of Appeals, Third Circuit. Argued Jan. 31, 1973. Decided April 25, 1973. Leroy A. Mercer, Christiansted, St. Croix, V. I., for appellant. Joel D. Sacks, U. S. Atty., Julio A. Brady, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee. Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. The defendant Roberto Cruz was convicted on February 10, 1972, by a jury in the district court of the Virgin Islands of selling heroin in violation of 19 V.I.C. § 604(a). His motion for a judgment of acquittal or, in the alternative, for a new trial was denied by the district court, and he was sentenced to ten-to-fifteen years in prison with a special three year parole term in addition thereto. 19 V.I.C. § 604(b)(1)(A). This appeal followed and we affirm. A brief summary of the evidence is appropriate. On October 6, 1971, the Joint Narcotics Strike Force on St. Croix employed one Carlos Encarnación to purchase narcotics from suspected pushers and to be available as a witness against them at trial. Detective Jose Perez, head of the St. Croix Strike Force, testified that Encarnación was informed on October 8, 1971 that he was to attempt to make a buy from one of four men, including the defendant, the next night during a Puerto Rican and Cruzan Friendship Day celebration at a lagoon near Christiansted. At about 8:00 p. m. on October 9, Encarnación was strip searched by the police and given fifty dollars. He was then driven to the lagoon where he saw Cruz whom he knew from a methadone program which they both attended. According to En-carnación, he approached Cruz who was with a woman and said “hello, how is everything,” whereupon Cruz asked him if he wanted to buy any drugs. Encarna-ción responded “yes”, and he and the defendant went into a parking lot where Encarnación purchased five decks of heroin for fifty dollars. After smoking a marijuana cigarette with Cruz, En-carnación walked back to where Perez was waiting and gave him the five heroin decks. Encarnación was then taken a short distance away and was again strip searched with nothing being found. Patrolman Jackson, who trailed Encar-nación at the lagoon, testified that he observed the transaction with Cruz but could not see how much money changed hands. The defendant admitted selling heroin to Encarnación, but he argued at trial that he was illegally entrapped into doing so. According to Cruz, on the day before the sale he, Encarnación and a friend named Tomas Robles met after their methadone program and decided to go to a parade ground to smoke marijuana. Encarnación shared some marijuana with them, and then he asked the defendant to get him some heroin because methadone was not helping him. Cruz testified that at first he refused and told Encarnación that he did not want to be involved with drugs any more, but that he eventually agreed to do. it after En-carnación kept saying how “bad” he felt. Cruz said that he then went to a pusher who gave him some heroin on credit, and that he sold his heroin to Encarnación' without profit for twenty-five dollars. Robles was a witness for the defense and testified that on the day before the sale he heard Encarnación ask Cruz to get drugs for him. Mrs. Cruz also testified that Encarnación approached her husband at the lagoon and asked him “did you bring the tin.” As rebuttal, the government recalled Encarnación who denied having requested the defendant to get heroin for him on the day before the sale. In addition, detective Perez was recalled and he testified that it was his decision to have Encarnación attempt to make a purchase at the lagoon on October 9 and that En-carnación was not informed of this plan until between nine and ten o’clock the night before. Defendant’s first contention on this appeal is that he was deprived of a fair and impartial jury trial since a majority of the jurors had also been jurors in at least one of several previous narcotics cases involving the same informer, Carlos Encarnación. During the jury voir dire, the defendant made two oral motions which were denied by the district court: first, to disqualify for cause those members of the jury array who had served in any prior trial where Encarnación had testified; and second, to disqualify for cause those members of the array who had served in either of two very recent narcotics trials where Encarnación had testified and where the defendants had been found guilty. The rationale behind both of these motions was the defendant’s belief that jurors who had sat on such earlier cases had already formed an impression about the credibility of Encarnación. Prior to these motions, the district court had determined which members of the array had participated in the earlier cases, and both the court and the defendant’s attorney had asked them collectively whether they could judge the evidence in this case without reference to any other trial. Only one person indicated that his judgment would be influenced by what he had heard before, and he did not sit in this case. Although the defendant claims that it was prejudicial error to deny his motions, we recently decided in Government of the Virgin Islands v. De Jesus, 476 F.2d 771 (3d Cir. 1973), and Government of the Virgin Islands v. Hendricks, 476 F.2d 776 (3d Cir. 1973) that the mere fact that a juror has sat on a prior case involving similar issues and some of the same witnesses does not, absent some showing of resulting prejudice, disqualify the juror. Since there was no showing of actual prejudice here, we reject the defendant’s contention that the district court erred in its rulings on this point. A second argument advanced by the defendant is that the trial judge wrongfully denied his motion for a mistrial after detective Perez testified on redirect examination that it would be impossible to use Encarnación again because he would be shot. The specific question and answer occurred as follows: Prosecutor: “Detective Perez, why is it that you would not use Encarna-ción again?” Perez: “It is impossible to use Mr. Encarnación again because of what is going to happen, he is going to get shot, he is going to get killed on the street.” The defense immediately objected to this answer, and the trial judge ordered it struck from the record and cautioned the jury to disregard it. The defense then asked for a side bar conference and moved for a mistrial, but the trial judge refused to grant the motion on the ground that he did not believe that the answer was overly prejudicial to the defendant. On this appeal, the defendant claims that detective Perez’ statement caused him irreparable harm and that the trial judge therefore abused his discretion in denying a mistrial. We disagree. During cross-examination, defense counsel questioned Perez at some length about the number of cases on which Encarna-' cion had worked, the amount he was paid, and whether or not he would be used in the future as an informer. On redirect, the government asked Perez to explain why Encarnación would not be used again. The wording of his response was unfortunate, but it made no reference to the defendant in any way. In view of this, and considering the fact that the jury already knew from the cross-examination that Encarnación was an informer in at least seven different narcotics investigations, we do not think that Perez’ reply prejudiced the defendant’s substantial rights. Consequently, we conclude that the trial judge’s curative instructions were proper and that a mistrial was not necessary. See, e. g., Leonard v. United States, 386 F.2d 423 (5th Cir. 1967). The defendant next urges that the evidence was insufficient to support a conviction since he established a defense of entrapment which was not refuted beyond a reasonable doubt by the government. Since the jury returned a verdict of guilty, it is fundamental that we must view the evidence in the light most favorable to the government. E. g., United States v. Miles, 468 F.2d 482 (3d Cir. 1972); United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971). After reviewing the record, we think that the jury could easily have disbelieved the defendant’s story and found no entrapment. The defendant does not appear to have been a persuasive witness, and his testimony lacked credibility in several significant respects. For example, he insisted that he and Encarnación had been friends since they were “small,” but he did not know where Encarnación lived as a youth and had never been to his house. Another notable inconsistency was the defendant’s testimony on direct examination that he got drugs for Encarna-ción because he looked “bad” or “sick,” while on cross-examination he stated that Encarnación was “not so sick like a junkie” and admitted that he procured the heroin and sold it to Encarnación because he was a “good friend.” In addition, detective Perez testified that he did not inform Encarnación of the plan to attempt a purchase at the lagoon until between 9:00 p. m. and 10:00 p. m. the night before, yet the defendant said that Encarnación approached him earlier on that same day. In the absence of any significant evidence to support the defendant’s story, and taking all the evidence into consideration, we conclude that the jury could find that the government proved beyond a reasonable doubt that no entrapment occurred in this case. The next contention raised by the defendant concerns the district court’s charge on entrapment. Defendant’s requested instruction number eight was specifically approved in Pratti v. United States, 389 F.2d 660 (9th Cir. 1968), which held that when entrapment is an issue, the jury must be charged that the burden of showing that there is no entrapment is on the government. Instead of giving this instruction, the district court charged the jury as follows: “In determining whether any fact or issue has been proven by a preponderance of the evidence in the case the Jury may, unless otherwise instructed —and I do not otherwise instruct you— the Jury may consider the testimony of the witnesses regardless of who may have called them and all exhibits received in evidence. If then the Jury should find beyond a reasonable doubt from the evidence in the ease that before anything at all occurred respecting the alleged offense involved in the case, the accused was ready and willing to commit a crime, such as charged in the information, whenever oppoi'tunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment. “On the other hand, if the Jury should find from the evidence in this case that the accused had no previous intention or purpose to commit any offense of the character here charged and did so only because he was induced or persuaded by some agent- of the Government — and in this case it would have been the informant — then the defense of unlawful entrapment is a good defense and the Jury should acquit the accused.” (Emphasis added.) In Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), the case upon which Pratti is based, the Ninth Circuit held that an instruction almost identical to the one above constituted reversible error because it could have created the erroneous impression in some jurors’ minds that the accused carried the burden of proof as to the positive elements of an entrapment defense. Moreover, the Notaro court said that it must be made clear to the jury that the accused is “entitled to be acquitted if, from the evidence, the jury, because of the entertainment of reasonable doubt, should be unable to ‘find’ that the necessary elements of the defense had not been excluded.” 363 F.2d at 176. This must be made explicit even though the jury is properly informed in a general instruction as to the burden of proof which rests upon the prosecution. Although Notaro has not been specifically adopted by this Circuit, we would follow it and reverse the district court here if the defendant had timely objected to the court’s charge as required by Rule 30, Fed.R.Crim.P. While the defendant acknowledges that he did not object to the entrapment charge after it was read to the jury, he argues that there was no point in doing so since he had already made his objections known in chambers. Aside from the fact that we can find no in-chambers record to support defendant’s claim, we cannot permit Rule 80 to be circumvented in this way. If on appeal a party intends to assert errors in the charge, he must lay the proper foundation by taking exceptions in the trial court before the jury leaves to begin its deliberations. Otherwise, Rule 30 precludes us from considering his arguments unless plain error exists. Rule 52(b), Fed.R.Crim.P. The defendant next asserts that it was in fact plain error for the district court not to charge in conformance with Notaro. This argument, however, was rejected in United States v. Conversano, 412 F.2d 1143 (3d Cir. 1969), where this court, in the face of a similar entrapment charge not excepted to, declined to invoke the plain error rule. Accord, United States v. Levin, 443 F.2d 1101 (8th Cir. 1971), and Esposito v. United States, 436 F.2d 603 (9th Cir. 1970). Since we believe that the present entrapment charge, if taken as a whole, did not mislead the jury, we see no reason to depart from our position in Conversano. Consequently, we find that the defendant has not established that the district court committed plain error in refusing to give his requested instruction number eight. In his reply brief, the defendant makes the additional argument that the district court’s charge on entrapment was improper because it contained the phrases “lawful entrapment” and “unlawful entrapment.” Since the defendant did not object to the court’s charge on this point, and since he requested an instruction with the same phrases, he can only prevail if the use of these phrases constituted plain error. We conclude that it did not. Defendant relies on United States v. Hayes, 441 F.2d 542 (10th Cir. 1971), where the Tenth Circuit found that a trial judge committed plain error in instructing a jury regarding a concept of “lawful” versus “unlawful” entrapment. Hayes is distinguishable from the present case, however, because in Hayes the district court failed to follow earlier Tenth Circuit decisions which had held that it was erroneous to use the word “unlawful” preceding entrapment in a jury charge. Martinez v. United States, 373 F.2d 810 (10th Cir. 1967), and Garcia v. United States, 373 F.2d 806 (10th Cir. 1967). In the Third Circuit, on the other hand, there are no such precedents, and there is even dicta approving the “lawful-unlawful” distinction. United States v. Laverick, 348 F.2d 708 (3d Cir. 1965). Consequently, although we believe that it would be preferable to avoid phrases like “lawful entrapment” and “unlawful entrapment” when charging a jury, we do not think that their use amounted to plain error so as to warrant consideration in the absence of a timely objection. Defendant next urges that the sentence which he received — ten to fifteen years in prison plus a special three year parole term — was excessive and disproportionate to the offense. While this sentence is a long one, it is within the limits determined by the legislature and, therefore, not subject to review here. Government of the Virgin Islands v. Hendricks, 476 F.2d 776 at p. 780 (3d Cir. 1973), and the cases cited therein. We note, however, that defendant may apply under F.R.Crim.P. 35 for a reduction of sentence after the issuance of this court’s mandate. The defendant also argues on this appeal that the district court improperly admitted the testimony of the Assistant Attorney General of the Virgin Islands and that a conviction cannot be obtained on the testimony of a convicted forger (Encarnación) who has other felony charges pending against him. After considering the record, the briefs and oral argument, we reject these contentions as being without merit. The judgment of the district court will be affirmed. . Encarnación was a convicted forger who was apparently also under indictment for at least two other felonies during the time he was working for the Strike Force. He had been a drug addict for several years, and it is unclear from the evidence whether he was still an addict in the fall of 1971. He was hospitalized for a heroin overdose about three months before this trial began, but Dr. De Ohabert, head of the methadone treatment program which Encarnación had been attending since early 1969, testified that Encarnación was detoxified and not an addict at the time of trial. . In his brief at 5-7, defendant also contends that lie moved the court to disqualify those members of the panel who had sat on recent narcotics cases involving the same police officers as well as the same informer. Our examination of the transcript of the jury voir dire reveals that defendant’s motion in this regard referred only to the informer and not to the police officers. Transcript of the Voir Dire at 15-16. Consequently, we have limited our discussion to the motion that was actually made. . This case was decided with Government of the Virgin Islands v. Williams, 476 F.2d 771 (3d Cir. 1973). . This instruction stated : “A COMPLETE DEFENSE to the charges is that of entrapment. It is the DUTY of the Government to satisfy you— BEYOND A REASONABLE DOUBT— that the defendant was not entrapped into committing the acts which, if there were no entrapment, would constitute the offense (s). “If the Government fails to convince you beyond a reasonable doubt that the defendant was not entrapped into committing the offense (s), then you must find the defendant not guilty on both counts.” . It should be noted that the Devitt and Blaekmar instruction on entrainment now conforms with the Notaro approach. See the last two paragraphs of 1 E. Devitt and C. Blaekmar, Federal Jury Practice & Instructions, § 13.13 (2d ed. 1970), which read as follows: “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 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 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 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.” This is the type of instruction which should be used in the future by district courts in this circuit when entrapment is offered as a defense. See generally United States v. Silver, 457 F.2d 1217 (3d Cir. 1972), which deals comprehensively with other aspects of a proper entrapment charge. . In the cited case, this court, speaking through Judge Ganey, said: “ . . . Although he charged that the burden was on the prosecution to prove beyond a reasonable doubt that defendant was guilty of each element of the crime for which he was accused, he did not- tell them that this same burden was also on the Government to establish that entrapment did not occur. However, no point for charge was submitted concerning it nor was any. objection made to the charge of the court at the close thereof, and we see no reason, under these circumstances, to invoke the Plain Error Rule, Federal Rule of Criminal Procedure 52(b), and, accordingly, absent any objection by the defendant, no substantial rights of his were affected as to warrant consideration without such objection. Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) ; Reid v. United States, 334 F.2d 915-917 (C.A. 9, 1964) ; Martinez v. United States, 300 F.2d 9-10 (C.A. 10, 1962). “While it has been held that the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped when that defense is properly raised, United States v. Landry, 257 F.2d 425 (C.A. 7, 1958), it also has been held that the trial court’s refusal to so charge upon request is reversible error, Pratti v. United States, 389 F.2d 660 (C.A. 9, 1968), but we reiterate that since no objection to the charge on this point was made, we, therefore, must deem the general instructions given on the burden of proof to be broad enough to have covered the issue of entrapment. United States v. Salas, 387 F.2d 121 (C.A. 2, 1967).” (Emphasis added.) 412 F.2d at 1149. . We agree with the Ninth Circuit that jury instructions on entrapment rise to the level of plain error only if “they are so vague and ambiguous as to permit the jury to misinterpret the allocation of the burden and quantum of proof.” Pulido v. United States, 425 F.2d 1391, 1394 (9th Cir. 1970). We are satisfied in the present case that the entrapment instructions, if taken as a whole, set out proper standards and did not confuse the jury. . We note that the present Devitt and Blackmar instruction on entrapment makes no reference to “lawful entrapment.” 1 E. Devitt and C. Blackmar, supra at note 5.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Gloria M. LOHMAN, Appellee, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellant, and Federal Deposit Insurance Corporation and Federal Deposit Insurance Company as Statutory Receiver of Cedar Vale National Bank, Appellees. No. 72-1123. United States Court of Appeals, Eighth Circuit. Submitted Nov. 13, 1972. Decided April 20, 1973. Jac Chambliss, Chattanooga, Tenn., for appellant. Robert Vogel, Mandan, N. D., and Lloyd C. Richardson, Jr., Aberdeen, S. D., for appellees. Before GIBSON, Circuit Judge, LAY, Circuit Judge, and DURFEE, Senior Judge of the United States Court of Claims. Senior Judge James R. Durfee of the United States Oourt of Claims is sitting by designation. DURFEE, Senior Judge. This is an appeal from a judgment of the United States District Court for the District of South Dakota, Northern Division, in favor of plaintiff-appellee, Gloria M. Lohman, and the additional defendant-appellees, Federal Deposit Insurance Corporation and Federal Deposit Insurance Company as Statutory Receiver of Cedar Vale National Bank, and against defendant-appellant, General American Life Insurance Company. The action was' brought by Gloria Lohman as plaintiff on a double indemnity policy of insurance issued by defendant-appellant on the life of her deceased husband, William D. Lohman. The FDIC had notified defendant it claimed the principal sum. When the case was removed from a state court to a Federal court, the FDIC was made a party by interpleader and the sum of $100,000.00 plus accrued interest was paid into court. The FDIC counterclaimed against plaintiff to collect approximately $1.5 million in bogus notes at Cedar Vale National Bank in Kansas, alleging plaintiff and her husband were parties to the fraud, and that the entire estate was liable therefor. The FDIC also cross-claimed against defendant praying that the court impress a “constructive equitable trust” in its favor, and grant judgment for all funds owing under the insurance policy issued by defendant. At the trial, the only issue for the jury was whether Lohman’s death was accidental. The jury found that the death was accidental, and judgment was entered against defendant-appellant on the verdict. We affirm. Before discussing the facts and merits of the case, we shall deal with a procedural question raised by appellant as the first issue of its appeal. After a dismissal of plaintiff’s ease by order of April 16, 1971, of the District Court, plaintiff filed notice of appeal with this court, which dismissed the appeal by order of June 15, 1971, on motion by defendant, plaintiff having failed to perfect her appeal pursuant to Rule 30(b), Federal Rules of Appellate Procedure and local Rules 8 and 13. Thereafter, plaintiff filed a motion in the District Court to amend the order of the District Court dismissing her complaint so that she could reinstate her case. On October 15, 1971, the trial court made findings of fact as to the rights of plaintiff to maintain her action, and concluded that its prior order of dismissal was void under Rule 60(b)(4) Federal Rules of Civil Procedure, and that: “Gloria M. Lohman’s original status as plaintiff in this action, be, and it is hereby shown and established as having had continuous existence since the time this action was commenced.” Appellant submits (1) that the District Court was without jurisdiction to act under Rule 60(b) upon plaintiff’s motion to amend that court’s order dismissing the complaint; (2) that the District Court did not have the power to “deviate” from this court’s prior mandate of dismissal of the appeal when permission to proceed was not obtained from the Eighth Circuit Court of Appeals; and (3) that the District Court erred in holding that its previous order of dismissal under Rules 37 and 41(b) was void under Rule 6^(b)(4), Federal Rules of Civil Procedure. We deal with these arguments in the order presented. For its proposition that the District Court was without jurisdiction to act under Rule 60(b), appellant relies chiefly upon Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940) where Judge Sanborn said, as to a decision by this court on appeal with remand to the District Court: A mandate is completely controlling as to all matters within its compass, but on remand the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal. (Footnote omitted). Since, however, a final judgment upon the merits concludes the parties as to all issues which were or could have been decided (Guettel v. United States, 8th Cir., 95 F.2d 229, 230, 118 A.L.R. 1060 and cases cited), it is obvious that such a judgment of this court on appeal puts all such issues out of the reach of the trial court on the remand of the case. * * * [Emphasis supplied]. Appellant argues that the former decision of this court dismissing plaintiff’s appeal was a final judgment on the merits, and therefore the District Court was without jurisdiction further to consider any issues. First of all, it is clear that the District Court’s initial decision was not a judgment on the merits. Even if this appellate court had fully considered the initial decision of the trial court, we in turn would not have been rendering a final judgment on the merits. Rule 41(b) Provides: Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule * operates as an adjudication upon the merits. [Emphasis supplied]. The District Court in its order for dismissal did “otherwise specify” by finding that plaintiff had failed to comply with the court’s order to compel plaintiff to answer interrogatories, as ordered pursuant to Rules 37 and 41(b) of the Federal Rules of Civil Procedure. A similar situation was presented in Madden v. Perry, 264 F.2d 169, 175 (7th Cir. 1959) where the court said: We hold that, under Rule 41(b), Judge Perry, having in the order for dismissal specified the grounds therefor, which, as to the locals (Unions) did not involve the merits of the case, the dismissal order does not operate as an adjudication upon the merits. When the appeal from the dismissal first came to this court, we did not even go so far as to consider the grounds for the dismissal. This court ordered dismissal of the appeal on the technical ground urged in motion by General American. Dismissal on this technical ground can hardly be considered a “final judgment on the merits” as required by Thornton, supra. The mandate of this court dismissing plaintiff’s appeal neither “encompassed” nor “disposed of” any of the issues subsequently considered by the District Court. Appellant’s reliance on Butcher & Sherrerd v. Welsh, 206 F.2d 259 (3rd Cir. 1953), cert. denied, Alker v. Butcher & Sherrerd, 346 U.S. 925, 74 S.Ct. 312, 98 L.Ed. 418, reh. denied, 347 U.S. 924, 74 S.Ct. 513, 98 L.Ed. 1078, reh. denied, 347 U.S. 940, 74 S.Ct. 626, 98 L.Ed. 1089, reh. denied, 348 U.S. 939, 75 S.Ct. 354, 99 L.Ed. 736, vacated on other grounds 223 F.2d 262 (3rd Cir.), is misplaced. In that case there was an initial decision on the merits by the trial court and the trial court’s judgment was affirmed on the merits, 151 F.2d 907 (3rd Cir. 1945). The case of Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960) is similarly not on point. In that case the trial court granted defendant’s motion for judgment n. o. v. after a trial and jury verdict. The Court of Appeals, considering the merits of the case, reversed and remanded with directions to enter judgment pursuant to the reinstated jury verdict. Our case falls within the class of cases described in 7 Moore’s Federal Practice (1972 ed.), 60.30 [2], at page 424: And first, we shall consider the case where the appeal is dismissed, without a decision on the issues. * * * Since there is no problem of deviating from the appellate court’s mandate and since the appeal no longer pends, the district court has the power to entertain a timely motion for relief under 60(b). Appellant’s second contention that the District Court did not have the power to alter or deviate from this court’s prior mandate of dismissal of the appeal when permission to proceed was not obtained from this court, is equally without merit. To repeat the language in Thornton, supra, 109 F.2d at 320: * * * A mandate is completely controlling as to all matters within its compass, but on remand the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal. (Footnote omitted). [Emphasis added]. Further elaboration is provided m 7 Moore’s Federal Practice (1972 ed.), 60.-30 [2] at 425, 426: * * * The authorities seem uniform that a mandate from a reviewing court is controlling as to all matters within the compass of such mandate and as to such matters the district court, after remand, can take no further action. At times a motion for relief will not raise matters that are within the compass of the mandate, and in that event the district court clearly has the power to proceed with the 60(b) motion without leave of the appellate court. We additionally find no fault in the procedure whereby plaintiff sought to vacate dismissal of her complaint. See Stebbins v. State Farm Mutual Automobile Insurance Co., 134 U.S.App.D.C. 193, 413 F.2d 1100 (1969), cert. denied, 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173 (1969). See also Mooney v. Central Motor Lines, 222 F.2d 569 (6th Cir. 1955); Hubbard v. Baltimore & Ohio R. R. Co., 249 F.2d 885 (6th Cir. 1957). Last, appellant argues that the District Court erred in holding that its order of dismissal dated April 16, 1971, was void, vacating its prior order under Rule 60(b)(4), F.R.C.P. We agree with appellant that a District Court has power to dismiss a plaintiff’s suit for repeated failure to comply with court orders requiring discovery. This, however, does not settle the issue. Although it undisputedly had jurisdiction of person and subject matter, the District Court apparently considered its prior order of dismissal void because, under the circumstances of the case, the dismissal was tantamount to a denial of due process of law. It is not our task in this case to consider anew whether or not the former order of dismissal was tantamount to a violation of due process but rather to ascertain whether or not the District Court abused its discretion in judging its former order void. The District Court clearly had power to grant relief under Rule 60(b). The grant of relief involved an appraisal of the facts. Such an appraisal and grant of relief are largely within the discretion of the trial court. See Assman v. Fleming, 159 F.2d 332 (8th Cir. 1947); Conerly v. Flower, 410 F.2d 941 (8th Cir. 1969). There has been no clear showing of abuse of discretion. Farmers Co-op. Elevator Ass’n Non-Stock v. Strand, 382 F.2d 224 (8th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). We therefore have no reason to find the District Court in error in vacating its former order of dismissal of the complaint. Accordingly, we conclude that the District Court’s order of October 15, 1971, vacating and setting aside the former order of dismissal of plaintiff’s complaint, was a valid and proper exercise of the trial court’s jurisdiction and authority. At the trial, the basic issue of fact was whether Lohman’s death was accidental. Defendant never expressly interposed suicide as an affirmative defense to its liability for double indemnity under the policy, but defended on the theory that plaintiff could not carry the burden of proving that Lohman’s death was accidental under the terms of the policy. There was an extensive trial and many conflicts between the testimony of many witnesses as to the life and death of William D. Lohman. Most of these conflicts were obviously determined in favor of plaintiff-appellee by the jury in finding that his death was accidental. In our discussion of the other issues presented, we will deal with the facts in more detail, but in essence, they are as follows: William D. Lohman died on July 10', 1967, and it is stipulated that he died of a gunshot wound, that there were no eye witnesses to his death, and that the insurance policy which is the subject of this suit was in effect on the date of death, with premiums paid up to that time. He had been a rancher all his life. He was in good health. He was happily married and had two children, both of whom had finished high school and were working. His living habits were simple and inexpensive, and he did not gamble. He was engaged in extensive ranching operations, and owned thousands of acres in North Dakota and Canada in a partnership called the L & O Cattle Company. In July 1967 Lohman and his partner became heavily indebted to the Cedar Vale National Bank of Kansas for large amounts of money obtained through notes, some of which bore false or bogus signatures. During the week before his death, he was trying unsuccessfully to borrow over half a million dollars to repay partnership indebtedness, and mentioned going to jail or being indicted in this connection. At the time of Lohman’s death his estate was insolvent. There was some testimony that he appeared depressed that week, but most of the witnesses testified that there was no change in his attitude or disposition, and that he was making extensive plans for the future up to the time of his death. On July 10th, after returning from a business trip to Montana, the Lohman couple drove to the home of their ranch’s caretaker to get a pickup truck. William Lohman took the truck and a Winchester 308 rifle. He said that he intended to look at some livestock, and maybe shoot an antelope, and then meet his wife in a couple of hours in nearby Mobridge, South Dakota. The truck was found the next morning on a hill overlooking a watercourse on the ranch where antelope were sometimes found. The door of the truck was open on the driver’s side, and the motor running. The body of William D. Lohman was lying on the ground a few feet from the open door with the gun nearby with one shell discharged and another in the clip. The gunshot wound was in the middle of the forehead, with the path of the bullet going directly into and through the middle of Lohman’s cranium. Appellant submits that the evidence was not sufficient to go to the jury on the issue of the cause of Lohman’s death; that plaintiff-appellee’s case is inconsistent with any plausible or reasonable theory of accident whatsoever; that a verdict of accidental death could only be based upon speculation and conjectures; and that the trial court erred in failing to direct a verdict and the jury’s verdict cannot be sustained on appeal. Two highly qualified and experienced experts, Dr. Weeht and Mr. McDonnell, testified that there was nothing about the fatal wound to indicate that it was a contact wound, indicating suicide. These two witnesses and others testified that the weapon could have been discharged while Lohman was slipping, falling or stumbling on a smooth moss-covered rock directly below the open door where he could have stepped in leaving the truck, or while he was pulling the rifle from the truck to shoot an antelope. From these conclusions and their consideration of all the other relevant facts, both of these expert witnesses expressed the opinion that death by accident was more likely than death by suicide. There was considerable opposing expert testimony that this was a contact wound and self-inflicted, but the weight of this testimony was for the jury to determine. The jury obviously accepted the testimony of plaintiff’s witnesses as showing a reasonable theory, consistent with the facts, that Lohman’s death occurred by accident. The trial court was not in error in failing to direct a verdict for defendant-appellant since there was sufficient evidence to go to the jury, and the evidence was sufficient to sustain the jury’s verdict that Lohman’s death was accidental. Plaintiff was not required to prove the exact causation of the accident, but only that the death was caused by “external, violent and accidental means” as required for double indemnity by the insurance policy. Svenson v. Mutual Life Insurance Co. of New York, 87 F.2d 441 (8th Cir. 1937). In instruction (16), the court charged the jury to find for plaintiff “if under this record you find William D. Lohman’s death to have been caused by an accident, and otherwise for defendant insurance company if you find his death not to have been caused by accident, or under this record, a suicide.” Defendant excepted to instruction (16) and requested that the court amplify and correct its instruction in accordance with the leading South Dakota case of Headlee v. New York Life Insurance Co., 69 S.D. 499, 12 N.W.2d 313 (1943). Specifically, defendant requested that the coui’t add to the above quoted instruction these words: “bearing in mind that if the evidence leaves their minds in such doubt that they are unable to decide the point, the verdict should be against the party upon whom persuasion rests.” There is a clear distinction between the jury instructions held to be erroneous in Headlee, supra, and the instruction given in the present case. In Head-lee, the South Dakota Supreme Court stated, at 315: The trial court instructed the jury, first that the burden of proof was upon the plaintiff to prove that Robert’s death resulted solely from accidental means, and second, that the burden of proof was upon the defendant to prove that the death was by self-destruction. We believe this second part of the instruction was error occasioned by a failure to distinguish this action, which is based upon the double indemnity clause of the life insurance policy, from the action in which the insurer in a life policy raises the defense of self-destruction to the regular life indemnity. [Emphasis supplied]. In the court’s instruction (16) excepted to in the present case, the trial court was not discussing burden of proof, and nowhere did it say the “burden of proof was upon the defendant to prove that the death was by self-destruction,” as in Headlee, supra. On the contrary, the trial court did give the proper instructions that the burden of proof was upon plaintiff to prove that the death was accidental. Although defendant in theory did not expressly plead suicide as a defense, it clearly raised the issue of suicide by the presentation of its evidence and cross-examination throughout the trial. If the jury had found the evidence equally balanced between accidental death and suicide, it would have been governed by the court’s repeated instruction that “the burden is on Gloria (plaintiff) by a preponderance of the evidence, to show the death to have been caused by accident.” Defendant cites New York Life Insurance Co. v. Anderson, 66 F.2d 705 (8th Cir. 1933) where an instruction that the jury should find for plaintiff if the evidence is equally balanced was specifically disapproved. No such instruction was given here. The court very properly ruled that adding the requested language to the instructions would be “too much detail and give too much emphasis on the point. And it’s actually within the court’s instruction relating to burden of proof and, for that reason, is overruled.” Appellant asserts that the District Court erred in overruling its Motion for a Mistrial. The motion was based upon the supposed cumulative effect (a) of testimony given by plaintiff which appellant claims was hearsay and prejudicial, and (b) of certain statements by counsel for the FDIC before the jury. To dispose of this claimed error, it is useful at this point to explain more fully the FDIC’s interest in this suit. Before the instant suit was started, the FDIC had filed a creditor’s claim against the estate of William Lohman for $1,460,538.66. The claim in part arose out of a “Guarantee Agreement,” signed by Lohman to repay indebtedness due the Cedar Vale National Bank. The probate court issued an order on the claim allowing $580,954.61 with interest. The balance of the claim was left open by the probate court for further proof. Defendant General American, by its crossbill for interpleader, first brought the FDIC into this action as additional defendants. Thereafter, the FDIC in its own right crossclaimed against General American Life Insurance Company both as to the monies paid into court and for the monies due by reason of the double indemnity provision of the policy, claiming that a large portion of the insurance premium paid on the General American policy had been paid out of funds wrongfully obtained by William Lohman from the Cedar Vale National Bank for which FDIC was thereafter acting as receiver. The FDIC also counterclaimed against plaintiff Gloria Lohman, asserting three counterclaims among which it alleged its claim filed against the estate of William D. Lohman in the total amount of $1,460,538.66 plus interest. The matter of the “Guarantee Agreement” was first opened up in cross-examination of plaintiff by defendant General American’s counsel as to the FDIC claim in the probate court and plaintiff’s contesting the claim. On redirect examination the court allowed Gloria Lohman to testify, over defendant’s hearsay objection, about her husband’s understanding that the “Guarantee Agreement” was not binding upon him if the bank closed. Counsel for FDIC then cross-examined plaintiff on the same subject matter. No objections were raised by General American at the time of this complained of testimony, and no motion was made for a mistrial until later, after the FDIC had withdrawn part of its claim against the estate. Appellant claims that Gloria Lohman knew nothing about the agreement until after Mr. Lohman’s death and never talked with him about it. Evidence as to whether the Guarantee Agreement signed by Lohman and his partner was to become ineffective if the bank closed, was given not only by plaintiff’s testimony, but by two other witnesses present when the guaranty was given. They also testified that they understood at the time this transaction was made that the guaranty was to be ineffective as to Lohman if the bank closed, and it did close shortly thereafter. Plaintiff’s testimony as to her husband’s knowledge of the agreement was therefore only cumulative and not prejudicial. Defendant General American asserts further prejudice by the fact that after plaintiff’s testimony, counsel for FDIC stated to the jury that “by reason of our investigations” he was authorized to withdraw the contingent claim in the sum of the balance due by virtue of the Guarantee Agreement in the probate court. This statement, defendant Claims, “was deliberately designed to show Lohman’s innocence and thus, lack of motive for suicide. It introduced a collateral matter which had no proper place in the case.” If it was a collateral matter, General American first brought it into the case by its own cross-examination of plaintiff in its obvious effort to prove that Lohman’s financial troubles contributed to his alleged suicide. It was only after General American had been permitted to go into the FDIC’s claims and amounts thereof, including the amounts of unallowed and unproven claims filed in the probate court, that counsel for FDIC stated for the record that its contingent or unal-lowed claims against the estate would be dismissed. The FDIC, having asserted the claim in one of its counterclaims against plaintiff Mrs. Lohman, could most certainly withdraw and dismiss it. After FDIC announced to the jury that the contingent claim would be dismissed and the dismissal filed with the probate court in Walworth County, it was made perfectly clear that the allowed portion of the claim in the neighborhood of $580,000.00 plus interest was left against the estate and the trial court thereafter instructed the jury to “disregard completely the comments made by counsel for the FDIC as to the contingent claim having been withdrawn.” The trial court further commented to the jury that, “Those are matters which are for the court to decide later and have no particular bearing, I don’t think, on either aspect of the case of either accidental death or the defense. I think I will leave it that way and I think that will correct any possibility of misunderstanding on the part of the jury.” These instructions and comments to the jury certainly corrected any possible error claimed by appellant. In Chicago & N. W. Ry. Co., v. Kelly, 74 F.2d 31 (8th Cir. 1934) plaintiff there was suing for personal injuries. He testified and his counsel alluded to his family responsibilities. Numerous objections were sustained to this testimony, and numerous exceptions noted to those allusions and arguments by counsel for plaintiff. Although this court reversed the trial court’s judgment for plaintiff because of these repeated and deliberate acts of misconduct by plaintiff’s counsel, it said at 35: The court made no mention of the subject-matter of these objections in the charge to the jury. The admission of testimony showing family responsibilities usually has been held error. (Citations omitted). Whether the admission of such testimony is reversible error largely depends on whether it has created passion and prejudice in the minds of the jury. Courts should exercise great caution in setting aside judgments because of inadvertent remarks made by litigants or counsel during a hotly contested trial, even though improper, unless it clearly appears that they aroused the sympathy or prejudice of the jury and influenced the verdict. [Emphasis supplied]. Even if we were to accept General American’s contention that the testimony of Gloria Lohman and the statements by FDIC hereinabove discussed were inadmissible, it does not clearly appear “that they aroused the sympathy or prejudice of the jury and influenced the verdict,” in the words of Chicago & N. W. Ry. Co., supra. This is even more evident in view of the court’s comments and admonitions to the jury that these matters had no particular bearing on accidental death and “to disregard completely the comments- by counsel for the FDIC as to the contingent claim having been withdrawn.” The trial court was acting well within the limits of sound discretion in denying defendant General American’s belated motions for mistrial. Defendant also moved the trial court to dismiss the FDIC or limit its participation in the trial after FDIC entered into a pre-trial, court-approved settlement agreement with plaintiff, the terms of which made it a co-plaintiff with Gloria Lohman. This motion was denied. Defendant asserts error. Defendant’s position is that FDIC had no independent claim against it after the settlement agreement; that its rights are the same as plaintiff Gloria Loh-man’s rights; and that the only question left was whether plaintiff was entitled to recover against General American. Appellant argues that to allow FDIC to remain a party gave plaintiff and FDIC the advantage of double cross-examination of all defense witnesses, since their interests were the same. By its cross-bill for interpleader, by its cross-claim against defendant and in its counterclaims against plaintiff, FDIC consistently maintained its independent right to the life insurance proceeds against defendant. The cross-claim is based upon the undisputed fact that part of the funds used to pay the premium for General American’s policy of insurance on the life of the deceased, William D. Lohman, were misappropriated monies of the Cedar Vale National Bank, of which FDIC subsequently became receiver. A constructive trust in favor of FDIC resulted, which gave to FDIC as cestui que trust the option to enforce the trust against the proceeds of the policy or to claim an equitable lien upon them. The general rule is stated in Vorlander v. Keyes, 1 F.2d 67, 69 (8th Cir. 1924): * * * not only the property which the trustee acquires with the misappropriated funds, but all its fruits, in every form, its increase, its income, other property acquired by the trustee by the exchange or use of it in any way, become, at the option of the ces-tui que trust, his property * * *. [Emphasis supplied]. See also 38 A.L.R. 930, 24 A.L.R.2d 672 and Bogert on Trusts, 2nd Ed., Section 925. The rights of FDIC were not dependent or derivative on or from the rights of plaintiff. Defendant states that it can find no authority precisely in point, and concedes that “Rule 21 F.R.C.P.” gives the trial court a broad discretion in the matter of dropping or adding parties. In denying defendant’s motion to dismiss the FDIC or limit its participation, the trial court was clearly within the limits of its broad discretion. Defendant also assigns as error the denial of its motion for a directed verdict as to FDIC for failure to prove any claim against General American. From our preceding analysis of the evidence and contentions by defendant, it is clear that FDIC sustained its own burden of proof, and we need not repeat our conclusions in this regard. The trial court did not err in denying defendant’s motion for a directed verdict as to FDIC. Finally, defendant argues that the cumulative effect of all of the foregoing errors alleged by it, and other errors of the trial court, was prejudicial to General American, under the principle that although individual errors may not establish prejudice, they may in combination equal substantial prejudice, impelling a reversal. We have examined these other alleged errors, most of which involve narrow and isolated evidentiary rulings by the trial court, whose cumulative effect is claimed to be prejudicial to appellant. We find that these alleged errors, neither individually nor in tandem, resulted in such prejudice. Only one of these claimed errors merits discussion. Defendant assigns as an instance of cumulative error the admission into evidence of a certified copy of a death certificate as to the death of William D. Lohman which asserts that the death was accidental. We agree that the opinion of accidental death should have been excised from the certificate prior to its admission into evidence, but under the facts and circumstances of this case, we think the admission did not constitute reversible error. Rule 43(a), Federal Rules of Civil Procedure, provides that “[a] 11 evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.” Further, 28 U.S.C. § 1739, provides that: “All non judicial records of books kept in any public office of any State * * *, or copies thereof, shall be proved or admitted in any court or office in any other State * * * by the attestation of the custodian of such records or books, and the seal of his office annexed, if there be a seal, together with a certificate of a judge of a court of record of the county, parish, or district in which such office may be kept * * * that the said attestation is in due form and by the proper officers.” Thus, a certified and authenticated copy of a death certificate (which is what was offered here), if admissible in the State of North Dakota, is admissible in Federal District Court in the State of South Dakota and entitled to full faith and credit just as if it were being admitted in the State of North Dakota. • North Dakota law provides: Effect of certificate of proof of birth and of certified copy of birth or death certificate. — A registrar’s certificate of the record of a birth and a certified copy of any birth or death certificate issued by the state registrar of vital statistics shall be prima facie evidence of the facts therein stated and shall be accepted as such proof in any court or before any commission, bureau, board, or agency in this state. 23-02-40 N.D.C.C. The death certificate is also admissible in Federal court in South Dakota if it is admissible under the rules and statutes of the State of South Dakota. Rule 43(a), F.R.C.P.; 28 U.S.C. § 1739. South Dakota has a statute very similar to North Dakota’s 23-02-40, N.D.C. C. It is S.D.C. 27.0220, providing that a certified copy of a death certificate “ * * * shall be prima facie evidence in all the courts of this state of the facts therein stated * * This section has been construed in DeGooyer v. Harkness, 70 S.D. 26, 13 N.W.2d 815 (1944), holding that a certified copy of the death certificate is admissible. This case does, however, say that an opposing party would be entitled to move that part of the certificate be excluded if necessary. It bears repeating that “ * * * the law is, generally speaking, in great confusion * * Marker v. Prudential Ins. Co. of America, 273 F.2d 258, 262 (5th Cir. 1959), upon the question of admissibility of a death certificate containing an opinion on the ultimate fact to be proved, namely, accident or suicide. We have not found any North Dakota case construing 23-02-40 N.D.C.C. with respect to the precise question here involved. The case of Brinkman v. Mutual of Omaha Ins. Co., 187 N.W.2d 657 (N.D.1971), does not assist us. In that case the court admitted under authority of 23-02-40 N.D.C.C. a death certificate containing a statement by the coroner, who was a physician, that the cause of death was “coronary thrombosis.” This was a medical conclusion based upon observable medical facts quite unlike the bald assertion of accidental death contained in Lohman’s death certificate. Similarly, we have found no South Dakota cases construing S.D.C. 27.0220 as to the precise question before us. We believe the more salutary rule, expressed by the majority of cases construing statutes such as 23-02-40 N. D.C.C., making the death certificate pri-ma facie evidence, is that the certificate is only prima facie evidence of the facts stated in the certificate and not of any opinion. See 28 A.L.R.2d 352, 362-364; 21 A.L.R.3d 418, 449-456. See also Lockwood v. Travelers Ins. Co., 498 P.2d 947, 952 (Colo.1972) and cases cited therein. The conclusion of the coroner that the death in this case was accidental is a mere opinion, the same as it would be if he had concluded the death were suicidal. Even more convincingly, we do not think that the imprimatur of “prima fa-cie evidence” should be given to such an assertion of an essentially nonmedieal opinion as to the ultimate fact and pivotal issue in this case. Although the coroner’s opinion should have been excised from the death certificate prior to its admission into evidence, the admission of the certificate did not constitute reversible error given the facts and circumstances of this case. The assertion of opinion in the certificate was not affirmatively exploited by plaintiff throughout the trial, and its importance was in fact minimized. The only reference to the certificate in oral argument to the jury was by plaintiff’s attorney who merely stated: “We have in evidence the death certificate for whatever its worth, it’s not signed — it’s not a doctor, it’s a layman, he says it was accidental death due to getting in or out of a pickup.” The effect of such a statement by plaintiff’s counsel was to minimize the importance of the death certificate, at least as to the cause of death. In short, plaintiff did not rely upon the conclusions in the certificate in her argument and only referred to it as being admissible for whatever weight the jury might want to give it. There was certainly other evidence both ways on the suicide issue, and the jury would be the trier of that ultimate fact. Defendant was not prejudiced to a reversible extent, although a close question is admittedly presented. The judgment of the District Court is hereby affirmed. . General American’s motion for dismissal of the appeal was based upon the technical ground that plaintiff had not “ ‘served on the Appellee (General American) a designation of the parts of the record which he intends to present for review’ as required by Rule 30(b), Federal Rules of Appellate Procedure.” . In its order vacating the prior order of dismissal, the District Court concluded: “(1) that Gloria M. Lohman at the time of her husband’s death acquired a vested interest in the $100,000 then due under said policy and a right upon proof of accidental death to the prescribed double indemnity; (2) that the insurance company’s deposit in registry of said $100,000 and accrued interest operated as an admission of liability in accordance with the terms of its insurance contract, with liability for double indemnity included should the proof be sufficient to show death to have been caused by accident; (3) that the order of April 16, 1971, insofar as it appears to have affected those insurance rights and interests of the beneficiary, was void, Rule 60(b)(4), Fed.R.Civ.P., that the reservations therein contained explicit or necessarily implied, continued the right of Gloria M. Lohman to defend against the cross claimants and additional defendants, thereby actually in that part of the case and in any other aspects involving the merits preserving her status as the plaintiff and (4) that the movant under her motion is entitled to the relief she seeks.” . General American paid the sum of $100,000.00 on the ordinary life portion of its policy and the amount in dispute was whether an additional $100,000.00 was due. That amount was due only if the death of William Lohman was accidental within the terms of the policy. . The opinion expressed in the death certificate was that Lohman “ * * * was coincidentally shot in the head getting in or out of the pickup” and “ * * * that death was met by accident.” Trial Transcript, p. 207.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

COMMISSIONER OF INTERNAL REVENUE, Appellant, v. TRANSPORT MANUFACTURING AND EQUIPMENT COMPANY, Appellee. TRANSPORT MANUFACTURING AND EQUIPMENT COMPANY, Cross-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Cross-Appellee. Nos. 72-1321, 72-1493. United States Court of Appeals, Eighth Circuit. Submitted Feb. 12, 1973. Decided April 20, 1973. James K. Logan, Olathe, Kan., and Guy A. Magruder, Kansas City, Mo., for Transport Mfg. Co. Michael L. Paup, Atty., Tax Div., Dept, of Justice, Washington, D. C., for Commissioner. Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge. Chief Judge of the United States District Court for the District of North Dakota, sitting by designation. GIBSON, Circuit Judge. Both the Commissioner and taxpayer, Transport Manufacturing & Equipment Company (T.M.E.), appeal from adverse holdings rendered on two different issues by the Honorable Leo H. Irwin, United States Tax Court. This Court has jurisdiction pursuant to 26 U.S.C. § 7482(a) to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” We affirm the Tax Court on both issues. Two questions are presented in this appeal: (1) Did the taxpayer realize a capital gain on the sale of certain equipment in 1957? and (2) Was the Tax Court correct in holding that the taxpayer was not entitled to a net operating loss carryback for a bad debt deduction allegedly occurring in 1960? These questions will be discussed seriatim. TAXPAYER’S 1957 SALE OF TRAILERS A. Factual Discussion. T.M.E., owned and controlled by the Riss family, leased non-refrigerated and refrigerated vans and tank trailers to Riss & Co., Inc. (Riss & Co.), an interstate motor carrier also founded and controlled by Richard Riss, Sr. Riss & Co., subject to the rules and regulations of the Interstate Commerce Commission, founded T.M.E. to avoid an ICC regulation requiring a hearing whenever a carrier with more than $500,000 in debt sought to incur further indebtedness. T.M.E. was organized as an independent corporation to buy the carrier’s (Riss & Co.’s) equipment and to lease that equipment to the carrier on a “net lease” basis. Riss & Co. paid T.M.E. a monthly rental on each item of equipment, which was determined by a depreciation method employed by T.M.E., plus a monthly charge to cover T.M.E.’s overhead and interest expense. At the end of the leasehold agreement, Riss & Co. was usually given the option of purchasing the rental equipment at the original book value less the accumulated depreciation. The Tax Court said that “T.M. E. was designed merely to serve as a conduit for equipment needed for Riss” and “it was never intended that T.M.E.. would reap a profit of any significance from its dealings with Riss.” In 1954, T.M.E. purchased 1,216 vans and trailers from Fruehauf Trailer Co. for $8,471,294. By leasehold agreements dated April 1, 1954, T.M.E. leased all of this equipment to Riss & Co. for a six-year term. T.M.E. assigned the leases to Fruehauf as additional security for the purchase mortgage executed to Frue-hauf on the purchase of the trailers and vans. Of the 1,216 trailers and vans, 899 were designed experimentally with aluminum components replacing the traditional steel sections. During three years of use by Riss & Co., the trailers required extensive repairs. Riss & Co. estimated that these repairs due to the faulty design and the lost time of the use of the equipment cost it between $700,000 and $800,000. By agreements dated January 16 and July 16, 1957, Fruehauf contracted to repurchase 814 of the 1,216 trailers and vans sold to T.M.E. in 1954. The agreed repurchase price was $3,904,000. T.M. E. also purchased 850 improved trailers and vans from Fruehauf to be used in Riss & Co.’s expanding frozen food shipping. From 1954 until the time of the .sale in 1957, T.M.E. had depreciated the 814 trailers in the amount of $3,683,756.43, which left a date-of-sale basis (book value) in the trailers sold of $1,688,756.47. The difference between the amount received from Fruehauf ($3,904,000) and the taxpayer’s basis ($1,688,756.47) was $2,215,243.53. T. M.E. credited this amount to a receivable account marked “A/C Rec. Riss & Co.,” on the basis of the following agreement entered into by Riss & Co. and T.M.E. on January 16,1957: “AGREEMENT “WHEREAS, Transport Manufacturing & Equipment Co. owns and has under long term lease to Riss & Com-' pany, Inc. certain 1954 Fruehauf semi-trailers, which leases will expire on various dates following January, 1960. “WHEREAS, Transport Manufacturing & Equipment Co. now has an offer to purchase certain of these units which would require that Riss & Company, Inc. agree to cancel the existing leases on the units sold, and “WHEREAS, the existing leases on these units are on a declining rental basis calling for higher rentals in the early years and lower rentals in the later years, and the cancellation of the leases would result in a sacrifice by Riss & Company, Inc. of the low rentals during the last months of the aforementioned leases. “NOW THEREFORE BE IT UNDERSTOOD, that Riss & Company, Inc. does hereby agree to the cancellation of the leases on the units which Transport Manufacturing & Equipment Co. desires to sell and that in consideration for the agreement by Riss & Company, Inc., to cancel the leases on the units sold that Transport Manufacturing & Equipment Co. does hereby agree to pay Riss & Company, Inc. an amount equal to the sale price above Transport Manufacturing & Equipment Co.’s book value on the sale of these units.” The above agreement had the effect of transferring the entire profit on the repurchase sale from T.M.E. to Riss & Co. The Tax Court stated that the price for the used trailers “was above market” and appeared to compensate Riss & Co. for the damages suffered due to the defectively designed trailers. 56 T.C. 388, 397 (1971). The Tax Court also noted that Riss & Co. had been experiencing steady losses in revenue at this same time. 56 T.C. 388, 397 (1971). Obviously, it was to T.M.E.’s benefit to pass the gain on the sale of the trailers through to Riss & Co., which was experiencing heavy losses. The Commissioner sent T.M.E. a notice of deficiency, which assessed, as capital gain, the excess of the amount received by the taxpayer from Fruehauf over T.M.E.’s basis. The notice of deficiency did not inform the taxpayer, in any manner, of the reason for the deficiency. The Tax Court, in its first opinion, held that the Commissioner failed to apprise the taxpayer of his intent to employ 26 U.S.C. § 482’s “arm’s-length” theory to sustain the deficiency, and, therefore, the issue was raised too late to be considered by the Tax Court. 56 T.C. 388, 401 (1971). However, the Tax Court went on “to examine the financial consequences” of the lease cancellation agreement and under an “adequacy of consideration” theory found that $217,413.03 of the $2,215,243.53 gain remained with T.M.E. 56 T.C. 388, 405 (1971). However, in a supplemental opinion, the Tax Court upon reconsideration held that this assessment of $217,413.03 was actually based on an “adequacy of consideration” theory (also derived from § 482), which was also presented by brief after trial and too late to be considered by the Tax Court. 57 T.C. 469, 472 (1971). The Tax Court, therefore, finally held that T.M. E. had not realized any gain on the sale of the trailers, because the Commissioner failed to inform the taxpayer T.M.E. “either in the statutory notice, in his answer, or at trial of his intended theory for sustaining the deficiency.” 57 T.C. 469, 474 (1971). B. Legal Discussion. In reviewing Tax Court decisions, we apply the clearly erroneous standard. Findings supported by substantial evidence on the record as a whole which are not against the clear weight of evidence or induced by an erroneous view of the law will not be disturbed on appeal. Wilmington Co. v. Helvering, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1193 (1942); C.I.R. v. Riss, 374 F.2d 161, 166 (8th Cir. 1967); Lessmann v. C.I.R., 327 F.2d 990, 993-994 (8th Cir. 1964); Schoenberg v. C.I.R., 302 F.2d 416, 419 (8th Cir. 1962). It is uncontested that the notice of deficiency, Commissioner’s answer, and trial statements and testimony did not expressly refer to § 482 and the theories based on. that section to sustain the Commissioner’s assessment. The Commissioner, however, argues that the taxpayer was sufficiently apprised of the intended use of § 482, because the pleadings and evidence introduced at trial “centered around the economic basis for the cancellation payment” and, therefore, inferentially indicated that the taxpayer knew of the Commissioner’s intended use of § 482’s arm’s-length and adequacy of consideration theories. The Commissioner cites many instances concerning statements made in pleadings by both parties and at trial “pertaining to the economic realities of the lease cancellation payment — [e. g.] . . . whether, in fact, Riss so badly wanted new equipment that it would have voluntarily relinquished its rights under the lease.” The Tax Court held on these arguments that: “. . . the issue framed by the pleadings and presented at trial was whether T.M.E. realized the gain at all and was not whether T.M.E., after having realized the gain, could deflect part of it to Riss as compensation for loss of an advantageous lease.” 57 T.C. 469, 473 (1971). In the first place, the questions of whether T.M.E. realized a gain or whether T.M.E. deflected a gain after realizing it are closely related and would involve use of much of the same evidence. We see this case as an attempt on T.M.E.’s part to present in its pleadings and prove at trial the validity of the lease cancellation agreement. On the other hand, the Commissioner, in order to sustain the deficiency, was attempting to prove the invalidity of the same agreement. Of course, in attempting to prove this invalidity, the Commissioner, at the time of the trial, could well have been inferentially suggesting that the agreement was not at arm’s length or that there was a lack of adequate consideration. In effect, the Commissioner is asking that this Court hold that statements in pleadings and at trial and evidence that may be taken to prove different theories should be sufficient to notify the taxpayer of the theory on which the Commissioner is relying although not explicitly telling the taxpayer the precise basis for the assessment. The real issue in this case is whether the taxayer should inferentially have to determine the Commissioner’s theories, or whether the Commissioner has a duty to specifically inform the taxpayer of those theories. If a violation of a particular Internal Revenue Code section, Treasury regulation, or theory based on sections or regulations is involved, the Commissioner should notify the taxpayer of that section, regulation or theory. The failure to advise the taxpayer of such information is extremely prejudicial. Deficiency assessments are usually presumptively correct, and the taxpayer has the burden to prove them wrong. The taxpayer works at an extreme disadvantage in trying to invalidate deficiency assessments if he does not specifically know why the Commissioner is challenging the taxpayer. If the notice of deficiency does not state the reason for the deficiency, the Commissioner should then inform the taxpayer of the Code sections and theories in his answer. That is precisely the reason for the explicit provisions of Rule 14(b) of the Tax Court, which states: “(b) Form of answer. The answer shall be drawn so that it will advise the petitioner and the Court fully of the nature of the defense.” (emphasis added). Fully advising the taxpayer includes recitation of the Code sections and theories on which the Commissioner relies. Although the most appropriate times to advise the taxpayer of the Commissioner’s theories to sustain an assessment would be first in the notice of deficiency and then in the Commissioner’s answer, we do not hold that the Commissioner necessarily loses his right to pursue a theory or Code section that is not specifically raised before or at trial. The basic consideration is whether the taxpayer is surprised and disadvantaged when the Commissioner has failed to plead § 482. Commissioner v. Chelsea Products, supra at 197 F.2d 624; Nat Harrison Associates, Inc., supra 42 T.C. at 617; Burrell Groves, Inc. 16 T.C. 1163, 1169 (1951). However, the longer the Commissioner delays in not expressly advising the taxpayer of the intended theories, the more reason there is to conclude that the taxpayer has not received fair notice and has been substantially prejudiced so as to deny the Commissioner consideration of theories raised for the first time in post trial briefs. The Commissioner may avoid this uncertainty and discharge his duty of informing the taxpayer by expressly notifying the taxpayer of the intended theories in the deficiency notice and the Commissioner’s answer. We, therefore, hold in this case, that the T.M.E. should not be required to read between the lines of the pleadings, trial statements, or evidence to ascertain that any theory based on § 482 was intended by the Commissioner to sustain the deficiency assessment. In addition, the Tax Court had already made a general finding that the agreement between T.M.E. and Riss & Co. was based on “sound business judgment, and precipitated by factors beyond the control of either contracting party.” 57 T.C. 469, 472 (1971). Since the Commissioner raised the arm’s length and adequacy of consideration theories under § 482 for the first time in briefs after trial, the Tax Court did not have to consider these theories. J. William Frentz, 44 T.C. 485, 490-491 (1965), aff’d 375 F.2d 662 (6th Cir. 1967). The finding by the Tax Court that the taxpayer was not apprised of the intended use of § 482’s theories was supported by substantial evidence on the record and was not induced by an erroneous view of the law, We, therefore, affirm on this issue. TAXPAYER’S 1960 BAD DEBT DEDUCTION Hampered by extreme financial difficulties, Riss & Co. by the end of 1960 owed T.M.E. $1,383,029.71 largely for the rental of equipment from T.M.E. In 1962, T.M.E. filed an amended return for 1960 and claimed that the $1,383,029.71 should be considered as a bad debt deduction in 1960 and that T. M.E. should be entitled to a net operating loss carryback. The Commissioner disallowed the deduction and T.M.E. filed a petition in Tax Court on September 24, 1962. The Tax Court also disallowed the deduction and said that “we are unable to say that, as of December 31, 1960, Riss’ economic prospects were so moribund as to render worthless its obligations to T.M.E.” 56 T.C. 388, 410 (1971). The disallowance of this bad debt deduction presents nearly the identical issue that we faced in the companion case of Richard R. Riss, Sr. v. Commissioner, 478 F.2d 1160 (8th Cir. 1973). In that case, Richard Riss, Sr., who as a guarantor paid off a loan of Riss & Co. to Commercial National Bank of Kansas City, Kansas, was not allowed a bad debt deduction on his personal tax return in 1963. In both cases, the bad debt deduction depends on Riss & Co.’s financial capability to pay off its debts. Although this case involves Riss & Co.’s financial situation in 1960 while the companion ease concerned the 1963 financial picture, we think that the company was clearly insolvent in both years and the chances of collecting either debt was at the best minimal. Although the Tax Court stated that prospects for collection of the debt were dim and that Riss & Co.’s debts exceeded its assets by a ratio of two to one, it held that the debt was not wholly worthless in 1960. The existence of Riss & Co.’s valuable trucking routes, the continued operation of Riss & Co. as a going concern, and the extension of credit by T.M.E. to Riss & Co. in 1961 led the Tax Court to conclude that Riss & Co.’s obligation to T.M.E. was not “irreparably worthless” in 1960. 56 T.C. 388, 408-410 (1971). We are not inclined to disturb the Tax Court’s factual findings to which it applied correct principles of law. Further, our discussion in the companion case on this issue applies with equal force to this case and need not be repeated. In addition, the taxpayer did not decide until 1962 that the Riss & Co. debt was worthless in 1960. An after-the-fact analysis does not aid the taxpayer in attempting to prove that a debt was wholly worthless in a prior year. For the reasons stated here and in the companion case, we conclude that there is substantial evidence on the record as a whole to support the Tax Court’s finding that the Riss & Co. debt to the taxpayer was not wholly worthless in 1960. Therefore, the taxpayer is not entitled to a net operating loss carry-back. We affirm the Tax Court. . The Tax Court opinions are published. Riss v. Comm’r, 56 T.C. 388 (1971); Riss v. Comm’r, 57 T.C. 469 (1971) (supplemental opinion). . We are told by the parties that this was an “industry wide practice.” . Riss v. Comm’r, 56 T.C. 388, 393 (1971). A more complete factual discussion can be found in that opinion at 56 T.C. 388, 392-397 (1971). . That section reads: “482, Allocation of Income and Deductions Among Taxpayers “In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the1. Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.” . “Guess” could be appropriate in some situations. . Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933) ; C.I.R. v. Riss, 374 F.2d at 166. . In Commissioner v. Chelsea Products, 197 F.2d 620, 624 (3d Cir. 1952), the court said that “[t]he Taxpayer can hardly shoulder its burden if it does not know . . . which transactions or group of transactions the Commissioner has determined to have resulted in distortions of true net income.” . Of course, if a certain Code section, regulation or theory has not been specifically raised in the notice of deficiency, in the pleadings, or at trial and if there is an absence of surprise on the taxpayer’s part, the taxpayer has no reason to complain. Nat Harrison Associates, Inc., 42 T.C. 601, 617 (1964).

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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. Coye BOATNER, Appellant. No. 600, Docket 72-2287. United States Court of Appeals, Second Circuit. Argued Feb. 15, 1973. Decided May 4, 1973. Henry J. Boitel, New York City, for appellant. Frank H. Wohl, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee. Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge. Of the United States Court of Claims, sitting by designation. OAKES, Circuit Judge: Following a six day trial before a jury and Judge Cooper in the Southern District of New York, appellant, Coye Boatner, was convicted of one count of possession of counterfeit money in violation of 18 U.S.C. § 472 and sentenced to three years’ imprisonment. His principal claim on this appeal, one which is heard frequently, see, e. g., United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973); United States v. Pellegrino, 470 F.2d 1205 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973); United States v. Dellinger, 472 F.2d 340, 385-391 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), is that the trial judge’s “disparagement” and “intimidation” of defense counsel denied appellant a fair trial. A brief recital of the evidence introduced at trial will help put appellant’s contention in perspective. The Government's proof established that in June, 1971, appellant received $700 in counterfeit bills in the Bronx from a convicted counterfeiter, one Goodson, who was the principal witness against appellant at trial. It also established that at a hamburger stand in New Orleans appellant had passed a phony $10 bill made from Goodson’s plates and negatives. The defense’s contention was that the Bronx transfer never occurred and that appellant had inadvertently passed the phony $10 bill in New Orleans after receiving it from his girl friend, who in turn had received it from Goodson. The defense claimed that Goodson lied because he sought revenge against appellant for his previous testimony before a grand jury which led to Goodson’s indictment and ultimate prison term on a counterfeiting charge. The jury, however, apparently rejected appellant's version of events and credited the Government’s case. The trial began amicably enough, with the judge telling the jury that “[b]oth lawyers on both sides have the respect of the Judge, they are fine, upright accredible [sic] members of the Bar, and we are proud of them, they are fighting, as they should, for their respective sides . . . . ” Soon, however, interaction between the trial court and defense counsel, a former Assistant United States Attorney, developed unmistakable overtones of hostility and acrimony. The flames of hostility that were later to blaze were apparently initially sparked by defense counsel’s delay in making certain suppression motions until the day of jury impaneling. They were fueled by defense counsel’s omission, despite his knowing that the trial was set to begin at 10:00 a. m., to inform the court he had another court appearance that would prevent his being in court at that time. Defense counsel did not appear in the courtroom until 10:20 a. m. on the day that the trial was to begin, and trial did not begin until 10:55 a. m. Hostility between court and counsel first burned openly in an exchange begun by what the trial court believed were defense counsel’s unwarranted interruptions of Goodson’s testimony on cross-examination after counsel had asked Goodson to “[t] ell me everything” about a particular happening. The trial court reacted strongly to defense counsel’s argument with the court’s sustaining of the prosecution’s objection on the point. Before the jury, after the Government’s objection, the court said, “You are right. Please continue.” Defense counsel replied, “I disagree. I don’t think he is right.” This exchange ensued: The Court: Stop it. Mr. Gold: I am not— The Court: I will not take any impudence. Mr. Gold: I am not being impudent. The Court: Don’t do that. Mr. Gold: I am not doing anything, if it please your honor. The Court: Excuse the jury. In the absence of the jury the court then expressed displeasure with the whole course of defense counsel’s behavior up to that point in strong terms and at some length. He then asked defense counsel and the Government for comments, which too were at some length. When defense counsel moved for a mistrial, the following interchange occurred: Mr. Gold: Perhaps your honor would want to relieve me and declare a mistrial and get another. The Court: You just sit right down. That is what you would like. Mr. Gold: That is not what I would like. The Court: Don’t holler at me, sit down. Mr. Gold: Your Honor— The Court: Don’t. Mr. Gold: I will not be ordered about like some child in a courtroom. The Court: You are a child. I am directing you to sit down or I will hold you in contempt. Mr. Gold: I am not a child. Your Honor, I hope— The Court: Nothing further, quiet. Mr. Gold: I am entitled to courtesy. The Court: Bring the jury in. Mr. Gold: I want to be treated with courtesy. The Court: When you deserve it you will be. Sit down. Mr. Gold: Please, your Honor, don’t address me in that tone. The Court: Sit down. Mr. Gold: I am telling you now, your Honor— The Court: I am telling you I will hold you in contempt of court if this continues. Mr. Gold: I am only trying to do what I think is best. The Court: I find you in contempt. Mr. Gold: Yes, sir. The Court: Bring the jury in. Hostility and acrimony in the interactions between defense counsel and the trial court only increased in intensity thereafter. At a side bar conference at another point in the trial, the court called defense counsel’s conduct “disgusting and shyster-like” and “denounce[d]” counsel for “creat[ing] a reason for a mistrial.” Toward the end of the trial defense counsel’s objection to a reference by the trial court to counsel’s motive triggered the court in the presence of the jury to call a Marshal to help enforce the court’s orders to defense counsel to sit down. Other examples of hostility and antagonism between court and counsel could be detailed at some length but to no particular point. Suffice it here to say that a number of incidents occurred throughout the trial. Appellant blames the trial court and the Government blames appellant’s counsel below for these events. We, however, see little utility in trying to assess proportionate blame on this “cold record.” United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970). It may well be that much of the trial court’s treatment of defense counsel was induced by counsel’s lack of ordinary courtesy and close to contemptuous conduct; it is also true that “trial judges [must] display patience with counsel so as not to prejudice a party or create an impression of partisanship before the jury.” United States v. Pellegrino, supra, 470 F.2d at 1207. Instead of seeking to apportion blame we prefer to consider the course of events as regrettable for all concerned and look rather to other “tile[s] in the mosaic of the trial,” United States v. Naz-zaro, supra, 472 F.2d at 304, to determine if a new trial is necessary. We conclude that it is not. First, appellant has not substantiated his claim of prejudice flowing from the hostility between trial judge and defense counsel. In contrast to United States v. Nazzaro, supra, and United States v. Dellinger, supra, the trial court’s comments did not create an impression that he personally believed in the appellant’s guilt. United States v. Pellegrino, supra, 470 F.2d at 1207; United States v. Brandt, 196 F.2d 653, 656 (2d Cir. 1952). The trial court’s comments were directed exclusively at the conduct of appellant’s counsel, not — with one exception to be referred to below — at appellant’s credibility or the strength of his ease. United States v. Ross, 321 F.2d 61, 66 n. 3 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). While the trial court’s annoyance was directed primarily at defense counsel, the prosecutor too received a share. *More importantly, the trial court’s rulings on objections during the trial were quite evenhanded and displayed no bias toward one side or the other. There may be a point, however, where hostility between court and defense counsel alone creates the kind of embattled and prejudicial atmosphere in the courtroom that makes a fair trial impossible. This case falls just short of it, however. Defense counsel in no way could be said to have been “intimidated” by the trial court. Rather his advocacy of his client’s interests was vigorous throughout and only increased in vigor in proportion to the hostility from the trial court. The key question is whether the jury was prejudiced against appellant by the interchanges between the trial court and defense counsel. Most, fortunately, took place outside the presence or hearing of the jury. While it would have been much better had none of the hostility evidenced itself in the jury’s presence, we cannot say that the few brief incidents in which it did inherently prejudiced the jury against appellant. The one of these that comes closest to the line occurred in the course of the cross-examination of the defendant himself the reporting of which (with colloquies) consumed over 160 pages of trial transcript. The cross-examiner was inquiring of the defendant as to his interrogation by two United States attorneys after the New Orleans bill passing incident. After several objections to the line of questioning and to specific questions, primarily on the basis that the interview was not used in the Government’s case in chief and that it was unfair to confront the witness accordingly, defense counsel reiterated his objections as follows: Mr. Gold: I have one more thing to bring up, to your Honor’s attention, and that is that the Government did not make an offer of this conversation in its case in chief and they are deprived of the necessity of making an inquiry as to that interview. That is totally an unfair way and I ask for a voir dire out of the presence of the jury to determine whether that interview was consistent with my client’s constitutional rights at that time. The court, somewhat exasperated by the repetitious nature of the objections, replied as follows: The Court: Objection overruled. On every ground that you have put and I am going to ask you to please not to voice any more objections to this question and giving this witness a great deal of opportunity to contemplate and figure. That is not allowed. You are not supposed to do it. I asked a question and that called for an immediate answer, not time to contemplate by adding these continuous objections. What you have done is interfere with the purpose of the examination. Now, you have your objection and the objection is overruled and now I will put the question again to you. We think this was unnecessary and warranted entirely different treatment since it inferred in so many words that the witness needed time to contemplate his answers and thereby implied that he was not telling the truth. The trial judge was careful, however, to use strong curative instructions to attempt to erase any ensuing prejudice to the defendant. During the course of the trial and again in the charge the court reminded the jury that they were to deal only with the evidence before them, that “[t]he lawyers were not on trial here, this defendant is the one on trial,” and that exchanges between court and counsel were to be “disregard [ed] completely” in their deliberations. These strong admonitions tend to mitigate any prejudice that appellant might otherwise have suffered. United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972) ; cf. United States v. Nazzaro, supra, 472 F.2d at 312-313 & n. 11; United States v. Frascone, 299 F.2d 824, 829 (2d Cir.), cert. denied, 370 U.S. 910, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962). Finally, our conclusion that the prejudice to appellant was minimal is also reinforced by the strength of the case against him. United States v. Pelle-grino, supra, 470 F.2d at 1208; United States v. Ross, supra, 321 F.2d at 66 n. 3. Goodson’s testimony that he delivered the counterfeit money to appellant was corroborated by the testimony of his nephew, one Dogostiano. While the defense was able to challenge Goodson’s credibility, it offered no motive to explain away Dogostiano’s corroboration. Further, appellant admitted passing a counterfeit bill in New Orleans. His explanation for this, if not inherently incredible, was certainly implausible. The implausibility of the explanation is reinforced by appellant’s denial of passing the counterfeit bill when first apprehended in New Orleans and denial when interviewed by the two Assistant United States Attorneys in New York even of being in New Orleans at the time in question. This was thus not a close ease in which the verdict was tipped by the court’s reactions to counsel. Appellant’s other contentions are less troublesome. Appellant claims that the Government violated the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (the “Rules”) because five days before trial was to begin the Government requested a postponement on the ground that one of its key witnesses, a Louisiana resident, was pregnant and was advised by her doctor not to travel. The requested postponement was granted, and, as a result, trial was held ten months after indictment, not the six months appellant claims was required by the Rules. The Rules, however, specifically provided that a continuance may be granted at the prosecutor’s request when material evidence is unavailable. See Rule 5(c) (i); United States v. Counts, 471 F.2d 422, 427 (2d Cir. 1973). The Government was otherwise at all times ready to proceed within the letter and spirit of Rules 3 and 4. In short, appellant’s speedy trial claim is frivolous. Appellant’s final claim is that the trial court improperly allowed appellant to be cross-examined and rebuttal evidence to be submitted concerning crimes not charged in the indictment. One part of this claim is based on evidence submitted about some stolen credit card receipts found during a search of appellant’s car in New Orleans. After some evidence about these receipts was inadvertently introduced as a result of defense counsel’s mistake about the nature of a list in a Secret Service report, the trial court ruled that it would not permit the Government to introduce further evidence about them in its direct case. See generally C. McCormick, Evidence § 190 at 447 (Cleary ed. 1972). The trial court, however, reserved ruling on whether cross-examination of appellant about the credit card receipts would be proper. Subsequently, the trial court allowed some cross-examination on the point. It may have been within the trial court’s discretion to allow full presentation of evidence on the issue during appellant’s cross-examination, as the defense’s contention was that appellant inadvertently passed a counterfeit bill in New Orleans and use of the stolen credit cards could be said to be a similar criminal act showing appellant in fact had guilty knowledge. See United States v. Kaufman, 453 F.2d 306, 310-312 (2d Cir. 1971); C. McCormick, supra, § 190 at 450, 452. United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970), heavily relied on by appellant, is inapposite, for the criminal act on which cross-examination took place there was totally dissimilar to the crime with which Semensohn was charged, United States v. Kaufman, supra, 453 F.2d at 311, and at best was only relevant to the issue of the defendant’s general credibility. United States v. Glasser, 443 F.2d 994, 1002-1003 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971). But we need not and do not decide if full presentation of evidence about the credit card receipts on cross-examination of appellant would have been an abuse of the trial court’s discretion. For the Government confined itself to establishing that appellant had some credit cards and that his denial of using them in New Orleans may have been false. Appellant’s statement that others may have used the credit cards when they borrowed his car, for example, went unchallenged. This limited cross-examination was relevant to appellant’s means of financing his trip to New Orleans, where one bill was passed, and thus was within the trial court’s discretion. See C. McCormick, supra, § 190 at 448. Also, it cannot be said that the trial court abused its broad discretion in allowing the prosecution to present rebuttal evidence that, contrary to appellant’s statements on cross-examination, credit card receipts were found in an article of appellant’s personal clothing, uncovered in the course of the search of appellant’s car. United States v. Vivero, 413 F.2d 971, 972 (2d Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). Appellant also claims that evidence relative to crimes not charged was erroneously admitted concerning a prior counterfeiting charge of which appellant had been acquitted. On direct examination appellant testified that he had told the grand jury and the petit jury at a prior trial that he had received some counterfeit bills from Goodson in payment for Goodson’s rental of a room in appellant’s house. He also testified on direct examination in this trial that he had never been in the room claimed to be rented to Goodson. Cross-examination, which proceeded without objection, refined this somewhat to a claim that he had not been in Goodson’s room until after he was arrested on the prior charge and escorted to the room by a police officer. ^ In rebuttal, the Government introduced a portion of the transcript from appellant’s first trial showing that he testified then that he entered Goodson’s room and discovered the counterfeiting equipment pri- or to his first arrest. The Government’s cross-examination and rebuttal evidence were entirely proper, as they went to the issue of appellant’s credibility on subject matter initiated by the defense. See United States v. Vivero, supra, 413 F.2d at 972; C. McCormick, supra, § 190 at 452. The trial court, moreover, carefully instructed the jury several times that it was not to retry the appellant on the charge of which he had been acquitted, but only to consider the inconsistent statements on the issue of appellant’s credibility. Under the circumstances, there was no error. Judgment affirmed. . For example, the Assistant United States Attorney was rebuked several times in front of the jury — indeed, referred to once as a “neophyte” — for supposed disrespect shown the trial court; for asking leading, repetitive or otherwise improper questions on cross-examination; and for conveying the impression on cross-examination that appellant had lied at a previous trial where he was acquitted on a counterfeiting charge. . A not atypical exchange occurred when at one point in the trial the court interposed an objection on behalf of appellant when defense counsel failed to object to a question similar to those to which he had previously objected. It is not surprising that counsel responded, “I think I should be the judge as to when I object and when I don’t.” Counsel here quite surpassed Sir Edward Marshall Hall’s comments to the court in connection with the Styles plea: The Court: How many more speeches am I to hear? I heard you on Thursday. Hall: I don’t think Your Lordship did hear me; Your Lordship did not msli to hear me. The Court: You have no right to say such a thing, Mr. Hall; it is a most indecent observation for you to make. I cannot allow it. You meant to be offensive, and you must not be offensive. E. Marjoribanks, For the Defense, The Life of Sir Edward Marshall Hall 182 (1954). Or in the Camden Town murder case, when Hall objected to the evidence of a barmaid at the “Eagle” as to the last meeting between the defendant and the victim; she failed to identify either the defendant or his companion, one Lambert. Hall: I implore Your Lordship to note that this witness has not identified these men. The Court: You have said that before ; I have not forgotten it. Hall: I thought Your Lordship did not appreciate it. Id. at 231. . The Rules have now been superseded in this circuit by individual district plans for achieving prompt disposition of criminal cases promulgated under Fed.R.Crim. P. 50(b), which have received Judicial Council approval and had an effective date of April 1, 1973.

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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 F. PHILLIPS, Defendant-Appellant. No. 72-2170. United States Court of Appeals, Fifth Circuit. May 9, 1973. Kenneth R. Cain, Ozark, Ala., for defendant-appellant. Ira DeMent, U. S. Atty., David B. Byrne, Jr., Wade B. Perry, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee. Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges. GODBOLD, Circuit Judge: Appellant was convicted by a jury of violation of 21 U.S.C.A. § 174 (1972), which proscribes receiving, concealing and facilitating the transportation and concealment of a narcotic drug. There are several substantial and close issues which we need not reach because the entire ease rests upon an invalid warrant-less governmental search of a parcel while in the United States mails. The conviction must, therefore, be reversed and the prosecution dismissed. On the basis of undisclosed information the postmaster of Ozark, Alabama, was alerted to watch for incoming parcels addressed to James F. Phillips. A sealed parcel arrived addressed to Phillips at an Ozark street address. It bore a stamped notation “air mail special delivery” and postage in the amount of $1.25 but no notation as to the class of mailing. It weighed 11% ounces. Postal authorities were of the opinion that the parcel was fourth class matter, which, while in the possession of postal authorities, may be opened for postal inspection without the necessity of a warrant. Santana v. United States, 329 F.2d 854, 856 (1st Cir.), cert. denied, 377 U.S. 990, 84 S.Ct. 1915, 12 L.Ed.2d 1044 (1964). Cf. 39 U.S.C.A. § 4058(a) (1962) and 39 C.F.R. 135.7 (1972). The package was opened by postal officials and found to contain a white powdery substance which, we will assume for purposes of this opinion, the jury properly could have found was a narcotic. Subsequently, after some of its contents were removed, the parcel was rewrapped and delivered to Phillips. While fourth class matter is subject to opening for postal inspection, the fourth amendment protects first class mail from warrantless opening for postal inspection, and that constitutional limitation has been carried forward into a statute. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877); Oliver v. United States, 239 F.2d 818 (8th Cir. 1957); Webster v. United States, 92 F.2d 462 (6th Cir. 1937); Lustiger v. United States, 386 F.2d 132, 139 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142 (1968) ; United States v. Van Leeuwen, 414 F.2d 758 (9th Cir. 1969), and 39 U.S.C.A. § 4057 (1962) The basis for the opinion of postal authorities that the package was fourth class matter was unclear at trial and no clearer in the government’s brief or at oral argument of this appeal. The fee for special delivery service was 45 cents. Postal officials explained that they deducted this amount from the postage of $1.25, leaving 80 cents, which is the minimum fee for any air parcel post package, irrespective of class, weighing less than one pound. 39 U.S.C.A. § 4303(d)(1) (App.1972). A postal inspector was permitted to testify as an expert, over objection, that in his opinion, based upon his experience and postal laws and regulations, the parcel was fourth class. The great, and unexplained, leap in logic by the government and its witnesses is the implicit assumption that a sealed package sent air parcel post is neither first class matter nor entitled to the same privacy as first class matter, and instead, as an affirmative proposition, is fourth class matter. We say “as an affirmative proposition,” because under familiar principles the burden was upon the government to establish that it had the right to make a warrantless search. Under 39 U.S.C.A. § 4251(a) (App. 1972) first class mail consists of: [Mjailable (1) postal cards, (2) post cards, (3) matter wholly or partially in writing or typewriting [with certain exceptions], (4) bills and statements of account, and (5) matter closed against postal inspection. Fourth class mail consists of mailable matters: (1) not mailed or required to be mailed as first class mail; (2) within the size and weight limits prescribed for fourth class mail; (3) not entered as second class mail. 39 U.S.C.A. § 4551(a) (1962). Second and third class classifications have no arguable relationship to this parcel or this ease. In 1967 Congress amended the postal laws so as to eliminate the preexisting service for heavier [i. e., in excess of eight ounces] “air mail of the first class,” see 39 U.S.C.A. § 4303(d)(2) (1962), repealed by Pub.Law 90-206, Title I, § 102(b)(2), 81 Stat. 614 (Dec. 16, 1967), and so as to establish a new and lower rate for some first class mail items. It did so by blending into one enactment the preexisting concept of “air parcel post” and the eliminated service for “air mail of the first class” and by providing in 39 U.S.C.A. § 4253(b) (App.1972) that “[f]irst class mail weighing more than thirteen ounces shall be mailed at the rates of postage established by section 4303(d) of this title [the rates for air parcel post] and shall be entitled to the most expeditious handling and transportation practicable.” The pertinent legislative history of the 1967 amendments reveals the following: Air parcels The rate on air parcels, now mailed at a zone rate, is revised. Beginning with the effective date of the postal provisions of this legislation, airmail weighing more than 7 ounces and first-class mail weighing more than 13 ounces will be combined as one class of mail and will be delivered by the most expeditious means of transportation available. This is a significant departure from the present method of determining class of mail and postage rates for heavier parcels. Because of the significantly high cost coverage of heavy first-class and airmail parcels, the Post Office Department has recommended and the committee and the House of Representatives have approved a new rate schedule combining these two kinds of heavy mail at a zone rate schedule which is generally lower than present rates for air parcel post or first-class mail. A particular benefit to the public will be the 80-cent nationwide airmail rate for any parcel weighing 1 pound. 2 U.S.Code Cong. & Admin.News, 90th Cong. 1st Sess.1967, p. 2258 at 2262 (emphasis added). Prior to these 1967 amendments the separate concepts of “air parcel post” and of classes of mail had proceeded along lines of development that were uncorrelated, and at times contradictory. We do not find in the pre-1967 statutory development of the air parcel post concept any guidance on the question of whether the search of the instant parcel violated the fourth amendment. We conclude that this sealed air parcel sent under the new “one class of mail” could not be opened without a warrant. We reach that conclusion as a matter of law by examining the 1967 amendments in the light of the fourth amendment and of the pre-1967 implementation of that amendment by Congress in the field of postal matter. The beginning point is the Constitution itself and the rights of privacy protected by the fourth amendment. The constitutional guaranty is implemented at least in part by the statutory scheme for classification of mail into — insofar as here applicable — first and fourth class matter; the statute forbidding the war-rantless opening of a first class item; and the supporting regulations that prescribe how first class matter shall be wrapped and marked and how fourth class matter shall be wrapped. 39 C.F. R. §§ 131.2(3) and 135.7 (1972). Ambiguities may arise, such as the sender’s sealing a parcel, which should require it to go as first class matter, 39 U.S.C.A. § 4251(a)(5) (App.1972), but paying only fourth class postage, or, hypothetically, paying only fourth class postage but writing on the parcel “Do not open for postal inspection.” Such ambiguities cast doubt on the proper classification of the item and on the intent of the sender as well. But, indisputably, the privacy of a sealed item bearing the proper amount of postage for a first class item is protected from warrantless opening, not because it is given the appellation “first class” but because the Constitution commands that result. Nothing in the legislative history of the new “one class of mail” suggests that an item possessing the characteristics that had entitled it to the privacy protected by the fourth amendment (and thus formerly to first class status) was intended to have a lesser scope of privacy by being rechar-acterized as within the new “one class” and sent at a new rate lower than the first class rate. Indeed, for items sealed against postal inspection, Congress probably could not constrict the scope of privacy without abrogating the fourth amendment. An argument can be made that any parcel sent in the new class, sealed or unsealed, is entitled to be treated as though first class mail and exempted from warrantless opening. But we leave determination of that question to some other case in which the issue is squarely raised and adequately presented. We have reached the conclusion that, as a matter of law, this sealed air parcel should not have been opened without a warrant. There are alternative grounds commanding the same result. First, the burden of proof was upon the government to establish its right to make a warrantless search of a private parcel. The government has not discharged that burden but has merely assumed that the matter was settled by the opinion of one of its employees that the parcel was fourth class. Second, even if it is assumed arguendo that an air parcel sent with correct postage under the new rates can have a classification other than first class matter, and need not enjoy the privacy extended to first class matter, the only other status into which this particular parcel could arguably fall would be fourth class. But the statutes concerning classes of mail and the empirical facts make clear that this parcel was not fourth class. It was sealed, and as already pointed out, it was below the minimum weight for fourth class. While it did not bear first class postage but instead carried the postage of the new rates for the “one class of mail,” the amount of postage exceeded that for fourth class parcel post. 39 U.S.C.A. § 4556 (App.1972). The case is reversed with directions to dismiss the indictment. . Tlie search took place on February 19, 1971, after enactment of the Postal Reorganization Act, Pub. Law 91-375, 84 Stat. 719, on August 12, 1970. The validity of that search, however, is controlled by the requirements of the Constitution and by the statutory provisions, and supporting agency regulations, of Title 39, United States Code, which pre-existed the Postal Reorganization Act. See 39 U.S.C.A. (App.1972). The Reorganization Act did not become effective in its entirety until July 1, 1971. During the interim from the date of enactment to the date of commencement of operations of the new Postal Service (July 1, 1971), the Post Office Department continued to operate under pre-existing statutory grants of authority supplemented by those grants contained in the Reorganization Act which became effective before the Postal Service commenced operations. Section 3 of Pub.Law 91-375, 84 Stat. 773, which became effective July 1, 1971, provided that: “The classes of mail, the rates of postage, and fees for postal service prescribed by law or regulation made or adopted prior to the effective date of subchapter II of chapter 36 of Title 39, United States Code, as enacted by section 2 of this Act, shall be in effect according to the terms of such law or regulation until changed in accordance with such subchapter.” The section of the Reorganization Act enacted as 39 U.S.C. § 3623, see Pub.Law 91-375, 84 Stat. 761, which became effective January 20, 1971, is merely a directive authorizing the Postal Service to request the Postal Rate Commission appointed by the President under 39 U.S.C. § 3601, to make recommendations on classes of mail and rates. The government’s supplemental brief states that the Commission did not submit recommendations until January 18, 1973, and that as of March 1, 1973, no new regulations had been promulgated incorporating these recommendations. . “The Postmaster General may prescribe the manner of wrapping and securing mail not charged with first class postage so that the contents of the mail may be easily examined. He shall charge the first class rate of postage on all matter which cannot be examined easily.” . “Sealing “Fourth-class mail must be wrapped or packaged so that it can be easily examined. Mailing of sealed parcels at the fourth-class rates of postage is considered consent by the sender to postal inspection of the contents. To assure that their parcels will not be opened for postal inspection, customers should, in addition to paying the first-class rate of postage, plainly mark their parcels First Class or with similar endorsements.” . “Opening first class mail “Only an employee opening dead mail by authority of the Postmaster General, or a person holding a search warrant authorized by law may open any letter or parcel of the first class which is in the custody of the Department.” . Special delivery service is available for any class of mail, 39 U.S.C.A. § 6006 (1962), so the use of that service has no value as an indicator of the class of the parcel. . It was error to permit this conclusory testimony on what was either a question of law or a mixed question of law and fact. Additionally the prosecution’s presentation —through conclusory expert testimony— of its claim to a right to make a search without warrant insulated the government from having to point out to the court the statutes, regulations and case law which would have brought to the surface the questions of law involved. . It is not claimed, and indeed it cannot be claimed, that there were exigent circumstances which would have prevented the government’s obtaining a warrant before the parcel was delivered. . While at the same time reducing from eight to seven ounces the maximum weight for “domestic air mail,” compare 39 U.S.C.A. § 4303(a) (App.1972) with 39 U.S. O.A. § 4303(a) (1962), anil raising the minimum weight for “air parcel post” from seven to eight ounces, compare 39 U.S.C.A. § 4301(2) (App.1972) with 39 U.S.C.A. § 4301(2) (1962). Congress also established new rates for air parcel post. 39 U.S.C.A. § 4253(b) (App.1972). . Thus see the legislative history to 39 U.S.C. § 4302 (1964), contained in the official revision notes thereto : “Since only one schedule of rates is applicable to air parcel post, the laws which distinguish as between treatment of the various classes of mail are inappropriate to air parcel post. Paragraph 10 of section 475 of title 39 is intended to cover this situation. The subsection clarifies this situation by stating that the Postmaster General shall provide for the special return and for the special services for air parcel post.” and the legislative history to 39 U.S.C. § 4301 (1964) : “This definition of domestic air mail is derived from the matter preceding the proviso in section 462a. The proviso is covered by section 4304 of this title. “The definition of air parcel post is derived from section 475 of title 39. “Chapter 13 of title 39 contains three definitions relating to air mail. Section 462 defines air mail as ‘first class mail’ at the special air mail rate; 462a defines ‘domestic air mail’ as embracing ‘all mailable matter being transported as mail by air’ and section 469 defines air mail as ‘mail of any class’ at the air mail rate when used in relation to sections 463 and 469f of said chapter; section 463 which fixed postage rates is superseded by section 463a and section 469f is an obsolete section dealing with claims on annulled air mail contracts.” S.Rep.No.1763, 86th Cong., 2d Sess. 58 (1960). Compare 39 U.S.C. § 462 (1952 ed.) with 39 U.S.C. § 462a (1952 ed.) and 39 U.S.C. § 469 (1952 ed.). . 39 U.S.C.A. § 4057, (1962) quoted in footnote 4, supra. . If the post office accepts such parcels unsealed, a matter as to which we are not informed. . The argument would run this way. (1) Accepting that Congress did not, and probably could not, by creating the “one class of mail,” extend less privacy than formerly extended to first class mail exceeding 13 ounces, it would be anomalous to conclude that Congress intended a lower status for the other types of items — air mail parcels —also included in the “one class of mail.” Both types of items pay the same rate and are handled in the same manner. And the legislative history, quoted above, is in terms of “one class.” (2) The classifications for mail established by other provisions of the United States Code are second and third class. They have no relevance here. Congress would not have intended to import fourth class standards into the “one class of mail.” The new class begins at “in excess of 7 ounces.” The minimum weight of a fourth class parcel is 16 ounces. 39 U.S.C.A. § 4551 (1962) and 39 U.S.C.A. § 4552(a)(2) (App. 1972). The standards of fourth class, previously restricted to only larger parcels, would hardly be extended by implication, and without any supporting evidence of intent, to smaller parcels as well. . In a case remarkably similar to the one before us, a United States District Court and the Eighth Circuit have reached the conclusion that air parcel post is first class matter. Collins v. Wolff, 337 F.Supp. 114 (D.Neb.1972), aff’d, 467 F.2d 359 (8th Cir. 1972). The linchpins of their decisions are first, that after 1967 air parcel post must carry the same postage as first class matter, and, second, that the rate of postage determines whether or not a parcel is first class. We do not adopt that reasoning, because, while the rate for air parcel post and first class items over 13 ounces is the same after 1967, it is not the first-class rate. As the congressional history pointed out, the new and lower rate for the “one class of mail” is lower than previous rates for air parcel post and first class mail (and, of course, lower than the increased rates for first class and air mail).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellant, v. Luis CASTELLANOS, Appellee. No. 680, Docket 72-2337. United States Court of Appeals, Second Circuit. Argued April 10, 1973. Decided May 4, 1973. Paul M. Bergman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. New York, L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellant. Frank T. Geoly, Fontana & Geoly, Brooklyn, N. Y., for appellee. Before SMITH, HAYS, and TIMBERS, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: This appeal presents a single substantive question — may a district court order the dismissal of an indictment on grounds of double jeopardy solely because two previous trials of an accused have resulted in deadlocked juries? Judge Dooling answered that question in the affirmative, and ordered the indictment against Luis Castellanos dismissed, 349 F.Supp. 720. For the reasons below, we reverse. The relevant facts may be quickly stated. The underlying indictment alleges a conspiracy to sell cocaine. The main government witness at both trials was Horace D. Balmer, a New York City undercover detective, who testified about appellee’s involvement in the alleged conspiracy. At each trial, the defense was presented wholly through the testimony of the defendant himself, who denied any narcotics dealings, and a number of character witnesses. The first jury was discharged after it deadlocked 11 to 1 for conviction; the second after it split 7 to 5 for acquittal. After the second mistrial, appellee moved for a judgment of acquittal pursuant to Rule 29(c), Fed.R.Crim.P., and “for such other and further relief as to this Court may seem just and proper.” Judge Dooling, in a written memorandum, denied the motion for acquittal, noting that there “was unmistakably an issue for the jury to resolve.” However, concluding that he had the power to grant a motion to dismiss where there had been two previous jury disagreements and the record indicated no special circumstances contributing thereto in either trial, Judge Dooling ordered the indictment dismissed on grounds of double jeopardy. It is this order from which the government appeals. I. At the outset, appellee confronts us with a claim that we lack jurisdiction over the appeal. He bases his argument upon the language of 18 U.S.C. § 3731, which provides: “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” Castellanos contends that since Judge Dooling held that further prosecution was barred by the Double Jeopardy Clause, the statute forbids appeal. We cannot accept appellee’s argument, which would have the effect of making the district courts the final arbiters of the constitutional meaning of the Clause. An order such as the one here, dismissing an indictment on grounds of double jeopardy prior to the impaneling of a new jury, was clearly appealable under the predecessor to the present § 3731. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Nothing in either the legislative history or the language of the new statute, Pub.L. 91-644, Title III, § 14(a), 84 Stat. 1890, indicates the slightest intention to cut back the scope of former § 3731. Indeed, quite the opposite seems true, for the statute was described as designed to eliminate “technical distinc-. tions in pleadings as limitations on appeals by the United States,” Conference Rep. No. 91-1768, 91st Cong., 2d Sess.; 1970 U.S.Code Cong. & Admin.News at 5848, and the text of the law itself instructs us that its “provisions shall be liberally construed.” The reference to the Double Jeopardy Clause in the statute, rather than barring appeal in a case like this, seems designed to meet the unrelated problem posed by the Supreme Court’s interpretation of the old Criminal Appeals Act in United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). There, the Court construed a provision that allowed appeals “From the decision or judgment sustaining a motion in bar, where the defendant has not been put in jeopardy;” “. . .as confining the Government’s right to appeal ... to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached.” Id. at 302-303, 90 S.Ct. at 2137. The Court explicitly rejected Mr. Justice White’s position that the statutory language merely restated the prohibition of the Fifth Amendment, holding instead that the statute forbade appeals from rulings made after jeopardy attached, regardless of whether or not retrial would have been constitutionally barred after appellate review. Id. at 304-306, 90 S.Ct. 2117. The new statute was apparently aimed at this dilemma, seeking to make the government’s right to appeal coextensive with its ability to retry the defendant if its arguments on the merits should prevail on review. Id. at 306-307, n. 61, 90 S.Ct. 2117. But of course, the government’s ability to retry Castellanos is precisely what is at issue here. At worst then, we lack jurisdiction and must dismiss only if Judge Dooling’s ruling is correct, and conversely, if the order below is in error, we have jurisdiction and must reverse. In short, the question of our jurisdiction is bound up with the merits, and it is to these that we now turn. II. As the Supreme Court has recently reminded us in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the “fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial” is United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824). In that case, speaking for a unanimous Court, Mr. Justice Story held that where a jury is properly discharged for failure to agree upon a verdict and a mistrial declared, the defendant may be put to a new trial without violating the Double Jeopardy Clause: “We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.” Id. at 580 This “manifest necessity” standard has been “consistently adhered to,” Somerville, supra, 410 U.S. 458, 93 S.Ct. 1066, by the Supreme Court in the nearly one hundred and fifty years since Perez. Thus, the essential question in each case involving double jeopardy contentions after the declaration of a mistrial has been whether the trial judge abused his discretion in terminating the trial short of verdict. If so, retrial is barred. As might be expected, since trial judges may declare mistrials for a variety of reasons, the inquiry is a factual one, and the Supreme Court has often sharply divided on the issue of whether a particular mistrial declaration meets the “manifest necessity” standard. See, e. g., Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Jorn, supra; Illinois v. Somerville, supra. But at least two common threads run through all these cases: the recognition that the Perez doctrine defines the parameters of analysis, and the agreement that the “classic example” of “manifest necessity” is the discharge of a genuinely deadlocked jury. Downum, supra, 372 U.S. at 736, 83 S.Ct. 1033. Had Castellanos here claimed that one or both of the mistrials were improperly declared, his double jeopardy claim would be within the analytical framework of the “manifest necessity” formulation. Perez warms that such mistrials should be declared only “with the greatest caution, under urgent circumstances, and for very plain and obvious causes,” 9 Wheat. (22 U.S.) at 580. If it appeared here that there was no “manifest necessity” for the mistrials — that the trial judge acted too quickly, or that it seemed that the jury was not really deadlocked — we might well be able to hold that the Double Jeopardy Clause barred retrial. But such is not the case here. Judge Dooling noted, and neither side disagrees, that the jury deadlocks were genuine, and that there was no sense in leaving the case in either panel’s hands any longer. Indeed, Castellanos does not appear to have objected to either mistrial declaration. Thus, since each mistrial here concededly met the “manifest necessity” test, any claim of double jeopardy would appear to be barred by Perez and its progeny. Judge Dooling attempted to distinguish Perez, however, on the ground that but one mistrial was there involved. He noted that the Double Jeopardy Clause is designed not only to protect against double punishment, but also against the risk of multiple trials for a single offense. Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Judge Dooling recognized, as has the Supreme Court on repeated occasions, that a criminal trial represents a heavy personal strain for a defendant, and that an accused has an important interest in getting a final verdict out of the first jury he faces. See Jorn, supra, 400 U.S. at 479, 91 S.Ct. 547 (opinion of Harlan, J.); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Since these policies behind the Double Jeopardy Clause were threatened by the prospect of a third trial here, Judge Dooling ruled that the Fifth Amendment required dismissal. We cannot agree. It is obvious that the defendant’s interest in a final determination before the first jury he faces is not the only one here. If that were so, Perez would bar even the second trial, and contrary to the rule of United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), there would be no retrials after appellate reversals. But the eases clearly recognize that the accused’s right to a quick determination on the merits may in some instances be outweighed by the “ends of public justice,” Perez, supra, 9 Wheat. (22 U.S.) at 580, or put another way, “the public’s interest in fair trials designed to end in just judgments,” Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837. Judge Dooling recognized this tension between the rights of the accused and the public interest, and held that the appropriate balance was struck by limiting the government to two bites at the apple, at least where it appeared that no new evidence would be introduced at a third trial. But such an approach is the kind of “mechanical application of an abstract formula” that the cases condemn. Wade, supra, 336 U.S. at 691, 69 S.Ct. at 838. See also, Illinois v. Somerville, supra. Indeed, the Supreme Court decisions make it clear that it is the Perez standard itself which embodies the appropriate balancing test — the defendant’s interests bar retrial in all but those instances where there is “manifest necessity” for taking the case away from the jury. Since each mistrial was properly declared here, the Perez formulation tips the balance in the government’s favor, and does not constitutionally bar retrial. Accord, People v. Baker, 70 Misc.2d 986, 335 N.Y.S.2d 487 (Sup.Ct.1972). Cf. United States v. Berniker, 439 F.2d 686 (9th Cir.), cert. denied, 404 U.S. 938, 92 S.Ct. 277, 30 L.Ed.2d 250 (1971). Even assuming arguendo that we could step outside the Perez test and invoke the Double Jeopardy Clause simply because a certain number of mistrials had occurred, we would still conclude that reversal is mandated here. If the appropriate interest of the defendant to be weighed is the avoiding of the harassment - and strain of multiple prosecutions, the situation where the first and second trials efid in deadlocked juries is hardly distinguishable from the case where the third trial occurs after one or more appellate reversals. Yet, in Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909), the Supreme Court has held that the Double Jeopardy Clause is not violated by retrial after a jury deadlock and an appellate reversal of a conviction. And, in United States v. Persico, 425 F.2d 1375, 1385 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970), we upheld a fifth trial of several criminal defendants, following two appellate reversals and two mistrials. Moreover, to the extent that factual measurements of the strain of multiple prosecution are possible, this case does not present a particularly unhappy picture. In contrast to the Pérsico defendants, whose first trial took place in 1961 and whose fifth trial took place in 1968, appellant here was first tried in March of 1972, and retried in August of that year. Each trial took only about three days, the defendant’s case rested wholly upon his own testimony and that of character witnesses, and the entire question for the jury was one of credibility. Even assuming that the Double Jeopardy Clause can in some case be invoked solely because of repeated jury disagreements — ■ an assumption we do not here make — this is not that case. In short, while we commend Judge Dooling’s sensitivity to the rights of the accused, we cannot agree with the order below. Reversed. . The distinction may be illustrated by the following hypothetical. Assume that after a jury was impaneled, the trial court declared a mistrial because he thought the day too sunny to spend indoors. Surely, if the order were appealable, a reviewing court would have little difficulty finding it in error. Yet a defendant might well contend that retrial was barred by the Fifth Amendment, since jeopardy had attached upon impaneling of the jury and there was no “manifest necessity” for dee-laration of a mistrial. See the discussion in Part II, infra. Under the prior § 3731, the Fifth Amendment question would be irrelevant, for Sisson held appeals to be barred by the attaching of jeopardy, i. e., the impaneling of the jury. Under Mr. Justice White’s interpretation (and present § 3731), the Fifth Amendment question would have to be resolved to determine appealability — if retrial was barred, the appeal should be dismissed, if not, jurisdiction existed to reverse the order. . But see Preston v. Blackledge, 332 F.Supp. 681 (E.D.N.C.1971), where the district court held that double jeopardy barred a retrial of state criminal defendants after four deadlocked juries. While we doubt the correctness of the case’s reasoning, it is distinguishable from the one at hand on the basis of numbers, if nothing else. . Indeed, a tracing of the labyrinthine Pérsico proceedings indicates that at least one of the defendants, Hugh McIntosh, was tried the fifth time after two deadlocked juries and two reversals. The first trial on the indictment involved Carmine J. Pérsico, Jr., Salvatore Albanese, Ralph Spero, George LaFante, Joseph Magnasco, and McIntosh, and ended in a jury disagreement. The second trial resulted in convictions of all six; Magnasco was killed before sentencing, and we reversed the remaining convictions because of trial errors. 305 F.2d 534 (1962). The third trial ended in a mistrial on the eighth day as to Pérsico, Albanese, and Spero, after Pérsico was shot and wounded. The trial went to conclusion as to McIntosh and LaFante, but the jury disagreed. The fourth trial resulted in the conviction of all five remaining defendants, but we reversed again, for errors in the charge. 349 F.2d 6 (1965). The fifth trial again resulted in convictions of all but LaFante, whom the trial judge ordered acquitted for insufficient evidence. So, at the end of the process, Pérsico, Albanese, and Spero were tried the fifth time after two appellate reversals, one deadlocked jury, and one other mistrial; McIntosh’s fifth trial came after two deadlocked juries and two reversals. Thus, even if retrials after jury disagreements might somehow be distinguished from those following appellate reversals or other mistrials, at least one Pérsico defendant was retried after not only the two disagreements on which appellee bases his claim, but two reversals to boot. . We recognize that a strict application of the Perez analysis would lead to the conclusion that any number of retrials after jury disagreements did not violate the Double Jeopardy Clause, so long as the “manifest, necessity” doctrine was met in declaring each mistrial. However, it would still remain open for the defendant to argue that such a “trial by attrition” violated the Due Process Clause. Cf. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), holding that no amount of pre-indictment delay, however large, justified dismissal under the Speedy Trial Clause, but leaving open the possibility of due process objections upon a showing of prejudice. . Of course, nothing we say today requires a third trial. The point may well have been reached in this case where the government should properly conclude that further efforts at convicting Castellanos will be unproductive, or a poor use of overburdened resources. All that we hold is that a retrial is not constitutionally prohibited.

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Edward CHARLES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee. No. 72-1613. United States Court of Appeals, Fifth Circuit. May 29, 1973. William J. Terry, Tampa, Fla. (court appointed), for petitioner-appellant. Robert L. Shevin, Atty. Gen., Tallahassee, Fla., P. A. Paeyna, Asst. Atty. Gen., Tampa, Fla., for respondent-ap-pellee. Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges. PER CURIAM: In this habeas proceeding Appellant-Charles alleges that his conviction for breaking and entering of “The Little Brown Jug” in Brandenton, Florida, and the resultant 15-year confinement are illegal because (i) the Court improperly instructed the jury on the inference that may be drawn from possession of recently stolen property, (ii) notwithstanding the fact that the charge on the presumption to be drawn from possession might have been correct, Appellant did not have possession of the property, and (iii) that evidence of another crime was improperly admitted denying thereby a constitutionally fair trial. Agreeing with the District Court below that none of these contentions require that the State Court’s judgment be vacated, we affirm. Appellant’s contentions (i) and (iii) require little comment. The charge on possession of recently stolen property does not deny Appellant’s right not to be a witness against himself. See, Young v. Wainwright, 5 Cir., 1971, 439 F.2d 426 and United States v. Townsend, 5 Cir., 1973, 474 F.2d 209. Townsend, which discusses the field of permissible inferences from possession of recently stolen property, clearly dispels any doubt that an inference, such as was drawn in the present case, rests on a constitutionally “confident assurance that it is more likely than not” that a person possessing property taken during the break-in was the perpetrator of the illegal entry. Appellant’s contention (iii) is without merit. We therefore consider whether Appellant had possession of the property. Charles and a friend Alderman had been visiting diverse bars in the neighborhood of the break-in. Apparently they hoped that Mr. Alderman could make some money shooting pool but were unsuccessful at putting on a good “hustle”. However, Mr. Alderman, at least, was successful in putting on a good drunk. Departing a service station shortly after midnight they headed toward the Little Brown Jug, where they had been earlier, but stopped three or four blocks short. Alderman deposited Charles on the curb and left the scene to secure a hamburger for himself. A half an hour or so later he returned and saw Charles about a block from where he left him. Charles got into the automobile with a sack in his hands. Aider-man, however, did not see what was in the sack and did not see what Charles did with it after he got into the automobile. They drove to Nick’s bar where Charles got out and Alderman laid out on the front seat of the car and passed out in an alcoholic stupor. When he was awakened by the police who were checking out the car he was arrested for being drunk in public. Alderman consented to a search of his car. He testified that during the entire evening no person other than he and Charles had access to the automobile until the time the police arrested him. The search occurred some 12 hours after the arrest, with the automobile having been left on the street in front of the police station over night. It was, however, locked, Charles was arrested hiding in the bushes near the parked automobile at the same time that Alderman was in an alcoholic stupor and incapable of breaking and entering. The evidence does not raise even a serious possibility that the stolen property was in the possession of anyone other than Charles. Further, even without the inference from recently stolen property, the evidence was sufficient to support the conviction of Appellant. Affirmed. . Appellant was arrested wlien he w'as apparently about to begin the perpetration of another breaking and entering. The facts of his arrest were clearly relevant to whether or not he possessed certain instruments and clothing used in the commission of the breaking and entering for which he was convicted. . The attempted break-in at Nick’s bar was ' the extraneous crime for which Appellant alleges he was unconstitutionally tried — by the admission of evidence concerning its existence — at his trial for the illegal entry of the Little Brown Jug.

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The SEVEN-UP COMPANY, Appellant, v. FEDERAL TRADE COMMISSION et al., Appellees. No. 72-1680. United States Court of Appeals, Eighth Circuit. Argued April 12, 1973. Decided May 31, 1973. Earl W. Kintner, and Mark R. Joel-son, Washington, D. C., for appellant. James P. Timony, Atty., F. T. C., Washington, D. C., for appellees. Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge. Eastern District of Michigan, sitting by designation. STEPHENSON, Circuit Judge. The Seven-Up Company appeals from the order of the District Court dismissing appellant’s claim for lack of subject matter jurisdiction. Seven-Up sought below to enjoin the Federal Trade Commission from further action in its proceedings against Seven-Up, alleging that the administrative proceeding itself is fatally defective without the joinder of Seven-Up’s 470 bottlers as indispensible parties. Seven-Up, along with several other major soft drink manufacturers, has been charged by the FTC with using an unfair method of competition through its license agreements with bottlers whereby the bottlers agree to not sell outside of designated geographical areas. Seven-Up moved to dismiss the administrative complaint, claiming that the bottlers are in-dispensible parties since they have important contract rights which are at stake in the proceedings. The motion to dismiss was denied by the Hearing Examiner whose order was then upheld by the Commission. Seven-Up then petitioned the District Court for both injunctive and declaratory relief. The Coca-Cola Company and PepsiCo., Inc., other respondents in the FTC proceedings, have both unsuccessfully presented the identical claim to the Fifth and Second Circuits. Coca-Cola Company v. FTC, 475 F.2d 299 (CA5 1973) and PepsiCo., Inc. v. FTC, 472 F.2d 179 (CA2 1972). We particularly agree with the reasoning of the Fifth Circuit and likewise hold that the action was properly dismissed for lack of subject matter jurisdiction. Federal Courts have traditionally declined to interfere with on-going agency proceedings under the doctrine requiring exhaustion of administrative remedies. See, McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) and Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-52, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Furthermore, Congress has here specified a statutory scheme which contemplates judicial review of cease and desist orders issued by the FTC exclusively by a court of appeals. 15 U.S.C. § 45 (c) and (d) provide in pertinent part that: (c) Any person, . . . required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States, (d) . . . the jurisdiction of the court of appeals . . . shall be exclusive. This is fully in harmony with § 10 (c) of the Administrative Procedure Act. See 5 U.S.C. § 704 and Coca-Cola, supra, 475 F.2d at 302. The statutory provisions for review, however, have been held not to preclude district court review under all circumstances. See Elmo Division of Drive-X Co. v. Dixon, 121 U.S.App.D.C. 113, 348 F.2d 342, 343 (1965) and PepsiCo, supra, 472 F.2d at 185. Compare, Coca-Cola, supra, 475 F.2d at 302. It has been held that district courts have jurisdiction to grant relief during agency proceedings which are not yet final in certain specific instances. These include, (1) where the agency has acted in excess of its delegated powers or contrary to a specific statutory mandate. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); (2) where the proceedings involve questions of high national interest because of their international complexion. McCulloch v. Socie-dad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) and (3) where the agency has clearly violated the constitutional rights of the party seeking prior, restraint. Fay v. Douds, 172 F.2d 720 (CA2 1949). Seven-Up clearly has not brought itself within any of these exceptions to the rule against judicial review of interlocutory agency rulings. Seven-Up further asserts, however, that the FTC’s refusal to join the bottlers as parties in its proceedings amounts to “final agency action for which there is no other adequate remedy in a court” under the Administrative Procedure Act. 5 U.S.C. § 704. We disagree, for while the Commission’s ruling on Seven-Up’s motion at the most amounts to final agency action on the joinder issue, judicial review by a court of appeals can clearly be had once the Commission’s proceedings are concluded. 5 U.S.C. § 704 goes on to provide that an interlocutory agency ruling “is subject to review on the review of the final agency action.” Neither are we convinced that the absence of the bottlers as parties renders the proceedings so fundamentally defective that immediate judicial relief is required. As the Fifth Circuit stated in Coca-Cola, 475 F.2d at 304: The extraordinary remedy of judicial intervention in agency proceedings still in process is unavailable unless necessary to vindicate an unambiguous statutory or constitutional right, and only when this condition is satisfied will a court look to the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief. To adopt the plaintiffs’ position, on the other hand, would be to make the rule that judicial intervention to “correct” an interlocutory agency ruling is available wherever an agency ruling differed from some equitable maxim. We conclude that Seven-Up must await a cease and desist order by the FTC, if such is ever to be issued, before jurisdiction will lie for a review of the interlocutory ruling it challenges. Affirmed. . The manufacturers were charged in separate complaints. . While we do not reach the merits of the indispensible party issue, we note that the joinder question also contains a dispute as to the underlying facts. The Hearing Examiner allowed any of the 470 bottlers to intervene if they so wished. One intervened. Seven-Up, however, asserts that this right to intervene was “limited” and insufficient. The ETC disagrees. See, e. g., PepsiCo., Inc. v. F. T. C., 472 F.2d 179, 183-184 (CA2 1972). . We reject as without merit Seven-Up’s contention that the standard of review on the joinder question, once the agency proceedings are completed, will necessarily be more stringent,

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De Raine O. ANDRY, Plaintiff-Appellant, v. FARRELL LINES, INC., Defendant-Appellee. No. 72-2502. United States Court of Appeals, Fifth Circuit. May 21, 1973. Henry L. Klein, Sherman F. Raphael, New Orleans, La., for plaintiff-appellant. Michael L. McAlpine, New Orleans, La., for defendant-appellee. Before COLEMAN, MORGAN and RONEY, Circuit Judges. PER CURIAM: In this Jones Act case, 46 U.S.C.A. § 688, the District Court denied plaintiff’s motion for a directed verdict on the questions of negligence and unseaworthiness. In answer to special interrogatories, the jury found the vessel seaworthy, the defendant free from negligence, and the plaintiff “100% contribu-torily” negligent. Plaintiff challenges the District Court’s failure to grant a directed verdict and its instructions to the jury regarding the negligence and unseaworthiness. We affirm. Plaintiff, employed as a “wiper” in the engine room of defendant’s vessel, alleged that, while the vessel was docked, he was struck by the door of an evaporator he was cleaning. He alleged that the door swung shut unexpectedly as the vessel was rolled by a “sneak wave.” No witnesses other than plaintiff testified about the accident, and he sought to sustain his burden of proof solely through his own testimony. I. From our examination of the evidence presented, we conclude that, weighing all the evidence, reasonable men could have reached different conclusions. Thus, the motion for a directed verdict was properly denied, and the questions of fact correctly left for the jury to decide. See Mayfield v. Chisholm-Moore Hoist Division, Columbus McKinnon Corp., 467 F.2d 483 (5th Cir. 1972); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). II. Plaintiff argues that the District Court’s charges on negligence and unseaworthiness were “vague, insufficient, and inadequate.” The standard for appellate review of jury instructions is clear: the charge must be viewed as a whole. If the charge in general correctly instructs the jury on the law, even though a portion is technically imperfect, no harmful error is committed. Bolden v. Kansas City So. Ry. Co., 468 F.2d 580 (5th Cir. 1972); Troutman v. Southern Ry. Co., 441 F.2d 586 (5th Cir. 1971); Webster v. Sea Drilling Corp., 411 F.2d 411 (5th Cir. 1969). Though presented in a somewhat colloquial fashion, the trial court’s instructions on negligence contained all the essential elements of the standard charge. Plaintiff is particularly disturbed by the court’s use of an automobile simile in discussing causation. The trial court, however, was careful to note the limits of the analogy and explained that the example was employed only for illustrative purposes. The structure and illustrations of a charge are within the trial court’s discretion. The court need not use any particular form of words so long as “the charge as a whole conveys to the jury a clear and correct understanding of the applicable law.” See 2B W. Barron & A. Holtzoff, Federal Practice and Procedure, 471 (1961). Plaintiff premised his allegation of unseaworthiness on the fact that the evaporator door had no latch to secure it in an open position. He criticizes the charge as to unseaworthiness for its failure to mention the hazards vessels undergo at sea and in port, the observation that failure to secure a door amounted to negligence rather than unseaworthiness, and the omission of a proposed charge that seamen do not assume the risks of their employment. The District Court’s instructions, however, appear to us to be pertinent to the issues and testimony presented. The uncontradicted evidence showed that the evaporator door was opened only when the ship was in port. The aspects of the charge challenged by plaintiff, if error, were harmless and therefore insufficient for reversal. F.R.Civ.P. 51. The jury was fairly instructed, and its verdict for the defendant decided the issues in this case. Affirmed.

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UNITED STATES of America, Appellee, v. Paul GUZMAN, Appellant. No. 682, Docket 73-1522. United States Court of Appeals, Second Circuit. Argued April 19, 1973. Decided May 7, 1973. Jesse Berman, New York City, for appellant. George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the S. D. New York, on the brief), for appellee. Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges. Retired Associate Justice of the Supreme Court of the United States, sitting by designation. FEINBERG, Circuit Judge: Paul Guzman appeals from an order of the United States District Court for the Southern District of New York, Charles M. Metzner, /., refusing to reduce Guzman’s two-year sentence and denying him other requested relief. The sentence was imposed upon Guzman in March 1972 after he had been convicted of failure to report for an armed forces physical examination and failure to report for induction. We affirmed that conviction, 468 F.2d 1245 (2 Cir. 1972), and the Supreme Court denied certiorari, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973). Guzman then moved under Fed.R.Crim.P. 32(c) and 35 for the relief denied by the order now under attack. Guzman raises three points on appeal, two of which are based upon various changes in appellant’s circumstances since his conviction over a year ago. These changes, as presented to Judge Metzner, were that Guzman had married, his wife faced major surgery, he was gainfully employed and had an opportunity to earn badly needed funds by writing one book and collaborating on another, and he was now willing to undertake civilian service as a condition of probation, an alternative to which he had apparently been conscientiously opposed at the time of sentence. Judge Metzner considered these new facts and, in a four-page memorandum, refused to reduce the sentence. Guzman argues that this was somehow an abuse of discretion. The claim is frivolous. Similarly without merit is Guzman’s argument that the judge should have (1) allowed him to inspect the original pre-sentence report prepared for the March 1972 sentence and (2) ordered an updating of the report. Whatever may have been the proper course in March 1972 had a request then been made for inspection of the report— apparently none was — there was simply no good reason to turn it over a year later. Similarly, there was no need to update the report, because the judge assumed the truth of Guzman’s claim of new circumstances but was not persuaded by them to change the sentence. Guzman’s final point is the only one of any substance, but it rests upon an equivocal record. Relying upon United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722 (1970), Guzman argues that the district court erred in sentencing him.as an adult without first expressly finding that he should not be sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. There is no doubt that Judge Metzner made no such finding. There is a great deal of doubt, however, that he was ever asked to do so. Guzman’s motion papers, dated and filed March 15, 1973, made no mention of the Act, and the judge’s memorandum opinion did not deal with this argument. Guzman’s counsel, however, maintains in this court that he did raise the point below. As proof, he relies upon his own affidavit, dated March 29, 1973, filed in the district court in support of a motion for a stay of execution of sentence pending appeal. He there swore, after correctly summarizing the relief he had requested in the March 15 motion papers: On March 16, 1973, counsel for defendant also advised this Court [the district court], through one of the Court’s law clerks, that defendant was also alerting the Court to the possibility of defendant being sentenced under the provisions of the Youth Corrections Act (18 U.S.C. § 5010) and under the provision of 18 U.S.C. § 4208(a)(2), making him immediately eligible for consideration for parole. One may wonder at this informal method used to urge upon the district court the argument now pressed as the principal ground for reversal. It seems fairly apparent that the judge never considered this point, presumably because it was not brought to his attention. We clearly would be justified in holding that the issue was never properly raised below. However, the claim goes to the legality of the sentence, and will undoubtedly be raised again in a post-conviction petition. Moreover, the legal argument regarding the absence of a finding may disappear once the possibility of applying the Youth Corrections Act is pointed out to the judge in an appropriate way. Finally, it is possible that the judge will decide to extend to Guzman the benefits of treatment under the Act, although we express no view as to that. Therefore, while we do not imply that the judge was in any way remiss, we are remanding to allow the suggestion of Youth Corrections Act treatment to be made properly to the district judge. In remanding, we do not decide whether a district judge, before sentencing a defendant under 22 as an adult, must make an express finding under 18 U.S.C. § 5010(d) that “the youth offender will not derive benefit from treatment under” the Act, see United States v. Coefield, 476 F.2d 1152 (D.C.Cir. 1973) (en banc), or whether an implied finding is sufficient, compare Cox v. United States, 473 F.2d 334, 337 (4th Cir. 1973) (en banc), with United States v. Jarratt, 471 F.2d 226, 230 (9th Cir. 1972), or whether no finding, express or implied, is required. We hold only that under the circumstances here, including the ambiguous record, there should be a resentencing by the district judge, at which time Guzman may request Youth Corrections Act treatment. Remanded for further proceedings consistent with this opinion. The mandate shall issue forthwith. . The judge did postpone the surrender date to allow Guzman to remain on bail until after his wife’s operation. . We regard as frivolous Guzman’s request for resentencing by another judge.

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UNITED STATES of America, Plaintiff-Appellee, v. Joe Grady MURRAH, Defendant-Appellant. No. 72-3491 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 26, 1973. James E. Davis, Texarkana, Ark., for defendant-appellant. Roby Hadden, U. S. Atty., Dennis R. Lewis, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Joe Grady Murrah appeals from his judgment of conviction and sentence to concurrent ten and five year confinement sentences for (1) aiding and abetting the robbery of an FDIC insured bank, (Title 18, U.S.C. Secs. 2113(d) and 2), and (2) conspiracy to commit said bank robbery (Title 18 U.S.C. Sec. 371). The claims of error raised on appeal are (a) improper jury instructions as to consideration of accomplice testimony, (b) improper jury instructions as to the specific intent required to be proved under the substantive count, and (c) impermissible use of hearsay testimony to prove that the bank was FDIC insured at the time of the robbery. We affirm. Responding to the first contention, we do not find harmful error demonstrated in the instructions given when the several portions of the entire charge are weighed in relation each to the other. The objection to the instructions concerning requisite specific intent is raised for first time on appeal, not having been preserved for review as required by Rule 30, F.R.Crim.P. Assuming without deciding that the charge might have been appropriately clarified if timely objected to, we reject the attack on it as failing to demonstrate “plain error”. Rule 52(b), F.R.Crim.P. The entire proof offered with respect to the FDIC insured status of the bank at the time of the robbery is reproduced in the margin. The witness was no longer connected with the bank when he testified, but he had been its president the year before at the time of the robbery. He testified from personal knowledge that the bank’s deposits were in fact federally insured and gave the certificate number, 19936-2 from memory. Of course proof of FDIC insured status is a required element of proof of the offense. Indeed it is necessary to allege and prove it to establish federal jurisdiction. But appellant fails to demonstrate prejudice to him in the overruling of his objections on the grounds of “best evidence” or “hearsay”. No evidence contrary to that of Cureton was offered by appellant. The cases he cites, King v. United States, 9 Cir.1970, 426 F.2d 278, and Kane v. United States, 8 Cir.1970, 431 F.2d 172 do not offer support to our reaching a different result. Indeed Kane, 431 F.2d at 175-176, albeit in dictum, holds that the original insurance certificate while clearly the best evidence, need not be produced. Affirmed. . DIRECT EXAMINATION OF MARVIN THOMAS CURETON BY MR. LEWIS : Q. Mr. Cureton, will you please state your full name for the record, please? A. My name is Marvin Thomas Cureton. Q. Mr. Cureton, how are you currently employed? A. I am a vice-president with the First Federal Savings & Loan Association here in Marshall. Q. How were you employed, Mr. Cureton, in the first part of 1971? A. I was the president of the Security State Bank in Elysian Fields, Texas. Q. In the course of that employment, Mr. Cureton, are you able to say that that bank was insured by the FDIC? A. Yes, it was. MR. DAVIS: Your Honor— THE WITNESS: (interrupting) And it is. THE COURT: Just a moment. MR. DAVIS: I object to his testimony in this regard because being insured by the FDIC, if it is admissible at all, it is a business record. He is no longer the custodian of that business record and the best evidence of the bank’s being insured is the Certificate of Insurance. THE COURT: Well, if he knows of his own personal knowledge that it w,as insured by the FDIC, then he can testify to it. Overruled. What was your answer? THE WITNESS: Yes, Sir, it was and is still insured by the FDIC'. BY MR. LEWIS: Q. Further, Mr. Cureton, are you aware of what the certificate number of the Certificate of Insurance is? A. Yes, sir, I have it here. It is 19936— MR. DAVIS: (interrupting) Your Hon- or, again I object to it as hearsay. THE COURT: Overruled. BY MR. LEWIS: Q. Go ahead, please, sir. A. 19936-2. . See further the helpful discussion of the point in a 9th Circuit case decided shortly after King, United States v. Phillips, 9 Cir. 1970, 427 F.2d 1035, 1037. See also United States v. Huff, 5 Cir. 1969, 409 F.2d 1225, 1227, Note 1, (error not committed when allegedly improperly authenticated certificate was received); Ahlstedt v. United States, 5 Cir. 1963, 325 F.2d 257 (uncontradicted but objected to testimony by bank officer that to his knowledge bank was at time of trial federally insured and identification of certificate by that officer was sufficient proof of insurance at time of bank robbery); and Cook v. United States, 5 Cir. 1963, 320 F.2d 258 (bank officer’s unobjected to testimony that bank’s deposits were federally insured held sufficient proof, even though not addressed to date of robbery) .

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O. W. DONALD, Plaintiff-Appellant, v. UARCO BUSINESS FORMS, Defendant-Appellee. No. 72-1463. United States Court of Appeals, Eighth Circuit. Jan. 30, 1973. Roy Gean, Jr., Fort Smith, Ark., for plaintiff-appellant. Hofgren, Wegner, Allen, Stellman & McCord, Chicago, 111., and P. D. Hardin, Fort Smith, Ark., for defendant-appel-lee. Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. This is an appeal from an order granting the appellee’s motion for judgment notwithstanding the verdict, D.C., 344 F.Supp. 338. The order followed a jury award of $7,000 to the appellant and against the appellee for copyright infringement. The appellant obtained a copyright upon the following wording: “AGREEMENT “I hereby acknowledge receipt of the above described merchandise, with itemized repairs completed thereto. I promise to pay to the servicer, or order, in full, the amount listed as ‘total’, on, or before the date listed as ‘terms’. Title to said chattel, described hereon by model, make, and serial number, is hereby transferred to the servicer, for service, and or, materials used to repair said chattel. I offer this chattel in lieu of cash for services rendered, and agree not to misuse, secrete, sell, encumber, remove, or otherwise dispose of, or lose possession of said chattel, nor permit nor suffer any lien, encumbrance or charge against said chattel. There is no outstanding indebtedness, lien, mortgage, or other encumbrance against said chattel. I agree that should I fail to pay this indebtedness when due, or breach this contract, the entire unpaid balance shall at once become due and payable, and servicer may without notice, or demand, by law or otherwise, take possession of said chattel wherever located and retain all monies paid thereon for use of said chattel.” This wording was included on a form used by repair service companies. The copyright notice was printed at the bottom of each form. The appellant sold a set of these forms to Jensen’s T.V. & Appliance Store, a repair service company in Preston, Idaho. When Jensen’s used the last of appellant’s forms, it asked the appellee to print up a set of forms identical to appellant’s forms. The appellee did so with a single modification — viz., the notice of appellant’s copyright was omitted. The appellant discovered the fact that the appellee had reprinted his form, and brought this suit against it for copyright infringement. The trial court, notwithstanding the jury verdict, found that the copyrighted form did not have the requisite originality necessary for a valid copyright to exist. It found that the copyright was not valid and that, therefore, there was no infringement. We affirm. The basic standard in copyright law is that only a minimal amount of creativity and originality is necessary to support a valid copyright. Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2nd Cir. 1951). Where a work is based on a work already in the public domain, a valid copyright may not exist in the new work unless it shows more than a trivial variation from the old work. Amsterdam v. Triangle Publications, Inc., 189 F.2d 104 (3rd Cir. 1951). However, if a work is independently created, it is entitled to a copyright even though it is identical to a work in the public domain. Alfred Bell & Co. v. Catalda Fine Arts, supra, 191 F.2d at 103; Fred Fisher, Inc. v. Dillingham, 298 F. 145, 149 (S.D.N.Y.1924). We have carefully reviewed the transcript of the trial and the records of the lower court, and find that the appellant had knowledge of, and drew upon, legal forms which already existed in the public domain when he drafted his form. Most of the form is phrased in standard legal language. The appellant’s testimony leads us to the conclusion that he had seen similar language many times before. The basic issue is whether the appellant’s form shows the minimum degree of creativity and originality necessary to support a valid copyright. The appellant argues that he is entitled to a copyright because this is the.first time such language has been used in a service contract even though the language has previously been used in sales contracts which were already existing in the public domain. We do not believe that this difference makes the appellant’s work more than a trivial variation from that already in the public domain. Therefore, the appellant is not entitled to a copyright on his “Agreement.” See, Donald v. Zack Meyer’s T.V. Sales and Service, 426 F.2d 1027 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971); M. M. Business Forms Corp. v. March, Inc., 347 F.Supp. 419 (S.D. Ohio 1972); Gardenia Flowers, Inc. v. Joseph Markovitz, Inc., 280 F.Supp. 776 (S.D.N.Y.1968). The appellant also alleges on appeal that the appellee engaged in unfair competition. We have examined the record, and it appears that the issue of unfair competition was not submitted to the jury below. Therefore, this issue is not properly before us. In any event, the only allegation of unfair competition was that the appellee copied the appellant’s form verbatim. Such copying alone does not constitute unfair competition. Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); Grove Press, Inc. v. Collectors Publication, Inc., 264 F.Supp. 603 (C.D.Calif.1966). Judgment affirmed. . A copyright certificate will be issued through a registration procedure in which the validity of the copyright is not examined. 17 U.S.C. § 1. However, such a certificate will not remain in force if the subject matter, which it purports to cover, is in the public domain.. See, 17 U.S.C. § 8; Donald v. Zack Meyer’s T. V. Sales and Service, 426 F.2d 1027 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971).

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UNITED STATES of America, Appellee, v. Dale Ray HALEY, Appellant. No. 72-1766. United States Court of Appeals, Eighth Circuit. Submitted April 13, 1973. Decided May 11, 1973. Samuel Boyer, Jr., Omaha, Neb., for appellant. Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge. Eastern District of Michigan, sitting by designation. STEPHENSON, Circuit Judge. This appeal presents the question of whether a statutory miscitation in the indictment mandates a sentence within the limits of the miscited statute. Defendant, Dale Ray Haley, was convicted along with others with conspiring to violate the narcotic laws, Title 26 U.S.C. § 4705(a). A 20-year sentence was imposed. His conviction was previously affirmed by this Court. United States v. Haley, 452 F.2d 391 (CA8 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972). The instant indictment upon which defendant was convicted charged defendant (and others) with conspiracy: “ . . .to violate Title 26 United States Code, Section 4705(a), that is, to sell, barter, exchange and give away to others narcotic drugs, that is, heroin hydrochloride and cocaine hydrochloride, not in pursuance of written orders, written for that purpose as provided by law in violation of Title 18, United States Code, Section 371.” Defendant contends that the general verdict of guilty upon the above charge is a conviction of general conspiracy under 18 U.S.C. § 371 and therefore 5 years is the maximum sentence that could be imposed. In pronouncing sentence the Court recited that defendant had been convicted of conspiring with others “. . .to violate 26 United States Code, 4705(a) in violation of 26 United States Code 7237(b).” At no time during the sentencing did defendant object to the twenty-year sentence being imposed under § 4705(a) and § 7237(b). Neither was this issue raised in his direct appeal. This matter was first raised by defendant in his motion to reduce sentence filed after our affirmance and the denial of certiorari. The trial court in denying defendant’s motion observed: “Defendant at this time has not indicated how the miscitation could have prejudiced him in this case. In the indictment it is clear that defendant was charged with conspiracy to violate [26] U.S.C. 4705(a), thus the indictment was not so defective as to misinform defendant of the crime with which he was charged. Nor was there a material variance between the indictment and the proof. United States v. Schrenzel, 462 F.2d 765 (8th Cir. 1972). Further, the jury instructions for conspiracy were unaffected by the miscitation. Without any showing of prejudice defendant’s motion for a correction in sentence cannot be granted.” The trial court indicated its ruling was without prejudice to the defendant renewing his motion if he could demon-state that he was prejudiced by the mis-citation in the indictment. Thereafter defendant filed a motion for correction of an illegal sentence to which he attached this Court’s opinion affirming his conviction and a copy of the indictment returned against him. No new facts were presented to the trial court at the hearing on the motion to correct an illegal sentence. The motion was promptly denied. We find no evidence that defendant was prejudiced by the statutory miscitation and therefore affirm. Rule 7(c) Fed.R.Crim.P. provides in part as follows: “ . . . The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not niislead the defendant to his prejudice.” In Tanksley v. United States, 321 F.2d 647 (CA8 1963) we held that a miscitation of the statute involved did not require reversal unless prejudice was shown. See also, United States v. Bates, 429 F.2d 557, 559-560 (CA9 1970); Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438, 440 (1962). In the instant case defendant was charged with conspiring to violate 26 U. S.C. § 4705(a), to sell narcotic drugs. 26 U.S.C. § 7237(b) specifically provides the penalty for conspiring to violate 4705 (a). After review of the record we are satisfied that the miscitation of the general conspiracy statute, Title 18 U. S.C. § 371, did not misinform the defendant as to the charge. Neither was he misled as to the possible penalties involved. Defendant having failed to make any showing that he was prejudiced by the statutory miscitation was properly denied the relief requested. Affirmed. . Defendant was also convicted upon substantive charges of dispensing and distributing heroin, 26 U.S.C. § 4704(a) and selling lieroin, 26 U.S.C. § 4705(a) in the Southern District of Iowa. Sentences imposed were to run concurrently with the instant Minnesota conspiracy charge. Affirmed, United States v. Haley, 452 F.2d 398 (CAS 1971). . 26 U.S.C. § 7237(b) : “Whoever commits an offense, or conspires to commit an offense, described in section 4705(a), or section 4742(a) shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000. * * The editor’s notes to 26 U.S.C.A. § 4705 include as cross references, “Punishment for violation of narcotic laws, see section 7237 of this title.”

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UNITED STATES of America, Appellee, v. John MILLER, Jr., Appellant. No. 72-2312. United States Court of Appeals, Fourth Circuit. Argued March 7, 1973. Decided May 16, 1973. Andrew S. Fine and Morris H. Fine, Norfolk, Va. (R. Wayne Nunnally and Fine, Fine, Legum & Fine, Norfolk, Va., on brief), for appellant. Frank D. Allen, Atty., U. S. Dept, of Justice (David L. Norman, Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., and Mary Planty, Atty., U. S. Dept, of Justice, on brief), for appellee. Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges. PER CURIAM: John Miller, Jr., a migrant farm labor contractor, was convicted of holding certain persons to involuntary servitude by preventing them from leaving his employ and control 2and of twice failing to furnish them with statements of earnings and deductions. Several grounds for reversal are advanced, but we find merit only in the contention that the district court was too restrictive in limiting the cross-examination of a government witness on his record of prior convictions. We reverse and award a new trial. At trial, the government’s chief witness was John Gordon Moore. He testified that he was tricked into coming to defendant’s labor camp and once there he was beaten by defendant and forced to work against his will. He testified also that he was given no written statement of his earnings or of the money withheld from his earnings. Although Moore’s testimony was corroborated in large part by a number of other witnesses, defendant testified in his own behalf and directly controverted Moore. Defendant also offered extensive testimony to show that his camp was not fenced, that there were no guards, that there were no locks, and that farm laborers, including Moore, were free to come and go without restraint. Although there was clearly sufficient evidence from which a jury might conclude that defendant was guilty, the evidence was sharply conflicting and much of the weight of the government’s evidence depended upon the credibility of Moore. When Moore was cross-examined, defendant’s counsel sought to interrogate him about convictions of crimes involving moral turpitude. In fact, Moore had been convicted of six felonies over the years 1943 to I960. Five were prior to 1954. The record neither reflects their nature nor the punishment imposed. The district court ruled, in response to an inquiry by counsel, that counsel could not inquire about more than one conviction and could not inquire into the nature of even that one. In accordance with the ruling, counsel asked Moore, “Have you been convicted of a crime involving moral turpitude?” and Moore responded, “Yes.” A motion for a new trial, based in part on undue limitation on the opportunity to impeach Moore, was denied. “Prior criminal convictions for felonies or misdemeanors involving moral turpitude ordinarily constitute material impeaching evidence,” was our statement in United States v. Hildreth, 387 F.2d 328, 329 (4 Cir. 1967). Of course, in that case, we also said that the trial court has discretion to limit such impeachment, especially of a defendant, when there is reason to apprehend that “the prejudicial effect of the earlier convictions . . . will outweigh their possible probative force in impeaching credibility.” Id. 329. In no sense to depart from this holding, we think that the district court exceeded its discretion in the instant case. Moore was not a defendant. His credibility was a major issue in the case. The district court may properly have refused to permit interrogation about convictions remote in time, depending upon their nature and the extent to which they involved dishonesty or false statements. This is a matter we cannot decide on this record. But we do not think that, having exercised his discretion to permit impeachment on the most recent conviction, the district court should have refused to permit interrogation about the time and place of conviction, the nature of the offense, and the punishment imposed. Reversed; new trial awarded. . 18 U.S.C.A. § 1584. . 7 U.S.C.A. § 2045(e). . By contrast, defendant had no prior convictions. . “How far may the cross-examiner go in his inquiries about convictions? He may ask about the nature of the crime committed, i. e., murder or embezzlement, and the punishment awarded . . . the more reasonable practice ... is [to permit inquiry into] . . . the name of the crime, the time and place of conviction, and. the punishment . . . ” (footnotes omitted). McCormick on Evidence (1972 Ed.) § 43, p. 88. See Beaudine v. United States, 368 F.2d 417, 421-422 (5 Cir. 1966).

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CONTAINER SERVICE COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 72-1777. United States Court of Appeals, Sixth Circuit. Argued Feb. 13, 1973. Decided May 8, 1973. Peter J. Donahue, Dayton, Ohio, for plaintiff-appellant; Smith & Schnacke, Dayton, Ohio, on brief. Donald H. Olson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwaeks, Leonard J. Henzke, Jr., Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., of counsel. Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and McALLIS-TER, Senior Circuit Judge. PER CURIAM. Taxpayer, Container Service Company, seeks a reversal of the District Court’s dismissal of its tax refund suit. We affirm. The facts are detailed in the District Court’s opinion. 345 F.Supp. 235 (S.D. Ohio 1972). In 1968 the taxpayer established a profit sharing plan for its salaried employees and claims that its contributions made to the profit-sharing trust were tax deductible under 26 U.S.C. § 404(a). Employer contributions to a profit-sharing trust are tax deductible only if the profit-sharing plan is qualified under 26 U.S.C. § 401(a). The employee coverage requirements are set out in § 401(a)(3) in two alternatives. A plan is qualified if either (A) the plan benefits at least 70 per cent of all employees or 80 per cent of eligible employees if 70 per cent of all employees are eligible or (B) the employer’s eligibility classification does not discriminate in favor of employees who are officers, shareholders, supervisors or highly compensated employees. In 1968 taxpayer employed twenty persons, of whom five were eligible for the profit-sharing plan in question. In 1969 five of twenty-one employees were eligible. Each year four of the five eligible employees were either officers or supervisors. The Commissioner of Internal Revenue held that the plan was discriminatory under § 401(a)(3)(B), and ruled that it therefore was not qualified. The taxpayer’s claim for a deduction for its contributions was denied. This finding is not irrebuttable, but the taxpayer bears a very heavy burden in attempting to overturn it. Cornell-Young Co. v. United States, 469 F.2d 1318 (5th Cir. 1972); Duguid & Sons, Inc. v. United States, 278 F.Supp. 101, 106 (N.D.N.Y.1967); Ed & Jim Fleitz, Inc., 50 T.C. 384 (1968). Taxpayer seeks to justify the apparently discriminatory classification by asserting that all of its nonsalaried employees were unionized and that the union, ás a matter of negotiation strategy, withdrew any demand for inclusion in profit-sharing or pension plan in favor of immediate wage benefits. Taxpayer asserts that since it would have been an unfair labor practice for it to have included union members in the profit-sharing plan by unilateral action, the union’s refusal to seek inclusion somehow justifies their exclusion and qualifies the plan as non-discriminatory. Without ruling on this contention, we hold that there is no evidence in the record that the employees, through their union, were ever offered inclusion in the plan by the taxpayer. The union representatives who negotiated the latest bargaining agreement with the company testified that they were never informed of the plan’s existence or its details, much less tendered inclusion in it. We agree with the District Court that this plan was discriminatory in favor of shareholder-officers and supervisors. Other courts have ruled similarly when faced with the same claim concerning the unionization of non-salaried employees. Loevsky v. Commissioner, 471 F.2d 1178 (3rd Cir. 1973), aff’g, 55 T.C. 1144 (1971); Duguid, supra,; Ed & Jim Fleitz, Inc., supra. We emphasize that by this decision we neither make nor imply any ruling as to the effect of a union’s refusal of an offer of inclusion in an employer’s profit sharing plan. That situation is not before us. Affirmed.

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Howard B. LEVY, Appellant, v. Jacob J. PARKER, as Warden of the United States Penitentiary, Lewisburg, Pennsylvania, and Stanley R. Resor, as Secretary of the Army. No. 71-1917. United States Court of Appeals, Third Circuit. Argued Dec. 12, 1972. Decided April 18, 1973. See also, D.C., 316 F.Supp. 473. Charles Morgan, Jr., Norman Siegel, Morris Brown, Emily Carssow, Neil Bradley, Reber F. Boult, Jr., Atlanta, Ga., Laughlin McDonald, Columbia, S. C., George W. Dean, Jr., Destín, Fla., Ambrose R. Campana, Williamsport, Pa., for appellant; Anthony G. Amsterdam, Stanford, Cal., Alan H. Levine, Burt Neuborne, Melvin L. Wulf, New York City, of counsel for appellant. S. John Cottone, U. S. Atty., Harry A. Nagle, Asst. U. S. Atty., M. D. Pennsylvania, Lewisburg, Pa., William A. Pope, Crim. Div. Dept. of Justice, Washington, D. C., Arnold I. Melnick, Lieutenant Colonel, JAGC, Royce C. Lamberth, Captain, JAGC, Dept, of the Army, Washington, D. C., for appellee Parker. Before SEITZ, Chief Judge, and AL-DISERT and ROSENN, Circuit Judges. OPINION OF THE COURT ALDISERT, Circuit Judge. This appeal requires us to decide whether Articles 133 and 134 of the Uniform Code of Military Justice, 10 U. S.C. §§ 933, 934, fail to satisfy the standards of precision required by the due process clause, and, hence, are void for vagueness. The question arises in the context of an appeal from the denial of a petition for habeas corpus brought by appellant Levy when he was confined in the United States Penitentiary at Lewis-burg, Pennsylvania, following conviction by a general court-martial. Captain Howard B. Levy, an Army doctor on active duty at Fort Jackson, South Carolina, was charged with violating Articles 90, 133 and 134 of the Uniform Code of Military Justice. Article 90, 10 U.S.C. § 890, provides in pertinent part: “Any person subject to this chapter who . . . willfully disobeys a lawful command of his superior commissioned officer: shall be punished . by such punishment other than death as the court-martial may direct.” The specification under the Article 90 charge read: In that Captain Howard B. Levy, U. S. Army, Headquarters & Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, having received a lawful command from Colonel Henry F. Fancy, his superior officer, to establish and operate a Phase II Training Program for Special Forces AidMen in dermatology in accordance with Special Forces Aid-Men (Airborne), 8-R-F16, Dermatology Training, did, at the United States Army Hospital, Fort Jackson, South Carolina, on or about 11 October 1966 to 25 November 1966, willfully disobey the same. Article 133, 10 U.S.C. § 933, states in pertinent part: “Any commissioned officer . . . who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” Article 134, 10 U.S.C. § 934, provides: Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. The charges under Articles 133 and 134 emanated from public statements made by Levy to enlisted personnel, of which the following is illustrative: The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don’t see why any colored soldier would go to Viet Nam; They should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children. Captain Levy was convicted of (1) wilful disobedience of the lawful command of his superior officer, (2) uttering public statements designed to promote disloyalty and disaffection among the troops, and (3) “wrongfully and dishonorably making intemperate, defamatory, provoking, contemptuous, disrespectful and disloyal statements” to enlisted personnel, the latter two offenses constituting “conduct unbecoming an officer and a gentleman,” and “disorders and neglects to the prejudice of good order and discipline in the armed forces.” 10 U.S. C. §§ 933, 934. He was sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor. Thereafter, Levy exhausted his appeals within the military. Moreover, before, during and after the military proceedings he sought relief in the federal civilian courts. Finally, he filed a petition for habeas corpus alleging constitutional deprivations in the court-martial proceeding. Preliminarily, we observe that although the court-martial found appellant guilty of charges and specifications under three articles, the court announced one general sentence for the combined charges. The general rule governing a single sentence imposed upon convictions on several charges is that the sentence will be upheld on appeal if any one of the convictions is valid, and the sentence imposed is within the statutorily authorized maximum for the valid conviction, despite the fact that convictions on the other charges may not be valid. Claasen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891). This rule is applicable to federal habeas corpus review of a court-martial conviction and sentence. Carter v. McClaughry, 183 U.S. 365, 384-385, 22 S.Ct. 181, 46 L.Ed. 236 (1902); Hunsaker v. Ridgely, 85 F.Supp. 757 (D.Me.1949). However, the rule is not jurisdictional in nature. Rather, its application is discretionary. Benton v. Maryland, 395 U.S. 784, 789-792, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Smith v. United States, 118 U.S.App.D.C. 235, 335 F.2d 270, 272 n. 2 (1964). Indeed, in Benton, the Supreme Court recognized that application of the general sentence rule has been “somewhat haphazard,” and this court has observed that Benton “put into doubt” the continuing validity of that rule. United States v. McKenzie, 414 F.2d 808, 811 (3d Cir. 1969). In any case, the peculiarities associated with a sentence imposed by a military court render this case appropriate for discretionary refusal to apply the Claasen general sentence rule. Because detention was mandated as a result of a general sentence under all three articles, it is impossible to isolate the sentence pronounced under a constitutionally valid provision from one announced under an invalid one. Therefore, we have the responsibility of inquiring whether one or more of these articles are defective. I. Initially, it is necessary to identify the limited contours of a civilian court’s jurisdiction when presented with a habeas corpus petition from a federal prisoner whose incarceration was ordered by a court-martial. Our statement of this issue is deliberate, for- we avoid the imprecise label “review.” Title 10 U.S.C. § 876 provides that military criminal proceedings shall be “final and conclusive,” and “binding upon all departments, courts, agencies, and officers of the United States.” That is, as in the case of petitions for habeas corpus filed by state prisoners under 28 U. S.C. § 2254, where there is no jurisdiction to review the state judgment, here there can be no review of the final judgment of the court-martial. Naturally, however, a federal court has jurisdiction to examine state prisoner habeas corpus cases, and the basis of this jurisdiction was made clear in Fay v. Noia, 372 U.S. 391, 430-431, 83 S.Ct. 822, 844, 9 L.Ed. 2d 837 (1963): “The jurisdictional prerequisite is not the judgment of a state court but detention sim/plicitev. . Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. Medley, Petitioner, 134 U.S. 160, 173 [10 S.Ct. 384, 388, 33 L.Ed. 835].” Thus the federal court inquiry into “detention simpliciter” is not, jurisprudentially speaking,, a review of the state judgment, but an inquiry into whether the constitutional rights of the prisoner were properly vindicated in the proceedings which caused his detention. Accordingly, the Supreme Court has held that the rigid proscription of 10 U. S.C. § 876 erects no bar to a civilian court’s habeas corpus jurisdiction in the case of a federal prisoner incarcerated under the sentence of a court-martial. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950). But unlike the extensive authority conferred in state prisoner habeas cases by Fay v. Noia, supra, and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the contours of civilian court jurisdiction in court-martial cases still remain ill-defined. The most instructive treatment on this issue is the Supreme Court's decision in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), where the Court stated that the duty of a federal court to protect individual constitutional rights is not diminished merely because a judicial proceeding has been conducted by the military: In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are ‘final’ and ‘binding’ upon all courts. We have held before that this does not displace the civil courts’ jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 340 U.S. 128 [,71 S.Ct. 149, 95 L.Ed. 146] (1950). But these provisions do mean that when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to reevaluate the evidence. Whelchel v. McDonald, 340 U.S. 122 [, 71 S.Ct. 146, 95 L.Ed. 141] (1950). 346 U.S. at 142, 73 S.Ct. at 1049. The government would have us interpret Bums to stand for the proposition that collateral review of military proceedings by federal civilian courts extends only to the traditional elements of jurisdiction, that is, whether the court-martial was properly constituted, possessed jurisdiction over the person and the offense, and had power to impose the sentence, but not to constitutional errors which would oust the military of jurisdiction. Furthermore, the government continues, even if this court’s jurisdiction extends to an examination of constitutional errors, our review is complete upon a finding that the military court has considered appellant’s constitutional claims, even if its conclusions are erroneous. This interpretation reflects the view taken in Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879), where the Court held that the writ was limited to an inquiry into whether the court-martial had jurisdiction to try the matter and the power to impose sentence. Under such an approach, constitutional errors were deemed to oust the court of jurisdiction. However, this approach has been rejected in Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970), and it is clear to this court that the law has progressed a long way from Reed. 9 Undaunted, the government suggests that its position is vindicated by our decision in United States ex rel. Thompson v. Parker, 399 F.2d 774, 776 (3d Cir. 1968), cert. denied, 393 U.S. 1059, 89 S.Ct. 701, 21 L.Ed.2d 701 (1969): “Under the principle announced in Bums, therefore, the district court, after determining that the military courts had given due consideration to petitioner’s contentions, quite correctly-refused to review and reevaluate the facts surrounding petitioner’s allegations.” The government's reliance is misplaced for this argument overlooks the critical word “due” in the expression “due consideration.” Indeed, any suggestion that Thompson imposes a standard of review different from that devised by Burns, ignores the language in Thompson immediately following that court’s statement of the controlling rule: “ ‘Burns is the law of the land.' And both this court and the district courts must abide by its teaching.” 399 F.2d at 777. Thus, a fair reading of Thompson compels the conclusion that “due consideration” is but a paraphrase of the Burns requirement that the civilian court must be satisfied that the military courts have “dealt fully and fairly” with the allegations of constitutional deprivation. We are persuaded, therefore, that the district court had sufficient authority to meet the constitutional challenges to Articles 133 and 134 presented by appellant. Several reasons support this conclusion. First, if we accept the contention that a civilian court can only review the proceedings to determine whether the court-martial had “jurisdiction,” recourse can be had to the Supreme Court’s development of this concept when jurisdiction vel non was the sole test in a state prisoner’s habeas inquiry. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879), held that although the writ would issue only if the court that committed the prisoner lacked “jurisdiction” to do so, the state court did lack such jurisdiction if the statute creating the offense for which the prisoner was tried was unconstitutional. Siebold saw a degree of expansion in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), where, although the statute under which appellant was tried was constitutional, the trial court nevertheless lost jurisdiction where the proceedings, though formally proper, were held under the sway of mob rule. Therefore, a prisoner convicted and sentenced at a trial in which “counsel, jury and judge were swept to the‘fatal end by an irresistible wave of public passion,” was entitled to federal habeas corpus relief. Much to the same effect was Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), where the Court granted the writ to an individual convicted in state court on the basis of testimony known by the prosecution to be perjured, thereby causing the court to lose jurisdiction. The judicial fiction of loss of jurisdiction during the course of a proceeding was extended to the federal arena by the landmark decision of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). There, the Supreme Court found that the trial court “lost” jurisdiction as a result of its failure to provide counsel for the accused. Thus, the Court indicated that collateral review of substantial constitutional deprivations was within the purview of the writ. Finally, in a brief per curiam opinion in Waley v. Johnston, 316 U.S. 101, 104-105, 62 S.Ct. 964, 966, 86 L.Ed. 1302 (1942), the Court deserted this forced jurisdictional construction, holding: [T]he use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights. [Citing Moore and Mooney, supra,.] This departure by Waley is crucial because it announced that although there exists no defect in the court’s jurisdiction, violations of constitutional rights are nevertheless within the scope of habeas review. The decision becomes significant in the present context because the same statute which vests federal courts with jurisdiction over civilian prisoners also provides for federal jurisdiction where the individual is confined by the military. 28 U.S.C. § 2241(c). Indeed, since the Waley decision, only in Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950), has the Supreme Court indicated that the original view of Siebold and Reed controls, that is, when examining a petition for a writ of habeas corpus the reviewing court will conduct only the narrow inquiry into whether the court had jurisdiction: The single inquiry, the test, is jurisdiction. . . . The correction of any errors [the court-martial] may have committed is for the military authorities which are alone authorized to review its decision. 339 U.S. at 111, 70 S.Ct. at 499. Obviously, Waley and Hiatt, although emanating from the same note, struck divergent chords. Harmony, however, was forthcoming from Burns. Although Burns did not parallel the expanding scope of collateral review from civilian courts — noting that “in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civilian cases” — the decision clearly modified Hiatt. Indeed, the unswerving statement of Hiatt that military authorities “alone” are authorized to review any errors which may have occurred during a court-martial, was tempered in Burns to require a federal court to determine whether the “military decision has dealt fully and fairly” with the allegations of the petition. 346 U.S. at 142, 73 S.Ct. at 1049. Only Justice Minton, in his concurring opinion, was willing to affirm dismissal of the petition on the basis of Hiatt’s narrow jurisdictional test. Thus, this statement of the “fully and fairly” test in Burns represents the military analogue of the maturation of Siebold’s “loss of jurisdiction” rationale. See Moore, Mooney, Johnson, and Waley, supra. Moreover, we find much guidance in the specific language of Burns emphasizing “the fair determinations of the military tribunals,” and the requirement that the court-martial “has dealt fully and fairly” with the constitutional allegations. Had the Supreme Court intended to deprive the district courts of jurisdiction where the constitutional issue was merely “fully” presented at court-martial, it would not have added “fair” and “fairly” to the test. Rather, the very premise of Burns is that servicemen as well as civilians are constitutionally protected from arbitrary or unlawful treatment. Another approach to federal habeas corpus review of military proceedings is characterized by the law-fact dichotomy articulated most precisely by the Court of Claims: issues of fact are not reviewable ; issues of law are. In Shaw v. United States, 357 F.2d 949, 953-954, 174 Ct.Cl. 899 (1966), after announcing a general rule that it would abstain from reviewing court-martial proceedings, the court stated “that such abstinence is not to be practiced where the serviceman presents pure issues of constitutional law, unentangled with an appraisal of a special set of facts. That type of unmixed legal question this court has always decided for itself.” It is significant that this law-fact dichotomy comports with the admonition of Burns that it is “not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” 346 U.S. at 142, 73 S.Ct. at 1049. Moreover, Burns itself chose to treat the only “legal” issue raised by appellant there: whether the rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), rendered his confession inadmissible. The plurality opinion stated that it did not because McNabb announced a rule of evidence for federal courts, and “its source is not due process of law.” 346 U.S. at 145 n. 12, 73 S.Ct. at 1050. Because appellant Levy’s attack on Articles 133 and 134 is not dependent upon any evidentiary or factual construction, his argument represents the type contemplated by the traditional Court of Claims’ approach. We reject, therefore, the contention that full presentation of the constitutional issues to a court-martial precludes subsequent consideration of those issues by a civilian court. At the very least, where it is unnecessary to “reevaluate the evidence” adduced at the court-martial because the alleged infirmity is the facial unconstitutionality of the statute under which appellant was charged, a federal court has jurisdiction to inquire whether there existed an infirmity of constitutional dimension in the court-martial proceeding responsible for the detention of the petitioner. II Articles 133 and 134 were originally enacted by the Second Continental Congress on June 30, 1775. As enacted in the colonies, these articles derived from the British Articles of War, which, in turn, trace their ancestry from the Articles of War of James II, in 1688. After nearly three hundred years, the incredible similarity between the language of the present articles and their forebears is astonishing. Article 64 of the Articles of War promulgated by James II, provided that “[a] 11 other faults, misde-meanours and Disorders not mentioned in these Articles, shall be punished according to the Laws and Customs of War, and discretion of the Court-Martial.” Approximately eighty years later, the substance of this provision was incorporated into the British Articles of War of 1765, which were in effect at the beginning of the American Revolution. Article 3 of Section 20 of the British Articles read: “All Crimes not Capital, and all Disorders or Neglects, which Officers and Soldiers may be guilty of, to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War, are to be taken Cognizance of by a Court-martial, and be punished at their Discretion.” This article, which was altered ever so slightly by the Second Continental Congress, and enacted as Article 50 of the American Articles of War, remains virtually unchanged today. More of the same is true for Article 133. Originally enacted by the Second Continental Congress as Article 47 of the American Articles of War, the text was identical to Article 23 of Section 15 of the British Articles: “Whatsoever commissioned officer shall be convicted before a general court-martial, of behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman, shall be discharged from the service.” As the United States Court of Military Appeals pointed out in United States v. Howe, 17 U.S.C.M.A. 165, 175-76 (1967), the scope of this provision was enlarged when the articles were reenacted in 1806, by omitting the original phrase “scandalous, infamous,” and providing simply, “Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service.” Since that time, this article, like Article 134, has remained unchanged. We now embark upon an examination of the constitutionality of these two articles, mindful of Justice Holmes’ sage admonition, “[i]f a thing has been practised for two hundred years by common consent, it will need a strong ease for the Fourteenth Amendment to affect it.” III. Although Article 133 successfully withstood a constitutional attack predicated upon the First Amendment in United States v. Howe, 17 U.S.C.M.A. 165 (1967), we are aware of no decision of the Court of Military Appeals which dealt with that article on the precise issue lodged here: unconstitutionality because of vagueness. Article 134, however, the government informs us, has twice been vindicated in bouts with the vagueness doctrine. United States v. Frantz, 2 U.S.C.M.A. 161 (1953); United States v. Sadinsky, 14 U.S.C.M.A. 563 (1964). In Frantz, the court virtually conceded “the conceivable presence of uncertainty in the first two clauses” of Article 134, but nevertheless experienced such ease in finding the article not void for vagueness that it could state: “ [t] o put' the question is to answer it in all reasonable minds.” 2 U.S.C.M.A. at 163. Indeed, the court even assumed that civilian standards “are applicable in full force to the military community,” but reasoned that because the article has been part of our military law since 1775, it must be judged “not in vacuo, but in the context in which the years have placed it. Mus-ser v. Utah, 333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562, 565. That the clauses under scrutiny have acquired the core of a settled and understandable content of meaning is clear from the no less than forty-seven different offenses cognizable thereunder explicitly included in the Table of Maximum Punishments of the Manual. . . .”2 U.S.C.M.A. at 163. The court concluded that Article 134 was of “entirely defensible character,” and that it established “a standard ‘well enough known to enable those within . . [its] reach to correctly apply [it].’” See Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Besides Frantz, the government would have us accept the constitutionality of Article 134 on the rationale of United States v. Sadinsky, swpra. We decline to do so. Prescinding from the fact that Sadinsky did not entertain a challenge to the constitutionality of that article, the decision rests on Frantz and Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L.Ed. 838 (1858), which we discuss, infra. It is well settled that the statute [Article 134] is not void for vagueness. See United States v. Frantz, 2 USCMA 161, 7 CMR 37, and authorities therein collected. See also Dynes v. Hoover, 20 Howard [61 U.S.] 65 [51 L.Ed. 838] (U.S.1858). Nor does the defense counsel contend otherwise. (Emphasis supplied.) 14 U.S.C.M.A. at 565. Thus, it was on the authority of these decisions of the Court of Military Appeals that the district court sustained the constitutionality of these articles. Additionally, the government relies upon “a line of cases dating from 1858 [in which] the Supreme Court has recognized that the . . . Articles . are not too. vague and are not unconstitutional. Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L.Ed. 838 (1858); Carter v. McClaughry, 183 U.S. 365 [22 S.Ct. 181, 46 L.Ed. 236] (1902); Grafton v. United States, 206 U.S. 333 [27 S.Ct. 749, 51 L.Ed. 1084] (1907); see also Ex parte Mason, 105 U.S. 696, 698 [26 L.Ed. 1213] (1882).” Because these cases form the basis of the government’s argument before this court, we examine them seriatim. IV. In Dynes v. Hoover, 61 U.S. (20 How.) 65, 51 L.Ed. 838 (1858), a seaman sought habeas relief after being convicted by a court-martial of attempting to desert. Petitioner contended that there existed no specific military offense of “attempting to desert,” and that the court-martial was, therefore, without jurisdiction to try him. The Court rejected this argument, stating that “when of-fences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article, of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations. . . .”61 U.S. (20 How.) at 82. The Court went on to indicate that such a provision was not subject to abuse despite its “apparent indeterminateness,” because it “is well known by practical men in the navy and army, and by those who have studied the law of courts martial,” precisely what such crimes are and how they may be punished. Id. It must be conceded, therefore, that Article 134 weathered the challenge of vagueness in the Supreme Court in 1858 for substantially the same reasons adopted by the Court of Military Appeals in 1953 in Frantz. The parade of cases following Dynes approving these “general articles” commenced with the Supreme Court’s decision in Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601 (1886). There the Court dealt with a Navy provision manager and paymaster who falsified and illegally extended various government contracts, “to the great scandal and disgrace of the service, and the injury of the United States.” Specifically, the Court held that it was not prepared to “declare that an officer of the navy who, while serving by appointment of the president as chief of a bureau in the navy department, makes contracts or payments, in violation of law, in disregard of the interests of the government, and to promote the interests of contractors, cannot lawfully be tried by a court-martial composed of naval officers, and by them convicted of scandalous conduct tending to the destruction of good morals, and to the dishonor of the naval service.” 166 U.S. at 186, 6 S.Ct. at 580. There, the Court upheld the validity of Articles 8 and 22 of the “Articles for the Government of the Navy.” Article 8 provided: Such punishment as a court martial may adjudge may be inflicted on any person in the Navy— First. Who is guilty of profane swearing, falsehood, drunkenness, gambling, fraud, theft, or any other scandalous conduct tending to the destruction of good morals. Article 22, which was Article 32 in Dynes, provided that all offenses committed by Navy personnel, “which are not specified in the foregoing articles, shall be punished as a court martial may direct.” This latter article had been interpreted to mean that “when the offense is a disorder or neglect not specifically provided for, it should be charged as ‘scandalous conduct tending to the destruction of good morals.’ ” Orders, Regulations and Instructions for the Administration of Law and Justice in the United States Navy, § 126 (1870). The Court approved the right of the military to so charge, analogizing that the case was similar to “conduct unbecoming an officer and a gentleman,” which the Court, in dicta, likewise considered permissible. Unfortunately, however, the opinion contains no searching analysis of such an article’s possibility for over-breadth, and, generally speaking, does not constitute a persuasive offering. United States v. Fletcher, 148 U.S. 84, 13 S.Ct. 552, 37 L.Ed. 378 (1893), decided only seven years after Whitney, involved the court-martial of a retired Army captain under Article 83: “Any commissioned officer convicted before a general court martial of conduct unbecoming an officer and a gentleman shall be dismissed the service.” Specifically, this charge resulted from Captain Fletcher’s incurring and non-payment of certain indebtedness. Before the Supreme Court, appellant argued that the court-martial was without jurisdiction because “the charge and specifications stated no offence whatever ‘within any rules and articles of war, or known to the military law and custom of the United States.’ ” In what can only be characterized as an incredibly conclusory manner, the Court brushed aside this contention, noting only that it could not say “[t]he specifications were . incapable of sustaining the charge.” 148 U.S. at 92, 13 S.Ct. at 555. Like Whitney, therefore, Fletcher’s insight into the validity of these articles hardly rises to the stature of unshakable constitutional dogma. Predictably, however, subsequent decisions found little difficulty in sanctifying the confusing and conclusory treatment offered by Whitney and Fletcher. When it was suggested to the Court in Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823 (1897), that a charge of conduct unbecoming an officer and a gentleman failed to set forth an offense on the facts of that case, the Court merely cited to both Whitney and Fletcher, and added: “If this position were well taken, it would throw upon the civil courts the duty of considering all the evidence adduced before the courts-martial, and of determining whether the accused was guilty of conduct, to the prejudice of good order and military discipline in violation of the articles of war.” 165 U.S. at 561, 17 S.Ct. at 451. There was no contention that the general articles were too vague to support a conviction in Carter v. McClaughry, supra, but rather that charged violations under those articles were contained in previous charges. The opinion of Chief Justice Fuller, therefore, is not illuminating on the issue before us. Nevertheless, the Court found it opportune to refer to Swaim, Whitney and Fletcher, supra, as general support for these articles. Y. That, then, is the picture. The predominant judicial supports for the proposition that the “general articles” are not void for vagueness consist of Frantz, supra, from the Court of Military Appeals, and Dyne, supra, from the Supreme Court. Notwithstanding these precedents, such as they are, we are persuaded that we are not precluded from reexamining the constitutional question of due process. Initially, we recognize that before us for. interpretation is a relatively new Uniform Code of Military Justice, effective January 1, 1957, 10 U. S.C. § 801 et seq. Although, as heretofore observed, the general articles today are basically the same as their historical precedents, they must be construed in conjunction with a comprehensive Military Justice Code of which they are now a component. This code concededly extends to military defendants a broad spectrum of court-martial rights theretofore unaccorded. For example, the new code requires the President to prescribe court-martial procedures which “apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.” 10 U.S.C. § 836. We are also conscious of Justice Brennan’s observation in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), that “[o]bviously, concepts of justice change,” (concurring opinion at 304, 92 S.Ct. 2726), and that, at least insofar as capital punishment is concerned, “the cruel and unusual language ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today. stare decisis [should] bow to changing values.” (Marshall, J., concurring opinion at 329-330, 92 S.Ct. at 2772.) An even more impressive suggestion for the reconsideration of these articles is the specific reference to Article 134 in O’Callahan v. Parker, 395 U.S. 258, 265-266, 89 S.Ct. 1683, 1687, 23 L.Ed.2d 291 (1968), where the Court itself expressed doubts as to the constitutionality of that article: While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. Article 134, already quoted, punishes as a crime “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” Does this satisfy the standards. of vagueness as developed by the civil courts? Such a statement of the issue compels the conclusion that the Supreme Court has invited the federal courts to reexamine this due process question in the context of current constitutional teachings. We turn now to a consideration of those principles. A. Initially, we encounter treme difficulty in reconciling the Court of Military Appeals’ “settled and understandable content of meaning” of Article 134, and its “no less than forty-seven different offenses cognizable thereunder,” with the principle that a lack of fair warning in a criminal statute of what conduct is prohibited offends due process. Our examination begins with the basic concept that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. . [T]he decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, . . . or a well settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ.” In each such case “a standard of some sort was afforded.” Connally v. General Construction Co., 269 U.S. 385, 392, 46 S.Ct. 126, 128, 70 L.Ed. 322 (1927); Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927). The most recent articulation of the vagueness doctrine, representing a synthesis of past teachings, is found in Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972): It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap, the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law imper-missibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” (Citations omitted.) Failing to pass constitutional muster have been statutes penalizing “misconduct,” Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1969); conduct that was “annoying,” Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 2l4 (1971); “reprehensible,” Giaccio v. Pennsylvania, swpra; and “prejudicial to the best interest” of a city, Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359 (1952). Other federal courts have voided prohibitions of conduct that “reflects discredit,” Flynn v. Giarrusso, 321 F.Supp. 1295 (E.D.La.1971); or is “offensive,” Oestreich v. Hale, 321 F.Supp. 445 (E.D.Wis.1970). For our purposes then, the following questions must be answered: Do Articles 133 and 134 give to a commissioned officer of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute? Do these articles encourage erratic arrests and convictions? Article 133 fails to explain what conduct “unbecomes” .an officer or a gentleman. The Officer’s Guide offers little assistance in this direction for it merely advises that “[a]n officer is expected to be a gentleman and a gentleman has been defined as a man who is never intentionally rude.” Winthrop, in his classic treatise, Military Law and Precedents, defined “unbecoming” as “morally unbefitting and unworthy,” and described a gentleman as a “man of honor ... of high sense of justice, of an elevated standard of morals and manners, and of a corresponding general deportment.” Thus, included within the scope of proscribed conduct under Article 133 is official conduct that “in dishonoring or otherwise disgracing the individual as an officer, seriously compromises his character as a gentleman;” or private conduct that “in dishonoring or disgracing the individual personally as a gentleman, seriously compromises his position as an officer and exhibits him as morally unworthy to remain a member of the honorable profession of arms.” Thus, we are far from satisfied that the amorphous phrase, “a gentleman,” replete with its capacity for subjective interpretation as set forth in the Manual for Courts-Martial, note 24, supra, can even remotely be said to employ “words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them.” Connally v. General Construction Co., supra, 269 U.S. at 391, 46 S.Ct. at 127. Article 134 deserves the same criticism. The Manual, relied upon by the court in Frantz, was the subject of extensive reference in the dissenting opinion of Chief Judge Bazelon in Levy v. Corcoran, 128 U.S.App.D.C. 388, 389 F.2d 929, 932 (1967): “A simple reading of the Articles shows that they are quite broad. Indeed, the Manual for Courts-Martial interprets Article 134 to include more than fifty different offenses ranging from abusing public animals to wearing an unauthorized insignia.” Indeed, the history of prosecutions under this article shows that it has served as an unwritten criminal code, a catchall receptacle designed as a statutory basis for prosecutions that run the gamut from impersonating an officer and possession of drugs, to failure to pay debts, gambling with a subordinate, and straggling. Thus, “disorders and neglects to the prejudice of good order and discipline in the armed forces” has provided the statutory authority for prosecutions for drunkenness, appearing in improper uniform, abuse of military vehicles, and possession of marihuana. “Conduct of a nature to bring discredit upon the armed forces” has been interpreted to include any violation of local civil law, adultery, bigamy, fleeing from the scene of an accident, and dishonorable failure to pay debts. “Crimes and offenses not capital” is a veritable criminal code of its own. This cryptic phrase is the statutory justification for “those acts or omissions, not made punishable by another article, which are denounced as noncapital crimes or offenses by enactments of Congress or under authority of Congress and made triable in the Federal civil courts.” This includes various assaults, indecent acts with a child under the age of 16 years, false swearing, disloyal statement undermining discipline and loyalty, misprision of a felony, dishonorable failure to pay debts, dishonorable failure to maintain funds for payment of checks, bigamy, communicating a threat, use of false and unauthorized passes, permits, discharge certificates and identification cards, negligent homicide, offense against correctional custody, and receiving stolen property. Indeed, the reasoning in United States v. Frantz, supra, would be more persuasive if the Manual for Courts-Martial, or some other official guide, outlined with exactitude and limitation that conduct proscribed by Article 134. Under such circumstances it might be successfully contended that as part of his military training before embarking upon active duty in the field, a commissioned officer could familiarize himself with the level of behavior required. We might then agree “[t]hat the clauses under scrutiny have acquired the core of a settled and understandable content of meaning.” Frantz, supra, 2 U.S.C.M.A. at 163. But Article 134 is open ended. The Manual for Courts-Martial does not purport to list all the offenses cognizable under the article. Thus, the Frantz court, in 1953, noted the existence of "no less than forty-seven different offenses” triable under the article. By 1967, the Court of Appeals for the District of Columbia in Levy v. Corcoran, supra, could extend this count to fifty-eight. 389 F.2d at 933-934. The 1968 Edition of the Manual lists sixty-three illustrative offenses. (Manual, supra, at Appendix 6, f[j[ 126-188). It becomes readily apparent, therefore, that at best the Manual includes but a compilation of those offenses previously determined by various courts-martial to come within the breadth of Article 134. Moreover, such new specifications, detailing conduct that will henceforth be considered criminal, does not cure this defect of overbreadth. “If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. . It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.' . . . No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, supra, 306 U.S. at 453, 59 S.Ct. at 619. Several additional observations are prompted by this analysis. There is no one unifying theme to the offenses prohibited by Article 134. Instead, there is a commingling of the military counterpart of civilian offenses against the person, offenses against public morals, and offenses against property. Added to this is a conglomeration of purely military offenses relating to the wearing of a proper uniform and insignia, the carrying of firearms, and the propriety of various relationships with subordinates. The comprehensive sweep of this article, illustrated by the variegated examples contained in the Manual, runs on collision course with the proscription of United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1876): “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained,. and who should be set at large.” The National Commission on Reform of Federal Criminal Laws, established by Congress, Public Law 89-801, asserted as its cardinal principle the fundament of American law “that no person can be criminally punished except by judicial process and unless the acts for which he is punished were clearly forbidden prior to the time he committed them.” Nor is this “principle of legality” an American monopoly. The French Penal Code, for example, contains the following preamble: “No violation, no misdemeanor, no felony can be punished by punishments not provided by law prior to their commission.” Facially, and on the basis of the historical interpretation of Article 134 set forth in the Manual for Courts-Martial, the boundless, open-ended, all-encompassing quality of this article runs counter to the basic philosophy of criminal codes of all modern nations. “The codification of definite rules in the law of crimes is considered by many in Western democratic societies as a fundamental requirement of liberal democracy. ‘They take their stand on the principle that no one shall be punished for anything that is not expressly forbidden by law. Nul-lum crimen, nulla poena, sine lege. They regard that principle as their great charter of liberty.’ A. Denning, Freedom Under Law 41 (1949).” In testifying before the Committee on the Judiciary of the United States Senate, Professor Gerhard Mueller, Director of the Criminal Law Education Research Center of New York University, made clear that an examination of all current European codes disclosed that each criminal code contains a “Special Part,” describing specific offenses, as well as a “General Part” containing provisions applicable to all substantive offenses. He emphasized: “It has been fundamental throughout this history of Anglo-American Criminal Law, as well as Continental Criminal Law, that criminal liability is imposed on persons who commit a wrongful act knowing that they are doing something wrongful, in other words, acting with 'an awareness of wrongfulness.' ” We have previously asked whether Articles 133 and 134 give to a commissioned officer of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, and whether these ai'ticles encourage erratic arrests and convictions. The foregoing analysis now raises a new series of questions. What explicit standard of conduct is announced by a statute which punishes an individual for behaving other than as an officer and a gentleman? In a society witnessing rapidly changing manners and mores, against what existing standard is gentlemanly conduct to be measured ? More of the same must be said for Article 134. What specific standard determines what constitutes a disorder or neglect? Can these terms be limited or defined within the seemingly boundless context of Article 134? Even assuming that a meaningful, twentieth-century definition of those terms can be concre-tized, at what point does such conduct rise to the level at which it prejudices good order and discipline in the armed forces ? Under these circumstances, how can we possibly conclude that these articles give individual officers of ordinary intelligence a reasonable opportunity to know what is prohibited? Unlike the Court in Grayned v. City of Rockford, supra, we are unable to find that “it is clear what the [articles] as a whole prohibit [s].” 408 U.S. at 110, 92 S.Ct. at 2300. B. What has already been said is sufficient, in our view, to hold that the General Articles do not pass constitutional muster as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians. Without the necessity of a protracted discussion, we conclude that these articles also have the very real capacity for arbitrary and discriminatory enforcement. To reiterate the language of Grayned: “ [I] f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. Rockford, supra, 408 U.S. at 108-109, 92 S.Ct. at 2299. “Such vagueness . . . also . . . compels enforcement officers, as well, to guess at what violates .the law, thus either setting the stage for arbitrary police action or, if police and prosecutors evolve their own rational standards of enforcement, constituting an inappropriate delegation of criminal lawmaking authority.” Scott v. District Attorney, 309 F.Supp. 833, 836 (E.D.La.1970). Transposed to a military setting, the dangers of arbitrary and discriminatory action assume more drastic proportions. The commanding officer may have the option of non-judicial punishment, Article 15, 10 U.S.C. § 815, and named commanding officers have the power to convene general courts-martial, Article 22, 10 U.S.C. § 822, special courts-martial, Article 23, 10 U.S.C. § 823, and summary courts-martial, Article 24, 10 U.S.C. § 824. Moreover, the convening authority has the authority to appoint the members of the court, Article 25, 10 U.S.C. § 825. Our conclusion that Articles 133 and 134 fail to set forth satisfactory standards of conduct leads to the inescapable corollary that enforcement of these articles is to varying degrees arbitrary and discriminatory. Because Article 133 fails to define “conduct unbecoming an officer and a gentleman,” are diverse boards of military officers to determine what conduct “becomes” a gentleman? Thus, might what “becomes” an officer in Tokyo, be considered “rude” in Santa Fe, or “unbecoming” at Fort Jackson, South Carolina? Are federal courts to be the arbiters of gentlemanly behavior? Similarly, Article 134 fails to announce any standard by which to determine when conduct becomes “prejudicial to good order and discipline.” Who is to determine what conduct is “prejudicial?” Moreover, if we, following an exhaustive search, cannot uncover rational standards by which to judge alleged violations of these articles, how can a commanding officer or court-martial board, with little or no legal training, conceivably legally evaluate alleged transgressions of Articles 133 and 134? Arbitrary and discriminatory enforcement of such vague laws is a fortiori. C. Finally, the general articles have the capacity of abutting sensitive areas of basic First Amendment freedoms. Those statutes which regulate conduct touching the borders of this amendment are required to be more specific than others. “It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when ‘no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,’ Dombrowski v. Pfister, 380 U.S. 479, 491 [, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22] (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,’ id., at 486 [, 85 S.Ct. 1116, 1121]; see also Baggett v. Bullitt, 377 U.S. 360, 366 [, 84 S.Ct. 1316, 1319, 12 L.Ed.2d 377] (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 [, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214, 1971]; id., at 619-620 [, 91 S.Ct. 1686, 1691] (White, J., dissenting); United States v. Raines, 362 U.S. 17, 21-22 [, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524] (1960); NAACP v. Button, 371 U.S. 415, 433 [, 83 S.Ct. 328, 338, 9 L.Ed.2d 405] (1963). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Thus, whatever merit there may be in the government’s contention that over two hundred years of military operation under these articles have given meaning and certainty to their terms when applied to such ordinary anti-social conduct as indecent assault, the argument becomes unpersuasive where the proscribed conduct is speech arguably protected by the First Amendment. Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, “praising the enemy, attacking the war aims of the United States, or denouncing our form of government.” With the possible exception of the statement that “Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children,” it would appear that each statement for which appellant was court-martialed could fall within the example given in the Manual. However, even if this statement in the Manual can be construed as providing a sufficient warning against the conduct of the individual in the case before us, the article nevertheless can be adjudicated void for vagueness if it would be susceptible to future use against conduct not warned against in sufficient detail. As the Court stated in Coates v. City of Cincinnati, supra, 402 U.S. at 616, 91 S.Ct. at 1689: “We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.” Although the Supreme Court may have at one time adhered to the doctrine that an individual may not assert the vagueness of a statute unless it is vague as to him, see, e. g., Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), that doctrine is no longer in vogue. An individual is now permitted standing to attack an over-broad statute infringing on First Amendment rights even where it may be sufficiently definite as to him and where his own activity may not be protected by the Constitution. Gooding v. Wilson, supra. As the Supreme Court pointed out in the Gooding case, the modern rule is justified by the need to guard against the possible “chilling effect” of an overbroad statute. Id., at 521 of 405 U.S., 92 S.Ct. 1103. Thus, the principle enunciated in Gooding confers standing upon Captain Levy. There is great danger that Articles 133 and 134 will chill protected speech. Moreover, the rule against relying on the constitutional rights of others, see, e. g., Yazoo v. Jackson, 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193 (1912), is discretionary and should not be invoked where it would be difficult for those constitutionally deprived to assert their rights. Barrows v. Jackson, 346 U.S. 249, 255-257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). In the instant case, just as the lack of statutorily defined standards led to the conclusion that enforcement of the articles is arbitrary and discriminatory, so too is the conclusion inescapable that such vague articles have an impermissible chilling effect on First Amendment freedoms. We conclude that measured against existing constitutional standards applicable to civilian statutes and ordinances, Articles 133 and 134 are void for vagueness. This does not terminate our inquiry, however, for we are now required to decide whether affirmative countervailing circumstances inhere in the armed forces which justify the existence of statutes which would not otherwise pass constitutional muster. VI. We acknowledge that “[military law, like state law, 'is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Burns v. Wilson, supra, 346 U.S. at 140, 73 S.Ct. at 1047. Thus, in sustaining the constitutionality of Article 134 against the charge of vagueness, the Court of Military Appeals in Frantz referred to the “presence of special and highly relevant considerations growing out of the essential disciplinary demands of the military service. These are at once so patent and so compelling as to dispense with the necessity for their enumeration —much less their argumentative development.” 2 U.S.C.M.A. at 163-64. (Emphasis supplied.) This naked, eonelusory statement constitutes a brazen slap at a system whose banner is the protection of individual liberties, and, as such, it has for too long withstood inquiry compelling precise delineation of these “special and highly relevant considerations.” It has been suggested that three “special and highly relevant considerations” unique to military life might exist: (1) maintaining high standards of conduct in the armed forces; (2) ease of conviction in a court-martial; and (3) justifying punishment for servicemen who commit unforeseen crimes. The Supreme Court has held that “ [i] t is no answer to the constitutional claim [of vagueness of over-breadth] to say . . . that the purpose of these regulations was merely to insure high professional standards and not curtail free expression.” NAACP v. Button, supra, 371 U.S. at 438-439, 83 S.Ct. at 341. Moreover, what high standard of conduct is served by convicting an individual of conduct he did not reasonably perceive to be criminal? Is not the essence of high standards in the military, first, knowing one’s duty, and secondly, executing it? And, in this regard, would not an even higher standard be served by delineation of the various offenses under Article 134, followed by obedience to these standards ? Whatever efficacy there may have been to the ease-of~conviction argument in another era, and we do not assume that it ever was persuasive, the passage and implementation of the Uniform Code of Military Justice clearly demonstrates a Congressional mandate that the maximum of constitutional procedural safeguards now be afforded servicemen. A consideration based on ease-of-conviction is now totally bereft of explicit support and does not deserve the dignity of extended discussion. The third consideration would suggest the desirability of allowing the military freedom to develop a counterpart of common law crimes; to provide statutory authority for the development of new standards of conduct and the imposition of criminal penalties for the violation thereof. Such a notion contravenes our federal tradition. There is no federal common law of crimes today and there never has been, and this principle extends to the military. Whatever has been the tradition of certain states, the enunciation of federal crimes and offenses has always been by statute. Even more fundamental, however, is the “general principle of legality” discussed heretofore, wherein we emphasized the dubious constitutionality of imposing criminal sanctions upon conduct previously not explicitly prohibited by law. Moreover, the Task Force on the Administration of Military Justice in the Armed Forces, in reporting to the Secretary of Defense on November 30, 1972, has flatly denounced the historical basis for Article 134: “The historical reason for having a general article — to try civilian offenses — is no longer valid, as the Uniform Code of Military Justice includes clearly defined civilian-type offenses in its punitive articles. Additionally, concern has been expressed in some quarters that the vagueness and breadth of language in this article makes it overly subject to abuse.” Vol. 1, p. 96. Finally, we observe that there exists no military necessity whatsoever for Articles 133 and 134. Punitive Articles 77 through 132, 10 U.S.C. §§ 877-932, outline substantive offenses with the specificity characteristic of a civilian criminal code. We perceive no justification in not doing likewise for those offenses presently subsumed into Articles 133 and 134. We conclude that there exist no countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values. We therefore conclude that Articles 133 and 134 fail to satisfy the standard of precision required by the due process clause and, hence, are void for vagueness. However, in so holding, we also hold that application of this decision shall be prospective only except as to those cases where (1) the issue was raised and preserved and (2) was pending in the military judicial system or pending in the federal court system on this date. VII. Having concluded that the charges against Captain Levy under Articles 133 and 134 were unconstitutional, there remains for our consideration the charges brought against appellant under Article 90. Pursuant to this article, appellant was convicted of wilful disobedience of the lawful order of Colonel Henry F. Fancy, a physician who was commanding officer of the United States Army Hospital, Fort Jackson, South Carolina. Appellant refused to obey Colonel Fancy’s written and oral order to establish and operate a dermatological training program for Special Forces aidmen. During his court-martial, as well as in his various military and civilian appeals, appellant sought to justify his refusal to obey this direct order on the same two grounds urged on this appeal. First, Levy asserted that to train Special Forces aidmen in dermatology was inconsistent with his concept of medical ethics and violative of the Hippocratic oath because this type of aidman was committing war crimes in Vietnam. Consequently, Levy’s act of training these men, he contended, would have constituted participation in a war crime. Refusing to obey an order to commit a war crime is a recognized defense under the Uniform Code of Military Justice to an Article 90 charge. During the trial, the law officer conducted a hearing outside the presence of the members of the court-martial to accept an offer of proof by appellant as to the issue of whether war crimes were being committed in Vietnam and, more specifically, as to whether Special Forces troops as a mode of operation committed war crimes in Vietnam. Upon completion of the hearing, the law officer ruled that although there perhaps occurred instances of needless brutality in the Vietnam War, nevertheless, there was “no evidence that would render this order to train aidmen illegal on the grounds that eventually these men would beome engaged in war crimes or in some other way-prostitute their medical training by employing it in crimes against humanity.” At best, appellant could establish that individual American personnel may have violated the law of war -in Vietnam. However, there never was any showing that the medical training appellant was ordered to give had any connection whatsoever with the perpetration of any war crime. Thus, appellant failed to demonstrate how the existence of war crimes committed by individuals other than those he was ordered to train was relevant to his failure to obey the order. Particularly relevant in this is that he failed to show that Special Forces aid-men as a group engaged systematically in the commission of war crimes by prostituting their medical training. The second and principal thrust of appellant’s challenge concerns the lawfulness of the order based upon improper motivation of the superior officer giving the order; this likewise is a recognized defense under the Uniform Code of Military Justice to an Article 90 charge. Appellant contends that Colonel Fancy gave the order knowing it would be disobeyed and that the sole purpose of giving this direct order was to increase the possible punishment which could be imposed on appellant. At trial, the Government introduced significant evidence in its attempt to prove the lawfulness of the order, and defense counsel conducted considerable cross-examination on this point in its attempt to prove the bad motivation behind the order, which would render it unlawful. In his instructions, the law officer instructed the court-martial that they would have to find beyond a reasonable doubt that the order was not given for the sole purpose of increasing punishment for an offense appellant was expected to commit. See, e. g., United States v. Carson, 15 U.S.C.M.A. 407 (1965). Implicit in the court’s guilty verdict returned on this charge was a conclusion that the order was not given for the proscribed purpose. In isolation, these factual determinations adverse to appellant under an admittedly valid article are not of constitutional significance and resultantly, are beyond our scope of review. See, Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950). However, there remains the necessity for determining whether the conviction under the valid Article 90 charge suffered from any constitutional infirmity by reason of its joinder at trial with the charges under Articles 133 and 134, now found to be unconstitutional. VIII. We conclude that, under the circumstances here present, joint consideration of the charges under Article 90 with charges under Articles 133 and 134 requires a finding that appellant’s right to a fair trial was prejudiced. Because most of the evidence introduced on the charges under Articles 133 and 134 would have been inadmissible under the Article 90 charge, and especially in light of the inflammatory and controversial nature of this evidence, we are persuaded that its consideration was error. In examining the possibility of inherent constitutional infirmities in a second degree murder conviction returned in a state prosecution in which the defendant had been unconstitutionally charged with first degree murder (barred because of double jeopardy), the Second Circuit held that the “question is not whether the accused was actually prejudiced, but whether there is a reasonable possibility that he was prejudiced.” United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 864 (2d Cir. 1965), cert. denied sub nom., Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). Although the danger that the jury compromised on a lesser charge, as existed in Wilkins, was not present in Captain Levy’s court-martial, compromise on a lesser charge is but one way in which a defendant can be prejudiced. Speaking for the court, Judge, now Justice, Marshall said: There could never be any certainty as to whether the jury was actually influenced by the unconstitutionally broad scope of the reprosecution or whether the accused’s defense strategy was impaired by this scope of the charge, even if there were a most sensitive examination of the entire trial record and a more suspect and controversial inquest of the jurors still alive and available. 348 F.2d at 864. The Supreme Court demands no standard of review less strict nor stringent. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), dealt with the harmless error statute, 28 U.S.C. § 391 (now 28 U.S.C. § 2111), and did not confront an error of constitutional significance as present in this case. Therefore, a showing of a lesser degree of prejudice may be presented by the appellant here than in Kotteakos, or, conversely, as it is typically stated, the prosecution must demonstrate that the error was harmless beyond a reasonable doubt. Nevertheless, Kotteakos did hold that neither a clear showing in the record of the accused’s guilt nor findings of not guilty as to some defendants which indicated that the jury did discriminate among the charges, was sufficient to overcome the prejudice to the defendants from an overly broad charge. 328 U.S. at 767, 66 S.Ct. 1239. We find, with some facility, that Levy was prejudiced by the admission of evidence on the Articles 133 and 134 charges; in any event, there undoubtedly existed a reasonable possibility that he was prejudiced. A number of factors support this conclusion. First, it is not the role of this court to weigh the evidence to determine whether Levy was or was not guilty of the Article 90 charge. Our sole responsibility is to decide whether there exists a reasonable possibility that the court-martial’s finding of guilt on the Article 90 charge was influenced by evidence admitted on the Articles 133 and 134 charges. The question of the legality of the Article 90 order was contested at trial. We cannot be certain whether the court-martial’s resolution of that question was affected by evidence of Levy’s anti-war sentiments. Second, the court-martial found under the Articles 133 and 134 charges that Levy did not write the letter to Sergeant Hancock, supra, at 777, “with intent to interfere with . . . loyalty, morale” etc., although he did write it with “culpable negligence” as to its impact. Such a finding indicates the jury did follow the judge’s instructions on lesser included offenses. Nevertheless, it does not reasonably follow from this that the jury separated its consideration of the Article 90 charge from the evidence introduced in connection with the other charges. Kotteakos, supra. Third, it is true that many of Levy’s political views were elicited by the defense in its cross-examination of Colonel Fancy. This trial strategy was designed to demonstrate an illegal motive on Fancy’s part. It is by no means clear, however, that Levy’s political views would have been emphasized in the absence of the Articles 133 and 134 charges. Indeed, Levy’s attorneys believed he would be prejudiced by a joint trial of all charges. They moved for a severance. Had the severance been granted it is quite possible the defense would have relied only on the claims that the order commanded Levy to commit a war crime (tried out of the hearing of the jury), and that compliance with the order would have violated medical ethics. We do not know how the court-martial would have progressed, nor can we speculate how the defense would have been conducted. In sum, we can only speculate what would have happened at Captain Levy’s court-martial had he been charged only with a violation of Article 90. Under such circumstances, we cannot reach the legal conclusion that Captain Levy was not prejudiced by having the court told explicitly that he had called Special Forces personnel “killers of peasants,” and “murderers of women and children,” had told enlisted men “they should refuse to go to Vietnam,” and had written, “Is Communism worse than a U.S. oriented government? . I doubt it.” We are unable to reconstruct by hindsight on the basis of reasonable predictability of human behavior, a jurisprudential setting in which a fact-finding panel of military officers could have been immunized, in theory or in fact, from the inflammatory effect of such statements derogating the very military apparatus which the fact-finders were sworn to defend and protect. This being so, we turn to the teachings of Kotteakos, supra: “But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” 328 U.S. at 765, 66 S.Ct. at 1248. We are left in grave doubt. The judgment of the district court will be reversed and the cause remanded for the purpose of issuing the writ of habeas corpus unless within ninety days of the date hereof the appropriate military authorities shall grant to Howard B. Levy a new trial on the Article 90 charge. APPENDIX 213. ARTICLE 134 — GENERAL ARTICLE a. General Discussion. Article 134 makes punishable all acts not specifically proscribed in any other article of the code when they amount to disorders or neglects to the prejudice of good order and discipline in the armed forces or to conduct of a nature to bring discredit upon the armed forces, or constitute noncapi-tal crimes or offenses denounced by enactment of Congress or under authority of Congress. If conduct of this nature is specifically made punishable by another article, it should be charged as a violation of that article; and if it is not specifically made punishable by another article, it should be charged as a violation of Article 134. But see 212. The specification alleging a violation of Article 134 need not expressly allege that the conduct was a disorder or neglect, or that it was of a nature to bring discredit upon the armed forces, or that it constituted a crime or offense not capital. Under a specification alleging a violation of Article 134, a finding of guilty may properly be returned if the court-martial is convinced beyond a reasonable doubt that the acts of the accused constituted a disorder or neglect to the prejudice of good order and discipline in the armed forces, that his conduct was of a nature to bring discredit upon the armed forces, or that his conduct violated an applicable statute enacted by or under authority of Congress. The same conduct may constitute a disorder or neglect to the prejudice of good order and discipline in the armed forces and at the same time be of a nature to bring discredit upon the armed forces. Although evidence presented at the trial of an offense alleged under Article 134 may be insufficient to establish the commission of a crime or offense not capital, it may nevertheless be sufficient to establish a disorder or neglect to the prejudice of good order and discipline or service-discrediting conduct and thus support a conviction. See 213d. b. Disorders and Neglects to the Prejudice of Good Order and Discipline in the Armed Forces Discussion. The disorders and neglects punishable under this clause of Article 134 include those acts or omissions to the prejudice of good order and discipline not specifically mentioned in other articles. “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, the article does not contemplate these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. Instances of prejudicial disorders and neglects in the case of an officer are rendering himself unfit for duty by excessive use of intoxicants or drugs; drunkenness; and allowing a member of his command to go on duty knowing him to be drunk. Instances of prejudicial disorders and neglects in the case of enlisted persons are appearing in improper uniform; wrongfully abusive use of military vehicles ; careless discharge of firearms; and impersonating an officer. A breach of a custom of the service may result in a violation of this clause of Article 134. In its legal sense the word “custom” imports something more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common consent have attained the force of law in the military or other community affected by them. There can be no such thing as a custom that is contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been long abandoned. Many customs of the service are now set forth in regulations of the various armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear. It is a violation of this article wrongfully to possess or use marihuana or a habit forming narcotic drug. Possession or use of marihuana or a habit forming narcotic drug may be inferred to be wrongful unless the contrary appears. A person’s possession or use of a drug is innocent when the drug has been duly prescribed for him by a physician and the prescription has not been obtained by fraud, when he possesses it in the performance of his duty, or when his possession or use of marihuana or a narcotic drug is without knowledge of the presence or the nature of the substance (see 154a(4)). If an issue is raised by the evidence as to whether possession or use by an accused charged with this offense was innocent on one of these grounds, a showing that it was not innocent on that ground becomes a requirement of proof. c. Conduct of a Nature to Bring Discredit Upon the Armed Forces Discussion. “Discredit” as here used means “to injure the reputation of.” This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Any discreditable conduct not denounced by a specific article of the code is punishable under this clause. Acts in violation of local civil law may be punished if they are of a nature to bring discredit upon the armed forces. Included within the conduct which may be found to be within the proscription of this clause are adultery, bigamy, negligent homicide, fleeing the scene of an accident, indecent acts, and dishonorable failure to pay debts. d. General Requirements of Proof Under Article 134 The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital (213e), the proof must establish every element of the crime or offense as required by the applicable law. One element of proof common to every case tried under Article 134, except one tried as a crime or offense not capital, is that the conduct of the accused, under the circumstances, was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. This element is common to all the offenses discussed in 213f and should be included in instructions as to the elements of these offenses, in addition to their specific elements. Subject to the foregoing, an offense under either of the first two clauses of Article 134 requires the following proof: (1) That the accused did or failed to do the acts, as alleged; and (2) That under the circumstances his conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. e. Crimes and Offenses not Capital Crimes and offenses not capital which are referred to and made punishable by Article 134 include those acts or omissions, not made punishable by another article, which are denounced as noncapi-tal crimes or offenses by enactments of Congress or under authority of Congress and made triable in the Federal civil courts. State and foreign laws are not included within the crimes and offenses not capital referred to in Article 134 and violations thereof may not be prosecuted as such except insofar as State law becomes Federal law of local application under section 13 of title 18 of the United States Code. On the other hand, an act which is a violation of a State law or a foreign law may constitute a disorder or neglect to the prejudice of good order and discipline or conduct of a nature to bring discredit upon the armed forces and so be punishable under the first or second clause of Article 134. For the purpose of court-martial jurisdiction, the laws which may be applied under the clause, “crimes and offenses not capital,” are divided into two groups: (1) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses denounced by the United States Code, such as counterfeiting (18 U.S.C. § 471), various frauds against the Government not denounced by Article 132, and other offenses which are directly injurious to the Government and are made punishable wherever committed are made applicable under the third clause of Article 134 to all persons subject to the code regardless of where the wrongful act or omission occurred. The Narcotic Drugs Import and Export Act (21 U.S.C. §§ 171-185) falls within this group, being applicable to the importation of proscribed drugs not only into areas over which the United States is sovereign but also into territories subject to the control of the United States for a special purpose, including military installations on foreign soil. (2) Crimes and offenses of local application. Those noncapital crimes and offenses which are listed in the United States Code but which are limited in their applicability to the special maritime and territorial jurisdiction of the United States as defined in the United States Code, those applicable within the continental United States, and those included in the law of the District of Columbia, in the law of a Commonwealth, Territory or possession of the United States, and in the laws applicable in reservations or places over which the United States has exclusive jurisdiction or concurrent jurisdiction with a State, which are not specifically included in another article of the code, are made applicable under Article 134 to all persons subject to the code who commit these crimes or offenses within the geographical boundaries of the areas in which they are applicable. For the law applicable in a reservation or a place over which the United States has exclusive jurisdiction or concurrent jurisdiction with a State, see 18 U.S.C. § 13. A person subject to the code cannot be prosecuted under the third clause of Article 134 for having committed a crime or offense, not capital, if the act occurred in a place where the law in question did not apply. For example, a person cannot be prosecuted under the third clause of Article 134 for having committed a crime or offense, not capital, when the act occurred in occupied foreign territory merely because that act would have been an offense against the law of the District of Columbia if it had been committed there. Such an act might, however, regardless of where committed, in a proper case be prosecuted under the first or second clause of Article 134 as a disorder or neglect to the prejudice of good order and discipline or as an offense of a nature to bring discredit upon the armed forces. f. Various Types of Offenses Under Article 13 b (1) Assaults Involving Intent to Commit Certain Offenses of a Civil Nature Discussion. See 207 (Assault). The assaults here designated as being punishable under Article 134 are those perpetrated with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking. An assault with intent to commit an offense is not necessarily the equivalent of an attempt to commit the intended offense, for an assault can be committed with intent to commit an offense without achieving that degree of proximity to consummation of an intended offense which is essential to an attempt. See 159. Some of these assaults will be discussed below. (a) Assault with intent to murder. This is an assault committed with a specific intent to kill, under such circumstances that, if death resulted therefrom, the offense of murder would have been committed. To constitute an assault with intent to murder with a firearm, it is not necessary that the weapon be discharged; and in no case is the actual infliction of injury necessary. Thus, if a man with intent to murder another deliberately assaults him by shooting at him, the fact that he misses does not alter the character of the offense. When the intent to murder exists, the fact that for some unknown reason the actual consummation of the murder by the means employed is impossible is not a defense if the means are apparently adapted to the end in view. Thus, if a person intending to murder another loads his rifle with what he believes to be a live cartridge and aims and discharges his rifle at the other, it is no defense that, by accident, he used a dummy cartridge. The intent to murder need not be directed against the person assaulted if the assault is committed with intent to murder some person. If the accused, intending to murder A, shoots at B, mistaking him for A, he is guilty of assaulting B with intent to murder him. Also, if a man fires into a group with intent to murder someone, he is guilty of an assault with intent to murder each member of the group. (5) Assault with intent to commit voluntary manslaughter. This is an assault committed with a specific intent to kill under such circumstances that, if death resulted therefrom, the offense of voluntary manslaughter would have been committed. There can be no assault with intent to commit involuntary manslaughter, for involuntary manslaughter is not a crime capable of being intentionally committed. (c) Assault with intent to commit rape. This is an assault committed by a man with a specific intent to have sexual intercourse with a woman not his wife by force and without her consent. The accused must have intended to overcome any resistance by force, actual or constructive, and to penetrate the woman’s person. Any lesser intent will not suffice. Indecent advances and impor-tunities, however earnest, not accompanied by such an intent, do not constitute this offense, nor do mere preparations to rape not amounting to an assault. Thus, if a man, intending to rape a woman, conceals himself in her room to await a favorable opportunity to execute his design, but before the opportunity arises is discovered and flees, he is not guilty of an assault with intent to commit rape. No actual touching is necessary. If a man enters a woman’s room and gets in the bed where she is for the purpose of raping her, he commits the offense under discussion although he does not touch the woman. Once an assault with intent to commit rape is made, it is no defense that the man voluntarily desisted. Lesser offenses that may be included in a charge of assault with intent to rape are indecent assault and assault. (d) Assault with intent to rob. This is an assault committed with a specific intent to steal property by taking it from the person or in the presence of another, against his will, by means of force or violence or putting him in fear. The fact that the accused intended to take only money and that the person he intended to rob had none is not a defense. (e) Assault with intent to commit sodomy. The assault must be against a human being and must be committed with a specific intent to commit sodomy. Any lesser intent, or different intent, will not suffice. Proof, (a) That the accused assaulted a certain person, as alleged; (b) that the accused at the time of the assault had a specific intent to kill, as required for murder or voluntary manslaughter, or to commit rape, robbery, sodomy, arson, burglary, or housebreaking, as alleged; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (2) Indecent Assault Discussion. See 207 (Assault). An indecent assault is the taking by a man of indecent, lewd, or lascivious liberties with the person of a female not his wife without her consent and against her will, with intent to gratify his lust or sexual desires. In a proper case indecent assault may be an included offense of assault with intent to commit rape. Proof. (a) That the accused assaulted a certain female not his wife by taking indecent, lewd, or lascivious liberties with her person; (b) that the acts were done with intent to gratify the lust or sexual desires of the accused; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (3) Indecent Acts With a Child Under the Age of 16 Years Discussion. This offense consists of taking any immoral, improper or indecent liberties with, or the commission of any lewd or lascivious act upon or with the body of any child of either sex under the age of 16 years with the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of the person committing the act, or of the child, or of both. When the accused is charged with taking indecent liberties, the liberties must be taken in the physical presence of the child, but it is not essential that the evidence show physical contact between the accused and the child. Thus, one who with the requisite intent exposes his private parts to a child under the age of sixteen years may be found guilty of this offense. Nonconsent by the child to the act or conduct is not essential to this offense, nor is consent a defense. Proof. (a) That the accused took certain immoral, improper or indecent liberties with a certain child, as alleged; or that he performed a certain lewd or lascivious act upon or with the body of a certain child, as alleged; (b) that the child was under the age of 16 years, as alleged; (c) that the intent of the accused was to arouse, appeal to, or gratify the lust or passions or sexual desires of the accused or the child or both, as alleged; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (4) False Swearing Discussion. False swearing is the making under lawful oath, not in a judicial proceeding or course of justice, of any false statement, oral or written, not believing the statement to be true. It may consist, for example, in making a false oath to an affidavit. The oath may be taken before any person authorized by law to administer oaths. See Article 136 and chapter XXII as to the authority of certain persons to administer oaths, and see 147a as to taking judicial notice of the signatures of persons authorized to administer oaths. An oath includes an affirmation when the latter is authorized in lieu of an oath. The principles set forth in the last two paragraphs of the discussion of perjury in 210 apply also to false swearing. Proof, (a) That the accused took an oath or its equivalent, as alleged; (b) that the oath was administered to the accused in a matter in which an oath was required or authorized by law; (c) that the oath was administered by a person having authority to do so; (d) that upon this oath the accused made or subscribed a certain statement, as alleged; (e) that the statement was false; (/) that the accused did not believe the statement to be true; and (g) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (5) Disloyal Statement Undermining Discipline and Loyalty Discussion. Certain disloyal statements by military personnel may lack the necessary elements to constitute an offense under 18 U.S.C. §§ 2385, 2387, and 2388, but nevertheless, under the circumstances, be punishable as conduct to the prejudice of good order and discipline or conduct reflecting discredit upon the armed forces. Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government. Proof, (a) That the accused made the disloyal statement, as alleged; (6) that the accused at the time of making the statement did so with the design alleged; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (6) Misprision of a Felony Discussion. A person who has knowledge of the actual commission of a felony by another and who conceals and does not as soon as possible make known the same to the civil or military authorities is guilty of misprision of the felony. Any offense of a civil nature punishable under the authority of the code by death or by confinement for a term exceeding one year is a felony. A mere failure or refusal to disclose the felony without some positive act of concealment does not make one guilty of this offense. Making a false entry in an account book for the purpose of concealing a felonious theft committed by another, and intimidating a witness of a felony, are examples of a positive act of concealment. Proof. (a) That the accused had knowledge of the actual commission of a felony by another; (6) that he concealed and did not as soon as possible make known the felony to the civil or military authorities; and (e) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (7) Dishonorable Failure to Pay Debts Discussion. A dishonorable failure to pay a just debt under circumstances which bring or tend to bring discredit upon the armed forces or which are prejudicial to good order and discipline in the armed forces is an offense under this article. More than mere negligence in the nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one’s just obligations. For a debt to form the basis for this offense, the accused must not have had a defense, or an equivalent offset or counterclaim, either in fact or according to his belief at the time alleged. The offense should not be charged if there was a genuine dispute between the parties as to the facts or law relating to the debt which would affect the obligation of the accused to pay. The offense is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor with respect to payment. The length of the period of nonpayment and any denial of his indebtedness which the accused may have made may tend to prove that his conduct was dishonorable, but the court-martial may convict only if it finds from all of the evidence that his conduct was in fact dishonorable. A commissioned officer may be tried for this offense under either Article 133 or Article 134, as the circumstances may warrant. Proof. (a) That the accused was indebted to a certain person or entity in a certain sum, as alleged; (b) that the debt became due and payable on or about a certain date, as alleged; (c) that at the time alleged while the debt was still due and payable, the accused dishonorably failed to pay the debt; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (8) Dishonorable Failure to Maintain Funds for Payment of Checks Discussion. One who, having made and uttered a check, thereafter dishonorably fails to maintain sufficient funds in or credit with the drawee bank for its payment upon presentment, is chargeable under this article. This offense differs from the offense denounced by Article 123a in that there need be no intent to defraud or deceive at the time of making, drawing, uttering or delivery, and that the accused need not know at that time that he did not or would not' have sufficient funds for payment. The gist of the offense lies in the conduct of the accused after uttering the instrument. Mere negligence in maintaining one’s bank balance is insufficient as a basis for this offense, and the accused’s conduct must reflect bad faith or gross indifference in this regard. As in 213f(7), dishonorable conduct of the accused is necessary, and the other principles discussed in 213f(7) likewise apply. Proof, (a) That the accused made and uttered a certain check, as alleged; (6) that thereafter the accused dishonorably failed to maintain funds in or credit with the drawee bank for payment of the check upon its presentment for payment in due course; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (9) Bigamy Discussion. Bigamy is the contracting of another marriage by one who already has a lawful spouse living. If a prior marriage was void, it will have created no status of “lawful spouse.” However, if it was merely voidable and has not been voided by competent court action, this circumstance is no defense. A belief that a prior marriage has been terminated by divorce, death of the other spouse, or otherwise, constitutes a defense only if the belief was reasonable (154a(4)). Proof, (a) That, at the time and place alleged, the accused married a certain person, as alléged; (b) that, at the time of this marriage there existed a prior valid marriage entered into by the accused with another person, as alleged, which prior marriage was then undissolved; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (10) Communicating a Threat Discussion. This offense consists of wrongfully communicating an avowed present determination or intent to injure the person, property, or reputation of another presently or in the future. The communication may be made to the person threatened or to another. To establish the threat it is necessary to show that the declaration in question was made. It is not necessary, however, that the accused actually entertained the intention stated in the declaration. However, a declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving injury to another. Proof. (a) That the accused communicated certain language expressing a present determination or intent wrongfully to injure another person, as alleged, presently or in the future; (6) that the communication was made known to that person or to a third person, as alleged; (c) that the communication was wrongful and without justification or excuse; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (11) False and Unauthorized Passes, Permits, Discharge Certificates, and Identification Cards Discussion. Certain acts with respect to military or official passes, permits, discharge certificates, or identification cards may be punishable under this article. The wrongful use, possession, sale, or other disposition of a false or unauthorized pass, permit, discharge certificate, or identification card with knowledge that it was false or unauthorized may be charged under this article. Although it is not necessary that the use, possession, sale, or disposition of the document be with an intent to deceive or defraud, the use or possession of a false or unauthorized document with such aii intent is an aggravating circumstance authorizing more severe punishment. See 127c. See also 202A for a definition of intent to deceive and intent to defraud. The false making or altering of a military or official pass, permit, discharge certificate, or identification card may also be charged under this article. As to this offense, there is no requirement of knowledge or of an intent to deceive or defraud. The phrase “military or official pass, permit, discharge certificate, or identification card” includes, as well as the more usual forms of these documents, all documents issued by any governmental agency for the purpose of identification and copies and facsimiles thereof. Proof. Wrongful use or possession of a false or unauthorized pass, permit, discharge certificate, or identification card. (а) That the accused wrongfully used or had in his possession a certain military or unauthorized as alleged; (c) that the icate, or identification card, as alleged; (б) that the pass, permit, discharge certificate, or identification card was false or unauthorized as alleged; (c) that the accused knew that the pass, permit, discharge certificate, or identification card was false or unauthorized, as alleged; (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces; and, if alleged, (e) that the use or possession was with intent to deceive or defraud. Wrongful sale or disposition of a pass, permit, discharge certificate or identification card. (a) That the accused wrongfully sold or disposed of a certain military or official pass, permit, discharge certificate, or identification card, as alleged; (6) that the pass, permit, discharge certificate, or identification card was false or unauthorized, as alleged; (c) that the accused knew that the pass, permit, discharge certificate, or identification card was false or unauthorized, as alleged; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Falsely making or altering a pass, permit, discharge certificate, or identification card. (a) That the accused wrongfully and falsely made or altered a certain military or official pass, permit, discharge certificate, or identification card, as alleged; and (b) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (12) Negligent Homicide Discussion. Negligent homicide is any unlawful homicide which is the result of simple negligence. Simple negligence is a lesser degree of carelessness than culpable negligence. See 198b. It is the absence of due care, that is, an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care for the safety of others which a reasonably prudent man would have exercised under the same or similar circumstances. Proof, (a) That the person named or described is dead; (6) that his death was unlawfully caused by the acts or omissions of the accused, as alleged; (c) that the acts or omissions of the' accused constituted negligence; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (13) Offenses Against Correctional Custody Discussion. Escape from correctional custody is the act of a person undergoing the punishment of correctional custody pursuant to Article 15 (131c(4) ) who, before being set at liberty by proper authority, casts off any physical restraint imposed by his custodian or by the place or conditions of custody. Breach of restraint during correctional custody is the act of a person undergoing the punishment who, in the absence of physical restraint imposed by a custodian or by the place or conditions of custody, breaches any form of restraint imposed during this period. See 57b as to the manner of determining the legality of the imposition of correctional custody. Proof. Escwpe from correctional custody. (a) That the accused was duly placed in correctional custody; (5) that, at the time and place alleged, the accused freed himself from the physical restraint of his correctional custody, as alleged, before having been released therefrom by proper authority; and (c) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Breach of correctional custody (a) That the accused was duly placed in correctional custody; (6) that while in such correctional custody, a certain restraint was imposed upon the accused; (c) that, at the time and place alleged, the accused broke this restraint, before having been released from the correctional custody or relieved of the restraint by proper authority; and (d) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (14) Receiving Stolen Property Discussion. “Receiving stolen property” is the receiving, buying, or concealing of any article or thing of value, the property of another person, with knowledge that the article or thing has been stolen. While an actual thief is not criminally liable for receiving the property he has stolen, one who may be criminally responsible as a principal to the larceny, when not the actual thief (156), can be convicted of knowingly receiving the stolen property under Article 134. Thus, if A procures B to steal several items, agreeing to pay him a certain price for them, and B subsequently steals them and delivers them to A, A can be found guilty of knowingly receiving stolen property despite the fact that his conduct would make him guilty of larceny as a principal. Proof. (a) That the accused received, bought or concealed certain property of a value alleged; (6) that the property belonged to another person named or described; (c) that the property had been stolen; (d) that the accused then knew that the property had been stolen; and (e) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. SEITZ, Chief Judge (concurring in part and dissenting in part). While I agree with the well-reasoned opinion of the majority finding Articles 133 and 134 unconstitutionally vague, I cannot join in the majority’s ultimate disposition of the case. I believe that despite the joinder of the Article 90 charge with the Articles 133 and 134 charges, there was no substantial prejudice to Captain Levy’s constitutional right to a fair trial on the Article 90 charge. As pointed out in the majority opinion, Captain Levy defended against the Article 90 charge on three counts: (1) the order was illegal because primarily motivated by a desire to increase punishment — a defense cognizable under the Uniform Code of Military Justice; (2) the order was illegal because it ordered the defendant to commit a war crime — a defense likewise cognizable under the UCMJ; and (3) the order was illegal because it forced the defendant to violate his medical ethics — a defense not recognized under the UCMJ. It is to be noted that it was never contended by Captain Levy that he did in fact obey the order. As a matter of law, only (1) and (2) were sustainable defenses, and only (1) was submitted to the court-martial. Point (2) was tried outside the hearing of the court-martial and only before the law officer because it involved an initial determination of law. Since that determination was made adversely to defendant by the law officer, it was never submitted to the court-martial for its consideration. Point (3) was ruled not to be a legal defense, and the law officer instructed the jury that even if they found such a conflict, they would not be entitled to acquit Captain Levy on that basis. Against this background, this court’s inquiry should be two-fold: (A) whether evidence introduced on the two unconstitutional charges substantially prejudiced Captain Levy’s constitutional right to a fair trial on the Article 90 charge; and (B) whether the presumption of validity attaching to a general sentence is rebutted by direct evidence on this record, where there was joint consideration of the Article 90 charge with the other two unconstitutional convictions for sentencing purposes. A. The first inquiry necessarily must be whether the evidence on the unconstitutional charges prejudiced defendant’s right to a fair trial on the Article 90 charge in derogation of his right to Fifth Amendment Due Process. However, because of the peculiarities of a court-martial proceeding, the applicable standard of review is by no means clear. There are two elements not present in normal civilian proceedings which complicate our task on review in determining whether or not there was sufficient prejudice to warrant reversal. The first is that, as here, there can be joinder in one trial of offenses which have neither a common legal nor a common factual basis. Thus, Captain Levy was tried in one proceeding for violations of one set of Articles — 133 and 134 — which had common legal elements and could be proven by the introduction of similar evidence, and for violation of another Article — 90—which involved completely separate legal elements and required totally different evidence for conviction. Federal rules of procedure would prohibit such a joinder in a federal civilian proceeding. Fed.R.Crim.P. 8. Thus, federal civilian courts would rarely, if ever, be faced with reviewing the type of situation with which we áre here confronted. The second element peculiar to the military judicial system is that a defendant can take the stand and limit testimony to any one charge, or any number of charges less than the whole, of his own choosing. This would seem to be a compensating factor for the military policy to join all serious offenses against a defendant into one trial, discussed above. Manual for Courts-Martial j[.f[30h, 33f (1951). For example, in the instant case, Captain Levy could have taken the stand solely to defend against the Article 90 charge without subjecting himself to examination on the Articles 133 and 134 charges. Thus, taking the witness stand in a court-martial proceeding does not operate as a complete waiver of one’s Fifth Amendment right against self-incrimination. Instead, it operates as a waiver only as to those charges specified by the defendant. Because of these peculiarities extant only in the military system, and the resultant lack of actual similarity to seemingly analogous situations in civilian proceedings, the cases relied upon by the majority are not particularly enlightening. One line of cases involves introduction of unconstitutionally seized evidence probative of guilt on the offense charged. The second line of cases involves joined charges where incriminating evidence is introduced on one count which is subsequently determined unconstitutionally tainted, and that evidence overlaps as to elements of proof on the otherwise valid charge. However, none of these cases involve the type of situation present here where there is no overlap of probative evidence because of the joinder of distinct charges involving distinct and different legal and factual elements of proof. The standard of review applied here by the majority — “reasonable possibility of prejudice” — was enunciated by the Supreme Court in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Examination of that case only illustrates the differences confronting the Court there and that confronting the court here. In Fahy, the unconstitutional element was the introduction into evidence of a can of black paint which had been seized in violation of the Fourth Amendment. Defendant was charged with painting swastikas on synagogues. Therefore, the illegally seized evidence tended to show participation in the criminal conduct charged. Necessarily, careful scrutiny was called for, since the tainted evidence directly reflected on an inference of guilt. Development of this standard of close scrutiny, in fact, can be traced to the highly analogous situation involving introduction at trial of a coerced confession. However, those factual and legal situations are not analogous to the operative facts of the trial and evidence introduced in the instant case. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we have an example of the second type of cases, involving a joinder of charges. There, the defendant had been tried on two related charges: burglary and larceny. The Court held the larceny conviction had been obtained in violation of defendant’s constitutional right against double jeopardy. Because it was a direct appeal, the Court remanded the case for a determination of whether there was any prejudicial effect on the otherwise valid burglary conviction by reason of the joint trial. However, unlike the situation here with the joined Article 90 charge, there were similar and overlapping elements of proof between the larceny and burglary charges. Some of those elements which might have been related but inadmissible as evidence of guilt on the burglary charge may have been introduced as relevant evidence on the larceny charge. Further, joinder of the charges may have inhibited defendant’s ability to offer exculpatory testimony on the burglary count. Similarly the joinder of the two related charges may have indicated to the jury a propensity to engage in such conduct. Consequently, substantial potential for prejudice inhered in the very nature of the joinder there reviewed. An interesting hybrid of these two types of cases is revealed in the case relied upon by the majority — United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (.1966). There, the court faced a petitioner who had been tried once for first degree murder and had been convicted of second degree murder. On appeal, the state court reversed his conviction. In a subsequent trial, he was again charged with first degree murder and found guilty of second degree murder. On collateral attack, the court of appeals annulled the conviction as having been obtained in violation of petitioner’s right against double jeopardy. In making its review, the court applied the “reasonable possibility of prejudice” standard set out in Fahy. I submit that that situation differs markedly from the one before, us. The entire proceeding in Hetenyi was a product of a violation of defendant’s constitutional right against double jeopardy. The second trial was grounded upon the constitutionally tainted charge — first degree murder, and it was only because of the doctrine of lesser included offenses that the jury was able to bring in a lesser conviction. However, none of these various elements appear in the instant case. The evidence which was introduced as to defendant’s criminal conduct under the two unconstitutional articles was completely separable from the evidence used to convict on the Article 90 charge. Further, there is ample indication that the court-martial did in fact separate out the elements of the various charges and brought in independent convictions on the unrelated counts. Additionally, Captain Levy could have exercised his right to take the stand and testify only concerning the Article 90 charge without waiving his right not to testify on the other charges. Consequently, his ability to offer personally exculpatory evidence was not infringed by reason of the joinder. In fact, the law officer carefully made clear to defendant that he had the right to select those charges on which he would and would not testify. Finally, because of our limited scope of review in military habeas corpus, we should stay our hand unless the requisite prejudice is established. In light of these considerations, I cannot agree with the majority that the applicable standard of review as to the Article 90 charge is whether there is a “reasonable possibility of prejudice.” Rather, I believe the applicable standard of review should be whether defendant’s right to a fair trial on the Article 90 charge was substantially prejudiced by its joinder with the unrelated unconstitutional charges. Applying this standard of review, the critical determination becomes whether the joinder of the charges affected the ability of the fact finders to separate out the component charges and to make a factual determination of guilt on the Article 90 charge based solely on the evidence relevant to that charge. Even assuming the burden of proof to be on the Government, after an extensive examination of the record, I am satisfied the joinder of the charges at trial did not substantially prejudice Captain Levy’s constitutional right to a fair trial on the Article 90 charge. I consider four points dispositive in reaching this conclusion. First, defendant never contended that.he obeyed the order. Nor was any rebuttal offered to the Government’s proof that the order was not obeyed. Therefore, the court-martial could find conclusively that the order in fact was not obeyed. Secondly, I note that the court-martial was presented with overwhelming evidence that the order did not have as its primary motive the increasing of defendant’s punishment. Not only did the court-martial have the benefit of extensive testimony by Colonel Fancy, the commanding officer of the hospital, who gave the order, but it had the benefit of examining the order of events in reaching a sustainable conclusion on this point. These events showed that while the order was given in early October, Colonel Fancy continued his efforts to persuade Captain Levy to comply with the order even after the initial refusal to obey. Only after several attempts at such persuasion had been rejected by Captain Levy did Colonel Fancy finally press charges. Colonel Fancy initiated this action in November, a month after the giving of, and initial refusal to comply with, the order. The court was not presented with a situation where the order was given one day and the charges drawn up the next. Thirdly, of the five charges and specifications brought against Captain Levy under the three Articles — 90, 133 and 134, the court-martial brought back verdicts consistent with the indictment on only the three charges here under review. On the two remaining charges, the court brought in verdicts for lesser offenses, tantamount under the UCMJ to an acquittal on those charges. However much the majority may discount it, this shows a discrimination by the members of the court-martial as to the evidence relating to the various charges; such discrimination is extremely relevant in light of the presence of the other elements which I find militate in favor of upholding this conviction. Fourthly, much of the allegedly inflammatory evidence introduced at trial was brought out by the defense in its effort to prove the improper motivation behind the order. On retrial, I do not see how an effective defense to the Article 90 charge could be predicated upon this ground without a similarly exhaustive examination of this subject matter by defense counsel. This last conclusion is not based upon mere speculation as to what might happen, as contended by my colleagues. Rather, it is based upon a frank examination of applicable military law. Captain Levy defended on three grounds. None of these involved the defense that he attempted to obey the order; instead, they were exculpatory defenses for his failure to obey the order. The third defense raised — that the order was against medical ethics — would not appear to be a valid defense under the UCMJ. Further, I agree with the majority’s conclusion that the law officer’s refusal to recognize this defense raises no substantial constitutional question. The second defense — that defendant was ordered to commit war crimes —was decided adversely to defendant as a matter of law outside the hearing of the court-martial; elements of the third defense could conceivably be subsumed into the second. I do not understand the majority to contend that the law officer was prejudiced in his conduct of the trial by the joinder of charges into one trial, nor do I believe such a position sustainable. Neither do I think the refusal to recognize this second defense resulted in constitutional error. Thus, defendant was relegated — and at a future trial would be relegated, accepting the validity of the law officer’s conclusions on the war crimes issue as we must — to predicating a successful defense upon proving the order was illegal because given primarily to increase punishment — the first defense. Because of this, because of the overwhelming evidence against defendant on this point the first time around, and because the joinder of charges did not prejudice Captain Levy’s right to offer testimony in defense to this charge only, I conclude that no substantial prejudice to Captain Levy’s constitutional right to a fair trial on the Article 90 charge appears on this record. B. Having made this initial determination, the next issue is whether the presumption of validity which attaches to the general sentence under the Claasen rule is rebutted. Claasen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891). If there be a valid charge found on review, and the general sentence imposed does not exceed the statutory maximum which could be imposed on that charge, a presumption attaches that the court • sentenced only on the valid charge. Therefore, the test becomes whether, from direct evidence on the record, the presumption of validity which here attaches to the general sentence is rebutted by the court-martial's consideration of the valid Article 90 conviction together with the two constitutionally invalid convictions for sentencing purposes. This is to be distinguished from the initial determination made in (A). There, the issue was whether the joinder of the charges prejudicially affected the ability of the fact finders to separate out the particular charges and to make a factual determination as to the Article 90 charge solely on the evidence relevant to that charge. Here, however, the question is whether there is affirmative evidence on the record that once a determination of guilt was made as to each of the charges, the court-martial considered the invalid convictions together with the valid Article 90 conviction in arriving at the general sentence ultimately imposed. It is to be emphasized that much more is required to rebut the presumption than the mere fact that the court-martial retired to consider the sentence having all three convictions before them. Rather, strong and convincing evidence rebutting the presumption under Claa-sen would have to appear on the face of the record; the burden of proof is on the defendant. Absent such evidence, the presumption becomes conclusive in this case since the three year general sentence imposed was within the statutory maximum available for conviction under Article 90. In my scrutiny of the record, I have not found any such direct manifestation of impropriety in the sentencing sufficient to rebut the Claasen presumption. Consequently, I find no basis on which to vacate this sentence. In short, I believe this record reflects no substantial prejudice to defendant by reason of a joint trial on all the charges; neither do I find the presumption attaching to the general sentence rebutted. Thus, while I agree with the majority that Articles 133 and 134 are unconstitutional, I find the Article 90 conviction unimpugned. Therefore, I would affirm the judgment of the district court denying the writ. . Additional specifications under Articles 133 and 134 included: Additional Charge II: Violation of the Uniform Code of Military Justice, Article 133. DA GGMO NO. 1 17 January 1969 Specification: In that Captain Howard B. Levy, United States Army, Headquarters and Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, with intent to impair and interfere with the performance of a member of the military forces of the United States, did, at or near Columbia, South Carolina, on or about September 1965, conduct himself in a manner unbecoming an officer and gentleman by wrongfully and dishonorably communicating by mailing to Sergeant First Class Geoffrey Hancock, Jr., a member of the United States Army then stationed in Viet Nam, and known by the said Captain Howard B. Levy to be so stationed, but not personally known to him, a letter written by his (Levy’s) own hand containing the following statements: “Dear Geoffrey: “Let me begin by introducing myself. My name is Howard Levy. I am an Army Dermatologist at Fort Jackson, S. C. . . . I would not attempt to contest your views on the military situation there although I would suggest that you read (if you have not already done so) Jules Roy’s book, ‘The Battle of DienBienPhu’. I am, however, deeply distressed at your reasons for fighting in Viet Nam. I am one of those ‘people back in the States’ who actively opposes our efforts there & would refuse to serve' there if I were so assigned. tf “The only question that remains, is essentially 1) were we merely naive and therefore did we make unintentional mistakes or 2) does the U. S. foreign policy represent a diabolical evil. As you would guess, I opt for the second proposition. ...” “Is Communism worse than a U. S. oriented Government? .... Are the North Viet Namese worse off than the South Viet Namese? I doubt it. “Geoffrey who are you fighting for? Do you know? Have you thought about it? You’re real battle is back here in the U. S. but why must I fight it for you? The same people who suppress Negroes and poor whites here are doing it all over again all over the world and your [sic] helping them. Why? You, no doubt, know about the terror the whites have inflicted upon Negroes in our country. Aren’t you guilty of the same thing with regard the Viet Namese? A dead woman is a dead woman in Alabama and in Viet Nam. To destroy a child’s life in Viet Nam equals a destroyed life in Harlem. For what cause? Democracy, Diem, Trujillo, Batista, Chang Kai Shek, Franco, Tshombe — Bullshit? . . . ” “I would hasten to remind you that despite your obvious courage and enthusiasm Viet Nam is not our country and you are not a Viet Namese. At least the Viet Cong have that on their side. . . . Geoffrey these people may not be sophisticated (American Style) but their [sic] grown men and women who have a right to live and choose their own government. You know they’re even allowed to make a mistake —at least let them make it — don’t make it for them. . . . ”, or words to that effect. Additional Charge III: Violation of the Uniform Code of Military Justice, Article 134. Specification: In that Captain Howard B. Levy, United States Army, Headquarters and Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina with intent to interfere with, impair, and influence the loyalty, morale, and discipline of the military forces of the United States, did at or near Columbia, South Carolina, on or about September 1965, advise, counsel, urge and attempt to cause insubordination, disloyalty and refusal of duty by a member of the military forces of the United States by communicating by mailing to Sergeant First Class Geoffrey Hancock, Jr., a member of the United States military forces then stationed in Viet Nam, and known by the said Captain Howard B. Levy to be so stationed, but not personally known to him, a letter written by his (Levy’s) own hand containing statements to the following effect: (1) advocating opposition to the United States involvement in the Viet Nam war; (2) describing United States foreign policy as a “diabolical evil” designed more to protect selfish American business interests than to contain the threat and aggression of world Communism ; (3) characterizing the United States position and the policy in Viet Nam as a suppression of Negroes and poor whites; (4) praising Communists, and Communist countries, including North Viet Nam and the Viet Cong as being better than the United States and the United States oriented countries ; (5) declaring that he (Levy) would refuse to serve inViet Nam, and that he has actively opposed the United States involvement in Viet Nam; (6) encouraging Sergeant First Class Geoffrey Hancock, Jr., to give up Ms involvement and commitment as a United States serviceman fighting in Viet Nam, and to return to the United States to fight for the cause of the suppressed Negroes and poor whites; (7) ridiculing and criticizing Sergeant First Class Geoffrey Hancock, Jr.’s motive for being in Viet Nam, stating that Sergeant Hancock does not have the best interests of the Viet Namese people at heart, in violation of Title 18, Section 2387 United States Code, June 25, 1948, Chapter 645, 62 Statutes 811, amended May 24, 1949, Chapter 139, Section 46, 63 Statutes 96, a Statute of the United States of America. . United States v. Levy, C.M. 416, 463, 39 C.M.R. 672 (1968), petition for review denied, No. 21, 641, 18 U.S.C.M.A. 627 (1969). . Levy v. Corcoran, 128 U.S.App.D.C. 388, 389 F.2d 929, application for stay denied, 387 U.S. 915, 87 S.Ct. 2026, 18 L.Ed.2d 968, cert. denied, 389 U.S. 960, 88 S.Ct. 337, 19 L.Ed.2d 369 (1967) ; Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967) ; Levy v. Resor, Civ. No. 67-442 (D.S.C. July 5, 1967), aff’d per curiam, 384 F.2d 689 (4th Cir. 1967), cert. denied, 389 U.S. 1049, 88 S.Ct. 789, 19 L.Ed.2d 843 (1968) ; Levy v. Dillon, 286 F.Supp. 593 (D.Kan.1968), aff’d, 415 F.2d 1263 (10th Cir. 1969). . Our refusal to apply the general sentence rule is buttressed by a number of considerations unique to the prevailing system of military justice. The record reveals that the law officer instructed the military court not to consider in its determination of a sentence those charges which were dismissed, as this was tantamount to a finding of not guilty as to those charges. This instruction made it perfectly clear that the court should consider only those charges of which Levy was found guilty. It is natural to conclude that the court adhered to this instruction. Therefore, if one or more of the articles under which appellant was convicted and sentenced were unconstitutional, Glaasen itself indicates that the general sentence rule is inapplicable: “[I]n the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only.” 142 U.S. at 146-147, 12 S.Ct. at 170. Any validity such a presumption possesses with respect to a civil court, where sentencing is pronounced by a judge skilled in the law, is diluted considerably in the military context, where the court-martial board, which returns the verdict and also pronounces sentence, is composed of non-judicial military officers. Also militating against our application of the general sentence rule in this particular case is the fact that Articles 133 and 134 rarely stand alone as a basis for prosecution, but rather are usually joined with charges based upon other articles. Application of the general sentence rule would virtually insulate these articles from constitutional' scrutiny. . See, e. g., “Civilian Court Review of Court Martial Adjudications,” 69 Colum. L.Rev. 1259 (1969). . The court stated that the “finality clause” defined the terminal point in a case only within the military justice system, and that such a clause was never intended to act as a suspension of the writ. . Chief Justice Warren, speaking unofficially, described the opinion in Burns as constituting “a recognition of the proposition that our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.” Warren, “The Bill of Rights and the Military,” 37 N.Y.U.L.Rev. 182, 188 (1962). . Until the Court’s decision in Burns, however, Reed did express the controlling law in this area. Only three years before Burns, in Hiatt v. Brown, 339 U.S. 103, 111, 70 S.Ct. 495, 499, 94 L.Ed. 691 (1950), the Court stated: “It is well settled that ‘by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial. . The single inquiry, the test, is jurisdiction.’ In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision.” See also Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950). . Admittedly, federal courts have experienced some difficulty in applying the “fully and fairly” test oí Burns, and it has been observed that “fully and fairly” has “emerged as a facile phrase, easy to state, but difficult to define and to apply.” “Civilian Court Review of Court Martial Adjudications,” 69 Colum.L.Rev., sxipra, at 1262. Contrast, e. g., Application of Stapley, 246 F.Supp. 316, 320 (D.Utah 1965) (“[T]he vindication of constitutional rights . . . transcends ordinary limitations and affords federal courts both the jurisdiction and the duty to inquire and rule upon the legality of detainment of any person entitled to constitutional protection whether in or out of military service.”), with LeBallister v. Warden, 247 F.Supp. 349, 352 (D.Kan. 1965) (“Sentences of courts-martial, affirmed by reviewing authority, may be reviewed ‘only when void because of an absolute want of power, and are not merely voidable because of the defective exercise of power possessed.’ ”). See also Hart and Wechsler, The Federal Courts and the Federal System, 2d ed., at 1537. See generally, Note, “Reconsideration' of Scope of Review for Habeas Corpus from Military Courts,” 11 Duquesne L.Rev. 49 (1972). . 346 U.S. at 139, 73 S.Ct. at 1047. The only support the Court could muster for this statement was Hiatt itself. Indeed, had the Court cited Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879), holding that the inquiry on habeas from a military proceeding is whether the court-martial had jurisdiction, for its statement that “in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases,’-’ the fallacy of the proposition would have been exposed. Reed was decided during the same Term as Sielold. Yet, the scope of the inquiry devised in Reed for military habeas corpus, was at least as broad as Sielold’s inquiry in civil cases. To be sure, following the expanded view of habeas corpus from federal civilian courts taken by Johnson v. Zerbst and Waley, a number of circuits ruled that constitutional claims are cognizable on habeas corpus petitions from military prisoners. Montalvo v. Hiatt, 174 F.2d 645 (5th Cir.) cert. denied, 338 U.S. 874, 70 S.Ct. 135, 94 L.Ed. 536 (1949) ; Benjamin v. Hunter, 169 F.2d 512 (10th Cir. 1948) ; United States ex rel. Weintraub v. Swenson, 165 F.2d 756 (2d Cir. 1948) ; United States ex rel. Innes v. Hiatt, 141 F.2d 664 (3d Cir. 1944) ; Schita v. King, 133 F.2d 283 (8th Cir. 1943). Similarly, the bald statement in Hiatt that “[t]he single inquiry . is jurisdiction,” 339 U.S. at 111, 70 S.Ct. 495, failed to attract support from among the lower federal courts. See e. g., Kuykendall v. Hunter, 187 F.2d 545, 546 (10th Cir. 1951) ; Burns v. Lovett, 91 U.S.App.D.C. 208, 202 F.2d 335 (1952), aff’d sub nom., Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). . Although the court has been virtually silent on this subject since its pronouncement in Burns, the Court has accelerated its expansion of the concept of federal habeas corpus from military courts at a much greater pace than its movement from Siehold. The same year the Court decided Hiatt, it indicated that a denial of the opportunity to raise the insanity defense at a court-martial would jeopardize the court-martial’s jurisdiction. Whelchel v. McDonald, supra, 340 U.S. at 124, 71 S.Ct. 146. . Such a premise was recognized by this court in United States ex rel. Innes v. Hiatt, 141 F.2d 664, 666 (3d Cir. 1944), where Judge Maris wrote: We think that this basic guarantee of fairness afforded by the due process clause of the fifth amendment applies to a defendant in criminal proceedings in a federal military court as well as in a federal civil court. An individual does not cease to be a person within the protection of the fifth amendment of the Constitution because he has joined the nation’s armed forces and has taken the oath to support that Constitution with his life, if need be. . See pp. 776-778, supra. . See generally, Winthrop, Military Law and Precedents, 2d ed. (1920) at 920 (Articles of War of James II, 1688) ; at 929 (First British Mutiny Act, 1689) ; at 931 (British Articles of War of 1765) ; at 953 (American Articles of War of 1775) ; and at 976 (American Articles of War of 1806). . Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922). . Neither are we unmindful of this historical context in which these articles were enacted. The Court of Military Appeals in United States v. Howe, supra, 17 U.S.C.M.A. at 174, commented on the development of Article 88, bearing the same chronological features as the articles presently under review: [This] was an offense in the British forces at the beginning of our Revolutionary War and was readopted by the Continental Congress. It is significant that it was reenacted by the First Congress of which fifteen of the thirty-nine signers of the Constitution were members, including James Madison, author of the Bill of Rights. It is of even more significance that this provision was readopted by the Ninth Congress in 1806, after the Bill of Rights had been adopted and became a part of the Constitution. This action of Congress constituted a contemporary construction of the Constitution and is entitled to the greatest respect. . Article 32, the naval counterpart of the present Article 134, read: “All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.” . Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907), is wholly inapplicable to our inquiry, it being an appeal by an army private from a conviction by a civil court, after a court-martial determined he had not violated one of the articles, . See also the statement of Justice Douglas in Levy v. Parker, 396 U.S. 1204, 1205, 90 S.Ct. 1, 2, 24 L.Ed.2d 25 (1969), granting appellant Levy’s application for bail: In O’Callahan v. Parker, 395 U.S. 258 [, 89 S.Ct. 1683, 23 L.Ed.2d 291], which the lower courts did not have before them when they denied bail, we reserved decision on whether Article 134 satisfies the standards of vagueness required by due process. Apart from the question of vagueness is the question of First Amendment rights. . United States v. Frantz, supra, 2 U.S.C.M.A. at 163. (Emphasis supplied.) . See also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1971) : “This ordinance is void-for-vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ United States v. Harriss, 347 U.S. 612, 617 [, 74 S.Ct. 808, 98 L.Ed. 989], and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 [, 60 S.Ct. 736, 84 L.Ed. 1093] ; Herndon v. Lowry, 301 U.S. 242 [, 57 S.Ct. 732, 81 L.Ed. 1066]. “Living under a rule of law entails, various suppositions, one of which is that ‘[all persons] are entitled to be in-, formed as to what the State commands or forbids.’ Lanzetta v. New Jersey, 306 U.S. 451, 453 [, 59 S.Ct. 618, 83 L.Ed. 888].” . D. Reynolds, The Officer’s Guide, 45 (1969). . W. Winthrop, Military Law and Precedents, 711 (2d ed. 1920). . Id. at 713. See generally Note, “Taps for the Real Catch-22,” 81 Yale L. J. 1518, 1522-1523 (1972). This identical language, written in 1886, is repeated in the 1968 Manual for Courts-Martial, which sets forth the following advice : 212. Article 133 — Conduct Unbecoming an Officer and a Gentleman Discussion. The conduct contemplated may be that of a commissioned officer of either sex or of a cadet or midshipman. When applied to a female officer the term “gentleman” is the equivalent of “gentlewoman.” Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the individual as an officer, seriously compromises his character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the individual personally, seriously compromises his standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty or unfair dealing, of indecency or indecorum, or of lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet ideal moral standards, but there is a limit of tolerance below which the individual standards of an officer, cadet, or midshipman cannot fall without seriously compromising his standing as an officer, cadet, or midshipman or his character as a gentleman. This article contemplates conduct by a commissioned officer, cadet, or midshipman which, taking all the circumstances into consideration, is thus compromising. . See Appendix. . Manual for Courts-Martial, U 213e (1968). . Manual for Courts-Martial, supra at jf 213f. . Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, at 6 (1970). The basis of this principle is that it violates due process to punish a person for violation of penal laws which are vaguely worded. See, e. g., Article I, Section 9 of the Constitution: “No Bill of Attainder or ex post facto law shall be passed.” . “Repudiation of such fundamental principles of law has been a hall-mark of 20th century totalitarian regimes. Criminal Codes of the various Soviet Socialist Republics originally provided: If a socially dangerous act is not directly specified in the Code, the basis and limits of punishment for it shall be determined by applying the sections of the Code which specify crimes of a kind closely resembling the act. “Technically called the ‘application of penal clauses by analogy,’ the same kind of criminal provision was found in Nazi Germany. See Gsovski, Reform of Criminal Law in the Soviet Union (Library of Congress 1960) and Gsovski, The Statutory Criminal Law of Germany (Library of Congress 1947). “Under these schemes of law, one’s present acts were always subject to the possibility that they might later be declared antisocial. There were no reasonable guides to social conduct. One lived among his countrymen in constant terror. ‘Comrad Ivanov . . . was shot last night, in execution of an administrative decision.’ Koestler, Darkness at Noon 162 (1941). That was all one needed to know about the law.” Working Papers, supra, note 28, at 7. . Bishin & Stone, Law, Language and Ethics, at 432 (1972). . Reform of the Federal Criminal Laws, Part III, Subpart C at 1838. Hearings before Subcomm. on Criminal Laws and Procedures of the Senate Committee on the Judiciary, Ninety-Second Cong., 2d Sess., Part III, Subpart C, at 1838 (1972). . Id., at 1840. . “[A] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Giaccio v. Pennsylvania, supra, 382 U.S. at 402-403, 86 S.Ct. at 521. . Note, “Taps for the Real C.ateh-22,” 81 Yale L.J„ supra, at 1534. . “Common law crimes, especially those formulated in vague terms, are considered serious threats to liberty.” See A. Den-ning, Freedom Under Law, supra, at 41-42; H. L. A. Hart, Law, Liberty and Morality, 12 (1963). . Shortly before this opinion was filed, the Court of Appeals for the District of Columbia, per Justice Clark, in Avrech v. Secretary of the Navy, 477 F.2d 1237 (D.C.Cir., 1973), held Article 134 void for vagueness. . See United States v. Zirpolo, 450 F.2d 424, 432-433 (3d Cir. 1971), where we observed that generally, “rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively.” See also Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1048, 22 L.Ed.2d 248 (1969), especially criteria (b) and (c). . Hereinafter cited as UCMJ. . See discussion in majority opinion at 779.

f2d_478/html/0813-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. Joseph A. WILKERSON, Appellant. No. 72-1425. United States Court of Appeals, Eighth Circuit. Submitted March 13, 1973. Decided May 11, 1973. Rehearing and Rehearing En Banc Denied July 10, 1973. H. Carl Runge, Jr., East St. Louis, 111., for appellant. Richard K. Coffin, Dept, of Justice, St. Louis, Mo., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and HEANEY, Circuit Judges. PER CURIAM. Defendant, Joseph A. Wilkerson, was charged in a one-count information with possession with intent to distribute forty-nine pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Preliminary to trial, two motions to suppress were filed and overruled by Chief Judge Meredith of the United States District Court for the Eastern District of Missouri. Upon trial to a jury defendant was found guilty and sentenced to a term of five years in the custody of the Attorney General. We affirm the judgment of conviction. The crucial issues at the trial and on this appeal involve a warrantless search in the San Diego, California International Airport and the subsequent war-rantless arrest, search and seizure at Lambert Field, St. Louis, Missouri. There is very little dispute concerning the facts which we briefly summarize. On the night of Saturday, April 1, 1972 a young unidentified female purchased a ticket in the San Diego, California International Airport to travel on American Airlines flight #88 which was scheduled to depart momentarily. The woman checked a suitcase and a duffel bag through to her destination, St. Louis, Missouri, and then asked directions to the restroom. After the plane had left the airport loading gate, airline officials learned that the unidentified woman had not boarded the plane. Since American Airlines’ regulations require that a passenger accompany his checked luggage and since the woman partially fit the passenger security profile, American’s San Diego Supervisor of Airport Services recalled the plane before it took off. The suitcase and duffel bag checked by the young woman were removed from- the aircraft and it was allowed to depart. Pursuant to American Airlines’ security regulations, the removed luggage was taken by airlines employees to the baggage area for inspection. Upon opening the suitcase the airline employees observed some opaque green plastic bags which appeared to contain many brick-shaped objects. On one corner of one of the plastic bags there was a small tear surrounded by traces of vegetable matter. At this point the airlines employees left the suitcase open and called the airport office of the San Diego Harbor Police. ' When the San Diego officer arrived in the luggage area the appearance of the open suitcase convinced him that the luggage contained several bricks or kilos of marijuana. The San Diego officer felt the outline of the plastic bags and of the duffel bag to ascertain the number of kilos contained in the luggage. The officer also called in a state narcotics agent who, by similar observation, confirmed the San Diego officer’s conclusions. The luggage was then impounded by the police to await transshipment the following day. By use of special expediting tags the luggage was forwarded to St. Louis. The luggage arrived in St. Louis in the early mora-ing hours of Monday, April 3. Shortly thereafter the baggage was claimed by defendant who was arrested by waiting police officials as he carried the luggage out of the airport. Upon arresting the defendant, the police officers opened the suitcase and, with defendant’s consent, broke open the padlock on the duffel bag. It is stipulated that the luggage contained some forty-nine pounds of marijuana. The San Diego Search. Defendant concedes that the recall of the plane and the initial search of the luggage for guns or explosives was justified by the necessity to protect life and property from the apparent threat of violence. Defendant contends, however, that this initial search by airline employees was, in legal effect, a governmental search because of the federal government’s regulatory involvement in commercial airline security. We have recently been confronted with this same argument on two separate occasions and on both occasions we rejected the claim raised here by defendant. United States v. Echols, 477 F.2d 37 (8th Cir. 1973); United States v. Burton, 475 F.2d 469 (8th Cir. 1973). These two cases stand for the proposition that searches of luggage by airline employees are private searches that are invulnerable to fourth amendment attack so long as the searches are conducted by the carrier for its own purpose and without the instigation or participation of government officers. We will not burden this opinion with a repetition of the analysis in those two cases, which is dispositive of the argument made by defendant here. The St. Louis Search. Defendant’s primary challenge to the St. Louis arrest, search and seizure is that they are fruit of the poisoned tree, the allegedly invalid San Diego search. This argument, of course, is disposed of by our conclusion that the San Diego search was proper. Defendant raises a second argument with respect to the St. Louis arrest, search and seizure. According to this argument the police officials in St. Louis had sufficient time to obtain a warrant to search and seize the luggage. While we doubt that the span of time from sometime Sunday morning to early Monday morning is sufficient to automatically require a warrant, we find it unnecessary to decide this issue. Defendant concedes that the search in San Diego, if valid, gave officials in St. Louis probable cause to arrest the defendant. Further, defendant concedes that the difficulties inherent in obtaining a “John Doe” warrant made the war-rantless nature of the arrest reasonable. Since these factors compel the conclusion that the arrest of defendant was legal, we sustain the legitimacy of the St. Louis search and seizure as a search and seizure incident to a lawful arrest. Defendant also argues that the district court erred in allowing the government to introduce testimony about the resale value of forty-nine pounds of marijuana. This testimony about monetary value, of course, was relevant to the intent of the defendant. From the proof regarding value the jury could infer whether defendant possessed the marijuana with intent to distribute or merely with the intent to use the contraband himself. As was said in United States v. Mather, 465 F.2d 1035 (5th Cir. 1972): “The question of the validity of the inference turns on whether the amount of cocaine was such as will support an inference of intent to distribute as distinguished from mere possession for personal use.” Id. at 1037. Finally, defendant contends that the section of the code under which he was charged is unconstitutionally vague or overly broad under the instructions given by the trial court. We have considered this contention but find no merit in it. For the reasons stated above, the judgment of conviction is affirmed. HEANEY, Circuit Judge (concurring). I concur on the grounds that although this search was a governmental one subject to the proscriptions of the Fourth Amendment, the persons executing it had probable cause to carry it out. In my view, airline singular searches conducted by airline personnel are, in fact, governmental searches. Airlines are public carriers, their routes are allocated by the government, their rates are regulated by the government, and they have no alternative but to comply with governmental regulations, including those requiring airline searches. See, Note, Airport Security Searches and the Fourth Amendment, 71 Colum.L.Rev. 1039, 1041-1047 (1971). Thus, had I been on the panels that decided Echols and Burton, I would have taken a view that the searches there were governmental rather than private. There are additional reasons for holding this search to be a governmental one. Effective February 6, 1972, each airline was required by Federal Aviation Regulations to screen passengers and carry-on baggage so that no explosives or weapons would be carried aboard aircraft. As of March 9, 1972, each airline was required to adopt a security program with respect to checked baggage and cargo to accomplish the same end. These regulations which were in effect when this search was made but not when the Echols and Burton searches were made remove any doubt as to the government’s involvement in this search. Even though the search here was conducted by airline personnel, it was carried out at the instigation and direction of the government and should have been conducted in accordance with the Fourth Amendment to the United States Constitution. It is one thing to hold that the threat of air piracy is so great at the present time that the reasonableness standards of the Fourth Amendment permits carefully limited searches of airline passengers, baggage and carry-on luggage for explosives and weapons in appropriate circumstances by persons subject to the Fourth Amendment. It is quite another thing to hold that such searches can be routinely conducted by persons uninhibited by the strictures of that Amendment. If we permit the latter, we invite general searches for contraband other than weapons and explosives by those who are uncontrolled by any governmental authority and open up wide avenues for personal harassment and deprivation of constitutional rights. This case is not the one in which we should lay down a precise standard of reasonableness for airline searches, but it is a case in which it should be made clear that airline searches for firearms and explosives, conducted pursuant to Federal Aviation Regulations since February 6, 1972, are not private searches but are governmental ones for a very limited purpose which must be conducted in accordance with the Fourth Amendment. See and compare, United States v. Moreno, 475 F.2d 44 (5th Cir. 1972); United States v. Gerald Frank Kroll, 351 F.Supp. 148 (W.D.Mo., 1972, amended February 28, 1973); United States of America v. John Kenneth Meulner, 351 F.Supp. 1284 (C.D.Cal. 1972). Any other course of action will permit the person and property of millions of Americans to be searched without regard to constitutional standards. As serious as the air piracy problem is, I am not prepared to close my eyes to Fourth Amendment problems raised by airport searches on the technical grounds that the searches are private because they are conducted by personnel paid by the airlines. . The airline employees’ search of the suitcase was facilitated by the use of a skeleton key. The duffel bag, however, was never opened in San Diego because it was secured by a padlock. The primary inspection of the duffel bag for explosives was accomplished by the somewhat bizarre procedure whereby a baggage attendant ran with the duffel bag for about four feet and hurled it onto the concrete floor. As explained by the Baggage attendant, who was fortunately still available at the time of the trial to testify, this procedure was not contemplated by airline regulations but was instead his own personal “shock” treatment. . There is no dispute that the search in San Diego was a private search by American Airlines’ employees. After the suitcase was opened, it remained open and it was only then that the police were called. . The testimony was that the forty-nine pounds of marijuana when first broken down had a value of $58,000.00, and when broken down to “sticks” or “joints” it would sell for $71,500.00, the “street” value in the area we are concerned with. . Prior to February 6, 1972, the airlines employed screening practices to reduce the probability of air piracy and sabotage. Pursuant to Federal Aviation Regulation § 121.538 issued by the Administrator on January 31, 1972, the implementation of a screening system became mandatory on February 6, 1972: “§ 121.538 Aircraft security. # $ # $ $ “(b) Each certificate holder shall, before February 6, 1972, adopt and put into use a screening system, acceptable to the Administrator, to prevent or deter the carriage aboard its aircraft of any sabotage device or weapon in carry-on baggage or on or about the persons of passengers, except as provided in § 121585 ” 37 Fed.Reg. 25.00, 2501 (1972). This screening system apparently did not require that the person and carry-on baggage of every passenger be examined, but rather only those who met a profile established by F.A.A. needed to be subjected to a close examination. . On February 29, 1972, Federal Aviation Regulation § 121.538 was revised by Amendment 121-85 to require further security precautions. In part, it required : “§ 121.538 Aircraft security. * * sN * si* “(c) Each certificate holder shall prepare in writing and submit for approval by the Administrator its security program including the screening system prescribed by paragraph (b) of this section, and showing the procedures, facilities, or a combination thereof, that it uses or intends to use to support that program and that are designed to— “(1) Prevent or deter unauthorized access to its aircraft; “(2) Assure that baggage is cheeked in by a responsible agent or representative of the certificate holder; and “ (3) Prevent cargo and checked baggage from being loaded aboard its aircraft unless handled in accordance with the certificate holder’s security procedures.” 37 Fed.Reg. 4904, 4905 (1972). This amendment was not to be effective until at least April 6, 1972; and by its terms, it would seem that the security program need not have been implemented until specifically approved by the Administrator. However, on March 9, 1972, pursuant to his power under Federal Aviation Regulation § 121.538(g), the Administrator, in response to a statement by the President, announced that: “ * * * the effective date of Amendment 121-85 is being changed from April 0, 1972, to March 9, 1972, and each certificate holder is being required to immediately adopt and put its security program into use. * * * ” 37 Fed.Reg. 5254 (1972). Paragraph (b) of Federal Aviation Regulation § 121.538 was also amended by adding the following sentence: “§ 121.538 Aircraft security. “(b) . . . Each certificate holder shall immediately adopt and put into use its security program prescribed in paragraph (e) of this section.” Id. . On December 5, 1972, the Administrator, again acting under the emei'gency authority given him by Federal Aviation Regulation § 121.538(g), sent a telegram to the F.A.A. Regional Directors directing that commencing January 5, 1973, the carry-on baggage and persons of all passengers must be inspected prior to boarding. On this same date, the Administrator also issued an amendment to Part 107 of the Federal Aviation Regulations which required that no later than February 6, 1973, airport managers had to post armed law enforcement personnel at boarding gates. 37 Fed.Reg. 25934, 25935 (1962).

f2d_478/html/0817-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jacob SCHEIN and Marvin H. Schein, Plaintiffs-Appellants, v. Melvin CHASEN et al., Defendants-Appellees. Antone F. GREGORIO, Individually and as representative of all persons similarly situated as a class under Rule 23, F.R.C.P., Plaintiff-Appellant, v. LUM’S, INC., et al., Defendants-Appellees. Nos. 81 and 82, Dockets 72-1373, 72-1375. United States Court of Appeals, Second Circuit. Argued Oct. 17, 1972. Decided May 10, 1973. Donald N. Ruby, Wolf, Popper, Ross, Wolf & Jones, New York City, for Schein and Gregorio. Schlifkin & Berman, Chicago, 111., for Gregorio. Laura Banfield, David Hartfield, Jr., White & Case, New York City, for Simon. James J. Hagan, Simpson, Thacher & Bartlett, New York City, for Lehman Brothers. James M. Bergen, Allan R. Freedman, Donovan, Leisure, Newton & Irvine, New York City, for Investors Diversi-fled Services, Inc., Investors Variable Payment Fund, Inc., and IDS New Dimensions Fund, Inc. Before WATERMAN, SMITH and KAUFMAN, Circuit Judges. WATERMAN, Circuit Judge: Plaintiffs-appellants are stockholders in Lum’s, Inc., a Florida corporation primarily engaged in restaurant franchising. Invoking the diversity jurisdiction of the court, they sued derivatively in the Southern District of New York alleging that the defendants were jointly and severally liable to Lum’s for actionable wrongs which the defendants had committed against Lum’s. The individual defendants were Melvin Chasen, a resident of Florida, president of Lum’s, Benjamin Simon, a stockbroker employed in Chicago, Ill. by defendant Lehman Brothers, Eugene S. Sit, portfolio manager of defendant IDS New Dimensions Fund, Inc., a Mutual Fund, and James R. Jundt, manager of defendant Investors Variable Payment Fund, Inc., a Mutual Fund. Each of the four individual defendants moved for dismissal on the ground that they had not been validly served under the New York Long Arm Statute (CPLR §§ 313, 302(a)) and that the court below had no personal jurisdiction of them. Sit’s and Jundt’s motions were granted prior to the filing of the order appealed from, Chasen’s was granted concurrently therewith, and Simon’s has apparently not been acted upon. The defendants Lehman Brothers, a partnership engaged in stock brokerage and investment counseling, the three corporations, engaged in managing investment portfolios and in buying and selling the corporate securities of publicly held corporations, Chasen, and Simon, all moved for dismissal on the ground that the complaints failed to state a cause of action under Florida law. Plaintiffs claimed that New York law should govern the rights and liabilities of the parties, and that even if Florida law were the applicable law they should still prevail. Holding that Florida law was the proper state law to apply, Judge Harold R. Tyler, Jr., by written order, sub nom. Gildenhorn v. Lum’s, Inc., opinion reported at 335 F.Supp. 329 (SDNY 1971), granted the motion to dismiss for failure to state a claim upon which relief could be granted. On this appeal plaintiffs claim only that Judge Tyler erred in dismissing the complaints for failure to state a cause of action. They do not appeal Judge Tyler’s order dismissing Chasen as a defendant' or his finding that the substantive law of Florida governs the action. Inasmuch as the court is passing only upon the sufficiency of the complaints, we necessarily accept the allegations of the complaints as true. For reasons which follow, we hold that the complaints do state a cause of action and we reverse the judgment below and remand to the district court for further proceedings there in the light of this holding. The facts alleged in this case fall within the perimeter of the much-discussed problem of unfair trading in corporate securities. In November of 1969 Chasen, who was president and chief operating officer at Lum’s, addressed a seminar of about sixty members of the securities industry with reference to Lum’s earnings prospects for its fiscal year ending July 31, 1970. He informed them that Lum’s earnings would be approximately $1.00 to $1.10 per share. On January 5, 1970 he learned that this estimate was too optimistic and that, in fact, Lum’s earnings would be only approximately $.76 per share. Three days later, prior to announcing the information to the public, Chasen telephoned Simon in Chicago and told Simon that Lum’s would not have as profitable a year as had been expected. He specified to Simon that earnings would be approximately $.76 per share rather than the $1.00 per share which he had earlier announced. Simon knew the information was confidential corporate property which Chasen had not given out publicly. Simon immediately telephoned this information to Sit, an employee of defendant Investors Diversified Services, Inc. (IDS), and Sit immediately telephoned it to Jundt, another employee of IDS. Sit and Jundt managed the stock portfolios of defendant mutual funds Investors Variable Payment Fund, Inc. (Investors) and IDS New Dimensions Fund, Inc. (Dimensions). Upon receiving the information Sit and Jundt directed the Funds to sell their entire stock holdings in Lum’s and, on the morning of January 9, 1970, prior to any public announcement, Investors sold 43,000 shares of Lum’s and Dimensions sold 40,000 shares. The sales were executed on the New York Stock Exchange at about 10:30 A.M. at a price of approximately $17.50 per share. At 1:30 P.M. on the same day, the New York Stock Exchange halted further trading in Lum’s stock pending a company announcement. At 2:45 P.M. Lum’s issued a release which appeared on the Dow Jones News Wire Service and announced that the corporation’s projected earnings would be lower than had been anticipated. When trading in Lum’s was resumed on Monday, January 12, 1970, volume was heavy and the stock closed at a price of $14.00 per share — $3.50 per share lower than the Funds had realized from the sales of their shares on the previous Friday. The present defendants in this case are Lehman Brothers, Simon, and the two Mutual Funds. ' Chasen, Sit, and Jundt have been dismissed as defendants in that they have not been validly served under the New York State Long Arm Statute. Plaintiffs-appellants’ theory of recovery is that the participants in this chain of wrongdoing are jointly and severally liable to the corporation under Florida law for misusing corporate information to their own advantage in violation of the duty they owed to Lum’s, and that they must account to Lum’s for the profits realized by the Mutual Funds. They do not allege in these complaints that defendants have violated any of the federal securities laws, and they concede that the substantive law of Florida governs the rights and liabilities of the parties. They urge, however, that inasmuch as there are no Florida cases directly in point, the Florida court, if it were deciding the case, would look to other jurisdictions and would take a particular and special interest in the decision of Diamond v. Oreamuno, 29 A.D.2d 285, 287 N.Y.S.2d 300 (1st Dep’t 1968), aff’d 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N.E.2d 910 (1969), a case which plaintiffs contend supports the position they urge on this appeal. The first question which our court must consider is whether we may look to the New York decision of Diamond, supra, as persuasive authority. Ideally, the federal court sitting in a diversity action applies the applicable state law as it has been enunciated by the highest court in the state. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Hausman v. Buckley, 299 F.2d 696 (2 Cir. 1962), cert. denied, 369 U.S. 885, 82 S.Ct. 1157, 8 L.Ed.2d 286 (1962). However, in the absence of a clearly enunciated state rule, the federal court may turn to the law of other jurisdictions for assistance in determining how the state court would most likely decide the case if the state court were presented with the questions being litigated in the federal court. Baxter v. Lancer Industries, Inc., 213 F.Supp. 92 (EDNY 1963), app. denied, 324 F.2d 286 (2 Cir. 1963); Locke Manufacturing Companies v. United States, 237 F.Supp. 80 (D.Conn.1964). Our foray into the state law of Florida satisfies us that the Florida court has never faced the precise issues which are present in this action. Accordingly, it is both proper and practical for this court to turn for guidance to the body of law of other jurisdictions and particularly to that of New York where the resolution of the issues in the Diamond case, decided by the New York Court of Appeals, bears on the issues in the case before us. In doing so, our objective is to interpret Diamond as the Florida court would probably interpret it and to apply Diamond, as so interpreted, to the facts presented here. Diamond v. Oreamuno, supra, was a stockholder’s derivative action in which a shareholder of Management Assistance, Inc. (MAI) charged that two of the defendants — Oreamuno, chairman of the board of directors, and Gonzalez, its president and a member of the board, had used inside information acquired by them solely by virtue of their positions with MAI in order to reap large personal profits from the sale of MAI shares, and that these profits rightfully belonged to the corporation. Chief Judge Stanley Fuld, writing for a unanimous court, held that the two directors must account to the corporation for their profits for they had breached their duty to the corporation by using a corporate asset for their own personal advantage. In this case we are asked to decide whether the Diamond holding should extend to reach third parties, who, though not officers or directors of the injured corporation, are involved with directors in a common enterprise to misuse confidential corporate information for their own enrichment. Although there is no allegation in the complaints that a prior explicit agreement existed between Chasen and the defendants, it is obvious that the sequence of events detailed in the pleadings, if proved, will substantiate the existence of a common enterprise pursuant to which Chasen was to pass material information to Simon, Simon was to pass it to the Mutual Funds, and the Funds were to capitalize on it by selling Lum’s stock prior to the time the material information was announced to and was available to the public. Cf. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939); Norfolk Monument Company v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969). Although defendants do not deny that they have been involved in a joint enterprise with Chasen to misuse corporate property, they argue that the doctrine of Diamond is not applicable here and that they cannot be held liable to Lum’s because they are not Lum’s fiduciaries and have not breached any duty which they owed to Lum’s by cashing in on confidential information for their own advantage. Defendants Simon and Lehman Brothers make the further argument that it would be “unfair” to hold them responsible for the profits made by the Mutual Funds in that they (Simon and Lehman Brothers) did not profit personally inasmuch as neither of them traded in Lum’s stock. As a court of equity viewing the case as the Florida court would probably view it, we cannot agree that the “stretch” of Diamond does not reach the defendants in this case. We find nothing in the language of Diamond to suggest that co-venturers of the director who breaches his duty should not be subject to the same liabilities as those of the director himself for the misuse of corporate information. Indeed, the general rule has always been that “one who knowingly participates in or joins in an enterprise whereby a violation of a fiduciary obligation is effected is liable jointly and severally with the recreant fiduciary.” Oil & Gas Ventures — First 1958 Fund Ltd. v. Kung, 250 F.Supp. 744 (D.C.1966); see, e. g., Jackson v. Smith, 254 U.S. 586, 589, 41 S.Ct. 200, 65 L.Ed. 418 (1921); Sexton v. Sword S. S. Line Inc., 118 F.2d 708, 711 (2 Cir. 1941) ; Bankers Life and Casualty Co. v. Kirtley, 338 F.2d 1006, 1013 (8 Cir. 1964). If the Diamond court had intended to lay down an exception to this well-known general rule it could have done so in its opinion. Moreover, in the light of the corporate interest which the Diamond rule is designed to protect, it is immaterial to the preservation of that interest whether the director trades on his own account in the corporation’s stock or whether he passes on the information to outsiders who then trade in the corporation’s stock. In either event, so long as the director is involved, the prestige and good will of the corporation may be tarnished by the public revelation that the director has been involved in unethical conduct. Diamond, supra, 24 N.Y.2d at 499, 301 N.Y.S.2d 78, 248 N.E.2d 910; accord, S. E. C. v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (2 Cir. 1971), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558, reh. denied, 404 U.S. 1064, 92 S.Ct. 734, 30 L.Ed.2d 753 (1972). Accordingly, it would be self-defeating to limit the reach of Diamond to directors and officers of the injured corporation who have so acted while permitting third-party co-venturers of theirs to escape liability to the corporation. Diamond, the law of the jurisdiction in which the New York Stock Exchange is seated, has the prophylactic effect of providing a disincentive to insider trading. It is clear that this cleansing effect ought to reach third parties who, through a breach of a fiduciary relationship, become traders advantageously possessed of confidential insider knowledge. To immunize such third parties from liability to the damaged corporation would encourage insider “leaks” to outside friends and would defeat Diamond’s purpose and effect. And, quite properly, damages for fiduciary breaches are recoverable by recourse to state law. Indeed, though the congressional policy is similar, in some cases where federal private and governmental Rule 10b-5 actions are impractical, “immunized outsiders” might escape liability altogether' except for the availability of this kind of action bottomed upon the well-recognized liability of a fiduciary to those whose trust in the fiduciary has been tragically misplaced. In view of the strong desirability of tightening the law of insider trading, we would be remiss indeed if we interpreted Diamond as narrowly as defendants would have us interpret it. Moreover, sitting as a court of equity, we have here an obligation to determine where the equities lie among all the litigants, Diamond, supra, 24 N.Y.2d at 498, 301 N.Y.S.2d 78, 248 N.E.2d 910, and, as between the defendants and Lum’s, there can be no doubt that it would be inequitable to permit the defendants to keep the rewards of the fraud. Our view that all the participants in the common enterprise must assume the same risks of liability to the corporation as the offending director is supported by Florida case law dealing with the duty of a fiduciary to his cestui. The Florida courts have held that the duty of a fiduciary not to misuse the property of his cestui extends not only to the “technical fiduciary” but also to others who are placed in a position of trust. Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927). The confidential relationship of a fiduciary as that relationship is spelled out in Florida law extends not only to “technical fiduciaries” but also to others who become “fiduciaries” through the acquisition of confidential information which is “owned” by someone else. See Quinn v. Phipps, supra at 420-421. When the defendants received their “tip” from Chasen, they were automatically clothed with a duty to Lum’s not to use the information for their own selfish advantages. Compare Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5 (1949); Ohio Oil Co. v. Sharp, 135 F.2d 303 (10 Cir. 1943). This is firmly grounded in law and the rule is set forth in the American Law Institute’s Restatement of Agency 2d § 312 (1958): “A person who, without being privileged to do so, intentionally causes or assists an agent to violate a duty to his principal is subject to Hability to the principal.” And see Comment c to § 312: A person who, with notice that an agent is thereby violating his duty to his principal, receives confidential information from the agent, may be enjoined from disclosing it and required to hold profits received by its use as a constructive trustee. * * * Therefore, if plaintiffs can prove their allegations, it would seem that liability of the Mutual Funds to Lum’s must necessarily follow. Be that as it may be, however, the defendants Lehman Brothers and Simon contend that it would be inequitable to apply the rule to them because they did not personally profit by trading in Lum’s stock and they hold no profits as constructive trustees of that corporation. Nevertheless, Lehman Brothers and Simon obviously misused inside information as much as Diversified and Investors misused it, and therefore we fail to see how equity would be furthered by imposing liability only on the Funds and not on the other participants who supplied the Funds with the inside information. It is well established that the liabilities of persons engaged in a joint enterprise to commit a wrong are both joint and several liabilities and each participant is liable to account for the profits of the other participants. Marcus v. Otis, 168 F.2d 649 (2 Cir. 1948), modified, 169 F.2d 148 (2 Cir. 1948); Solomon v. United States, 276 F.2d 669 (6 Cir. 1960), cert. denied, 364 U.S. 890, 81 S.Ct. 219, 5 L.Ed.2d 186 (1960), reh. denied, 364 U.S. 939, 81 S.Ct. 376, 5 L.Ed.2d 371 (1961). Accordingly, we hold that it would be proper to hold Lehman Brothers and Simon just as accountable for the profits made by their tippees Diversified and Investors as the tippees themselves. Defendants also contend that the complaints are presently insufficient because they fail to allege with sufficient particularity the damage Lum’s is claimed to have suffered. This contention is without merit. Although the Gregorio complaint fails to allege any damages to Lum’s, the Sehein complaint contains a general allegation of damages, and we find nothing in Florida law to require anything more than a general ad damnum allegation. Defendants also urge that inasmuch as there are private Rule 10b-5 class actions for damages, e. g., Sanders v. Lum’s, Inc., et al., 70 Civ. 5331 (SDNY) and an administrative suit brought by the Securities and Exchange Commission, SEC v. Lum’s, et al., 70 Civ. 5280 (SDNY), pending in federal district court, defendants might be subjected to multiple liability if they are forced to remit to Lum’s the profits the Mutual Funds made on their January 9 sales. Since appellees are fully aware of these federal court actions they are well able to protect themselves from multiple liability. Preventing those who are privy to confidential inside information from using it to their own advantage has found expression in numerous cases in the federal courts dealing with violations of the federal securities laws. See Securities and Exchange Commission v. Texas Gulf Sulphur, 401 F.2d 833 (2 Cir. 1968), cert. denied sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); List v. Fashion Park, Inc., 340 F.2d 457 (2 Cir. 1965), cert denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965); Wohl v. Blair & Co., 50 F.R.D. 89 (SDNY 1970); Ross v. Licht, 263 F.Supp. 395 (SDNY 1967); Speed v. Transamerica Corp., 99 F.Supp. 808, 828-829 (D.Del.1951), aff’d, 235 F.2d 369 (3 Cir. 1956). Accordingly, as to those persons found to be within the jurisdiction of the court, we reverse the order appealed from and remand the case for such further proceedings below as may be consistent with the contents of this opinion. IRVING R. KAUFMAN, Circuit Judge (dissenting): In my view, it is no longer debatable that trading on inside information merits universal condemnation. The undesirable nature of “insider trading” is reflected in the prophylactic provisions of Section 16(b) of the Securities Exchange Act of 1934 and the more general antifraud principles of Section 10(b) of that Act. I fully agree with Judges Waterman and Smith that one with access to material inside information concerning a corporation’s affairs who knowingly purchases or sells that corporation’s shares before this information has become publicly available takes unfair advantage of unknowledgeable parties to the transaction. Indeed, the factual claims contained in the complaints before us have led to two federal actions —an SEC injunctive action and a private class action under rule 10b-5 — now pending in the District Court for the Southern District of New York. But the adage that hard facts make bad law is about to come true here, despite Judge, later Justice, Cardozo’s warning that judges are not free agents roaming at will to create law to fit the facts. See The Nature of the Judicial Process 141 (1921). In the absence of any viable precedent upon which to base the totally new concept of law espoused by my brothers, it is clear that they announce an extraordinary, expansive, and incorrect reading of New York law solely because of their urge to “provid [e] a disincentive to insider trading.” I agree with their objective but I question the means employed. The court holds today that a person with no relationship whatsoever — fiduciary or otherwise — to a corporation, who trades its shares on the basis of material inside information becomes, ipso facto, a fiduciary of the corporation whose shares he traded and, accordingly, may be required in a shareholders’ derivative action — not a Section 10(b) or 16(b) action — to pay his profits to the corporation. With all due respect to my brothers, the tortured reasoning to which they are compelled to resort in reaching this conclusion represents a distortion of the law of agency and the law of fiduciary responsibility in which I am unable to join. Accordingly, I dissent. Stripped of excess verbiage, the complaints in the two consolidated stockholders’ derivative actions before us make the following allegations. In January, 1970, Melvin Chasen, president of Lum’s, learned that an earnings estimate of between $1.00 and $1.10 per share previously released to the financial community was grossly inaccurate. A more realistic figure was $.76 per share. Chasen revealed this information on January 8, during a telephone conversation, to Benjamin Simon, an employee in Lehman Brothers Chicago office. Simon, in turn, disclosed the adverse news to Eugene Sit, portfolio manager of Investors Variable Payment Fund, Inc., who himself conveyed the information to James Jundt, portfolio manager of IDS New Dimensions Fund, Inc. Both Sit and Jundt are employees of Investors Diversified Services, Inc. (IDS), investment adviser to the two mutual funds. During the morning of Friday, January 9, prior to any public disclosure of the reduced earnings figure, the two mutual funds sold a total of 83,000 shares of Lum’s stock on the New York Stock Exchange at a price of approximately $17.-50 per share. Later that day, after the Exchange halted trading in Lum’s shares, Lum’s publicly announced the reduced earnings forecast. Trading did not resume until the following Monday, when the closing price fell to $14.00 per share. It is important to note at the outset that the plaintiffs in these actions^ shareholders of Lum’s, do not claim to have suffered any damages themselves. Rather, these derivative suits are brought “on behalf of and for the benefit of Lum’s.” They seek to recover for Lum’s treasury the windfall profit garnered by the IDS mutual funds, and assert that all defendants are jointly and severally liable for this amount. Thus, the proper method of analysis is not to focus on the unfairness of the mutual funds’ profit at the expense of their purchasers — who have their own recourse for any wrongdoing — but on the strands of duty running to the corporation from the various individuals involved. The crux of the majority’s holding is that the institutional defendants —Lehman Brothers, IDS, and the two mutual funds — and their employees — Simon, Sit, and Jundt — are within the sweep of fiduciary principles announced in Diamond v. Oreamuno, 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N.E.2d 910 (1969). But a careful examination of that case and the principles underlying it demonstrate that Diamond is wholly inapposite to this case. In Diamond, the New York Court of Appeals dealt with a derivative action brought by a shareholder of Management Assistance, Inc. (MAI) against Or-eamuno, chairman of the board of directors of the corporation, and Gonzalez, its president. The complaint charged that by virtue of their corporate positions, these officers knew that a supplier’s price increase had caused MAI’s earnings to decrease by more than 75% during a one month period. According to the allegations, the two officers sold over 50,000 MAI shares at a price of $28 per share prior to public disclosure of the adverse earnings figures, after which the price per share plummeted to $11. In reviewing the Appellate Division’s refusal to order dismissal of the complaint against Oreamuno and Gonzalez, Chief Judge Fuld stated at the outset that “the question presented — one of first impression in this court — is whether officers and directors may be held accountable to their corporation for gains realized by them from transactions in the company’s stock as a result of their use of material inside information,” 24 N.Y.2d at 496, 301 N.Y.S.2d at 79, 248 N.E.2d at 911 (emphasis added). A careful reading of the Diamond opinion reveals that Oreamuno’s and Gonzalez’s liability in a stockholders’ derivative action was grounded solely in their having breached a fiduciary duty owed by them to MAI as corporate officials. The inapplicability of these principles to any of the appellees is readily apparent. The complaints here are barren of any allegation that the appellees — or Sit or Jundt — occupied any position, such as officer, director, employee, or agent, which would create fiduciary obligations to Lum’s. Compare Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5 (1949); Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927). Liability in Diamond was predicated entirely on such a relationship, and in its absence, the Diamond rationale for liability ceases to exist. In an effort to bridge this fatal gap, the majority, without any basis in law or fact, reasons that the appellees were involved in a “joint” or “common enterprise” with Chasen, president of Lum’s “to misuse confidential corporate information for their own enrichment.” By use of this interesting, but nevertheless fictional, theory, they seek to foist upon the appellees liability to Lum’s for Chasen’s improper behavior. But the facts alleged in the complaints are a far cry from the “conscious parallelism” cases, drawn from the antitrust field, cited as authority in the majority opinion; the facts simply do not comport with the concept of a joint enterprise, a term which implies the existence of a prior plan to carry out a mutually beneficial project. The complaints, read in the most favorable light to the plaintiffs, disclose nothing more than a seemingly unsolicited and haphazard revelation of certain information which was useful in making investment decisions. There are ample remedies under the federal securities laws to punish this conduct. But, I am unable to understand on what basis the majority transforms the appellees’ spontaneous conduct into a nefarious, prearranged, and ongoing scheme so that “joint” or “common enterprise” principles can make them liable as fiduciaries of a corporation with which they have no relationship. A primary authority upon which the majority relies, § 312 of the American Law Institute’s Restatement of Agency 2d, exposes the inappropriateness of holding the appellees liable to Lum’s for their conduct. Section 312 provides that “A person who, without being privileged to do so, intentionally causes or assists an agent to violate a duty to his principal is subject to liability to the principal.” Although Comment c to this section speaks generally of receipt of confidential information by a third person from a principal’s agent, the central element of liability is the third party’s active and intentional aiding in the agent’s violation of a duty owed to his principal. In this case, Chasen’s duty to Lum’s was to not disclose confidential corporate information. Yet there is not a word in the complaint charging that the appel-lees actively solicited the disclosure or that they had concocted a prearranged scheme with Chasen. We are dealing here with an isolated transaction. In the absence of any coherent legal theory, I cannot join my brothers in approving the use of the shareholders’ derivative action device merely because, as my brothers candidly admit, to do so possibly may have a deterrent effect on “insider trading.” Although developments in federal securities law indicate an expanding scope of liability for tip-pee traders, see In re Investors Management Co., Securities and Exchange Commission Release No. 34-9267 (Jul. 29, 1971) (SEC sanctioning of institutional investors who sold a corporation’s shares after the corporation’s underwriter revealed adverse earnings results to them); cf. SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (2d Cir. 1971), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1972) (affirming district court order, in SEC injunctive suit, requiring a “tippor” to divest an amount equal to his tippees’ profits), the impetus for developing this expanded federal law liability — whose exact nature and scope remain in a formative stage — is the need to maintain free and honest securities markets. This need appropriately is given great weight when we consider claims under the federal securities law. But it is inapposite in determining whether, under state common law, tippee trading is a breach of a fiduciary duty owed to the corporation whose shares are traded, and if so, whether such a breach is remediable through use of a shareholders’ derivative action. In these actions, where jurisdiction is grounded solely in diversity of citizenship, the parties and the majority agree that our duty is to apply the law of Florida. Yet because there are no pertinent Florida decisions, the majority focuses on a New York decision, Diamond v. Oreamuno, supra. Thus, liability is founded on the conclusion of two federal judges that the Florida Supreme Court, if the instant case was before it, would look to a New York decision and, in addition, would give an unprecedented expansive reading to that case. Despite the manner in which the majority opinion con volutes the law and the facts in this case, a view that a tippee is cloaked with state law fiduciary obligations to the corporation whose shares he trades is an unknown and untenable legal concept. Neither Diamond — itself a significant alteration of the common law principles applicable to an officer’s or director’s trading in his corporation’s shares — nor the law of agency support such a holding. Nothing in the majority opinion tells us why or on what grounds a New York court would hold a tippee trader liable to the corporation for his profits under common law fiduciary principles, and the court exceeds its authority by substituting its own view of what state law ought to be, for what the state law actually is. Moreover, since the outcome of this case turns, ultimately, upon Florida law, I fail to comprehend why my brothers refuse to utilize Florida’s certified question statute, Fla.Stat.Ann. § 25.031. This enlightened law provides for certification to the Florida Supreme Court by a federal appellate court of an unresolved question of Florida law which is determinative of a case before it and on which there are no clear, controlling Florida Supreme Court precedents. The statute states that the court, by written opinion, then may answer the certified question. See Aldrich v. Aldrich, 375 U.S. 249, 84 S.Ct. 305, 11 L.Ed.2d 304 (1963); Green v. American Tobacco Co., 304 F.2d 70 (5th Cir. 1962). The uncertainty inherent in the majority’s speculation over what the Florida courts would decide if faced with this novel question of tippee liability under state common law fiduciary principles in a stockholders’ derivative action would be dispelled authoritatively and finally. Accordingly, I respectfully dissent. . Plaintiffs-appellants have not appealed the order dismissing the actions against Chasen, Sit and Jundt. Simon filed a similar dismissal motion but the trial" court did not decide it. Simon was dismissed as a defendant by the court’s order dismissing the complaints against all defendants for failure to state a cause of action under 12(b) (6) of the Fed.R.Civ.P. Simon contends on this appeal that irrespective of our action on the lower court’s dismissal of the complaints under 12(b)(6), we should dismiss the action against him because he has not been validly served. However, inasmuch as the trial court has not reached this question, we decline to address it on this appeal, and leave its resolution to the trial court upon remand. . In one of the original actions consolidated below, Gildenhorn v. Lum’s, Ine., 335 F.Supp. 329 (SDNY 1971) a notice of appeal was filed by plaintiff but the parties have not progressed the appeal. . The parties now agree that the substantive law of the State of Florida governs the action for reasons which are stated in Judge Tyler’s opinion reported at 335 F.Supp. 329 (SDNY 1971). . Defendant IDS is a Minnesota corporation licensed to do business in the State of New York. IDS is the distributor and investment advisor for a number of large mutual funds including defendants Investors and Dimensions. Sit and Jundt are employed by IDS to manage the stock portfolios of Investors and Dimensions. . Lum’s could apparently not prevail as a plaintiff in a Rule 10b-5 action in that it has not traded in its securities on its own account. See Birnbaum v. Newport Steel Corporation, 193 F.2d 461 (2 Cir. 1952), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Although there are federal securities law cases pending against defendants in district court, this fact is irrelevant upon this appeal. . We believe Judge Tyler erred in attaching dispositive significance to the fact that in Diamond, supra, the complaint was dismissed against certain directors who had only “acquiesced” in the wrong. The defendants-appellees here differ from the dismissed Diamond defendants in that the defendants-appellees were actively engaged in furthering the transaction that resulted in the “dumping” of the Lum’s stock, rather than just “acquiescing” in it. Furthermore, and even more importantly, Diamond - was not a “joint venture” case, and there is no discussion in the Diamond opinion as to why the complaint was dismissed against the “acquiescing” directors. . This principle has been applied in analogous cases involving violations of the federal securities laws. In more than one instance, the corporation whose stock has been illegally traded has been permitted to recover conditionally in a Rule 10b-5 action because it is more equitable for it to recoup the rewards of the fraud than for the insider who profits by misusing corporate information to keep them. See Securities and Exchange Commission v. Texas Gulf Sulphur, 446 F.2d at 1308 ; S.E.C. v. Golconda Mining Company, 327 F.Supp. 257 (SDNY 1971). . In passing we note decisions dealing with violations of the federal securities laws which involve the imposition of liability on defendants who have occupied statuses similar to the statuses occupied by defendants in this case. Thus, in Securities and Exchange Commission v. Texas Gulf Sulphur, 446 F.2d at 1308, the same argument raised by Simon and by Lehman Brothers was raised by defendant Darke. This court held that Darke was liable as a tippor for the profits realized by his tippees. Furthermore, “tippee liability,” which is analogous to the liability being imposed upon Diversified and Investors, has been established in federal cases involving violations of the securities laws. See Ross v. Licht, 263 F.Supp. 395 (SDNT 1967) ; In the Matter of Cady, Roberts & Co., 40 S.E.C. 907 (1961). , We find it unnecessary to decide whether the defendants could prevail if neither complaint alleged damages to Lum’s. We point out, however, that Florida law is not clear on the question and Diamond holds specifically that an allegation of damages is not a prerequisite to a recovery. Diamond v. Oreamuno, supra, 24 N.Y.2d at 499, 301 N.Y.S.2d 78. The case cited by defendants for the proposition that damages must be alleged (Palma v. Zerbey, 189 So.2d 510 (Fla.App.1966), cert. denied, 200 So.2d 814 (Fla.1967)) is a one paragraph per curiam opinion of a lower Florida court, the Florida District Court of Appeals which, inasmuch as it fails to provide a discussion of the issues, we find to be totally unpersuasive. . See; for example, the method employed in Securities and Exchange Commission v. Texas Gulf Sulphur Co., 312 F.Supp. 77, 93 (SDNY 1970), aff’d in part, rev’d in part, 446 F.2d 1301 (2 Cir. 1971), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971), reh. denied, 404 U.S. 1064, 92 S.Ct. 734, 30 L.Ed.2d 753 (1971). . But for a contrary view, see H. Manne, Insider Trading and the Stock Market (1966). . As noted in the majority opinion, the only defendants remaining on appeal are Lehman Brothers, IDS, the two mutual funds, and Simon. The district court dismissed the actions against Chasen for lack of personal jurisdiction, a holding not challenged on appeal. Accordingly, this court need not comment on the nature and extent of Chasen’s liability to Lum’s because of his conduct. . It is of no small significance that in the Diamond litigation, the Appellate Division affirmed dismissal of the complaint against other MAI directors — fiduciaries to the corporation — who allegedly “approved, acquiesced in or ratified” Oreamuno’s and Gonzalez’s transactions. 29 A.D.2d 285, 287 N.Y.S.2d 300 (1968). Despite the majority’s effort in a footnote to “distinguish” this disposition, I believe the Appellate Division’s action is clearly dispositive of the point before us. If the New York courts would not impose liability upon a director — a fiduciary of the corporation — who took no affirmative steps to cause or assist in a breach of a fiduciary duty by the corporation’s president, I fail to see by what logic it can be urged that New York courts would hold liable a non-fiduciary who did not cause or assist in the breach. . See Note, 1970 Wis.L.Rev. 576, 577. Although not dispositive, this fact augurs against assuming the state courts could make the broad holding so readily attributed to them by the majority.- . The supreme court of this state may, by rule of court, provide that, when it shall appear to the supreme court of the United States, to any circuit court of appeals of the United States, or to the court of appeals of the District of Columbia, that there are involved in any proceeding before it questions or propositions of the laws of this state, which are determinative of the said cause, and there are no clear controlling precedents in the decisions of the supreme court of this state, such federal appellate court may certify such questions or propositions of the laws of this state to the supreme court of this state for instructions concerning such questions or propositions of state law, which certificate the supreme court of this state, by written opinion, may answer. This statutory authority has been implemented by Appellate Rule 4.61, 32 F.S.A.

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UNITED STATES of America, Appellee, v. Chuck Patrick NEWMANN, Appellant. No. 72-1684. United States Court of Appeals, Eighth Circuit. Submitted April 12, 1973. Decided May 31, 1973. Larry B. Leventhal, Minneapolis, Minn.,' for appellant. Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before MEHAFFY, BRIGHT and ROSS, Circuit Judges. MEHAFFY, Circuit Judge. We anticipate with the war’s end that possibly there will be more cases similar to this, some with merit and others without, so each case seems to deserve its own careful consideration to assure its proper disposition predicated on the individual facts. This case is a direct criminal appeal from a conviction for failure to report for induction in violation of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462. In the district court defendant waived his right to a jury trial and conceded his failure to report. The sole basis of the defense was that the order to report for induction was illegal. The district court held that it could not consider this defense because the defendant had failed to exhaust his administrative remedies. United States v. Newmann, No. 4-71 CR. 255 (D.Minn. July 18, 1972). We have concluded that the district court erred in barring the defense and that the judgment of conviction must be reversed. The relevant facts in this case are simple and undisputed. Shortly after his eighteenth birthday defendant registered with Selective Service System Local Board No. 51 in Hennepin County, Minnesota. For approximately two years defendant attended college under a II-S classification student deferment. On March 17, 1970 defendant was granted a I-S(c) classification, which was a limited student deferment designed to allow defendant to complete the semester of study in which he was then engaged. Defendant’s I-S(c) classification was scheduled to expire in September 1970. On September 2, 1970 defendant filed a timely request for conscientious objector status and he was sent SSS Form 150 to pursue this application. On October 6, 1970 defendant returned the completed SSS Form 150. Two weeks later, on October 20, 1970, Local Board No. 51 classified defendant I-A. Although the action of the Local Board in classifying defendant I-A presumably included a consideration and rejection of defendant’s recently filed claim for conscientious objector status, the Board never made a statement of reasons explaining why the conscientious objector request had been denied. On October 23, 1970 defendant was sent the standard SSS Form 110 and Form 217, which notified defendant that the Board had classified him I-A and that he had a right to appeal within thirty days. Neither form made any reference to the basis of the Board’s decision or to the fact that defendant’s conscientious objector application had been considered. Defendant made no effort to appeal his I-A classification within the thirty-day limit. On November 25, 1970 defendant was ordered to report for induction. Shortly thereafter defendant initiated a determined, but unsuccessful, effort to have the denial of his conscientious objector claim reviewed administratively. On December 17, 1970, the date he was ordered for induction, defendant failed to report. Defendant seeks to excuse his failure to appeal within the thirty-day limit on the ground that he did not realize the Board’s decision to reclassify him I-A on October 20, 1970 was a rejection of his conscientious objector application. Defendant testified that he felt this reclassification was merely an automatic action that resulted from the expiration of his student deferment and that his conscientious objector application would be considered at some later date. Defendant stated that he was aware of his right to appeal the October 20th I-A classification but at the time he received the notice of classification he felt the only grounds for appeal would be that he was entitled to an extension of his student deferment. Since defendant was no longer in school he clearly was not entitled to an extension of the student deferment. The evidence introduced by the government in no way contradicts defendant’s testimony. The government’s own witness on direct examination testified that the Local Board’s October meetings always include a large number of automatic I-A reclassifications that resulted from expiring student deferments. The government’s witnesses and exhibits corroborate defendant’s testimony that he received no direct indication that his conscientious objector application had been denied until after his right to appeal had expired. Finally the government’s witnesses and exhibits agree that defendant made every reasonable effort to obtain a discretionary administrative review of his file after his right to appeal had expired. From the state of the record outlined above it is clear that defendant failed to pursue any of the administrative appeal procedures that were available to him as a matter of right. Normally a failure to exhaust administrative remedies will foreclose any subsequent judicial review of the validity of a registrant’s classification. E. g., United States v. McBride, 468 F.2d 567 (8th Cir. 1972). It has long been established, however, that the exhaustion doctrine is not an automatic and absolute bar to any attack on the validity of a registrant’s classification. As early as Glover v. United States, 286 F.2d 84 (8th Cir. 1961), we recognized that “exceptional circumstances” might justify a relaxation of the normal exhaustion requirement. The necessity of relaxing the exhaustion requirement under “exceptional circumstances” has also been recognized in other circuits. E. g., United States v. Rabe, 466 F.2d 783 (7th Cir. 1972); United States v. Davis, 413 F.2d 148 (4th Cir. 1969); Donato v. United States, 302 F.2d 468 (9th Cir. 1962). The difficulty with the “exceptional circumstances” rationale has been that, until recently, there has been no clear guidance from the Supreme Court identifying the factors that should be considered in deciding whether or not to relax the exhaustion requirement in a particular case. This guidance has now been supplied by the Court’s decisions in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) and McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). In both McKart and McGee the majority opinions refrained entirely from using the “exceptional circumstances” language that had become common in the lower federal courts. Instead, the Court utilized a balancing test which weighed the interests of the registrant against three specified governmental interests in requiring exhaustion. The three governmental interests in requiring exhaustion identified by the Court are: (a) the agency’s interest in having an opportunity to make a factual record and exercise its discretion and expertise without the threat of litigious interruption; (b) the agency’s interest in discouraging frequent and deliberate flouting of the administrative process; and (c) the agency’s interest in correcting its own mistakes and thereby obviating unnecessary judicial proceedings. The procedure used by the Court in McKart and McGee in this balancing process was to analyze the governmental interests to determine whether they were “compelling enough to outweigh the severe burden placed on [the registrant]” when he is denied judicial review of allegedly illegal agency actions. McKart v. United States, 395 U.S. at 197, 89 S.Ct. at 1665; McGee v. United States, 402 U.S. at 485, 91 S.Ct. 1565. In McKart the central issue was one of statutory interpretation and the Court concluded that the governmental interests were not compelling enough to require forfeiture of Mc-Kart’s defense. In McGee the agency’s interests in fact finding and exercising its expertise were threatened by the registrant’s deliberate refusal to participate in the administrative process, and the Court concluded that the necessity to protect the integrity of the Selective Service System compelled a foreclosure of judicial review. Applying the principles of McKart and McGee to this case, it is clear that the government has completely failed to show any interest compelling enough to justify a forfeiture of judicial inquiry into the validity of defendant’s classification. Local Board No. 51 refused all of the defendant’s offers to enlarge the factual record. There was no litigious interruption of the Board’s opportunities to exercise its discretion and expertise. Indeed, the inadequacy of the Board’s own actions in exercising its expertise and discretion is the basis of the registrant’s defense. There is no agency interest in time-saving self-correction suggested in this case because the Local Board and the State Director consistently refused defendant’s repeated requests to have his file reopened for just such a correction process. Finally, there is nothing in this case that would encourage frequent and deliberate flouting of the administrative process by others. The record is uncontradicted that defendant’s failure to appeal within thirty days was due solely to his lack of information about the Board’s decision and the consequences of his failure to appeal. The government concedes that as soon as defendant learned that his conscientious objector application had been denied he made every effort to have that decision reviewed administratively. We hold, therefore, that the government has failed to demonstrate any interests compelling enough to justify foreclosure of judicial review. Furthermore, we find that there is no dispute over the fact that defendant has presented a valid defense under our recent holding in United States v. Hanson, 460 F.2d 337 (8th Cir. 1972). We therefore reverse the judgment of the district court and remand the case for entry of a judgment of acquittal.

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Alan D. ZELINSKY, Administrator of the Estate of Karl Heinz Marschall, Deceased, Plaintiff-Appellee, v. ASSOCIATED AVIATION UNDERWRITERS and Glens Falls Insurance Company, Defendants-Appellants. No. 72-1493. United States Court of Appeals, Seventh Circuit. Argued April 13, 1973. Decided May 24, 1973. Irving G. Swenson, John W. McCullough, Chicago, 111., for defendants-appellants. Solomon Gutstein, Ronald S. Cope, Chicago, 111., for plaintiff-appellee. Before HASTINGS and BARNES , Senior Circuit Judges, and SPRECHER, Circuit Judge. The Honorable Stanley N. Barnes, Senior Circuit Judge for the Ninth Circuit, is sitting by designation. HASTINGS, Senior Circuit Judge. Thé administrator of the estate of Karl H. Marschall, deceased, sought recovery of an amount allegedly due under a group travel insurance policy written by the defendant insurance companies providing coverage, inter alia, for accidental death. At issue was whether de-cendent was an insured employee under the terms of the policy. Following discovery, the parties filed cross-motions for summary judgment contesting the scope of policy coverage. The material facts were not in dispute. After a full hearing, the district court held that decedent was a party insured within the applicable policy provisions. It granted plaintiff’s motion for summary judgment in the amount of $50,-000 (the amount due if coverage existed), plus statutory interest from the date of the claim, but without costs and attorney’s fees. Defendants appealed. We affirm. The policy was issued November 1, 1966, to the employer, Miehle-Goss-Dex-ter, Inc., its divisions and wholly owned subsidiaries, 3100 South Central Avenue, Chicago, Illinois. The employer was a United States corporation engaged in manufacturing printing presses, with both domestic and foreign divisions and wholly owned subsidiaries. One of its domestic divisions was the Goss Company of Chicago. The policy covered accidental death of employees occurring "worldwide” during “travel and sojourn on the business of the Employer” with certain restrictions and exclusions not relevant here. On November 17,1966, the policy was amended to add as additional “employers” Miehle-Goss-Dexter Americas Companies and M.G.D. Canada Ltd. Also, Part I of the policy, “Insured Defined,” was amended to read as follows: CLASS I PRINCIPAL SUM All United States and Canadian Officers and Directors of the Employer. $100,000.00 CLASS II PRINCIPAL SUM All other United States and Canadian Employees of the Employer not included in Class I excluding T ruck Drivers and their Helpers. $ 50,000.00 On January 28, 1969, while employed as a press erector by the Goss Company of Chicago on assignment in Santiago, Chile, the decedent was killed in an automobile accident while traveling on company business. A fellow employee of Goss Company, Hernando Secard, a Colombian citizen residing in Downers Grove, Illinois, was killed in the same accident. A claim for Secard’s death under the policy at issue was promptly paid because it was conceded that he was a United States employee. Defendants rejected the claim arising out of decedent’s death on the ground that he did not so qualify. Marschall was a German national. While residing in Berlin, he became a technician trained to work with printing presses. He married Ursula there on February 23, 1946. They were the parents of a son, Peter. Decedent left Germany in 1954 and lived and worked in .Central America. He was subsequently joined by his wife and son. On December 15, 1957, decedent and Ursula immigrated to the United States. Both registered as aliens. They used a New Jersey mailing address. They lived for various periods of time in South America, where he worked. They returned to the United States every two years, living each time in New York. Marschall continued to work in various locations in South America. Ursula became a permanent resident of the United States about 1965 when the couple separated but were not divorced. Their son Peter became a staff sergeant in the United States Air Force. Decedent was first hired in Chicago by Miehle-Goss-Dexter, Inc., as a press erector, beginning work in South America July 15, 1963. Later, in 1964, he was employed by Miehle-Goss-Dexter Americas Companies in Sao Paulo, Brazil. In 1966, he was employed by and placed on the payroll of the Goss Company of Chicago, a division of Miehle-Goss-Dexter, Inc., as a press erector and continued to be assigned to work as such in various South American countries. It was while so employed that decedent and Hernando Secard were traveling from La Nación, Chile, to Santiago, Chile, when they were killed in the automobile accident. Decedent had maintained substantial ties with the United States and the Goss Company, his United States employer. He was carried on the Goss Company payroll as Clock No. 5731. He was paid for his services in United States dollars, and his paychecks were sent to the First National City Bank of New York and deposited in a personal account he maintained there. He was regularly reimbursed in United States dollars for expenses incurred in his foreign travel on behalf of Goss. All of his work for Goss was performed in South America. Defendants contend that the trial court erred in holding the relevant policy language defining “insured,” set out fully above, to be ambiguous and in turning to extrinsic aids to explain its meaning. They read the words “United States and Canadian Employees of the Employer” to be clear and unambiguous and maintain that “the term employees must be limited to employees in the United States and Canada and will cover such employees while traveling overseas.” (Emphasis added.) It is clear to us that such language used by defendants does not appear in the policy. On the other hand, plaintiff contends that the term “United States Employees” means employees of the United States corporation Miehle-Goss-Dexter, Inc., and its wholly owned domestic subsidiaries and divisions, “as contrasted with the employees of the corporation’s foreign subsidiaries and divisions.” Assuming arguendo that this meaning may be established by the record, it is clear that such language does not appear in the policy itself. We agree with the trial court that the phrase “United States Employees” on its face is ambiguous and does not have one clear and unambiguous meaning and that neither interpretation advanced by the parties is compelled. Under such circumstances it is well settled, not only in Illinois but in other jurisdictions, that where a contract in issue is not unambiguous on its face, it is necessary for the district court to consider all the circumstances that gave rise to its existence before attempting to interpret it. Buschmann v. Professional Men’s Association, 7 Cir., 405 F.2d 659, 663 (1969). It has been held that where any doubt does arise as to the sense or meaning of a contract, resort may properly be had to the circumstances surrounding its execution. Green v. Aerosol Research Co., 7 Cir., 374 F.2d 791, 794 (1967); see Buchanan v. Swift, 7 Cir., 130 F.2d 483, 485 (1942). It is also well established that the provisions of the insurance policy are to be construed strictly against the insurer, as their drafter, and ambiguities are to be resolved in favor of the insured. Helmich v. Northwestern Mutual Insurance Co., 7 Cir., 376 F.2d 420, 423 (1967). We hold, therefore, that the district court quite properly resorted to the consideration of extrinsic evidence to resolve the question of contract interpretation and, in so doing, correctly determined that such evidence favored plaintiff’s interpretation. It was shown that the original policy, issued through defendant Associated Aviation Underwriters, was first drafted in 1960 and afforded coverage for all employees of the employer and its wholly owned subsidiaries. At that time the chairman of the board of Miehle-Goss-Dexter, Inc., sent a letter to all employees, specifically including erectors, who traveled on business for it and its divisions or domestic subsidiaries, advising them of this new group travel accident insurance coverage for all employees “while you are traveling — except commuting — on company business anywhere in the world.” This policy expired in 1963. The new policy similarly defining “insured” was issued by Royal Globe Insurance Company. In 1964, a broker for the employer wrote to Royal Globe that it was not the intent of the employer or its brokers to cover any of the employer’s foreign subsidiaries but to cover only the employees of the United States corporation and its wholly owned domestic subsidiaries. Accordingly, Royal Globe was directed to draw an amendment covering only “those who are employed by domestic corporations” and to cover them while “traveling on company business anywhere in the world.” The policy was amended to cover, inter alia, “employees of United States companies only.” In October 1966, a representative of one of the present defendants was negotiating with the employer’s broker in connection with the subject policy. He wrote to George A. Melone, a representative of the employer’s insurance broker, setting forth the terms and conditions of the present policy, which contained the same definition referred to in the original 1960 policy, and which covered “All other Employees of the Employer not included in Class No. I, excluding Truck Drivers and their Helpers.” As a part of its proof dealing with the intention of the parties, the plaintiff, in support of his motion for summary judgment, filed an affidavit of Melone specifically stating that in drafting the policy language defining “insured” the parties never had any intention of changing the definition of “insured” as contained in the Royal policy. The district court did not err in crediting the Melone affidavit. We agree with the trial court that the scope of coverage “depended on the nationality of the employer-company, not the location of the employee.” Our holding that defendants are liable under the policy is further influenced by the fact that the defendant companies promptly paid the claim arising from the death of decedent’s fellow employee, Hernando Secard. Secard was a citizen of Colombia doing the same work as decedent in Chile. The only difference was that Secard resided in Downers Grove, Illinois. Both had the same Chicago-based employer. We fail to see that the employee’s place of residence has any relevance under the construction of the policy found proper in this case. We have considered other contentions raised by defendants but do not find them persuasive. The judgment of the district court is affirmed. Affirmed.

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UNITED STATES of America, Plaintiff-Appellant, v. Jack L. LEWIS, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. James L. WILLOZ, Defendant-Appellee. Nos. 72-2524 and 72-2740. United States Court of Appeals, Fifth Circuit. May 29, 1973. Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, John R. Schupp, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellant. Virgil Wheeler, Jr., New Orleans, La., for defendants-appellees. Before JONES, GODBOLD and IN-GRAHAM, Circuit Judges. JONES, Circuit Judge. The narrow question on this appeal is whether the amounts paid ‘as fines which were imposed after pleas of guilty to criminal charges made pursuant to a statute which was subsequently determined, retroactively, to be unconstitutional, may be recovered in a coram nobis proceeding attacking the validity of the convictions. The facts of the case, the decision of the district court-and the reasons for its decision are set forth in its opinion. United States v. Lewis, E.D.La. (1972), 342 F.Supp. 833. This cause would require less in the way of adjudication if the party holding funds exacted under an unconstitutional statute was not an entity which could and does assert sovereignty as justification for its refusal to restore such funds to them from whom they were received. We are in accord with the district court’s decision and with the basis for its decision. It is appropriate, however, that there be some further discussion of the matters which the Government has stressed on appeal. The Government concedes, although it has little choice to do otherwise, that the judgments of the district court must be affirmed insofar as they set aside the convictions of Lewis and Willoz. The Government asserts that, although the statute under which the fines were imposed were in violation of the Constitution, nevertheless if there is to be any recovery, which the Government does not concede, it must be by a separate action brought under the Tucker Act. 28 U.S. C.A. § 1346(a). This statute is one which confers a jurisdiction upon the district courts. It is not procedural. We can see no reason why a person who has paid a fine pursuant to an unconstitutional statute should be required to resort to a multiplicity of actions in order to obtain reimbursement of money to which he is entitled. Since the district court was empowered to set aside the conviction, it could also correct the unlawful result of the conviction and require the repayment of the money collected as fines. This it could do without requiring the bringing of another action. The Ninth Circuit, in a proceeding brought under 28 U.S.C.A. § 2255, has required the repayment of a fine illegally collected. Smith v. United States, 9th Cir. (1961), 287 F.2d 270, cert. denied, 366 U.S. 946, 81 S.Ct. 1676, 6 L.Ed.2d 856. The Government says that the appellants cannot recover in any event or by any existing remedial procedure because there is no express statutory authority for such relief. Just as the imposition of a fine is an incident of a criminal conviction, so is the direction for repayment an incident to the vacating and setting aside of the conviction. The judgments of the district court are, in all things, Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Fred Harvey COLLINS and Daniel Mark Scheffer, Defendants-Appellants. No. 73-1080 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 31, 1973. William F. Walsh, Houston, Tex., court appointed for defendants-appellants. Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: This is the second time we review the convictions of Fred Collins and Daniel Scheffer for importing cocaine. In our first review we reversed and remanded for a retrial due to the prejudicial use of evidence obtained by an illegal search. United States v. Scheffer, 5 Cir., 1972, 463 F.2d 567. After reconvietion these defendants raise many of the contentions which were properly rejected in our last opinion. The only new issue of any substance concerns the testimony of the Government’s witness Robert Frank Saenz. We find no error in the District Judge’s ruling set out in his Memorandum Opinion appended hereto. Affirmed. December 12, 1972 MEMORANDUM: During the course of the testimony in the retrial of the above two defendants, the prosecution called as a witness Robert Frank Saenz, a co-defendant in this cause. Saenz had pleaded guilty to one count of the indictment and received a sentence of eight years pursuant to 26 U.S.C. § 4704. Saenz had not only previously testified for the government before a federal grand jury in Laredo, Texas, but had also been the government’s chief witness in the case against Scheffer and Collins at their first trial. As the result of certain information indicating a refusal to testify imparted to the Court by both the attorneys for the defendants and the government, a hearing was held out of the presence of the jury to determine Saenz’s competency as a witness. After the prosecutor had proffered several questions to Saenz, the Court personally examined the witness and found the following: that although he outwardly maintained a willingness to testify, Saenz was unable to recall clearly virtually all the matters to which he had previously testified in great detail (Saenz stated to the Court that all the testimony he had given in June of 1971 was totally unclear to him at this time); that he was reluctant to review the transcripts of the previous testimony offered to him by the United States Attorney; that the posture assumed by the witness in his portrayal of his failure to remember was for the dual purpose of avoiding a contempt of court charge and of avoiding any conduct which would be harmful to the defense of his close friends and allies Scheffer and Collins; and that the rationale supplied by Saenz as to his faulty memory was a contrivance to avoid restating the testimony that in large measure had previously convicted Scheffer and Collins. In the face of Saenz’s recalcitrance, the Court determined that Saenz would not be competent as a witness and that his testimony given at the original trial should be read to the jury from the official transcript of that trial. The propriety of this decision is buttressed by the holdings of the United States Court of Appeals for the Fifth Circuit in United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971) and United States v. Mobley, 421 F.2d 345 (5th Cir. 1970), and the holding in United States v. Insana, 423 F.2d 1165 (2nd Cir. 1970) which case presented a factual situation closely analogous to the matter at hand. By allowing the prior testimony to be read the Court does not believe that there was any infringement of the defendant’s rights. Nor was there a violation of proper evidentiary procedure. The defendant’s right to confrontation was clearly not violated for the reason that the defendants were represented by the same counsel at the prior trial at which time they fully cross-examined Saenz. Additionally, Saenz was at all times available for personal cross-examination at the instant trial. In fact, the Court stated that if counsel so desired, Saenz would remain in the courtroom during the reading of the prior testimony and then be allowed to take the stand for cross-examination. However, counsel for the defense neither read the prior cross-examination nor personally cross-examined Saenz. That such cross-examination would be fruitless is not convincing in view of Saenz’s desire to be helpful to the defendants. There is little doubt that prior testimony should be admissible as an exception to the hearsay rule in cases of this type. To conclude that prior testimony inconsistent with a present lack of knowledge is admissible as a contradiction is not a unique posture to assume. Of even more substance is the position that when a prior statement is made under oath in a judicial proceeding and the author is available for cross-examination at the subsequent trial, the prior testimony is not hearsay. Cf. Rules of Evidence for the United States District Courts and Magistrates, Article VIII, Rules 801(d)(1), 804(a)(3), 804(b) (56 F.R.D. 183, 293 et seq., Nov. 21, 1972). Based on the foregoing this Court reached the conclusion that Saenz was or could have been fully aware of the content of his prior testimony, but wished to escape testifying against Scheffer and Collins and thus make a mockery of the trial. It is the belief of this Court that the statements made in prior sworn testimony are admissible not only to impeach his claim of lack of memory, but also as an implied affirmation of the truth. The trial court’s hands should not be tied where a witness does not deny making the statements nor the truth thereof, but merely falsifies a lack of memory. The clerk will furnish true copies of this Memorandum to the appropriate parties. Done at Laredo, Texas, this 12th day of December, 1972. BEN C. CONNALLY United States District Judge . This opinion is identical to that which we filed on April 17, 1973, in this matter and which we later ordered withdrawn by an order dated May 10, 1973. Our withdrawal of the former opinion was occasioned by the fact that through some inadvertence in the Clerk’s Office we failed to note that an extension of time had been granted to appellant to file a reply brief. This Brief now filed on May 1, 1973 has been fully considered by the Court and does not change the views which we originally expressed and which we herewith reaffirm by issuance of this opinion.

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Arnold BAILEY, Plaintiff-Appellant-Cross Appellee, v. KAWASAKI-KISEN, K.K., Defendant-Appellee-Cross Appellant, American Mutual Liability Insurance Company, Intervenor. No. 73-1350 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 25, 1973. Arnold C. Jacobs, New Orleans, La., for appellant. Paul A. Nalty, New Orleans, La., James W. Hailey, Jr., Metairie, La., for Kawasaki and American Mut. Liability Ins. Co. Before GEWÍN, 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: In this case, Arnold Bailey brought suit against the KAWASAKI-KISEN, K.K., aboard which he had been working as a longshoreman, alleging that he sustained certain injuries as a result of the vessel’s unseaworthiness. Trial was had before a jury and a judgment was returned in favor of the defendant KAWASAKI-KISEN, K.K. On appeal this court reversed and remanded for a new trial because of the improper exclusion of evidence. Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392 (5th Cir. 1972). The necessary facts are set forth in that opinion. At the retrial of this case the jury was waived. Upon a full consideration of the original record, supplemented by the evidence which had theretofore been excluded, the district court found the vessel to be unseaworthy and further concluded that this unseaworthiness was the proximate cause of Bailey’s injuries. Damages were awarded in the amount of $5,089.55. Bailey appeals from the district court’s assessment of damages and KAWASAKI-KISEN, K.K. cross-appeals from its finding of liability based on unseaworthiness. We affirm the district court’s judgment in all respects. On this appeal essentially what both parties seek is a review of the sufficiency of the evidence underlying the trial court’s conclusions on the unseaworthiness and damages issues. A careful review of the briefs and record in this case discloses ample evidence to support the district court’s determination that the vessel was unseaworthy due to an excessive amount of grease on both the cable and winch drum and that this condition caused the boom to fall, resulting in Bailey’s injury. We find also that the district court’s award of damages was similarly supported by the evidence. It held that any disability suffered by Bailey had terminated within thirteen weeks of the date of the accident if not in a shorter span of time. The trial court considered and specifically rejected the possibility that there was any connection between the accident and Bailey’s complaints of disability and pain beyond the period for which he was permitted to recover damages. The judgment of the district court is affirmed. . Damages were allocated as follows : Loss of wages for 13 weeks at $78.18 $1,016.34 Medical expenses 573.21 Pain and suffering 3,500.00 Total $5,089.55

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UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward FINSTAD, Defendant-Appellant. No. 73-1114 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 14, 1973. Rehearing Denied June 4, 1973. Barry L. Garber, Miami, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: On a trial to the Court, without the intervention of a jury, Joseph Edward Finstad was convicted of the unlawful possession, with intent to distribute, 2.02 grams of heroin, 21 U.S.C. § 841(a)(1). We affirm. The conviction is attacked upon the usual grounds: (1) there was no probable cause for the arrest and search of the appellant; (2) the evidence was insufficient to support the conviction. Finstad fell into the pit in the following manner. Special Agent Nesmith purchased heroin in Atlanta, Georgia, during the months of January and February, 1972, from one Corrochano. At 6 p. m., February 25, 1972, in Miami, Ne-smith called Corrochano, also then in Miami, who stated that he would call back as soon as he had received some heroin. Thirty minutes later, Special Agent Walde saw Finstad drive up to Corro-chano’s residence. Finstad met with Corrochano at the rear of Corrochano’s automobile, which had the trunk open. Corrochano was then followed to the motel where Special Agent Nesmith was quartered. Enroute, Corrochano called Nesmith to advise that he now had the heroin. At 7:10 Corrochano arrived at the motel, told Nesmith that he had the heroin in the car, left the room, and shortly returned with the prohibited substance. Corrochano was then arrested. He soon stated that he had received the heroin from Finstad in front of his residence. Without obtaining an arrest warrant, the Agents then went to Finstad’s home and arrested him. He was then taken to the Bureau of Narcotics office, where a search produced the heroin which became the subject of this prosecution and which the appellant unsuccessfully moved to suppress. We are of the opinion that the arrest was valid for the reasons that the Agents had certainly seen enough to support a reasonable belief that Finstad had distributed the heroin to Corrochano, United States v. Wysocki, 5 Cir., 1972, 457 F.2d 1155. As to the sufficiency of the evidence, Finstad argues that the proof was insufficient to show beyond a reasonable doubt that he did not have the heroin for his own personal use. We reject this argument for the reason that the jury could properly infer from all of the circumstances that Finstad indeed had distributed heroin to Corroehano and the amount on his person when arrested was held for a similar purpose. The judgment of the District Court is Affirmed.