author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Joseph CADENA et al., Plaintiffs-Appellants, v. Claude E. PERASSO, Defendant-Appellee.
    No. 73-1178.
    United States Court of Appeals, Ninth Circuit.
    May 28, 1974.
    Jack Morgan, San Francisco, Cal., for plaintiffs-appellants.
    Tom O’Connor, City Atty., George E. Krueger, Deputy City Atty., Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellee.
    Before ELY, WRIGHT and GOODWIN, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Plaintiffs in this civil rights action, brought on behalf of themselves and all others similarly situated, sought injunctive relief, a declaratory judgment and damages against the defendant, a San Francisco municipal court judge. They complained that the defendant had violated their constitutional rights by the manner in which he conducted probation revocation proceedings. We affirm the district court’s dismissal of the complaint on the ground that Judge Perasso was immune from civil liability for acts committed in his judicial capacity. We also affirm denial of injunctive relief.

According to the complaint, the eight plaintiffs and others on probation were brought before Judge Perasso for arraignment on new felony complaints. Under the pretense of setting bail on the new offense, the judge examined the arrest record of each accused, noted that he or she was on probation, and on his own motion moved to revoke probation. Then, having read the police report of the new offense, the judge revoked probation.

The plaintiffs allege that they were denied assistance of counsel, written notice of the alleged probation violation, the opportunity to be heard, and the opportunity to present witnesses on their own behalf. They allege further that Judge Perasso should have been disqualified from proceeding in criminal matters because he was at one time a public defender and that California law prevented him from sitting as a judge in cases involving any probationers who had been represented by the defender's office while he was employed there. The district judge disposed of this last contention with the observation that California has adequate statutory procedures for the disqualification of any judge by timely challenge.

A judicial officer is clearly immune from liability for damages for his judicial actions. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The immunity applies even if the judge is accused of acting maliciously or corruptly.

In Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the Supreme Court held that the Civil Rights Act [42 U.S.C. § 1983] is an exception to the anti-injunction statute [28 U.S.C. § 2283]. The court explicitly stated, however, that “we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.” Id. at 243.

When there is an adequate remedy at law, and when there will be no irreparable injury if equitable relief is denied, there is no need for a court of equity to interfere with state criminal proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In O’Shea v. Littleton, 414 U.S. 488, 500, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), the court stated that where there is a question of adjudicating claims of noncompliance with valid state laws, “an ongoing federal audit of state criminal proceedings” would be necessary, “[and] would indirectly accomplish the kind of interference that Younger v. Harris and related cases sought to prevent.”

Affirmed.


source: Caselaw Access Project

author: McENTEE, Circuit Judge.

license: Public Domain

text:
    DAVIS ASSOCIATES, INC., Plaintiff, Appellant, v. SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, and Dover Housing Authority, Defendants, Appellees.
    No. 74-1149.
    United States Court of Appeals, First Circuit.
    Submitted June 5, 1974.
    Decided June 28, 1974.

      David A. Brock, Concord, N. H., with whom Perkins, Douglas & Brock, Concord, N. H., was on brief, for appellant.
    Joseph M. Corwin, Boston, Mass., with whom Corwin & Corwin, Boston, Mass., and Donald R. Bryant, Dover, N. H., were on brief, for Dover Housing Authority, appellee.
    Robert A. Schwartz, Asst. U. S. Atty., with whom William J. Deachman, U. S. Atty., and David Sonenshein, Atty., Office of Regional Counsel, Dept, of Housing and Urban Development, Concord, N. H., were on brief, for Secretary, Dept. . of Housing and Urban Development, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Davis Associates brought this action in the district court for equitable relief contending, in essence, that the defendants abused their statutory discretion in rejecting its bid for the main contract on a federally-assisted housing project. The district court dismissed the action on the ground that defendants’ rejection of the bid was not “reviewable.” We affirm the dismissal, but base our decision on a somewhat different line of reasoning.

The facts are not in dispute. In early 1973 the Dover (N.H.) Housing Authority (hereinafter “the Authority”) reached a preliminary agreement with the Department of Housing and Urban Development (hereinafter “HUD”) on a proposed hundred-unit housing project for the elderly that would be supported by federal loans under the provisions of the United States Housing Act of 1937, 42 U.S.C. § 1401 et seq. (1970). The Authority thereafter invited bids on the project, but expressly reserved the right to reject any and all bids so received. When no bid came in below HUD’s initial cost estimate, known as the prototype cost, the Authority was permitted to enter negotiations with the three lowest bidders, one of whom was Davis. In the course of negotiations, one of the two other bidders withdrew and the second one was disqualified for reasons not relevant here. On September 19, 1973, the Authority voted to award the contract to Davis subject to the approval of HUD. The negotiated award price was still higher than HUD’s initial estimate. On September 25, HUD notified the Authority that it would not approve the award to Davis because of (1) “considerable confusion” which it found in the negotiations, (2) the possibility of litigation by the disqualified bidder and (3) the possibility that “considerable savings” would result if the project were redesigned and rebid. Davis responded by arranging a meeting with HUD to seek reconsideration of its rejection. After the meeting HUD agreed to modify its decision “to the extent that the Dover Housing Authority may, at its discretion, resubmit its previous recommendation to HUD to award the construction contract to [Davis].” HUD noted that if the Authority chose to resubmit the recommendation there was still no guarantee that it would change its prior decision and approve. However, HUD never had to reconsider because the Authority voted not to resubmit the Davis award. It informed Davis that it was rejecting all the initial bids and would redesign and rebid the project as HUD had initially suggested.

Davis filed the instant action against the Secretary of HUD and the Authority. The complaint was styled “a petition in equity requesting review and/or trial de novo of certain decisions and rulings of a federal administrative agency made by it under and pursuant to Title 42 U.S.C.A., § 1401 et seq.” It alleged that the defendants’ actions constituted a “breach of good faith and an arbitrary, capricious and gross abuse of their discretion in the performance and administration of their duties under the laws of the United States, and [that] said action [was] not in the best interest of the government and in other ways not in accordance with the law.” The principal relief sought was an order “requiring the defendants to show cause why [the] contract should not be immediately awarded” to Davis.

The district court recognized that “[t]he essence of Davis’ complaint is that HUD’s disapproval of the negotiated bid and the [Authority’s] decision not to resubmit the Davis bid after HUD’s disapproval was conditionally withdrawn were both arbitrary, capricious, and an abuse of discretion.” The court then engaged in a three-part analysis under the headings of “jurisdietion,” “standing,” and “reviewability.” Initially, the court found subject-matter jurisdiction by treating the rather inartful complaint as both an action in the nature of mandamus under 28 U.S.C. § 1361 (1970), and, alternatively, as a petition seeking judicial review of HUD’s and the Authority’s administrative determinations under the Administrative Procedure Act (hereinafter “APA”) § 10, 5 U.S.C. § 701 et seq. (1970). With respect to standing, the court held that an “unsuccessful bidder” such as Davis could assert the instant claim. Merriam v. Kunzig, 476 F.2d 1233, 1240 (3d Cir.), cert. denied, Gateway Center Corp. v. Merriam, 414 U.S. 911, 94 S.Ct. 233, 39 L.Ed.2d 149 (1973). The final consideration was “whether the agency action complained of is reviewable by this court.” Here, the court implicitly abandoned its previous analysis of the complaint as separately seeking both mandamus and judicial review, and focused solely on the latter question. After considering the relevant statutes and regulations, plus the type of determination it would have to make if it did grant review, the court held that the actions complained of were not reviewable and therefore dismissed the complaint.

Davis appeals from the determination of nonreviewability and HUD and the Authority, as appellees, challenge the court’s holdings on jurisdiction and standing. We think the court’s dismissal was essentially correct. However, the court appears to have confused its analyses of the right to mandamus as opposed to the right to judicial review. Although closely related, the two concepts are different. A party may be entitled to judicial review under the APA even where mandamus might not lie under § 1361. Therefore, we will briefly review these issues separately.

Section 1361 provides that district courts “shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” In mandamus actions, the usually separate questions of jurisdiction and failure-to-state-a-claim merge. There can be no mandamus jurisdiction if no “duty” exists on the part of the defendants. On the other hand, if a duty does exist, then not only is there jurisdiction under § 1361 but plaintiff has also adequately stated a claim in asking that such duty be fulfilled. See Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965).

Thus, in a highly technical sense, the district court erred in finding subject-matter jurisdiction under § 1361 in this case, because its subsequent analysis of the statutory materials under the heading of “reviewability” conclusively demonstrated that the defendants had no “duty” to award the contract to Davis. Both the statute and the regulations are written in discretionary terms. They generally leave to HUD and the local housing authorities the assessment of competing bidders, within, of course, certain outer parameters of acceptability. The existence of some fixed requirements means that the area of contract awards is not totally shut off from mandamus relief. Instead, in each case we must measure the allegations in the complaint against the statutory and constitutional framework to determine whether the particular official actions complained of fall within the scope of the discretion which Congress accorded the administrators. See Work v. United States ex rel. Rives, 267 U.S. 175, 177-178, 45 S.Ct. 252, 69 L.Ed. 561 (1925); Ashe v. McNamara, supra; Murray v. Vaughn, 300 F.Supp. 688, 696-697 (D.R.I.1969); Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 333-35 (1967). Here, the allegation is that defendants abused their discretion in not awarding the contract to Davis, a qualified bidder. The only supporting argument as to why this action constituted an abuse is that costs are rising so quickly that the delay attendant to redesign and rebidding may prevent the “desperately needed” housing project from ever being completed. See note 1 supra. First of all, the statute does not require that this particular project be built. Second, the statute clearly leaves the inflation determinations to HUD and the local authorities. Therefore, there was no “duty” to award the contract to Davis and thus no mandamus jurisdiction.

Also, Davis was not entitled to judicial review of the administrative determinations which lay behind the rejection of its bid. We note that we need not review the court’s holding that the APA is in itself a source of jurisdiction, because in any event the question of whether the APA authorizes judicial review under these particular facts is one “arising under” federal law and thus covered by 28 U.S.C. § 1331 so long as there is at least $10,000 in controversy. In the instant case, although not expressly alleged, Davis’ anticipated profits on the roughly $2,500,000 project certainly must exceed $10,000.

Turning to the merits, we hold that the APA does not authorize judicial review here. Therefore, Davis failed to state a claim. Although there is a presumption of review expressed in APA § 10(a), 5 U.S.C. § 702 (1970), see Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970), that presumption will be overcome by clear and convincing evidence that Congress intended to cut off review above the agency level. Id. See APA § 10 (introductory clause), 5 U.S. C. § 701(a) (1970). In Hahn, this court adopted a three-factor inquiry for determining when Congress intended to preclude review: (1) the appropriateness of the issues raised for review by the courts; (2) the need for judicial supervision to safeguard the interests of the plaintiffs; and (3) the impact of review on the effectiveness of the agency in carrying out its assigned role. See Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367, 371 (1968). As the district court found, see note 3 supra, the issues presented here are not appropriate for judicial review. They turn on matters of social policy and economic forecasting. Also, the need for judicial supervision to safeguard the interests of Davis is not apparent. Unlike the low-income housing tenants in Hahn, Davis has considerable bargaining power with the agencies. The record of its negotiations to date demonstrates that. Finally, the impact of review on decisions to award housing contracts can only be “dilatory,” as the district court observed. While such delay might be tolerable where HUD had allegedly violated some inflexible requirement of its own regulations or the statute, cf. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970), here the balance of factors points in only one direction, namely, no review of the decision to reject Davis’ bid.

In view of these holdings, we need not reach the issue of standing. But see Scanwell Laboratories, Inc. v. Shaffer, supra.

Affirmed.

      . Davis, in a subsequent memorandum to the court, explained how the action constituted an abuse of discretion :
      “In addition to the foregoing, Davis will, at a hearing on the merits, present evidence from a number of sources to support its contention that the September 25, 1973, decision of HUD to reject bids and the post-November 5, 1973 failure of [the Authority] to proc.eed with the award of the contract to Davis were decisions which, rather than being in the best interests of the government, [the Authority] and the public, were so contrary to their collective and individual interests that as a matter of fact and law they constitute an arbitrary abuse of discretion.
      “Evidenee will' indicate that these decisions may have effectively prevented the ultimate approval of this Project by HUD, upon rebidding.
      “In keenly competitive bidding, Davis’ bid for this project was dangerously close to statutory limits, in the form of prototype costs, imposed by Congress. Substantial industry-wide materials and labor costs increases during the past few months will most likely result in new bids exceeding the statutory limitation.. One hundred desperately needed elderly housing units will be lost to citizens of Dover, New Hampshire should this occur.”

      . However, the court also determined that tire complaint did not state a cause of action “arising under” any federal statute or regulation, so as to provide an alternative source of jurisdiction in 28 U.S.C. § 1331 (1970). For reasons stated infra this was error.

      . The court stated in pertinent part:
      “The underlying issues involve consideration of the factors relevant to the Project prototype cost, since HUD’s decision not to approve was at least partially predicated on ‘the opinion that considerable savings might possibly result if the Project were to be redesigned.’ Exhibit 18. These issues necessitate inquiry into construction costs, compliance with applicable FHA standards and other factors particularly ill-suited to court adjudication. 24 C.F.R. § 275, Appendix A. In addition, any decision to commit federal funds to the [Authority] would have to weigh the importance of that Project against other projects competing for limited federal resources. The expertise necessary to a responsible decision of this nature is demonstrated by the two-inch thick set of specifications (Exhibit 2) and the one hundred page [Annual Contributions ContractJ (Exhibit 1) which govern this project. Under these circumstances, to paraphrase [Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970)] I willingly confess my incapacity to contribute intelligently to the problem.”

      . For example, 42 U.S.C. § 1415(5) (1970) precludes awarding a contract on any bid which exceeds by more than 10 per cent HOD’s initial prototype cost. Davis’ bid, although higher than the prototype cost, did not exceed it by more than 10 per cent. Therefore, awarding the contract to Davis was not barred by the statute. This does not mean, however, that awarding the contract to Davis was commanded by the statute.

      . In other words, even in an area generally left to agency discretion, there may well exist statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised. In these situations, mandamus will lie when the standards have been ignored or violated. As this court demonstrated in Ashe v. McNamara, supra, the same would also be true when the agency’s exercise of discretion exceeded constitutional limitations. The Second Circuit' expressed essentially the same concept when it noted that even in discretionary areas official conduct may sometimes go “so far beyond any rational exercise of discretion as to call for mandamus.” United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). See also National R. R. Passenger Corp. v. National Ass’n of R. R. Passengers, 414 U.S. 453, 94 S.Ct. 690, 696-697, 38 L.Ed.2d 646 (1974) (Brennan, J., concurring).

      . This court has never decided this question. See Friedman v. Froehlke, 470 F.2d 1351, 1352 n. 1 (1st Cir. 1972). Other courts have split. See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 1161 & n. 6 (1973), and cases and authorities cited therein.

      . A case arises under federal law within the meaning of § 1331 “where an appropriate statement of the plaintiff’s cause of action, unaided by any anticipation or avoidance of defenses, discloses that it really and substantially involves a dispute or controversy respecting tire validity, construction, or effect of a law of Congress.” Hopkins v. Walker, 244 U.S. 486, 489, 37 S.Ct. 711, 713, 61 L.Ed. 1270 (1917). In view of our holding that the claim asserted under the APA entitles the plaintiff to § 1331 jurisdiction, we need not reach Davis’ alternative contention that federal procurement regulations apply to this case and for that reason entitle it to § 1331 jurisdiction.

      . Appellant’s contention that APA § 10(e), 5 U.S.C. § 706 (1970), somehow alters or makes irrelevant the analysis applied in Hahn is without merit. Section 706 authorizes reviewing courts to set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.” But the section must be harmonized with § 701, which bars application of the APA to the extent that “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” The Hahn analysis is intended to carry out that harmonization. See generally Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” supra:
      “Even assuming that courts have the prestige and power to remedy all such abuses when found, to demand that courts give review whenever a complainant utters the formula ‘abuse of discretion’ is to hazard a serious misalloeation of judicial resources as well as a stifling of agency and congressional programs. The capacity of individuals to bring frivolous claims cannot be overlooked.”

        Id. at 374-75.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James T. TAYLOR, Defendant-Appellant.
    No. 73-1721.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 12, 1974.
    Decided June 5, 1974.

      William J. Richards, Detroit, Mich., for defendant-appellant; Martin I. Reisig, Detroit, Mich, (court appointed), Michael H. R. Buckles, Research Asst., on brief.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., for plaintiff-appellee.
    Before EDWARDS, McCREE and LIVELY, Circuit Judges.
   PER CURIAM.

This is a direct appeal from appellant’s conviction on two counts of a six-count indictment charging uttering and publishing forged checks and receipt and possession of stolen mail, in violation of 18 U.S.C. § 495 and § 1708 (1970). He was sentenced to two concurrent terms of two years each, after being found guilty by an 11-person jury in the United States District Court for the Eastern District of Michigan.

This case represents another aspect of the construction of Rule 23(b) of the Federal Rules of Criminal Procedure which we last construed in United States v. Lane, 479 F.2d 1134 (6th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973).

Rule 23 provides:

“(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.
“(b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.” Fed.R. Crim.P. 23(a) & (b).

In the Lane case we held that where the parties (government and defendant) have stipulated in open court through their lawyers, and the oral assent of the defendant himself was entered on the stenographic record of the court to the submission of the ease to a jury consisting of 11’ jurors, this was sufficient compliance with the “in writing” provision of the rule.

In this case, however, the District Judge took a stipulation at the beginning of the trial between counsel for the government and counsel for the defendant that in the event a juror became ill, the case would proceed to verdict with only 11 jurors. The District Judge did not conduct any voir dire with the defendant himself, although the defendant, of course, was in the courtroom at the time the stipulation was entered. Nor did the District Judge conduct such a voir dire directly with the defendant when in fact a juror became ill and he ruled that the case would proceed with 11 jurors. Thus this record does not show that the defendant himself ever assented to the waiver, either orally or in writing.

The sole question we consider on this appeal is whether the failure of the District Court to comply literally with the terms of Rule 23 requires reversal for new trial.

This same question was considered by the Ninth Circuit, which held:

“Counsels’ oral stipulation for an eleven-member jury was not in writing, but did appear in the reporter’s transcript. The court did not personally address Guerrero-Peralta, and no statement by her concerning her decision to proceed appears in the record. An oral stipulation may, under certain circumstances, satisfy the Rule, but it must appear from the record that the defendant personally gave express consent in open court, intelligently and knowingly, to the stipulation. Rogers v. United States, 7 Cir., 1963, 319 F.2d 5; see Bayless v. United States, 9 Cir., 1967, 381 F.2d 67, 75 (oral waiver of jury trial as to certain issues, citing Rogers); Taylor v. United States, 9 Cir., 1944, 142 F.2d 808, 816 (citing Patton v. United States, 1930, 281 U. S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854).” United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir. 1971). (Footnote omitted.)

We agree with the Ninth Circuit analysis. The word “parties” in Rule 23(b) must be construed to require the express consent of the defendant himself. United States v. Virginia Erection Corp., 335 F.2d 868, 871 (4th Cir. 1964).

We note that the government’s primary insistence on this appeal is that the error complained of was harmless. We cannot so construe it. To do so would be to open the door to emasculation of the rule. Further, waiver of a jury trial, even the waiver of one juror, is the waiver of a basic and important right which cannot be accomplished upon “a silent record.” See Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The judgment of the District Court is vacated and the case is remanded for new trial.


text:
    Maxine W. SIEGFERTH, Guardian of Robert H. Siegferth, an Incompetent Person, et al., Plaintiffs-Appellants, v. The BALTIMORE AND OHIO RAILROAD CO., Defendant-Appellee.
    No. 73-1820.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1974.
    Decided May 29, 1974.

      Richard T. Cunningham, Akron, Ohio, for plaintiffs-appellants; Bernard J. Amer, Amer, Cunningham & Brennan, Akron, Ohio, on brief.
    C. Kenneth Clark, Jr., Youngstown, Ohio, for defendant-appellee; Eldon S. Wright, Youngstown, Ohio, on brief; Harrington, Huxley & Smith, Youngstown, Ohio, of counsel.
    Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

Appellant is the guardian of her husband who was permanently injured and completely disabled when his car was struck by a B & O Railroad Co. freight train on December 23, 1969. Appellant’s lawyer sought the same strict liability instruction pertaining to the Ohio Whistle and Bell Statute which was sought and given in Glinsey v. B & O Railroad Co., 356 F.Supp. 984 (N.D. Ohio 1973), and he now claims reversible error in the fact that the District Judge in this case denied same and gave an instruction on contributory negligence. Thus, the issues in this appeal are identical with those in the Glinsey case except that here, without the strict liability instruction, the jury found no cause for action on the part of appellant.

The Glinsey appeal has just been decided by another panel of this Court. The District Court judgment therein was reversed, and the strict liability instruction was disapproved. Glinsey v. B & O R.R. Co., 495 F.2d 565 (6th Cir. 1974). On the basis of the reasoning and conclusions in Glinsey, supra, and finding no other issue of merit, the judgment of the District Court in our instant case is affirmed.


author: PER CURIAM:

text:
    SALT RIVER VALLEY WATER USERS’ ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2539.
    United States Court of Appeals, Ninth Circuit.
    June 11, 1974.
    Rehearing Denied July 17, 1974.
    Charles E. Jones, of Jennings, Strouss & Salmon, Phoenix, Ariz., for petitioner.
    Elliott Moore, Asst. Gen. Counsel, NLRB Washington, D. C., Gordon Zirpin, Counsel for the Gen. Counsel, Region 28, NLRB, Pho'eniz, Ariz., C. Woodrow Greene, Director, Region 28, NLRB, Albuquerque, N. M., for respondent.
    Anderson D. Ward, of Ward & Contreras, Phoenix, Ariz., for interested party.
   OPINION

Before KOELSCH, WALLACE and SNEED, Circuit Judges.

PER CURIAM:

Petitioner, Salt River Valley Users’ Association, seeks reversal of an order issued by the National Labor Relations Board pursuant to a finding that Assistant Transmission Water Masters (ATWM’s) employed by petitioner are not supervisors within the meaning of Section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11). The Board has cross-applied for enforcement of its order, contending that by insisting upon excluding ATWM’s from the appropriate bargaining unit and refusing to recognize the Union as their bargaining representative, the Association has violated Section 8(a)(5) and (1) of the Act. The Board’s decision is reported at 204 N.L.R.B. No. 26.

We deny the relief sought by the Petitioner and grant the Board’s cross-application, for enforcement.


text:
    UNITED STATES of America, Appellee, v. John Sherman MILES, Appellant.
    No. 72-1730.
    United States Court of Appeals, Eighth Circuit.
    June 17, 1974.
    Rehearing and Rehearing En Banc Denied July 10, 1974.
    James R. Wyrsch, Kansas City, Mo., for appellant.
    Bert C. Hurn, U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   PER CURIAM.

Judgment of conviction of defendant under 28 U.S.C. § 1341 was affirmed by this court on September 10, 1973. On March 18, 1974, 415 U.S. 970, 94 S.Ct. 1553, 39 L.Ed.2d 867, the Supreme Court of the United States vacated the judgment of conviction and remanded the case to this court for reconsideration in light of United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Upon review of the record and supplemental briefs filed by the parties, we affirm the judgment of conviction.

We hold that the use of the mails by the defendant was an essential and integral element of the fraudulent scheme. The scheme here did not reach fruition until the cattle were sold by the defendant and the monies divided among the coconspirators. The defendant specifically contemplated the use of the mails by the banks to process the bogus check which was used to purchase the cattle. The delay in processing the check was not simply relied upon by the defendant to “postpone” discovery of the fraud;' the evidence demonstrates it was part of the scheme itself. In this particular we find the facts, distinguishable from United States v. Maze, supra.

We affirm the judgment of conviction.


author: BUTZNER, Circuit Judge:

text:
    Michael Earl LEWIS, Appellee, v. A. W. SANDLER, Revenue Officer, and the United States of America, Appellants.
    No. 73-2185.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1974.
    Decided June 6, 1974.

      Gary R. Allen, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., and Meyer Rothwacks and Leonard J. Henzke, Jr., Attys., Tax Div.; Keith S. Snyder, U. S. Atty., W. D. N. C., and David B. Sentelle, Asst. U. S. Atty., on brief), for appellants.
    George S. Daly, Jr., Charlotte, N. C., on brief, for appellee.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and WIDENER, Circuit Judges.
   BUTZNER, Circuit Judge:

This is an interlocutory appeal from a district court order denying the defendants’ motion to dismiss for lack of jurisdiction. Michael Earl Lewis, purporting also to represent a class, seeks relief from jeopardy assessments and income tax levies imposed on alleged dealers in illicit drugs. We conclude that this action is barred by the anti-injunction provision in the Internal Revenue Code, the tax exception to the Declaratory Judgment Act, and failure to file an administrative claim for refund. Therefore, we vacate the order and remand the case with directions that it be dismissed.

There is little dispute about the salient facts. In September 1971, Charlotte police arrested Lewis and charged him with an offense involving the possession and sale of marijuana. At the time of his arrest, the police seized from his custody two pounds of marijuana and a sum of cash alleged by Lewis to be in excess of $600, but reported by the police to be in the amount of $467.00. In June 1972, a state judge dismissed the criminal charges against Lewis and ordered the police to return the $467 which they had been holding.

Instead of returning the money, a police officer notified an agent of the United States Internal Revenue Service that Lewis had been substantially involved in the illegal sale of narcotics for a number of months and that the police had arrested him and seized $467. Acting on this information, the Service terminated Lewis’ tax year effective June 14, 1972, computed his taxable income from the sale of drugs from January 1 through June 14, 1972 to be $57,535.24, and assessed a tax of $27,261.85. The Service then levied on the $467 held by the Charlotte police.

Lewis brought this class action on behalf of himself and all other similarly situated persons whose property had been seized by the Charlotte police department and subsequently distrained by the Service. His complaint asserted jurisdiction under 28 U.S.C. § 1343(3), 42 U.S.C. § 1983,. and “federal common law.” It alleged that the city and state officials conspired to unconstitutionally deprive him and the class he represents of their property without due process of law. Lewis sought a return of all funds that had been seized, a declaration that such seizures are unconstitutional, and an injunction against similar conduct in the future.

Soon after Lewis filed his action, the Service unconditionally returned the $467 and abated the jeopardy assessment. It explained the abatement by admitting that the tax was mistakenly assessed for 1972, the year it received the information, while it should have been based on the sales Lewis was alleged to have made before his arrest in September 1971.

I

Mootness

At the threshold, we are confronted with the government’s claim that the case is now moot since Lewis’ money has been returned to him and the assessment has been abated. However, this contention fails to account for the other members of the class Lewis purports to represent, and, as this circuit has held previously, actions on behalf of a class may survive even though the claims of individual named plaintiffs do not. Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1380 (4th Cir. 1972); cf. Indiana Employment Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). Moreover, it appears to be a current policy of the Service to make jeopardy assessments and levies against the assets of suspected drug dealers. This raises a not unreasonable expectation that such practices will be repeated, and the government could continue to avoid review simply by abatement of the assessment. The controversy, therefore, is not moot. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

II

Injunction and Declaratory Judgment

Lewis’ principal claim is for injunctive and declaratory relief that will restrain future jeopardy assessments and levies in similar cases. The government asserts that Lewis’ claim is barred by the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act. Lewis, on the other hand, says these statutes are inapplicable because, in his view, the city and federal officials were not truly engaged in assessing and collecting a tax. He charges that although neither he nor members of the class have been proved guilty of crime, the state and federal officers conspired to deprive them of due process of law by arbitrarily escheating their property. Citing government press releases that warn narcotics dealers of rigorous enforcement of tax laws, Lewis claims that the government’s purpose is the suppression of narcotics traffic by unconstitutional means and not the collection of revenue.

Charges that the Service should be enjoined from proceeding against taxpayers because it is motivated by purposes other than the collection of revenue have been explicitly rejected by the Supreme Court. In Bailey v. George, 259 U.S. 16 (1922), the Court ruled that a complaint challenging the constitutionality of a tax designed to eliminate child labor failed to state a case for restraining the assessment and collection of the impost. The Court held that the Anti-Injunction Act was applicable, notwithstanding that on the same day it ruled in a refund suit that the tax was unconstitutional. Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817 (1922). Recently, in an opinion that was not available to the district court, the Supreme Court held that the Anti-Injunction Act prohibited a preenforcement injunction to restrain the Revenue Service from revoking the tax exempt status of a university that restricted admission to white applicants. Bob Jones University v. Simon, -U.S.-, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); accord, Alexander v. Americans United, Inc., -U.S.-, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). The Court rejected an argument that in principle is indistinguishable from Lewis’ claim that the Service is not engaged in protecting the revenue but has instead launched a campaign to utilize unconstitutional methods for suppressing narcotics traffic. Speaking for the Court, Mr. Justice Powell said:

“[Bob Jones University] further contends that the Service's actions do not represent an effort to protect the revenues but an attempt to regulate the admissions policies of private universities. Under this line of argument, the Anti-Injunction Act is said to be inapplicable because the case does not truly involve taxes. We disagree.
“The Service bases its present position with regard to the tax status of segregative private schools on its interpretation of the Code. There is no evidence that that position does not represent a good-faith effort to enforce the technical requirements of the tax laws, and, without indicating a view as to whether the Service’s interpretation is correct, we cannot say that its position has no legal basis or is unrelated to the protection of the revenues. The Act is therefore applicable. Petitioner’s attribution of non-tax related motives to the Service ignores the fact that petitioner has not shown that the Service’s action is without an independent basis in the requirements of the Code.” 42 U.S.L.W. at 4725, [94 S.Ct. at 2047].

Here, too, the Service’s assessment and levy are founded on the Revenue Code. The Code authorizes jeopardy assessments when the Service finds that a taxpayer designs to conceal his property or “to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax . . . . ” Nothing in the record establishes that the Service has inappropriately applied the summary procedure authorized by the • Code to persons suspected of dealing in narcotics.

We, therefore, conclude that Lewis’ major premise is unfounded. Despite his protestations that this is not truly a tax case, his controversy with the Service is subject to the Anti-Injunction Act. While the government admitted that it could not ultimately prevail against Lewis because it mistakenly alleged that he received 1971 income in 1972, it is unlikely that this error will be repeated. Thus Lewis’ complaint does not establish that in the future he, or members of the class, can rely on the narrow exception to the Anti-Injunction Act stated in Enochs v. Williams Packing & Navigation Company, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). This exception requires the taxpayer to prove irreparable harm and that under no circumstances can the government ultimately prevail. Neither Lewis nor members of the class will suffer irreparable harm because the law provides an adequate remedy for refunds. Cf. California v. Latimer, 305 U.S. 255, 261, 59 S.Ct. 166, 83 L.Ed. 159 (1938). Moreover, sales of narcotics, though illegal, generate taxable income, and it is probable that the government will be able to recover at least part of the tax that is due. Cf. James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).

We also conclude that the Anti-Injunction Act is broad enough to prohibit enjoining the local officials from furnishing information to the Service about persons suspected of selling narcotics. Since the information is used by the Service for assessment and levy, an injunction drying up the source of the information would unwarrantedly impede collection of the revenue.

Similarly, the tax exception to the Declaratory Judgment Act bars relief even though Lewis challenges the legality of the assessment and levy rather than the validity of the tax itself. Taylor v. Allen, 204 F.2d 485 (10th Cir. 1953).

We hold, therefore, that the district court lacked statutory authority to grant Lewis or any member of the class injunctive or declaratory relief.

Ill

Claim for Refund

District courts have jurisdiction to try civil actions for the recovery of taxes that have been erroneously or illegally assessed or collected. But in order to invoke this jurisdiction the taxpayer must file a claim for a refund, and suit may not be instituted until the expiration of the statutory period for consideration of the claim by the Service. Neither Lewis nor any member 'of the class alleged compliance with these requirements before the institution of this action. The failure to file an administrative claim for refund is fatal to this aspect of Lewis’ complaint. United States v. Felt and Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025 (1931).

Moreover, a taxpayer ordinarily must pay the full assessment before bringing suit. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff’d on rehearing 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 rehearing denied 362 U.S. 972, 80 S.Ct. 953, 4 L.Ed.2d 902 (1960). There is, however, an exception to this well established rule when, as here, the Commissioner has terminated the taxable year by summary assessment. See Irving v. Gray, 479 F.2d 20, 24 n. 6 (2d Cir. 1973). Lewis seeks the advantage of this exception by calling for an accounting of the amount collected for the shortened year. Again, however, Lewis has failed to take the necessary administrative steps to perfect this claim. If a taxpayer does not pay the full assessment for the terminated period, he may nevertheless sue for a refund provided he files returns for the terminated period and the full year. In this event, the returns open the terminated period and serve as an informal claim for a refund. The failure of the complaint to allege compliance with this procedure for paying less than the full assessment when the tax year has been summarily terminated creates an additional bar to consideration of the claims for refunds on behalf of the class.

Accordingly, we vacate the order of the district court and remand the case for dismissal.

      . The Service terminated Lewis’ tax year and made a jeopardy assessment pursuant to the Int.Rev.Oode of 1954 § 6851(a)(1). The levy on the money in the hands of the police was made pursuant to § 6331 of the Code. Section 6332(a) required the police to surrender the money which was the subject of the Service’s levy. By honoring the levy on the $467 in their hands, the police were discharged from liability to Lewis for that amount. § 6332(d). These summary procedures do not deprive a taxpayer of due process of law because judicial review is available in a suit for refund. Cf. Phillips v. Commissioner, 283 U.S. 589, 595, 51 S.Ct. 608, 75 L.Ed. 1289 (1931).

      . The Anti-Injunction Act, Int.Rev.Code of 1954 § 7421(a), provides, with exceptions not pertinent to this case, that “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 tax exception to the Declaratory Judgment Act is italicized in the following extract from the Act, 28 U.S.C. § 2201 (1970) :
      “In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration . . . . ”

      . Int.Rev.Oode of 1954 § 6851 (a) (1).

      . Title 28 U.S.C. § 1346(a).

      . Int.Rev.Code of 1954 §§ 7422(a) and 6532(a)(1). E. g., Rinieri v. Scanlon, 254 F.Supp. 469 (S.D.N.Y.1966).

      . Int.Rev.Code of 1954 § 6851(b), Treas.Reg. §§ 1.6851-1 (b)(2) and (e); 301.6402-3(b) (1958). See Parrish v. Daly, 350 F.Supp. 735 (S.D.Ind.1972).


text:
    John van GELDERN, Plaintiff-Appellant, v. H. V. FIELD, Superintendent, Defendant-Appellee.
    No. 72-1475.
    United States Court of Appeals, Ninth Circuit.
    May 29, 1974.

      John van Geldern, in pro per.
    Evelle J. Younger, Atty. Gen., Thomas J. Brady, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.
    Before BARNES and TRASK, Circuit Judges, and THOMPSON, District Judge.

       Honorable Gordon Thompson, Jr., United States District Judge, Southern District of California, sitting by designation.

   PER CURIAM:

John van Geldern in propria persona appeals the denial, without a hearing, of his petition for a writ of habeas corpus. The statutory basis for van Geldern’s petition below was 28 U.S.C. § 2241; this court’s jurisdiction is founded upon 28 U.S.C. § 2253. We agree with the District Court that this case presents an appropriate occasion for the exercise of the “concurrent sentence doctrine,” as applicable to habeas corpus proceedings, and affirm the judgment denying appellant’s petition.

Appellant is presently in the custody of California prison authorities as a result of three separate State convictions. On January 29, 1959, appellant was convicted of two counts of second degree robbery. A concurrent sentence of imprisonment for from 1 year to life was imposed on each count at that time. On April Í0, 1959, appellant was again convicted of another two counts of robbery and sentenced on each count to imprisonment for from 1 year to life. The sentences on each robbery count were set to run concurrently with each other and with any prior unexpired term of imprisonment. Finally, on or about February 3, 1970, van Geldern was convicted of 20 counts of selling securities without a permit, eight counts of grand theft, one count of wilfully violating the California securities law, and six counts of securities fraud. Sentences on three of the grand theft counts were ordered to be served consecutively, while sen-fences on the other counts were set to run concurrently with the first grand theft count. This 1970 conviction has' been affirmed by the California Court of Appeal.

It is solely the April 10, 1959, conviction that van Geldern seeks to upset through this habeas corpus petition. In short, he alleges that the proceedings which attended this conviction were constitutionally tainted by (1) the ineffective assistance of counsel, (2) an involuntary plea of guilty, (3) a 2-week delay between arrest and arraignment, and (4) a failure to apprise van Geldern of the charges pending against him. In denying appellant’s petition, the District Court held that van Geldern had not exhausted his state remedies and that, moreover, since his status of confinement would not be altered even if van Geldern’s petition was granted, the court would, in its discretion, decline to entertain this cause. While we believe that van Geldern has exhausted his available state remedies, we find no abuse of discretion and conclude that this petition was properly denied.

Exhaustion of State Remedies

Appellant never directly appealed his April 10, 1959, conviction. He did, however, petition a California Superior Court, in 1970, for a writ of habeas corpus, but this petition was denied. The California Court of Appeal denied appellant’s second petition on April 8, 1970. Thereafter, appellant petitioned the California Supreme Court for a writ of habeas corpus; the petition was denied on May 28, 1970, upon the basis of Ex parte Swain, 34 Cal.2d 300, 209 P.2d 793 (1949), cert. denied, 338 U.S. 944, 70 S.Ct. 425, 94 L.Ed. 582 (1950), which requires some explanation for a belated collateral attack and some specification of facts in support of a conclusory allegation. Appellant then reapplied to the California Supreme Court and, pursuant to the dictates of Ex parte Swain, attached an affidavit to his application in which he attempted to correct the deficiencies pointed out by the opinion in Ex parte Swain. The California Supreme Court, without conducting a hearing or issuing an opinion, denied appellant’s petition on May 19,1971.

Had appellant failed to reapply to the California Supreme Court, his application for federal habeas corpus relief would be premature. Moreno v. Nelson, 472 F.2d 570 (9th Cir. 1973). However, his second attempt, in which he stated his reasons for the lateness for his desired post-conviction relief and attempted to specify facts, is sufficient to allow a federal court reasonably to believe that, in rejecting appellant’s second, corrected application for relief without opinion, the California Supreme Court considered appellant’s excuses for lateness, passed to the merits of appellant’s constitutional claims, and rejected these allegations. See Moreno, supra at 571. It would not be a reasonable assumption that, as appellee suggests, the denial of the petition without opinion signifies only the inadequate recitation of appellant's explanation for his delay. It seems incongruous that the California Supreme Court, if dissatisfied merely with the presentation of appellant’s attempted explanation, would fail to direct appellant’s attention again to Ex parte Swain, as it had done in its first denial of the petition. Further, appellant’s excuse for the inadequacies of his petition does not compare unfavorably with others accepted by that court. See In re Saunders, 2 Cal.3d 1033, 88 Cal.Rptr. 633, 637-638, 472 P.2d 921, 925-926 (1970). Accordingly, we find that appellant’s federal claims have been “fairly presented” to the California State courts in a manner sufficient to satisfy the recent exhaustion-of-state-remedy requirements enunciated in Picard v. Conner, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Concurrent Sentence Doctrine

A federal judge may, in his discretion, refuse to entertain a petition for a writ of habeas corpus should he feel that granting the writ will not significantly affect the position of the petitioner. Bible v. Arizona, 449 F.2d 111, 113 (9th Cir. 1971) (per curiam), cert. denied, 405 U.S. 994, 92 S.Ct. 1268, 31 L.Ed.2d 463 (1972); United States ex rel. Weems v. Follette, 414 F.2d 417, 419 (2d Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 131 (1970). See Benton v. Maryland, 395 U.S. 784, 793 n.11, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The proper exercise of this discretion depends upon the degree of prejudice that may be attributed to the challenged conviction. Weems, supra; see also Imbler v. Oliver, 397 F.2d 277, 278 (9th Cir. 1968).

Appellant contends that this 1959 conviction has caused him to suffer increased punishment and was used as evidence of a prior conviction in the proceedings culminating in his 1970 conviction. This allegation is answered simply by reference to the reporter’s transcript of the 1970 proceedings at which the trial judge sustained appellant’s objection to the prosecutor’s use of the prior conviction now questioned here. Further, the record does not indicate that the judge in the 1970 proceedings used the challenged conviction to administer a punishment more severe than that normally applicable for the offenses charged in the 1970 action.

Although arguing that this 1959 conviction adversely affects his opportunity for parole, appellant has not specified in what manner this consequence attaches to an extent different from any other case in which the concurrent sentence doctrine is applied. Without such a showing of “collateral legal consequences,” the District Court’s refusal to review the conviction did not constitute an abuse of discretion. See United States v. Moore, 452 F.2d 576, 577 (9th Cir. 1971) (per curiam); compare Imbler, supra at 277.

Appellant also ' asserts that, should he succeed in obtaining reversals for his other convictions, he still will be subject to the sentence imposed in the challenged proceedings. Yet whether or not appellant will ever succeed in securing reversals of his other convictions, i. e., his first 1959 conviction and his 1970 conviction, is speculative. The mere possibility of success is not an adequate basis upon which to support an allegation of prejudice arising from the conviction contested here. Cf. United States v. McKinney, 433 F.2d 921, 922 (9th Cir. 1970). If, as van Geldern contemplates, the other convictions are eventually reversed, habeas corpus relief (or, at least, a hearing on a petition for such relief) will be ripe at that time. Currently, it is premature.

Appellant argues that reliance upon “judicial convenience” to support application of the concurrent sentence doctrine in this context itself works a deprivation of constitutional rights. Further, such a practice supposedly invites abuse by state officials as they may now procure a series of unconstitutional convictions, each with sentences running concurrently. We are not persuaded. See Benton v. Maryland, 395 U.S. 784, 791, 793 n.11, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Moore, 452 F.2d 576, 577 (9th Cir. 1971) (per curiam); United States v. Holman, 436 F.2d 863, 867 (9th Cir. 1970), cert. denied, 402 U.S. 913, 91 S.Ct. 1394, 28 L.Ed.2d 655 (1971). When an adequate demonstration of prejudice is made, habeas relief will be available, whether or not the sentence for the challenged conviction is being served concurrently with another. Imbler v. Oliver, 397 F.2d 277, 278 (9th Cir. 1968).

The judgment is affirmed.

      . The District Court did not stop at this point, however, and stated that, “in any event,” appellant’s substantive allegations were lacking in merit. Since we feel that the court was correct in its decision not to exercise its jurisdiction to consider this petition, it is unnecessary for us to pass upon this dicta of the District Court regarding the merits of van Geldern’s constitutional claims.

      . Appellant, in his affidavit, attributed the delay primarily to his indigency and unfamiliarity with the law. He also recounted a prison counsellor’s advice to avoid any challenge to the conviction for fear of adverse parole consequences, and noted also his inability to obtain law books and other necessary materials until he was transferred to another prison facility. See C.T. at 43-44.

      . C.T. at 47-56.

      . As noted, supra, van Geldern’s 1970 conviction has already been affirmed by the California Court of Appeal.


author: ALDISERT, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Edwin CALLWOOD, Appellant.
    No. 73-2012.
    United States Court of Appeals, Third Circuit.
    Argued April 25, 1974.
    Decided June 7, 1974.
    Ronald T. Mitchell, Pallme, Anduze & Mitchell, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Julio A. Brady, U. S. Atty., Ishmael Meyers, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
   OPINION OF THE COURT '

Before ALDISERT, ADAMS and GARTH, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal from a final judgment of sentence presents questions as to the correctness of jury instructions on transferred intent and self-defense. After a three day trial a jury of twelve returned a verdict of first degree murder. Pursuant to 14 V.I.C. § 923(a) defendant was sentenced to life imprisonment.

Defendant, a Virgin Islands Deputy Marshal, shot and killed his ex-wife with whom he was living. While the fact of his shooting the decedent was undisputed, testimony of the prosecution and the defendant concerning the circumstances surrounding that shooting was in direct conflict. The prosecution’s chief witness, Holland, testified that he was driving the victim home in her car when she recognized the defendant approaching in another vehicle from the opposite direction. Although they attempted to evade the defendant, Holland testified that defendant pulled along side of their car and fired a shot missing both of them. The chase continued until Holland reached the end of a dead end street. Holland then testified that he ran from the car, hurled rocks at the defendant, and ran into nearby bushes. He then testified that he saw the defendant proceed to the victim’s car, point the gun in the car and shoot. The next thing he heard was the victim exclaiming: “Oh, God, Edwin, you shot me” !

Defendant testified in his own behalf, denying firing into the victim’s car during the chase. Defendant’s summary of his testimony with respect to the events that took place at the dead end street discloses:

At the scene the Defendant claims he pulled off the road on a slant parallel to and some thirty-odd feet away from the decedent’s car. As he pulled up, Holland quickly exited from the car he was driving. As the Defendant emerged from his vehicle, Holland hurled rocks or stones at the Defendant, hitting him several times. The Defendant moved away from his car to draw fire away from the car. The Defendant demanded the identity of Holland and how he had come to have the decedent’s car. He further demanded that Holland come forward and have a man-to-man talk. The Defendant moved toward the decedent’s car. Heated, profane words were exchanged. Holland threatened to take the Defendant’s life that night in a onee-and-for-all confrontation. As the Defendant approached, Holland circled the decedent’s car towards the passenger’s side, cursing and threatening the Defendant in the darkness. The Defendant fired a shot in the air as his vision of Holland was obscured. Thereafter, Holland reached quickly into the car toward the dash or glove compartment. The Defendant fired quickly towards the moving hand or arm.
A voice suddenly cried out, “Oh God, Edwin, you shot me,” and for the first time, according to the Defendant, the Defendant knew someone other than Holland was on the scene.

Appellant’s brief at 7. Defendant then fled from the scene and was subsequently arrested.

Defendant argues that the court’s instructions on transferred intent were somehow unduly favorable to the Government and were detrimental to him. Initially the court charged:

It may be that a person shoots at Peter but instead kills Paul. If the circumstances under which A shoots at B would be such that had B been killed it would have been a crime, then it would be equally a crime if A, unlaw- , fully intending to kill B, killed C and to the same extent that it would be a crime had B been actually killed to the same extent it would be a crime if C is killed. So that if you should find after your examination of all the facts of this case that the defendant fired the shot intending to hit Holland, and if you should also find that he shot and killed Holland, in those circumstances he would have been guilty of murder or manslaughter, then he would likewise be guilty of the same offense, having killed Nyra, for his unlawful intent to do harm to Holland would be transferred to Nyra and he could not escape culpability merely because the wrong person got killed, if the circumstances were such that his killing of' the person he intended to kill would have been unlawful. Here again this is if you so find. And in instructing you I do not suggest what you should find one way or another, for, as I have repeatedly stated, you are the triers of the facts. You are the judges of the facts. These instructions have been given to you merely to guide you as to the applicable rules of law.

N.T. 599-600.

At the conclusion of the charge the defendant specifically objected:

I think that the connection between accidental killing and transferred intent is not adequately explored. That is, the example given was of the case where an individual had an intent to kill one but wound up killing another. I think the opposite situation might well be illustrated, namely, that if this was not intended or unlawful intent to kill and yet some other person is killed that the defendant is to be judged in terms of unlawful intent of his original intention. I simply think that the example chosen is overly suggestive. That is to say, it ignores the testimony that the defendant did not intend to kill A but rather to wound A but he would up killing -B. In that situation that version of the facts have not been given — an example which would clarify the full scope of the relationship between transferred intent and accidental killing.

N.T. 606-607.

The Court responded by supplementing its charge in the precise manner defendant requested.

I also instructed you that if a person intending to kill A killed B instead to the extent that he would have been guilty if he had killed A, he is guilty if he killed B. It goes without, saying if the circumstances under which a person accidentally killed B exists and would have been the same if he had killed A, the accident is there in any event.

N.T. 608. Thus, any possibility of suggestiveness in the initial charge was cured by the court’s supplemental charge.

Defendant next argues that the court’s self-defense charge was cast in terms of justifying the homicide, was not clarified in terms of the factual posture of this case, and was misleading in the sense that it did not specifically refer to Holland’s conduct as that which should be considered. Additionally, appellant contends that the court should have charged on the effect of a good faith but mistaken exercise of the right of self-defense. We have carefully reviewed the court’s initial and supplemental charges and conclude that, as given, the charge accurately summarized the applicable law as codified in 14 V.I.C. § 927(2)(C)

We have considered all the contentions of the defendant and find them to be without merit. The judgment of the district court will be affirmed.

      . A total of 18 questions are presented in this appeal, 11 dealing with asserted errors in the court’s instructions. Other than the instructions as to transferred intent and self-defense, no timely objection pursuant to Rule 30, F.R.Cr.P. was made. Assuming arguendo that there was some error, none of the unohjected to passages constitute plain error.
      While appellant admits that our primary concern should be directed to the “deficiencies and prejudgmental tone of the instructions,” he raises various additional points of asserted error. We have carefully considered each of these contentions and find them to be without merit.
      10. Was it error for the Court unnecessarily and unfairly to disparage or impugn the significance and impact of certain aspects of cross-examination of police officers who testified to damaging alleged admissions of the Defendant and overly to suggest to the jury that the Court considered any-discrepancies or failure to recollect examples of immaterial or innocent misrecollection or failure to recollect?
      11. Was it error for the prosecutor to argue to the jury that he represented the “law abiding citizens” of the community and to urge the jury to do its duty just as other persons in the law enforcement chain or process had done, naming the police and the prosecutor as examples ?
      12. Was it error for the Court, sua sponte, to inquire of and permit testimony by the chief investigating police detective who sat with the prosecutor throughout the trial, concerning the alleged murder weapon and its contents after the alleged crime, when the Government did not and could not produce the weapon and its contents and offered no explanation to the jury and Court of its failure to produce this weapon and its contents, although the weapon would have yielded the best evidence of how many times it had been fired on the evening of the alleged crime?
      13. Was it error for the Court to permit over objection the father of the decedent to characterize the activities of the Defendant on the evening prior to the alleged crime as “circling” and to deprive the Defendant of valid lines of cross-examination of the father by unnecessarily obstructing and interfering with the confrontation of the father with prior testimony at a preliminary examination for probable cause for trial which contradicted and diminished the impact of his trial testimony ?
      14. Did the prosecutor unfairly represent to the jury and/or make unfair use of the deposition testimony of the pathologist, Dr. Bernard Rumseli, concerning the position of the assailant and the possible distances of the assailant from the decedent and/or the automobile in which she apparently was shot and make unfair comment upon the exercise of the right to counsel ?
      15. Was it an abuse of discretion not to grant a change of venue or to conduct an adequate hearing on the question of community bias, hostility and prejudgment of the guilt of the Defendant, when the Court was apprised through an offer of proof by defense counsel that the alleged crime had been the subject of a front-page, highly prejudicial article in a widely-read, influential newspaper (the now defunct “The Home Journal”) ; that defense counsel in the last four to five days prior to trial encountered several persons who knew or had learned of the impending trial and who expressed hostility and prejudgment against the Defendant based either on newspaper account, on what they had heard since the alleged crime or on the public discussion of the impending case on a popular evening radio program (“Night Line”) broadcast each evening and inviting members of the public to express, by broadcast telephone conversations with the broadcaster, candid opinions on matters of current or personal interest or concern; and that a few days prior to trial the telephone call of at least one person not related to the decedent or her family was broadcast over the Night Line program, ip which the caller demanded to know why the ex-Marshal who had murdered his wife, was still walking the streets?
      16. Is reversal or remand for new trial or juror examination required by reason of a lack of candor or failure to disclose on the part of certain jurors important hostile encounters with associated defense counsel and close acquaintance with a fellow hospital worker who was the sister of the decedent?
      Appellant’s brief at 16-18.

      . § 927. Justifiable homicide defined

      Homicide is justifiable when committed by—
      (2) any person—
      * * * * *
      (O) when committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person on whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed. . . .


text:
    COLUMBUS COATED FABRICS, a Division of Borden Chemical Company, and Borden, Inc. Plaintiff-Appellee, v. The INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    No. 74-1035.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1974.
    Decided May 29, 1974.
    Charles E. Taylor, Columbus, Ohio, Sp. Counsel for defendant-appellant by appointment of William J. Brown, Atty. Gen., of Ohio; William J. Brown, Atty. Gen. of Ohio, Taylor, Hultin & Ludwig, Columbus, Ohio, on brief.
    John C. Elam, Columbus, Ohio, for plaintiff-appellee; Vorys, Safer, Seymour & Pease, Columbus, Ohio, on brief; Russell P. Herrold, Jr., Lester S. Lash, David S. Cupps, W. Jonathan Airey, Columbus, Ohio, of counsel.
    Before CELEBREZZE, McCREE and MILLER, Circuit Judges.
   PER CURIAM.

Because of an outbreak of peripheral neuropathy (a nerve disease causing paralysis) the Industrial Commission of Ohio scheduled a hearing to be held on October 15, 1973 “for the purpose of taking evidence on the question of whether [Appellees’] plant should be closed as being not safe or as being injurious to the welfare of any employees or frequenters.” Appellees sued to enjoin this hearing, on the ground that the enactment of the federal Occupational Safety and Health Act of 1970, 29 U.S.C.A. §§ 651-678 (1974 Supp.) had preempted the field of employee health and safety because Ohio had not submitted or received approval of a state plan.

After issuing a temporary restraining order to prevent the hearing, the District Court entered an “Opinion and Order” on October 19, 1973, in response to Appellees’ motion for a preliminary injunction. The six-page document contained findings of fact and conclusions of law, with the essential holding that “Section *667(a) [of Chapter 29, U.S.C. A.] does preempt state law in this case.” After discussing other matters bearing on the propriety of injunctive relief, the District Court stated, “WHEREUPON, the Court determines that the motion is meritorious and it is therefore GRANTED.” Presumably, this determination was meant to function as a preliminary injunction against any state action in regard to health and safety at Appellees’ Columbus facility.

The District Court failed to enter a separate order, which should have been filed as a “separate document” and the form of which should have- been promptly approved by the District Court, under Rule 58(2), Fed. R.Civ.P. This being the case, this Court is without jurisdiction to entertain the appeal, since no “order” has been filed under Rule 54(a) from which an appeal may be taken under 28 U.S.C. § 1292(a)(1). Richland Trust Co. v. Federal Insurance Co., 480 F.2d 1212 (6th Cir. 1973); Communications Workers of America v. United Telephone Co. of Ohio, 491 F.2d 207 (6th Cir. Feb. 7, 1964). See United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). The absence of an appealable order is a jurisdictional matter and must be raised by this Court notwithstanding the parties’ failure to note the problem.

One reason for the superficially technical rule embodied in Rule 58 is apparent in this case. The enjoined party must be clearly told what it may and may not do, and this Court must be clear as to what the District Court required. Appellees’ complaint requested broad injunctive relief against state intrusion into health and safety matters at its plant, and the District Court’s “Opinion and Order” gives no indication as to whether the entire scope of relief requested was to be granted. Preemption, of course, is not a magic wand that deprives a state from taking any action in regard to a particular field. Even when found to exist, the question remains whether particular state actions are foreclosed because of supervening federal mandate. See United Automobile, Aircraft & Agricultural Implement Workers v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162 (1956); 29 U.S.C.A. § 677(a) (1974 Supp.). Thus, we would be indulging in dictum to address the general question whether OSHA had “preempted” state law. The jurisdictional bar to this appeal forecloses us from engaging in such general discussion. We must await a final order of the District Court, entered properly under Rule 58, before we may address the merits of this case.

We remand this case for entry of an order by the District Court. Upon the entry of a separate judgment by the District Court and the docketing of an appeal in this Court, we will hear and determine the appeal on the briefs and argument heretofore submitted by the parties, although the parties may elect to file supplemental memoranda or to re-argue the case after the District Court order is entered.

Appeal dismissed, with no costs to be taxed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Miller CALVERT, Defendant-Appellant.
    No. 73-2165.
    United States Court of Appeals, Sixth Circuit.
    Argued April 15, 1974.
    Decided June 20, 1974.

      Avon N. Williams, Jr., Nashville, Tenn., for defendant-appellant.
    Joe B. Brown, Asst. U. S. Atty., for plaintiff-appellee; Charles H. Anderson, U. S. Atty., M. D. Tenn., on brief.
    Before PECK, McCREE and LIVELY, Circuit Judges.
   PER CURIAM.

The defendant-appellant came on for trial before a jury under a nine-count indictment charging mail fraud violations under 18 U.S.C. § 1341. The jury returned a verdict of guilty on all nine counts, and this appeal followed the imposition of sentence.

The Government's evidence established that appellant operated a business through a Nashville, Tennessee, post-office box where he received mail under the names of Calvert Numismatics, Calvert Coins, Madison Antiques, Madison Printing Service, and Music City Sales, during the period covered by the indictment. A postal inspector testified that he specifically advised appellant that his advertising was improper and could be a violation of the mail fraud statute, and some ten witnesses testified that subsequent to the date of that conversation they purchased coins from appellant concerning which they had been attracted by advertising material received by mail which misrepresented the coins in question.

Appellant contends that the trial court interposed three erroneous rulings at trial concerning proffered evidence, but we find it necessary to herein consider only one such contention. An agent of the Tennessee Bureau of Criminal Identification, in testifying as to fingerprints found on some of the envelopes received by alleged victims of the fraudulent activities of the appellant, identified the fingerprints as being those of the defendant by comparing them to fingerprints on a card on file with his agency bearing a date of 1962, some ten years prior to the period of the offenses alleged in the indictment. No testimony had been received indicating that appellant had a previous criminal record, and the impropriety of the use of the Bureau of Identification card for comparison is underscored by the fact that the expert who testified had in his possession a set of appellant’s fingerprints which were made at the time of the arrest on the charge in question. Additionally, counsel for the appellant had offered at trial to stipulate that the envelopes were mailed from appellant’s address, from which circumstance he contends that the fingerprint evidence was superfluous.

The appellee urges that the evidence of appellant’s guilt was so overwhelming that any error with reference to the use of the Bureau of Identification card could not have affected appellant’s “substantial rights” and should therefore be disregarded under Rule 52(a), Federal Rules of Criminal Procedure. If indeed the evidence was as overwhelming as appellee would have us believe, the introduction of this improper evidence, carrying with it the implication of appellant’s previous difficulties with the law, can only be regarded as overkill on the part of the Government. The jury deliberated a total of twelve hours before returning its verdict, and particularly in that circumstance we cannot conclude the admission of the questioned evidence to be harmless error.

The judgment of the district court is reversed and the cause remanded for further proceedings not inconsistent herewith.


text:
    The HINKINS STEAMSHIP AGENCY, INC., Plaintiff-Appellee, v. FREIGHTERS, INC., Defendant-Appellant.
    No. 73-1196.
    United States Court of Appeals, Ninth Circuit.
    June 6, 1974.
    Lawrence Alioto, Law Offices of Joseph L. Alioto, San Francisco, Cal., for defendant-appellant.
    Hamilton & King, San Francisco, Cal., for plaintiff-appellee.
    Before BROWNING, WRIGHT and TRASK, Circuit Judges.
   PER CURIAM:

This appeal is from a judgment in an admiralty proceeding under 28 U.S.C. § 1333 in favor of Hinkins Steamship Agency, Inc. (Hinkins) for a balance due for services performed as husbanding agent for an oceangoing vessel which the appellant, Freighters, Inc., had under a time charter. The judgment was rendered upon a motion for summary judgment. Appellant’s contention is that the court lacked subject matter jurisdiction because the agreement between the parties was not a maritime contract.

The agreement was initiated by a letter of instructions from Bulk Food Carriers, Inc. (Carriers) informing Hinkins that Carriers was the operating agent for Freighters, Inc., and requesting Hinkins to act as husbanding agent for the SS Pine Tree State. Services which were performed by Hinkins, according to affidavits on file, included arranging for and supervising dockage, pilotage, tug assisting, line handlings, cargo discharge, discharging of deep tanks, sounding of fuel tanks, cleaning of holds, providing supplies and handling operating details pertaining to the vessel’s call in Baltimore, Maryland, to discharge a cargo of lumber. Incident to the furnishing of these traditional husbanding services there was repeated attendance on board the vessel by Hinkins. The motion for summary judgment was supported by affidavits verifying the agreement.

The character of the work is determinative of the question whether the agreement was maritime and the jurisdiction properly laid in admiralty. North Pacific Steamship Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919); 7A J. Moore, Federal Practice ¶¶ .225, .230 (2d ed. 1972).

Appellant contends that Hinkins was not engaged in the performance of maritime services apparently on the theory that Hinkins procured them and did not perform them directly. Obviously all of the services could not have been performed by Hinkins directly. That their performance was its direct responsibility, that the services were clearly maritime and necessary for the continuing voyage, and that Hinkins was directly engaged in supervision, makes them maritime and the contract sued upon a maritime contract. North Pacific Steamship Co., supra.

Cases cited by appellant are not persuasive. Some involved general continuing agency agreements held to be non-maritime. Minturn v. Maynard, 58 U.S. (17 How.) 477, 15 L.Ed. 235 (1855); P. D. Marchessini & Co. v. Pacific Marine Corp., 227 F.Supp. 17 (S.D.N.Y.1964). Under more modern decisions, appellant’s cases are of doubtful validity. See Archawski v. Hanioti, 350 U.S. 532, 535, 76 S.Ct. 617, 100 L.Ed. 676 (1956); Interocean Steamship Corp. v. Amelco Engineers Co., 341 F.Supp. 995 (N.D.Cal.1971); Amerind Shipping Corp. v. Jordan International Co., 314 F.Supp. 1324 (E.D.La.1970).

We believe the agreement was clearly maritime in nature and the jurisdiction proper. Freighters, Inc. next questions the authority of Carriers to obligate it. We find this argument to be without merit. The affidavits support the trial court’s decision. The findings were clearly correct. There was no question but what the services were rendered and the charges were not challenged.

The judgment is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Raymond CAULTON, Defendant-Appellant.
    No. 73-1679.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 28, 1974.
    Decided May 29, 1974.
    Certiorari Denied Oct. 21, 1974.
    See 95 S.Ct. 178.

      James D. London, Cleveland, Ohio, William T. Wuliger, Cleveland, Ohio (Court appointed), for defendant-appellant.
    Fred J. Guzzo, Asst. U. S. Atty., Frederick M. Coleman, U. S. Atty., Nancy Schuster, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee.
    Before PHILLIPS-, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

Defendant in this case was convicted for passing counterfeit $10 bills, in violation of 18 U.S.C. § 472 (1970). He received two concurrent two-year terms.

Appellant’s position at trial was that he passed these bills, but that .he had won them in gambling encounters and that he had no knowledge that they were counterfeit. The government produced an agent, who testified, after qualification as an expert witness, that the bills were “non-deeeptive.” Our own inspection of these exhibits persuades us that the jury could have reached the same conclusion and hence that they had ample evidence before them as to appellant’s knowledge that the bills he was passing were counterfeit.

Appellant’s principal legal contention appears to be that his statements about passing the bills made to a Treasury Agent had been involuntary. He admits, however, that he had made the statements after receiving full Miranda warnings. He claims no abuse or coercive tactics on the part of the agents. He relies principally on the fact that he did not sign any waiver form for establishing involuntariness. This Court has recently dealt with this precise issue and held:

“ . . . the refusal to sign a written waiver, standing alone, does not render inadmissible statements or evidence voluntarily given after full warnings.”

United States v. Vaughn, 496 F.2d 622 (6th Cir. 1974).

Appellant also contends that he suffered a deprivation of rights because the government did not comply with his request for full discovery of its file. He points to no statutory or case law entitling him to such discovery. Our review of this record convinces us that the District Judge went to great pains to comply with both the Jencks Act, 18 U.S.C. § 3500 (1970), and the Supreme Court ruling in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Appellant also contends that he was made subject of “unnecessarily suggestive” identification procedures by the Youngstown Police contrary to the rule of Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). A witness who had received one of the counterfeit bills was shown pictures which included one of appellant and failed to make any identification. Thereupon the policeman who had been talking to the witness left him in the room and some moments later walked by in the hall with appellant. On the policeman’s subsequent return to the room where the witness was, the witness immediately identified the man who had walked by as the one who had given him the counterfeit.

The government relies upon the fact that no suggestion that the police had in custody or Would show or had shown a suspect was made to the witness. Over and above this contention, we, of course, have clearly in mind the far more suggestive procedure which the Supreme Court held not impermissibly suggestive in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Biggers, was, however, a habeas corpus proceeding where the state court trial preceded the Stovall decision, and we prefer to hold that, as the District Judge found, the witness here had an entirely adequate independent source for his in-court identification. Further, if there was error in the identification procedures here employed, it was harmless error (see Rule 52(a), Federal Rules of Criminal Procedure and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) under the facts of this case where appellant freely admitted passing the bills contending only that he' had no knowledge that they were counterfeit.

Noting no other appellate issue of merit, the judgment of the District Court is affirmed.

      . The transcript of appellant’s trial testimony indicates that he did sign a waiver form for the Youngstown police but was not asked to and did not sign either a waiver form or the transcript of his own statement when shown them by federal agents.