author: JOHN W. PECK, Circuit Judge.

text:
    Samuel J. JORDON et al., Plaintiffs-Appellees, v. John J. GILLIGAN et al., Defendants-Appellants.
    No. 73-1973.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 1, 1974.
    Decided July 18, 1974.

      James A. Laurenson, Columbus, Ohio, for defendants-appellants; William J. Brown, Atty. Gen. of Ohio, Donald J. Guittar, Frank Josselson, Asst. Attys, Gen., Columbus, Ohio, on brief.
    Albert J. Ortenzio, Youngstown, Ohio, for plaintiffs-appellees; Nathaniel R. Jones, New York City, Ortenzio & Pritchard, Youngstown, Ohio, on brief.
    Before PECK, MILLER and LIVELY, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

This opinion is filed vice the opinion filed April 25, 1974, pursuant to an order entered herein of even date herewith granting defendants-appellants’ motion for a rehearing and withdrawing the April 25, 1974 opinion.

This is an appeal from an order entered in the district court denying appellants’ motion to vacate a prior order of that court awarding attorneys’ fees against the State of Ohio. The appellants’ principal assertion is that the award was void since, under the Eleventh Amendment to the Constitution of the United States, the State was immune from the award, and the court was without jurisdiction to make it.

The record establishes that in November of 1971, Samuel Jordon filed a class action suit against the members of the Ohio Apportionment Board, a state body responsible for the decennial reapportionment of the Ohio legislature. Included as defendants were state officials and members of the Mahoning County Board of Elections in their official capacities. The State of Ohio was not a named defendant. Plaintiff sought, on behalf of the class of all Ohio voters, a declaratory judgment that a reapportionment plan adopted by the Board was constitutionally infirm, and he asked that injunctions requiring the Board to establish a revised plan that would satisfy applicable requirements be issued. Plaintiff also prayed for an award of attorneys’ fees against the defendants. Federal jurisdiction was invoked pursuant to 28 U.S.C. § 1343 for alleged violations of the Fourteenth and Fifteenth Amendments as implemented by 42 U.S. C. § 1983.

The Board’s original plan was declared unconstitutional by the three-judge district court convened to hear the case under the terms of 28 U.S.C. § 2281. The district court ordered appellants to submit a new plan that would comply with state and federal constitutional demands. A revised plan was duly submitted to and approved by the court in December of 1971. After allowing appellees 60 days in which to file objections to the revised plan, the court entered a final order adopting it for the decennium.

Counsel for appellees filed applications for an award of attorneys’ fees and expenses in the combined amount of $27,272.65. The district court, in the absence of any objections to the applications from appellants, entered the following order on May 19,1972:

“Counsel for plaintiffs have made application for the allowance of attorney’s fees and expenses to date. There is no opposition to the amounts requested and they seem reasonable on their face.
“Therefore, the State of Ohio, through John J. Gilligan, Governor; collectively, in their official capacities, and as the persons responsible for apportioning the State of Ohio, are ordered and directed to pay attorney’s fees . . . . ”

Eight months passed and the judgment remained unpaid. On January 17, 1973, the district court ordered the award of attorneys’ fees and expenses taxed as costs against the State of Ohio. Appel-lees filed a praecipe for a writ of fieri facias against a bank account maintained by the State at a bank in Cleveland, Ohio, and the court acted to enforce it by ordering the bank to pay the contested monies to the clerk of the court.

The appellants filed a motion to vacate the award of attorneys’ fees based on Rule 60(b) of the Federal Rules of Civil Procedure, and simultaneously filed a motion for stay of execution pending disposition of the Rule 60(b) motion. Shortly thereafter, but before the writ was enforced, the State paid the $27,272.65 judgment. In response to the voluntary payment, the district court vacated, by order, the attachment of the State’s bank account. The court also issued an order denying appellants' Rule 60(b) motion. It was from this denial that the present appeal was perfected.

Rule 60(b), Fed.R.Civ.P., provides in pertinent part as follows: “On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void .” If, as appellants assert, the award of attorneys’ fees and expenses against the State of Ohio was void for lack of jurisdiction, we must reverse. A void judgment is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside. See generally, 7 J. Moore, Federal Practice, ¶ 60.25 [2], at 301 (2d ed. 1973).

Before discussing the central issue in this case a few words of clarification are in order. This cause, insofar as the award of attorneys’ fees is concerned, although nominally against the chief executive and other officials of the State of Ohio, in substance and effect was against the State. ****Any award of attorneys’ fees, whether against the State of Ohio or its officials, vitally affects the rights and interests of the State in preserving its revenues. According to the general rule “a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury . . . .’ Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) . . . .” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); accord Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973). And as this Court stated in Harrison Construction Co. v. Ohio Turnpike Com’n., 272 F.2d 337, 340 (6th Cir. 1959), “When the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.”

Appellants do not contend that state officials are immune from suits brought to restrain unconstitutional acts undertaken in their official capacities. The law clearly recognizes the right of an interested party to force state officials to act in accordance with the Constitution. Georgia R. R. and Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335 (1952); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Lee v. Board of Regents of State Colleges, 441 F.2d 1257 (7th Cir. 1971); Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa.1972); Wright, Law of Federal Courts, § 48, at 183 (2d ed. 1970). Appellants do assert, however, that both a state and its. officials are immune from monetary awards arising in connection with such a suit, even if the awards are for attorneys’ fees. .

To further sharpen the focus of this inquiry, we note that in the instant case the district court ordered the attorneys’ fees taxed as costs, and ordered the State of Ohio to pay the costs. We do not question the general principle that a court may tax attorneys’ fees in the appropriate circumstances in cases involving private parties or where sanctioned by statutory law, but it seems basic that if a party is immune from an award of attorneys’ fees as such, that immunity is not altered by taxing the fees as part of the costs. If the award is void in one form, it is void in the other.

Stripped of distracting shadow questions, the case before us presents a singular, although by no means simple, issue: Does a federal court have the power to award attorneys’ fees against a state or its officials acting in their official capacities in a suit brought under 42 U.S.C. § 1983 to vindicate constitutional rights? To this inquiry we must respond in the negative.

The Supreme Court reviewed and clarified the principles under which a federal court may award attorneys’ fees against an unsuccessful litigant in Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). The Court recognized the existence of a “class benefit” rationale for awarding fees where “plaintiff’s successful litigation confers ‘a substantial benefit on the members of an ascertainable class . . . . ’ ” Id. at 5, 93 S.Ct. at 1946. The basis of this theory is that because the efforts of the individual plaintiff benefited a group or class of persons, equity requires the group to share the financial burden of the plaintiff’s litigation. In the instant case, that appellee’s prosecution of this suit to bring Ohio’s legislative districts within the requirements of the one man-one vote rule benefited every Ohio voter is not questioned. Implicit in the Court’s holding was the fact that the class benefit theory can only be employed where a court has the requisite jurisdiction to make such an award. 412 U.S. at 5, 93 S.Ct. 1943. In this case the district court clearly had jurisdiction over the appellants insofar as the suit involved a plea for injunctive relief to force constitutional reapportionment.

The Eleventh Amendment, however, contains an express constitutional limitation on the power of the federal courts.

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Through judicial interpretation, this amendment has been held to bar a citizen who would bring suit against his own state. Employees v. Missouri Public Health Dep’t., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Parden v. Terminal Ry. of the Alabama State Docks Dep’t., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). This amendment has also been found to be the embodiment of the doctrine of sovereign immunity. Adams v. Harris County, Texas, 316 F.Supp. 938 (S.D.Texas 1970), rev’d on other grounds, 452 F.2d 994 (5th Cir. 1971). The sovereign immunity of the states is, then, a limitation of federal judicial power, that is, on the constitutional grant of jurisdiction to the federal courts.

As stated heretofore, the Eleventh Amendment’s immunity is unavailable to state officials where an action of constitutional proportions is brought for injunctive relief. Georgia R. R. and Banking Co. v. Redwine, supra, etc. The rationale behind the doctrine of sovereign immunity is the protection of the states’ fiscal integrity. See, Land v. Dollar, supra; Dugan v. Rank, supra; Harrison Construction Co. v. Ohio Turnpike Com’n., supra.

Appellees place primary reliance on Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972), a reapportionment suit involving the State of Alabama. Therein a three-judge district court awarded attorneys’ fees against Alabama’s governor, attorney general, secretary of state and state legislators on the basis of the class benefit doctrine. Although the opinion does not state that the award was made against the above officials in their official capacities, it is clear that that was indeed the case. We note, however, that the Eleventh Amendment problem before us was disposed of in rather summary fashion in a footnote to the opinion. Sims was appealed to the Supreme Court. Appellees assert that the Supreme Court’s summary affirmance of Sims, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), constitutes binding precedent on this Court in the case under consideration. We do not agree.

In our original opinion in the present case we pointed out that Sims was reported in two separate segments at the district level. The initial Sims opinion, dealing with the substantive reapportionment issues, was reported at 336 F.Supp. 924, while the decision involving attorneys’ fees appeared at 340 F.Supp. 691. We also noted that the Supreme Court’s order of affirmance stated only that Sims v. Amos, D.C., 336 F.Supp. 924, was affirmed. Since that time, however, it has come to our attention that in the bound version of Volume 409 of the United States Reports that order has been expanded; it now states that both 336 F.Supp. 924 and 340 F.Supp. 691 were affirmed. That modification, while it has prompted us to revise our original opinion, does not alter the conclusion reached therein.

Decisions of the United States Supreme Court rendered by written opinions are binding on all courts, state and federal. The Court’s holding is stare decisis and cannot be overruled except by the Court itself. Even the Court’s dicta is of persuasive precedential value. However, “[a] summary affirmance without opinion in a case within the Supreme Court’s obligatory appellate jurisdiction [such as Sims] has very little precedential significance.” Dillenburg v. Kramer, 469 F.2d 1222, 1225 (7th Cir. 1972) (emphasis added) (citations omitted).

Two months after Dillenburg was announced, the Seventh Circuit made the following apparently inconsistent statement relative to this issue: “[A] summary affirmance [by the Supreme Court] is a decision on the merits having precedential value.” Jordan v. Weaver, 472 F.2d 985, 989 (7th Cir. 1973). In Jordan the court relied upon three separate three-judge district court decisions which had been summarily affirmed by the Supreme Court, and upon one similar decision which had been affirmed by an opinion which did not mention the question in dispute (award of retroactive benefits) in reaching its decision that the Eleventh Amendment did not bar actions against state officials for retroactive welfare payments. That decision was subsequently reversed by the Supreme Court. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Mr. Justice Rehnquist, writing for a majority of the Court, touched upon the validity of summary affirmances:

“Shapiro v. Thompson and these three summary affirmances [see footnotes 11 & 12 and accompanying text] obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the • relief awarded by the District Court in this case. Equally obviously they are not of the same precedential value as would be an opinion of this Court treating the question on the merits.” Edelman, supra, 94 S.Ct. at 1359.

This position is in accordance with the views of the commentators:

“While per curiam affirmances by the Supreme Court have been held to be binding precedents in later cases in the lower courts, they have so frequently proved to be such a shaky guide to the outcome of later' full-.dress considerations, that in many decisions in the district courts and courts of appeals they have received but scant attention. IB J. Moore, Federal Practice, ¶ 0.402 [2] (1973 Supp. at pp. 13-14).

For the reasons stated above, it is concluded that the Supreme Court’s summary affirmance of Sims v. Amos does not constitute controlling precedent on the Eleventh Amendment question herein presented.

There is no dearth of reported decisions on the attorneys’ fees issue in lower federal courts. Sims has been cited with approval and construed as precedent for awarding attorneys’ fees against states and their officials in the following cases. E. g., Jordan v. Fusari, 496 F.2d 646 (2d Cir., filed April 29, 1974); Bradenburger v. Thompson, 494 F.2d 885 (9th Cir., filed March 25, 1974); Gates v. Collier, 489 F.2d 298 (5th Cir. 1973); Taylor v. Perini, 359 F.Supp. 1185 (N.D.Ohio 1973), appeal argued, No. 73-2071 (6th Cir., April 15, 1974); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), aff’d 488 F.2d 559 (9th Cir. 1974) (no reference made to attorneys’ fees issue).

In La Raza Unida v. Volpe, supra, the district court was much impressed by a California statute which provided that money claims against state officials were to be reimbursed by the state. Whether the court considered this a waiver of immunity does not appear, but the Supreme Court of Ohio has specifically held that the State of Ohio is immune from awards of attorneys’ fees in the absence of a consent rendered by a two-thirds vote of the General Assembly. Grandle v. Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959); see also, Constitution of Ohio, Art. II, §§ 22 & 29. The State of Ohio has not waived its immunity in this case.

In Gates v. Collier, supra, the Fifth Circuit affirmed an award of attorneys’ fees against officials of the State of Mississippi responsible for impermissible conditions found in a state prison. In reaching its decision the court concluded that an “award of attorney’s fees is not an award of damages against the State, even though funds for payment of the costs may come from the state appropriations.” 489 F.2d at 302. Whether an award of attorneys’ fees differs from an award of damages seems to us to be irrelevant, and we respectfully decline to adopt the position taken by the Fifth Circuit. The balance of the cases mentioned above rely in varying degrees upon Sims and each other. As stated hereinabove, we find no reasonable basis for concluding that the Eleventh Amendment does not bar awards of attorneys’ fees against the sovereign states.

However, lower court decisions have not been unanimous. In Sincock v. Obara, 320 F.Supp. 1098 (Del.1970), a three-judge district court concluded that an award of attorneys’ fees could not be made against the State of Delaware because of the prohibition contained in the Eleventh Amendment. The same result was reached by the Third Circuit in Skehan v. Board of Trustees, Bloomsburg State College., 501 F.2d 31 (3rd Cir., filed May 3, 1974). In Skehan Judge Gibbons held that “Edelman, [Edelman v. Jordan, supra] while not ruling on the matter specifically, appears to bar the award of attorneys fees from the state treasury as well.” (at 42.)'

Skehan involved, among other things, a claim for an attorney’s fee against the defendant state college. The court remanded the case to the district court for a determination of the exact legal status of defendant under Pennsylvania law, stating that if it were not clothed with sovereign immunity the attorney’s fee could be awarded against it. The Court discussed Sims in a footnote, which we quote in its entirety:

“7. The contention could be made that, by failing to expressly overrule its summary affirmance in Sims v. Amos, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), aff’g 336 F.Supp. 924 (M.D.Ala.1972) (3-judge court) of an award of attorneys fees against state officers which was to be satisfied from the state treasury, the Court meant to leave the issue open. See Gates v. Collier, 489 F.2d 298 (5th Cir. 1973) following Sims and quoting the jurisdictional statement raising the eleventh amendment issue before the Court. Such a conclusion would, however, be inconsistent with the . Edelman Court’s rationale. We attribute the Court’s omission to inadvertence. For a listing of other decisions overruled, see note 6 swpra.
“Skehan, pointing to language in Justice Marshall’s dissent in Edelman v. Jordan, supra, contends that the liability of the Commonwealth for retroactive benefits in his case is still open. Justice Marshall wrote:
‘It should be noted that there has been no determination in this case that state action is unconstitutional under the Fourteenth Amendment. Thus, the Court necessarily does not decide whether the States’ Eleventh Amendment sovereign immunity may have been limited by the later enactment of the Fourteenth Amendment to the extent that such a limitation is necessary to effectuate the purposes of that Amendment, an argument advanced by an amicus in this case. In view of my conclusion that any sovereign immunity which may exist has been waived, I also need not reach this issue.’ 42 U.S.L.W. at 4432 n. 2 [94 S.Ct. at 1371].
An appreciation of this cryptic comment requires some refined analysis of the issues dealt with in Justice Rehnquist’s majority opinion. Claims for money against a state can arise in three separate legal frameworks. First, the claim may be based upon state law, purely and simply ; breach of contract, for example. Second, it may be based upon federal law made binding upon the states by virtue of the supremacy clause; nonpayment of benefits mandated by the Social Security Act, for example. Third, it may be based upon the fourteenth amendment, which binds the states' directly and under § 5 of which Congress has the power to create remedies. Edelman involves retroactive welfare benefits withheld in violation of the Social Security Act, and thus falls in the second legal framework. A fourteenth amendment claim provided a basis for federal jurisdiction, but was. not decided. See Hagans v. Lavine, 42 U.S.L.W. 4381, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Thus Justice Marshall is technically correct that Edelman does not dispose of the third category. But the majority opinion expressly overrules Shapiro v. Thompson, supra, State Department of Health and Rehabilitative Services v. Zarate, supra, and Wyman v. Bowens, supra, all fourteenth amendment cases. We think Edelman must be read as. closing the door on any money award from a state treasury in any category.” (n. 7, p. 42) (emphasis supplied).

Careful study of the Edelman opinion leads us to conclude, as did the Third Circuit, that the Eleventh Amendment prohibits the awarding of attorneys’ . fees against unconsenting sovereign states. We note in particular the following language from that opinion: “Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” Edelman, supra, 94 S.Ct. at 1356. Although appellees urge that attorneys’ fees are analogous to costs, the taxing of which is permitted against states, the test for determining whether a particular type of relief passes muster, as set out in Edelman, indicates the opposite. The Amendment bars any award which is “measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.” Edelman, supra, 94 S.Ct. at 1358. In our opinion, awards of attorneys’ fees fall within that classification and are, therefore, barred.

One of the reasons given by the district court in this case for denying appellants’ Rule 60(b) motion was that “the judgment entered herein is res judicata as to any issue which was or could have been raised in the initial proceedings.” While it is true, as the district court pointed out, that appellants failed to object to the award until after the judgment was entered and execution proceedings undertaken, there are two reasons why the court should have granted the motion to vacate. First, a void judgment is no judgment at all and is without legal effect. Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972). Secondly, the doctrine of “res judicata does not preclude a litigant from making a direct attack [under Rule 60(b)] upon the judgment before the court which rendered it.” IB J. Moore, Federal Practice, ¶ 0.407, at 931 (2d ed. 1973); see United States v. United States Fidelity Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); see also, Lubben v. Selective Service System Local Bd. No. 27, supra, 453 F.2d at 649.

Closely allied to the district court’s reasons for denying the motion to vacate is appellees’ suggestion that appellants and the State of Ohio have, by their failure to object until after the judgment and payment, waived any immunity they may have had. A party cannot be precluded from raising the issue of voidness in a direct or collateral attack because of the failure to object prior to, or at the time of, entry of the judgment.

“The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though argued for the first time in this Court.” Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945).

And, “the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court . . . .” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). Thus, once it is determined that a state is not subject to federal jurisdiction because of the operation of the Eleventh Amendment, a court must vacate any judgment entered in excess of its jurisdiction. In light of the above analysis it is clear that the denial of appellants’ motion to vacate under Fed.R.Civ.P. 60(b) was erroneous.

Finally, appellees ask that we consider how critically important it is for plaintiffs in public interest litigation to have the right to obtain awards of attorneys’ fees and expenses. We fully recognize the often valuable service performed by the so-called “private attorney general” in protecting the constitutional rights of large segments of our society, but we are also mindful of the clear limitation on federal jurisdiction in the. Eleventh Amendment. This decision does not affect in any way the validity of awarding attorneys’ fees against non-sovereign defendants, and in view of its limited scope it is difficult to see why it would have the dire consequence of preventing public interest litigation that appellee envisions.

The judgment of the district court entered June 12, 1973, denying appellants’ motion to vacate the award of attorneys’ fees and expenses is reversed, and the order of the district court dated May 19, 1972, is vacated.

      . “By previous order . . . the State of Ohio was ordered to pay Plaintiff’s attorneys’ fees in this action. The Court now being advised that the State of Ohio has failed and continues to refuse to comply with said order, now directs that Plaintiff’s attorneys’ fees and expenses be taxed as costs in this action.”

      . “The Court being advised that there are. funds being held in excess in the amount of $27,272.65, it is ORDERED that the Union Commerce Bank turn over and deliver funds in the sum of $27,272.65 to the Clerk of this Court forthwith; said amount representing the sum designated and levied upon by the Fieri Facias.” Order of February 2, 1973.

      . There can be no doubt that the district court intended the award of attorneys’ fees to run against the State of Ohio, even though the State was not a party to this suit. Although the exact meaning of the court’s May 19, 1972 order, quoted in the text, is arguably unclear, any possible misinterpretation was obviated by the January 17, 1973 order (supra note 2), and by the subsequent attachment of the State’s bank account.

      . Order of January 17, 1973, supra note 2.

      . “Although the traditional American rule ordinarily disfavors the allowance of attorneys’ fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys’ fees when the interests of justice so require.” Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 1945, 36 L.Ed.2d 702 (1973). Justice has been held to so require wiiere bad faith is exhibited by the unsuccessful litigant or where “plaintiff’s successful litigation confers ‘a substantial benefit on members of an ascertainable class . . . . ’” Id. at 5, 93 S.Ct. at 1946.
      This Court has also recognized the equitable power to make such awards. Smoot v. Fox, 353 F.2d 830 (6th Cir. 1965).
      We take heed of the fact that in this case there was no evidence of bad faith on the part of appellants or 'the State of Ohio.

      . Statutes often provide for awards of attorneys’ fees. See, e. g., Clayton Act, 15 U.S. C. § 15; Communications Act of 1934, 47 U.S.C. § 206; Interstate Commerce Act, 49 U.S.C. § 16(2) ; etc.

      . “8. Individuals who, as officers of a state, are clothed with some duty with regard to a law of the state which contravenes the Constitution of the United States, may be restrained by injunction, and in such a case the state has no power to impart to its officers any immunity from such injunction or from its consequences, including the court costs incident thereto.” Sims v. Amos, 340 F.Supp. 691, 694, n. 8 (M.D.Ala.1972) (citations omitted).

      . The Preliminary Print of Volume 409 of the Official Reports of The Supreme Court (United States Reports) contained the following statement at 942: “No. 72-12. Amos, Secretary of State of Alabama, et al. v. Sims et al. Affirmed on appeal from D.C.M.D.Ala. Reported below: 336 F.Supp. 924.”

      . The bound version of volume 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 states as follows : “No. 72-12. Amos, Secretary of State of Alabama, et al. v. Sims et al. Affirmed on appeal from D.C.M.D.Ala. Reported below: 336 F.Supp. 924; 340 F.Supp. 691.”

      . One court has attributed “the Court’s omission [of 340 F.Supp. 691] to inadvertence.” See Skehan v. Board of Trustees, infra.

      . State Dep’t of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972), aff’g 347 F.Supp. 1004 (S.D.Fla.1971); Sterrett v. Mothers and Children’s Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70 (1972), aff’g unreported order and judgment of N.D.Ind.1972 on remand from Carpenter v. Sterrett, 405 U.S. 971, 92 S.Ct. 1199, 31 L.Ed.2d 246 (1971); Gaddis v. Wyman, 304 F.Supp. 717 (S.D.N.Y.1968), aff’d per curiam sub nom. Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1969).

      . Shapiro v. Thompson, 270 F.Supp. 331 (D.C.Conn.1967), aff’d., 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

      . Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1927).


source: Caselaw Access Project

license: Public Domain

text:
    Max MILLER, Plaintiff-Appellant, v. SCHOOL DISTRICT NUMBER 167, COOK COUNTY, ILLINOIS, et al., Defendants-Appellees.
    No. 73-1359.
    United States Court of Appeals, Seventh Circuit.
    June 18, 1974.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   In support of his petition for rehearing, appellant has called our attention to the decision of the Supreme Court in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Appellant argues, in effect, that the Court’s construction of the Lloyd-LaFollette Act, 5 U.S.C. § 7051, as creating a “property” interest under the Fifth Amendment requires us to conclude that the relevant Illinois statute likewise created a “property” interest for appellant under the Fourteenth Amendment. It is, of course, clear in both cases that the nature of the employee’s right, if any, to continued employment is determined by the relevant statute — the federal statute in Arnett and the Illinois statute in this case. It is equally clear that the United States Supreme Court’s construction of federal statutory language does not affect the right of an Illinois court to interpret language selected by the Illinois General Assembly in framing state legislation. Accordingly, it is perfectly clear that the proper interpretation of the Illinois statute is not affected by the Arnett decision.

It is equally plain that the Illinois statute did not grant tenure to the plaintiff, since he had not completed the two-year probationary period required by 122 Ill.Rev.Stat. § 24-11. See Elder v. Board of Education of School District No. 127½, 60 Ill.App.2d 56, 208 N.E.2d 423, 426 (1965). Even though appellant was not a tenured teacher, arguably the Illinois statute might so limit the causes for which he might be removed that, under reasoning analogous to that adopted in Arnett, he might have a sufficient claim of entitlement to his position to have a property interest within the meaning of the Fourteenth Amendment. Appellant has called our attention to no Illinois authorities indicating that the statute limits in any way whatsoever the authority of the School Board to terminate his employment prior to the time he acquires tenure. The language of the statute does not expressly limit terminations to any kind of cause. Since we are persuaded that the Illinois courts would interpret this statute to empower a school board to terminate a nontenured teacher for any reason at all, we are likewise persuaded that as a matter of state law the non-tenured teacher’s claim of entitlement to his position is insufficient to constitute a property interest within the meaning of the Fourteenth Amendment.

Except for appellant’s Equal Protec-, tion argument, which was not previously advanced, and is therefore not now entertained, the other contentions set forth in the Petition for Rehearing are adequately answered in the opinion dated April 5, 1974.

Accordingly, the Petition for Rehearing is denied.

No active judge having requested a vote, the Petition for Rehearing En Banc is also denied.

Denied.


author: GODBOLD, Circuit Judge:

text:
    Johnny M. GARDNER, Dean Anthony Ackley, and Willie Jones, Jr., Individually, etc., Plaintiffs-Appellants, v. Judge C. LUCKEY, Jr., as Public Defender for the Thirteenth Judicial Circuit of the State of Florida, et al., etc., Defendants-Appellees.
    No. 73-1777.
    United States Court of Appeals, Fifth Circuit.
    Sept. 16, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 10, 1974.
    William Knight Zewadski, Tomothy A. Johnson, Jr., Tampa, Fla., for plaintiff s-appellants.
    Robert L. Shevin, Atty. Gen. of Florida, Baya Harrison, III, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appel-lees.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

Johnny Gardner, Dean Ackley and Willie Jones, the appellants, were separately convicted of Florida crimes. Under 42 U.S.C. § 1983 they mounted a sweeping class action seeking declaratory and injunctive relief against the Florida Public Defender Offices in the Twelfth and Thirteenth Judicial Circuits of Florida, which had represented them at various stages of the criminal process. The thrust of their complaint was that the Public Defender Offices systematically failed to meet minimum constitutional standards in the representation afforded indigents at trial, on appeal, and in state post-conviction proceedings. More specifically, stated appellants, the Public Defenders failed to consult with those whom they were appointed to represent, to advise each indigent defendant of his legal rights, to provide adequate investigation 'of the availability of factual and legal defenses, and to assign a specific attorney to defend the indigent.

Appellants sought neither release from custody nor damages, and did not cast doubt upon the zeal and professional skill of individual Public Defenders and their staffs. Instead they requested the District Court to declare that the Public Defenders’ acts, policies, practices, pattern of conduct and custom violated their rights, and to enjoin the Offices from further representation of indigents unless standards, specified in the complaint and alleged to represent minimum standards of constitutional effectiveness, were met. They made inadequate funding and excessive caseloads a key claim in their suit. They requested a declaration that appointment of Public Defenders for any representation in excess of the Offices’ capacity violated their rights. Also, they asked the District Court to declare the Offices’ caseloads excessive, to specify how excessive they were, and to enjoin acceptance of overload cases.

The District Court dismissed the complaint on four grounds: (1) a Public Defender is not a state actor when he carries out his central function of representing indigents; (2) the class action was not maintainable because the deprivation of the right to effective assistance of counsel can only be proved by reference to particular instances; (3) there were adequate remedies at law such as state post-conviction proceedings and federal habeas corpus; (4) there was no case or controversy, because the relief requested was so broad that an advisory opinion would be required. We do not pass on the correctness of any of these holdings, but we affirm on other grounds.

This case bears a strong resemblance to O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). O’Shea was a class suit against two state judges. The named plaintiffs, 17 black and two white residents of Cairo, Illinois, allleged that the judges deprived them of their constitutional rights by setting bond in criminal cases without regard to the circumstances of individual defendants, by imposing harsher sentences upon them and the members of their class than upon white persons, and by burdening their right to jury trial. The Supreme Court held that none of the named plaintiffs had alleged enough to establish a case or controversy with the defendants. Thus federal court jurisdiction was lacking both as to the named plaintiffs and the class they purported to represent.

The Court pointed out that the complaint failed to identify any one of the named plaintiffs as having himself suffered injury. It explained that

[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, ... if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ [plaintiffs’] counsel suggested that any of the named plaintiffs at the time the complaint was filed was himself serving an allegedly illegal sentence or was on trial or awaiting trial before petitioners. Indeed, if any of the respondents were then serving an assertedly unlawful sentence, the complaint would inappropriately be seeking relief from or modification of current, existing custody. See Preiser v. Rodriguez, 411 U.S. 475, [93 S.Ct. 1827], 36 L.Ed.2d 439 (1973). Furthermore, if any were then on trial or awaiting trial in state proceedings, the complaint would be seeking injunctive relief that a federal court should not provide. Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746], 27 L.Ed.2d 669 (1971) .... We thus do not strain to read inappropriate meaning into the conclusionary allegations of this complaint.

414 U.S. at 495, 94 S.Ct. at 676, 38 L.Ed.2d at 683.

The appellants in the present case are in the same posture as the O’Shea plaintiffs, having failed to show the existence of a case or controversy. Nowhere in the complaint did any named plaintiff allege that he himself was injured by the conduct of the Public Defenders. Indeed, if a plaintiff had made such an allegation, we would be required to regard him as challenging the legality of his conviction, and under Preiser v. Rodriguez he would be relegated to habeas corpus as his exclusive federal remedy. See 411 U.S. 475, 489-490, 93 S.Ct. 1827, 36 L.Ed.2d 439, 450 (1973). Moreover, to the extent the complaint alleged present and continuing constitutional deprivations due to the representation appellants were receiving in pending state appeals proceedings, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), barred the suit.

There remains the question whether the complaint alleges a sufficiently lively threat of future injury to make out an Article III case or controversy. The prospect of future injury rests upon the likelihood that the plaintiffs named in the complaint will pursue further state court proceedings of a type that are within the statutory scope of duty of the Public Defender. See Fla. Stat.Ann. § 27.50 et seq. We regard this as too speculative. We are reinforced in our view by the alternative holding in the O’Shea case, which focused upon lack of a sound basis for equitable relief. The Supreme Court wrote:

What [plaintiff-respondents] seek is an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The order the Court of Appeals thought should be available if respondents proved their allegations would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption of state proceedings to adjudicate assertions of noncompliance by petitioners. This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of inference that Younger v. Harris and related eases sought to prevent.

414 U.S. at 500, 94 S.Ct. at 678, 38 L.Ed.2d at 686. It is clear from the face of their complaint that our appellants contemplate exactly the sort of intrusive and unworkable supervision of state judicial processes condemned in O’Shea. We hold that the District Court properly dismissed their suit. Cf. also Ad Hoc Committee on Judicial Administration v. Massachusetts, 488 F.2d 1241 (CA1, 1973) (noting the unwisdom of making the federal courts the receiver of the state courts); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (CA2, 1973) (noting undesirability of placing state prosecutorial decisions under federal court supervision.)

In sum, we hold that appellants cannot get into federal court to make their sweeping challenge to the operation of the Florida Public Defender Offices. We emphasize, however, that they are not left without a remedy for constitutional wrongs, if any, done them by the Offices. They can challenge the legality of their custody via federal habeas corpus, subject, of course, to prior exhaustion of state remedies.

The judgment of the District Court dismissing appellants’ suit is affirmed.

      . Appellees, Walter Talley ami O. Luckey were the heads of those offices. Public Defenders in Florida are salaried state officials, elected for four-year terms. See Fla. Stat.Ann. § 27.50 et seq. They are empowered to hire salaried Assistant Public Defenders and other helpers to the extent of the funds the state makes available.

      . For example, appellants requested that an attorney from the Office be required to consult with the accused indigent within 48 hours of arrest, to advise him of all his rights, to explore all possible defenses, to refrain from withdrawing except upon permission of the court and after first advising the indigent of the right to appeal, etc.

      . The no state action theory stems from the idea that a public defender, although paid by the state, actually opposes the state in a particular case and owes allegiance solely to his client. See Wallace v. Kern, 481 F.2d 621 (CA2, 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974), rev’g United States ex rel. McLaughlin v. People of State of New York, 356 F.Supp. 988 (E.D.N.Y.1973). But see John v. Hurt, 489 F.2d 786 (CA7, 1973) (it is at least arguable that the public defender acts under color of law, but he enjoys qualified immunity against damage suits).
      Appellees argue that this circuit lias endorsed the no state action theory in Sullens v. Carroll, 446 F.2d 1392 (CA5, 1971), and O’Brien v. Colbath, 465 F.2d 358 (CA5, 1972). Appellants urge that those cases do not govern, as Sullens involved damages only and turned on the doctrine of immunity of federal officials, and O’Brien, also a damage suit, was in the nature of a malpractice action, which is traditionally regarded as a state law claim and is not cognizable under 42 U.S.C. § 1983. We do not decide the state action issue, and intimate no view on its correct disposition.

      . In Wolff v. McDonnell, -U.S.-, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court elaborated an exception to Rodriguen. It held that a state prisoner’s damage suit against prison authorities for rescission of good-time credit without constitutionally adequate procedural safeguards was maintainable under 42 U.S.C. § 1983, even if the suit would incidentally call, upon the court to declare the procedures defec-five. Assuming that the theory of the Wolff exception otherwise might sweep beyond the context of good-time rescission by prison authorities, appellants do not benefit from it, because a § 1983 claim for damages which is necessary to trigger the exception, is not made and is unavailable against state public defenders. O’Brien v. Colbath, 465 F.2d 358 (CA5, 1972).

      . See also the suggestion in O’Shea of possible relief under 18 U.S.C. § 242. 414 U.S. at 488, 94 S.Ct. at 669, 38 L.Ed.2d at 687-688.


author: LEWIS R. MORGAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Travis Leon WILSON, Orrin Shaid, Jr., Louis Levin, Jerald Aaron White, Jason N. Winthrop and David Levi White, Defendants-Appellants.
    No. 73-1723.
    United States Court of Appeals, Fifth Circuit.
    Sept. 18, 1974.
    Rehearing Denied Nov. 18, 1974.

      Tomas G. Pollard, Jr., Tyler, Tex., (Court-appointed), for Travis Leon Wilson.
    Thomas Roberson, Houston, Tex. (Court-appointed), for Jerald Aaron White.
    T. D. Smith, William E. Heitkamp, Houston, Tex., for Orrin Shaid, Jr.
    R. James George, Jr., Austin, Tex., for Louis Levin.
    Herbert J. Coleman, Houston, Tex., for Jason N. Winthrop and David Levi White.
    Roby Hadden, U. S. Atty., Tyler, Tex., Joseph C. Hawthorne, Asst. U. S. Atty., Beaumont, Tex., for the United States.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge.

The appellants were indicted in May, 1972, in a 60 count indictment for various acts involving the purchase and operation of the Chireno State Bank of Chireno, Texas, and the First State Bank of Grandview, Texas. All defendants were tried together in a trial which covered a period of approximately four weeks. The indictment charged violations of 18 U.S.C. §§ 2, 215, 371, 656, 1005 and 1014.

FACTS:

Orrin Shaid, Jr., in February of 1971, contacted Nathaniel Price, apparently for the purpose of getting Price to help him locate a bank that Shaid might purchase. Price contacted V. L. Evans, who subsequently located the Chireno State Bank, which was at that time for sale. Evans introduced Shaid to the owner of the Chireno State Bank, J. R. Lyon, Jr., and Lyon later designated John Hooper, an employee of his, to represent Lyon in negotiations for the sale of the Chireno Bank to Shaid. At approximately the same time, Travis Leon Wilson was selected to be president of and operate the Chireno State Bank if the Shaid plan worked out.

Because Shaid found that it would be impossible for him to purchase the Chir-eno bank himself, it was suggested that he obtain some additional backers. The evidence indicates Louis Levin, a financial consultant, was asked if any of his customers would be interested in investing in a small bank of this nature. Four of Levin’s customers did apparently buy Chireno State Bank stock and signed notes for that purpose. The group that eventually purchased the bank consisted of Orrin Shaid, Jr., Orrin Shaid, Sr., Travis Leon Wilson, S. Nathaniel Price, Louis Levin, David Levi White, Je.rald Aaron White, Charles St. Clair Scott, and George Littlefield. Loans from the Franklin Bank in Houston, Texas, the Northeast Bank, and the Orange Bank were used to purchase Chireno State Bank’s stock, which stock was then put up as security for the loans.

Jerald White, David White, and George Littlefield stated during the investigation prior to the grand jury indictment that one of the reasons they signed a note for the purchase of Chir-eno State Bank stock was to secure a more readily available line of credit for loans and financing. In other words, it appeared to be a policy of Shaid, Jr. to promise readily available loans to people who would join him in the purchase of the Chireno Bank. The evidence at trial demonstrated that each of Levin’s customers who had invested in the Chireno State Bank did subsequently obtain a large unsecured loan which was never repaid. Starting March 5, 1971, when Travis Leon Wilson began taking over management of the Chireno State Bank, numerous unsecured loans were made, against bank policy, to members of the control group mentioned above. Financial statements of various members of the control group were on file at the bank, but were found to be false. During the period following purchase of control of this bank, there was fast and furious financial manipulation of the funds of the bank by various members of the Shaid group. In April of 1971, Orrin Shaid, Jr. began negotiating to purchase the First State Bank of Grand-view, Texas. In order to accomplish this, further financial manipulations were necessary. After the First State Bank of Grandview was acquired, Travis Leon Wilson, who had assumed its management, began granting unsecured loans to members of the group. These loans included $31,500 to S. Nathaniel Price and a $30,778.50 unsecured loan to Orrin Shaid, Jr. The total of these loans, $123,781.20, was used to write off the notes and interest at the Chireno State Bank which were owed by members of the Shaid group. As a result of this complex set of financial dealings and other irregularities, the directors of the First State Bank of Grandview removed Travis Leon Wilson as director and disapproved the unsecured loans mentioned above. On June 9, 1971, a demand was made for payment of the notes, and when no payment was forthcoming the notes were charged off by the bank examiners on June 12, 1971. On June 14, 1971, various unsecured notes in the names of the defendants on the books of the Chireno State Bank were charged off.

It should be noted that on June 4, 1971, a demand was made of Shaid, Jr., Shaid, Sr., Littlefield, Levin, Scott, Jerald White, David White, Price, and Wilr son for payment of the notes they had placed in the Franklin Bank of Houston, Texas, to finance the purchase of the Chireno State Bank. Upon failure of payment, the notes were charged off. The Board of Directors of the Chireno State Bank and the state and federal bank examiners then met on June 12, 1971, for the purpose of getting the Board to sign a closure statement closing down the Chireno State Bank. The statement provided that the bank was to be closed by 9:00 A.M., June 14, 1971, unless $275,000 in cash could be put back in the bank to recapitalize it. Two hundred thousand dollars was raised by a group of 19 Chireno townspeople not associated with these financial dealings and was deposited in the bank. For that reason, the bank remained open and continued to do business as usual and is still doing business.

As a result of these complex and rapid fire financial maneuvers an investigation was instituted by federal and state authorities. In May of 1971, the 60 count indictment was returned against various defendants, including appellants. The appellants each received individual consideration by this court.

ORRIN SHAID, JR.

Orrin Shaid, Jr. first argues that 18 U.S.C. § 656, which forbids the embezzlement, abstraction or willful misapplication of bank funds by one connected in any capacity with the federally insured bank is unconstitutional because of vagueness. We find there to be no basis to this argument.

Appellant argues that the statute is unconstitutionally vague because the term “willfully misapplied” contained in 18 U.S.C. § 656 has no commonly accepted technical meaning. It appears, however, that courts have defined this term as covering actions which are not covered by the technical terms “embezzlement” or “abstraction.” Courts have held that the acts which are obviously improper and amount to the unjustified use of bank funds and which amount to more than mere bad judgment or maladministration constitute “willfulness.” United States v. Heinze, 161 F. 425 (2 Cir. 1908), United States v. Fortunato, 402 F.2d 79 (2 Cir. 1968), cert. den. 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969), Mulloney v. United States, 79 F.2d 566 (1 Cir. 1935), cert. den. 296 U.S. 658, 56 S.Ct. 383, 80 L.Ed. 468 (1935). In fact, courts have generally held that the gist of the offense of willful misapplication is the conversion of funds of a federally insured bank by one connected in some capacity with the bank either to his own use or to the use of a third person, with the intent to injure or defraud the bank. United States v. Steinman, 172 F. 913 (3 Cir. 1909), United States v. Morse, 161 F. 429 (2 Cir. 1908), aff’d. 174 F. 539 (2 Cir. 1909), cert. den. 215 U.S. 605, 30 S.Ct. 406, 54 L.Ed. 346 (1909). Furthermore, recent cases have held that reckless disregard of the interest of a bank is, for the purpose of “willful misapplication,” the equivalent of intent to injure or defraud. Logsdon v. United States, 253 F.2d 12 (6 Cir. 1958), Giragosian v. United States, 349 F.2d 166 (1 Cir. 1965), vacated and remanded on other grounds. It should be remembered above all else that this statute was enacted to preserve the FDIC from loss and to preserve and protect the assets of banks having a federal relationship. Garrett v. United States, 396 F.2d 489 (5 Cir. 1968), cert. den. 393 U.S. 952, 89 S.Ct. 374, 21 L.Ed.2d 364, reh. den. 393 U.S. 1046, 89 S.Ct. 615, 21 L.Ed.2d 599 (1968).

Shaid, Jr. also contends that the failure of the trial court to grant his motion for severance deprived him of his Sixth Amendment right to confront adverse witnesses. Prior to the commencement of the evidence, Shaid, Jr. filed a motion for severance on the grounds that (1) the defendants were improperly joined because the offenses charged were not the same or of similar character and were not based upon the same act or transaction; and (2) in the event that separate trials were held the appellant would be able to call as witnesses many of the other defendants in the trial and such witnesses would be able to freely testify about events within their knowledge in aid of Shaid, Jr.’s defense. A thorough perusal of the record by this court, however, has convinced us that no evidence was presented in support of this motion and the lower court’s overruling of the motion was entirely proper.

To acquire severance in order to obtain codefendants’ testimony it must be shown that the testimony would be exculpatory. The movant must also make a clear showing of what the co-defendants would testify to. The court is not required to sever where the possibility of the co-defendants testifying is merely colorable and there is no showing that there is anything more than a gleam of possibility in the defendant’s eye. Byrd v. Wainwright, 428 F.2d 1017 (5 Cir. 1970). Here, no such showing was made.

Shaid, Jr. also contends that the excised statements of his co-defendants which were introduced into evidence implicated him. He alleges that he was denied his Sixth Amendment right of effective assistance of counsel because he was not allowed to cross-examine the co-defendants concerning these statements because of the co-defendants’ Fifth Amendment rights. He cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The facts in this case, however, do not meet the prohibitions set out in Bruton. The court below held extensive hearings out of the presence of the jury and heard all parties’ objections to portions of each statement of a co-defendant which might incriminate another co-defendant. The court excluded those portions of each defendant’s statement which tended to incriminate a co-defendant. No limiting instruction was requested by any party. Appellant points to only two instances where co-defendants’ statements implicated him, the statement of Jerald White that he had paid $1,600 for obtaining a loan, and the statement of Jason Winthrop that he paid a fee for his loan. Both of these statements referred to by appellant were made outside of the presence of the jury, and both were excluded and not mentioned before the jury. Shaid, Jr. refers to no other statement by any co-defendant which was introduced and incriminated him and none can be found. Therefore, it is clear that the above mentioned statements were not introduced in violation of Bruton, supra, and the court did not commit error in this regard.

It is also contended by Shaid, Jr. that the trial court erred in failing to declare a mistrial upon the comments made by the Assistant United States Attorney during his closing argument. We find this contention to be without merit.

During his closing argument to the jury, one of the Assistant United States Attorneys, in explaining the manner of proving one’s knowledge of an illegal act, commented that, “. . . there is no way to prove knowledge directly. We can’t put the man on the stand and ask him does he have knowledge . . . .” Shaid, Jr., at that time, moved for a mistrial. The court ruled that the comment was merely a hypothetical argument. The Assistant United States Attorney then continued his argument and explained that:

It is scientifically impossible to prove by direct evidence a person’s knowledge and therefore we are left to prove it by indirection, and by indirection I mean this. In determining if the defendant had knowledge that these statements were false we should look at it in context of everything that Mr. Hawthorne has told you and the context of this overall scheme which finally culminated in the purchase of the Grandview Bank.

The trial court specifically stated in its instruction to the jury that, “[t]he law does not compel a defendant in a criminal action to take the witness stand and testify.” Furthermore, Shaid, Jr.’s counsel, realizing that the comment by the Assistant United States Attorney was inadvertently made, requested and was granted a special charge to the jury concerning the remark.

The Fifth Circuit recently stated that the test in determining whether or not a statement is a comment on the failure of a defendant to testify is whether or not the statement was manifestly intended or was of such character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. United States v. White, 444 F.2d 1274 (5 Cir. 1971), cert. den. 404 U.S. 949, 92 S.Ct. 300, 30 L.Ed.2d 266 (1971). In the situation with which this court is faced, it is clear that the statement was not manifestly intended nor was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Furthermore, the court below specifically charged the jury that no defendant is required to testify and also specifically charged the jury according to appellant’s request concerning the inadvertent statement made by Mr. Lewis, the Assistant United States Attorney. Therefore, the court’s failure to grant a mistrial on the basis of Lewis’ statement was not error.

This court’s review of the trial record and the evidence presented clearly demonstrates that Shaid, Jr.’s arguments that certain evidence entered over the objection of the appellant was used in violation of the Fourth and Fifth Amendments has no merit. See, Harris v. United States, 413 F.2d 316 (9 Cir. 1969); Galbraith v. United States, 387 F.2d 617 (10 Cir. 1968); Application of Cole v. Franklin National Bank, 342 F.2d 5 (2 Cir. 1965); and De Masters v. Arend, 313 F.2d 79, 85 (9 Cir. 1963).

TRAVIS LEON WILSON:

Appellant Wilson contends that the trial court erred in admitting his excised confession into evidence because the confession had exculpatory and explanatory statements deleted from it. He states that the following are the exculpatory and/or explanatory statements which were deleted:

(1) Orrin Shaid, Jr. arranged for the purchase of the Chireno State Bank;
(2) Orrin Shaid, Jr. held the appellant’s fifteen shares of Chireno State Bank stock in trust and organized the control group;
(3) Orrin Shaid, Jr. was the majority stockholder of Chireno State Bank by virtue of the trust agreement that was in effect;
(4) The appellant believed Orrin Shaid, Jr. was for all practical purposes the controller of the bank;
(5) Orrin Shaid, Jr. would handle the borrowing of money from the bank by control group members;
(6) An explanatory statement of the source of the twenty-five thousand dollars for the purchase of Grandview bank was deleted;
(7) Orrin Shaid, Jr. organized the purchase of the First State Bank of Grandview;
(8) The appellant believed Orrin Shaid, Jr. and Orrin Shaid, Sr. had the net worth claimed by their financial statements;
(9) The names of Agnes A. Lewis, James E. Evans, David Benjamin, Walter Lewcum, Fred Earhard, III, George Pyle, and Charles Kennedy, participants in the purchase of the Grandview bank, were deleted from the statement;
(10) The fact that four notes in the names Orrin Shaid, Jr., Charles Kennedy, S. Nathan Price, and Fred Earhard, III were deleted from the part of the statement explaining the $123,000.00 of loans that were placed on the books of the Grandview bank.

Each of these matters, except for number eight, was brought out by other testimony and evidence and therefore the statement containing Wilson’s confession would merely have been cumulative. As to number eight, we are unable to find any statement in Wilson’s confession which indicates that he believed that Shaid, Jr. and Shaid, Sr. possessed the net worth claimed on their financial statements. " Whatever the argument, the excised statements would have been merely cumulative, and apart from them the case against the appellant was so overwhelming that any possible error in deleting them was harmless beyond a reasonable doubt. Posey v. United States, 416 F.2d 545 (5 Cir. 1969), cert. den. 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127, reh. den. 397 U.S. 1031, 90 S.Ct. 1267, 25 L.Ed.2d 544 (1969), Hoover v. Beto, 467 F.2d 516 (5 Cir. 1972), cert. den. 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972), United States v. Davis, 418 F.2d 59 (9 Cir. 1969), Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1968).

Appellant Wilson’s other contention on appeal is that the statement made by the Assistant United States Attorney concerning his failure to take the stand violated his Sixth Amendment rights, and for that reason a mistrial should have been granted. The same reasoning applied above to Shaid, Jr.’s argument applies here.

DAVID LEVI WHITE:

Appellant White first contends that severance should have been granted because his defenses and those of Travis Leon Wilson were in conflict. However, there does not appear to have been any showing of conflict between the defenses and White points to none in his brief. He simply alleges the conclusion that conflicting defenses existed. Before severance is required because of conflicting defenses, the defenses must be antagonistic to the extent that they approach being mutually exclusive. United States v. Kahn, 381 F.2d 824 (7 Cir. 1967), cert. den. 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661, reh. den. 392 U.S. 948, 88 S.Ct. 2272, 20 L.Ed.2d 1413 (1967). With the record completely devoid of any evidence that the defenses of appellants White and Travis Leon Wilson were conflicting, the trial court did not err in failing to grant appellant White’s motion for a severance on this ground.

Appellant White also claims that a severance should have been granted because he was deprived of the right to call his co-defendants in his behalf. No showing was made, however, that any of the co-defendants would in fact testify or that what they would testify to would be exculpatory as to White. See this court’s discussion on Orrin Shaid, Jr.’s similar argument above.

White’s contention as to the deprivation of his presumption of innocence, after examination of the trial record, appears on its face to be completely without merit.

Finally, White contends that the district court erred in failing to grant his motion for an instructed verdict of not guilty on all counts on which he was charged because of insufficiency of the evidence. This court has read the entire record of the proceedings below and finds that such an argument in this case is completely without basis in fact. Appellant White was charged and convicted in count two with furnishing a false financial statement to the Chireno State Bank in order to influence the action of the bank upon a loan. The evidence clearly showed that White and his brother obtained a $10,000 unsecured loan from the bank six days after it was purchased. Furthermore, the evidence showed that in all cases where a loan is unsecured, the FDIC requires a financial statement of the borrower to be on file in the bank. The evidence also showed that White’s financial statement was found in the bank’s business records. A member of the bank’s Board of Directors testified that in seeking Board approval of White’s loan and White’s brother’s loan, Wilson stated that he had the appellant’s financial statement and that he, Wilson, encouraged the Board to approve the loan because the financial statement showed that White had “plenty of money.” Therefore, the evidence was such that the jury could have reasonably concluded that the evidence excluded every reasonable hypothesis except that appellant White furnished his financial statement to the bank in order to influence its action on his loan.

White was also charged and convicted in count three with aiding and abetting in the misapplication of bank funds in connection with the granting of the loan. The jury could have reasonably concluded from the evidence that White knew that the loan he was granted was granted to him by Wilson only because he assisted Shaid, Jr. in gaining control of the bank. Because the financial statement he submitted to the bank was materially false, it is only logical that he knew it would not be verified, but only used by Wilson to convince the Board of Directors that White was entitled to the loan. In this manner, then, he could have been said to have knowingly participated in a scheme of self-dealing in the assets of the bank and assisting Wilson in misapplication of bank funds by providing his financial statement and obtaining the loan.

In count 60, appellant was charged and convicted with nine other co-defendants of conspiring to violate 18 U.S.C. §§ 656, 1014 and 2. As has been stated, because of the similarity of methods of acqusition and close proximity of acquisitions of the Chireno State Bank and the First State Bank of Grandview, the jury could have reasonably concluded that the purchase of these banks constituted a single plan between Shaid, Jr., Shaid, Sr, and Wilson for bank acquisition, with the remaining co-defendants participating in the plan in varying degrees. That plan was obviously to acquire banks by recruiting investors with promises of loans from the bank after acquisition. Such dealings in the funds of the bank clearly constituted misapplication of the bank funds, and the agreement, coupled with overt acts of recruiting investors and granting loans, constituted a conspiracy to misapply the funds of the bank. The evidence disclosed that White participated in the purchase of the Chireno bank and that one of his purposes in so doing was that a line of credit or a source of financing would be available to him. Thus, there must have been a prior agreement that he would be able to borrow money from the Chireno bank in return for assisting in its purchase. When he agreed to participate in the purchase for this purpose and signed a note for the purchase in furtherance of the agreement, he joined the conspiracy. The facts speak for themselves. White was granted a large unsecured loan shortly after the bank was acquired.

It is acknowledged that there was no evidence introduced showing any further participation by White in either the Chireno bank or the Grandview bank acquisitions. However, the fact that his participation in the scheme was limited to assisting in the acquisition of the Chireno bank and obtaining a loan from the bank does not mean he cannot be convicted as a conspirator. It is not necessary that each co-conspirator know all other conspirators or that each was involved throughout the entire conspiracy. United States v. Green, 327 F.2d 715 (7 Cir. 1964), cert. den. 377 U.S. 944, 84 S.Ct. 1350, 12 L.Ed.2d 306 (1964). Likewise, it is not essential that each conspirator participate in all activities in furtherance of the conspiracy or have knowledge of them. McManaman v. United States, 327 F.2d 21 (10 Cir. 1964). One who participates in a criminal conspiracy is no less liable because his part may be minor and subordinate. Sabari v. United States, 333 F.2d 1019 (9 Cir. 1964). Therefore David White’s participation was clearly sufficient to-bring him within the conspiracy and to sustain his conviction.

The arguments of Jerald White are of such similarity to those of his brother that it would be repetitious to enumerate them here. This court’s answer to Jerald White’s allegations as to severance and as to the sufficiency of the evidence and as to comments made by the Assistant United States Attorney and as to evidence of acts concerning the purchase of the First State Bank of Grand-view and as to putting into evidence the excised statements of the appellant is that they are without merit for the reasons stated above.

LOUIS LEVIN:

Appellant Levin was charged and convicted on counts three and six, with aiding and abetting the misapplication of the Chireno bank’s funds in connection with loans which were made to co-defendants Jerald White, David White, and Charles Scott. Levin contends that the trial court erred in failing to grant his motion for judgment of acquittal based on insufficiency of the evidence.

The government’s theory at trial on the misapplication of bank funds in counts three and six was that Levin was asked by Shaid, Jr. to assist him in recruiting individuals to syndicate the purchase of the Chireno bank. At that time, Levin was a “financial consultant;” his business consisted primarily of obtaining loans for his customers. Levin in turn contacted the Whites and Scott and recruited them into the syndication by promising them large unsecured loands from the Chireno bank if they participated in the purchase by signing notes at the Franklin bank. Also, they were to turn over the control of their stock to Shaid, Jr. It was the government’s contention on appeal, as well as at trial, that the loans from the Chireno bank to the Whites and Scott, based upon such an agreement, constituted reckless misuse of Chireno bank funds, and that Levin’s role in this scheme made him an aider and abetter in the misapplication.

As indicated previously, when Shaid, Jr. found that he did not have sufficient capital to buy the Chireno bank on his own, he attempted to obtain additional backers. It appears that Louis Levin was asked if any of his customers would be interested in purchasing into the Chireno bank and, in fact, four entered the group. Levin was associated with both of the Whites and Scott. The Whites told special agent Hopkins, who was investigating the bank matter, that they had participated in the purchase of the Chireno bank because it would open up a source of financing and that money would be readily available to them for borrowing purposes. It was also in evidence that Louis Levin, immediately following the purchase of the Chireno bank, was associated with Shaid, Jr. in recruiting investors for the First State Bank of Grandview. In fact, Levin promised two investors, Lewis and Evans, that if they signed notes for the purchase of the Grandview stock and turned over control of the stock to Shaid, Jr., they would receive preferential loans at the Grandview bank. It was also shown that Shaid, Jr. used this same tactic in attempting to recruit J. W. Gunter into the purchase of the Grandview bank. Six days after the purchase of the Chireno bank, the Whites obtained a $10,000 unsecured loan, and within three weeks of the purchase, Scott obtained a $25,000 unsecured loan. Both loans were made by Wilson, in direct contravention of explicit instructions from John Hooper, representative of the sellers of the Chireno bank. Other syndicate members also obtained loans from the Chireno State Bank in a similar manner.

The jury could have reasonably found that the evidence and all reasonable inferences that could be drawn therefrom excluded every reasonable hypothesis except that Levin participated with Shaid, Jr. and Wilson in their acquisition plans by recruiting investors into both the Chireno bank deal and the Grandview bank deal by promising investors loans from these banks. It is obvious that Levin’s motive in so doing was to further his financial consulting business by obtaining loans for his customers. Loans granted on such a basis clearly constitute misapplication of bank funds, and Levin’s participation in the scheme rendered him liable as an aider and abetter in the misapplication.

Levin was also convicted in count 38 of aiding and abetting in the misapplication of Chireno State Bank funds in connection with the 14 promissory notes totaling $255,000 that were placed on the books of the Chireno bank to purchase the Grandview bank.

The evidence also indicates that during the period immediately prior to the attempted purchase of the Grandview bank, Agnew Lewis and James Evans associated with Levin. They were required to furnish Levin financial statements and, subsequent to that, were taken by Levin to Shaid, Jr.’s office in Houston, where Levin explained that in order for them to obtain the loans they desired, they would have to sign a note for the purchase of a bank, and if Shaid, Jr. got control of the bank, they would be guaranteed loans from the bank. They both signed such notes. Approximately one week later, Levin informed Evans to forget about his loan because the deal had fallen through. However, Shaid, Jr. did, in fact, purchase the Grandview bank, and shortly thereafter Wilson placed over $123,000 worth of loans in the Grandview bank and used the proceeds to pay off most of the notes used for the purchase, including the notes of Lewis and Evans. Levin also signed a note which was one of the notes used for the purchase of the Grandview bank and one-half of this note was paid off by a portion of the $123,000.

This court cannot say that the jury could not have reasonably concluded that the evidence excluded every reasonable hypothesis except that Levin recruited Lewis and Evans into the purchase of the Grandview bank with the promise of loans from that bank. Since Levin was also one of the 14 investors who signed notes payable to the Chireno bank for the same amount as Lewis’ and Evans’ note, since his note was used to finance his portion of the purchase of the Grandview bank, and since Levin had recruited investors for the Chireno State Bank in the same manner as investors were recruited for the Grandview bank, it is reasonable to infer, as it appears the jury did, that he knew the notes that he, Evans, and Lewis signed would be placed on the books of the Chireno bank. It could also reasonably have been concluded that he knew the proceeds would be used to finance the purchase of the Grandview bank.

This court cannot say that the jury or the trial judge was incorrect in finding these to be the facts.

Levin was also charged and convicted in count 60 with conspiracy to violate 18 U.S.C. §§ 656, 1014 and 2. It was shown by direct evidence at trial that Levin recruited investors for the Grand-view bank by promising loans from the bank, and it was further shown by circumstantial evidence that he recruited investors in the Chireno bank by the same method. After considering the entire record and all the evidence presented, we cannot say the finding below that Lewis Levin assisted Orrin Shaid, Jr. and Travis Leon Wilson in recruiting investors for the two bank deals was erroneous, and for that reason we must sustain the finding of the lower court.

Levin also contends that the trial court erred in failing to grant a severance because excised statements of his co-defendants were introduced into evidence and he was prevented from cross-examining the co-defendants as to their statements and was limited in his cross-examination of the F.B.I. agents regarding the contents of those statements. Levin claims that he was thus prevented from eliciting exculpatory statements in these two ways.

Before severance is required in order to obtain a co-defendant’s testimony, it must be shown that the co-defendant would in fact testify, what his testimony would be, and that the testimony would be favorable. Here, there was no such showing. Levin states that he was prevented from making such a showing by the trial court’s order from the outset of the trial that no co-defendants were to be called to the stand. It is clear, however, that the court’s instructions applied to conduct in the presence of the jury. There is no showing that had Levin found a co-defendant who would have testified if a severance were granted the trial court would not have allowed him to show this fact by calling the co-defendant outside the presence of the jury in support of his motion for severance. In fact, the trial court did allow counsel for appellants Jerald White and Jason Winthrop to state into the record outside the presence of the jury the substance of their clients’ testimony in support of their motions for severance.

Levin also contends that he should have been allowed to cross-examine the F.B.I. agents who took the statements about matters contained in those statements which exculpated him and, had a severance been granted, no reason would have existed not to allow him to do so. Levin, however, points to no portion of any excised statement which would have exculpated him and none can be found. It has been held that before severance is required because of the introduction of excised statements, there must be “. . . concrete examples where any exculpatory or explanatory statements had been deleted.” United States v. Kershner, 432 F.2d 1066, 1072 (5 Cir. 1970). There being no showing of any exculpatory or explanatory statements which were excised, the trial court committed no error.

Since there was no showing that any co-defendants would give exculpatory testimony had there been a severance and, furthermore, no showing of any statements exculpating Levin which were deleted from any statement introduced into evidence, the trial court did not err in failing to grant the appellant’s motion for severance.

The same analysis as was applied above disposes of Levin’s contentions as to the comments made by the Assistant United States Attorney in his closing argument.

JASON N. WINTHROP:

Winthrop was convicted in count 25 of furnishing a false financial statement to the Chireno bank in order to influence the bank in granting him a $25,000 loan, and in count 26 with aiding and abetting in the misapplication of the funds of the Chireno bank in connection with the granting of this loan. Winthrop was also charged and convicted in count 28 with willfully over-valuing accounts receivable which were reportedly placed as security for the loan made to him. Also, in count 33, Winthrop was convicted of furnishing a false financial statement in connection with a loan of $16,470.58, which was made for the purpose of purchasing the Grandview bank. Finally, Winthrop was convicted of conspiracy to violate 18 U.S.C. §§ 2, 656 and 1014.

Winthrop’s main allegation on appeal is that the trial court erred in failing to grant his motion for a judgment of acquittal. This court does not find there to be a difference between Winthrop and the other defendants. Winthrop was not involved in the purchase of the Chireno bank; however, the evidence viewed collectively in the light most favorable to the government was sufficient for the jury to have found that he did enter a scheme of bank acquisitions on or about the time he obtained his $25,000 loan from the Chireno bank. That loan, in addition to being such a large amount, was obtained without adequate security and after submission of a false financial statement. Winthrop failed to repay the loan, and he also executed a note for the purchase of the Grandview bank. The evidence speaks for itself. It has been held that a person may be convicted as a conspirator regardless of the point in time at which he enters the conspiracy. Roberts v. United States, 416 F.2d 1216 (5 Cir. 1969). Such a person may join a conspiracy already formed and in existence and be bound by all that has gone on before in the conspiracy, even if it is unknown to him, United States v. Knight, 416 F.2d 1181 (9 Cir. 1969); and, when the existence of a conspiracy is shown, slight evidence may be sufficient to connect the accused with the conspiracy, Lopez v. United States, 414 F.2d 909 (5 Cir. 1969). This court finds that the evidence established a pattern of conduct on the part of Winthrop which was sufficient to enable the jury to reasonably conclude that he entered the scheme at the time he obtained the $25,000 loan and, therefore, his conviction should be upheld.

This court finds that the facts as found to be true by the jury, and the law as found to be applicable by the trial court, must stand. These convictions, in all respects, must be

Affirmed.


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael R. RAVEN, Defendant-Appellant.
    No. 74-1816.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1974.

      Stephen P. Smith, III, Jacksonville, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Howard T. Snyder, Asst. U. S. Atty., Jacksonville, Fla., Wallace H. Johnson, Edmund B. Clark, Dirk D. Snel, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   JOHN R. BROWN, Chief Judge:

The odyssey of the M/V ECLYPSE— a 83' two-masted woodenhull schooner —in the Port of Jacksonville, Florida was brief but perhaps too long. As a result of her shortened, but lengthened, stay, Raven, her owner, was convicted by a federal jury of the three misdemeanors (i) failing to properly mark a sunken vessel, (ii) obstructing a navigable waterway and (iii) failing to remove a sunken vessel. He was sentenced to 30 days suspended sentence on each of these counts to run concurrently. Because we affirm his conviction on (i) and (ii), under the concurrent sentence doctrine we do not reach his challenge to (iii).

During the summer of 1973, Michael R. Raven brought the ECLYPSE into the harbor at Jacksonville, Florida. According to his story, which is the heart of most of what we describe, the presence of the vessel apparently provoked great concern on the part of the Jacksonville Sheriff’s Office. Believing apparently that he was suspect to the authorities, Raven thought better of berthing the vessel at a private dock and removed it to an anchorage in the St. Johns River. But this was no haven. For soon after-wards a violent storm swept the ECLYPSE into the Fuller Warren Bridge, which spans the river. The ship Was damaged severely. With planks and beams started and the hull already leaking, Raven on September 23, 1973 decided to move the ECLYPSE up river to Goodbye’s Lake where he grounded her toward the river’s easterly shore.

Despite Raven’s efforts — which the jury thought inadequate — to pump out the vessel and raise it, she settled further into the water so that it was plain she was not a vessel either afloat or navigable.

Then came the perils, not of the sea, but of the establishment as it is personified in the Corps of Engineers.

On September 20, 1973 the Jacksonville Corps of Engineers sent Raven a letter in care of his local attorney complaining that his sunken vessel was obstructing and endangering navigation. He was ordered to mark the ECLYPSE by buoy and lantern, take immediate action to remove it, and advise the Corps within the week of his plans. Raven did not respond to the letter and the Corps referred the matter to its District Counsel. Again on November 23, 1973 another letter was sent to Raven warning him that if the obstruction was not removed, the Corps would recommend to the United States Attorney that appropriate criminal and civil action be commenced. This letter was sent this time to him both at his California address and in care of his counsel.

Whatever the reasons for not receiving these patient letters or acting upon them, Raven delayed any action until he received final impetus from the United States Attorney in the form of a letter requesting that Raven contact him before the close of business on December 12, 1974 “to forestall the legal actions contemplated.” In response, Raven, choosing his own methods, advised the Government Counsel that he would not visit his office for the suggested conference and that the ECLYPSE would be raised on Saturday or Sunday. The same day the Assistant U. S. Attorney filed the three-count information and Raven was arrested on Saturday morning while trying to salve the ECLYPSE.

After a lengthy trial the jury returned a verdict of guilty on all counts. The sentence was relatively slight, 30 days on each count to run concurrently which was thereafter suspended by the Judge. Raven, with the true heart of the sea lawyer, appealing to the liberality of the admiralty, brings this to us on principle, not principal.

Each of the counts of the information charged a continuing violation of the specified section as “beginning . on . the 21st day of September, 1973 and continuing until the 12th day of December, 1973 . . . The specifics were (i) obstructing navigation (ii) failure to light and mark and (iii) failure to remove.

Obstruction of Navigable Waters 33 U.S.C.A. § 403

Raven challenges Count I charging him with creating an obstruction by permitting the ECLYPSE to sink and remain sunk in the St. Johns River on the grounds that (1) § 403 does not specifically refer to vessels, and (2) § 403 requires the specific intent to obstruct the waterways by affirmative, deliberate acts.

We find no merit in this or the related contention that the evidence was insufficient. Nothing could be more of an obstruction to navigation than a sunken vessel either in or near waters that are open for the use of others. If floating particles can be an obstruction, certainly an 83 ft. schooner, as here, can be. See United States v. Republic Steel Corp., 1960, 362 U.S. 482, 487, 80 S.Ct. 884, 4 L.Ed.2d 903.

As to the charge that the acts must be deliberate, the words “knowingly and negligently” were struck from the charge on Raven’s own request. Even so, the proof showed a deliberate act which eliminated any question on that score.

We do mention at this point our concern expressed later regarding the duty to remove, that we do not hold — or even imply — that the purposeful stranding of a vessel to salve her constitutes a § 403 obstruction no matter how much she intrudes into the channels of navigation. What we are dealing with here is a continuous act for nearly three months during which the perils assayed in the deliberate grounding could readily have been averted.

The Duty to Mark And Remove Sunken Vessels

33 U.S.C.A. § 409

Counts II and III of the Information charged that Raven:

II
did knowingly and willfully neglect or fail to immediately mark such sunken craft with a buoy or beacon during the day and a lantern at night and to maintain such marks until the sunken craft was removed or abandoned .
and 111
. did knowingly and willfully fail to commence the immediate removal of the same and to prosecute such removal diligently .

Raven argues that these counts fail to state a valid charge because § 409 by its language does not reach a vessel grounded in the peculiar circumstances of the ECLYPSE. First, he would have us read the statute as imposing a duty to mark solely on the owners of those crafts that are both wrecked and sunk in a distinct, navigable channel. This contention is meritless. Congress did not intend § 409 to be so meager as to extend only to those vessels that are sunk as a result of wrecks and exempt those equally-hazardous derelicts sunk due to other causes.

The purpose of this statute is the protection of other vessels plying the same waters. Consequently it is similarly unnecessary for the government to prove that the ECLYPSE was swamped in a distinct channel since the evidence demonstrated that she was stranded in navigable waters capable of sustaining the traffic of other vessels. Indeed, the fact that the ECLYPSE could get as far as to be stranded proves navigability as she went purposefully aground.

Although we find § 409 applicable and the proof sufficient to establish that these actions were “voluntarily or carelessly sink, or permit or cause to be sunk [the ECLYPSE] in navigable channels . . . ” (See note 7 supra), we expressly pretermit affirmance on this count under the concurrent sentence doctrine.

We do this because there are inescapable problems of great magnitude — some perhaps of constitutional proportions— in the use of a criminal sanction to punish one for the failure to pay out money to remove the wreck without a showing (i) that in a civil proceeding the government would legally be entitled to recover the costs and, perhaps more decisively (ii) the respondent was financially able to respond.

Sweeping as are the obligations under the Rivers and Harbors Act, the duty to pay is confined to those who negligently cause the obstruction. Wyandotte Co. v. United States, 1967, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407. Where the owner does nothing, as here, so as to bring about a constructive abandonment (see 33 U.S.C.A. § 409, note 7 supra) and the government likewise does nothing except prosecute criminally, to subject him to a criminal sanction is to prejudge both his ultimate Wyandotte civil liability and his financial ability to pay. Considering that maritime laws encourage all efforts to salve ship, cargo, and persons, each is wrapped up either in civil uncertainty or in the prospect obnoxious to the Twentieth Century of the debtors gaol.

Unfair Prosecution

Lastly, Raven argues that this conviction should be set aside because he was singled out as the first subject of a criminal prosecution based on these statutes in the Jacksonville area, despite the presence of numerous derelicts lining the river. He points to the absence of a civil prosecution by the government as evidence that the intent of the government was to harass alone. Even assuming that appellant may challenge the prerogative of the Executive to commence criminal actions — highly doubtful in the face of United States v. Cox, 5 Cir., 1965, 342 F.2d 167 (Brown, J. specially concurring), cert. den., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 — none of the evidence offered required the trial court to find bad faith enforcement on the part of the government.

The odyssey ends, as it began, in the Port of Jacksonville.

Affirmed.

      . Rogers v. Wainwright, 5 Cir., 1968, 394 F.2d 492.

      . Raven has a civil rights suit pending against the authorities in the federal court presumably for interfering with his civil rights.

      . The chronicle which follows is stated be-cates that counsel thought his responsibili-prosecution.

      . His present counsel was appointed under the Criminal Justice Act. We cast no discredit on this counsel, as the record indi-cause of Raven’s charge of undue selective ties confined to civil rights not, as we phrase it, maritime wrongs.

      . § 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in

      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, roadstead, 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.
      Mar. 3,1899, c. 425, § 10, 30 Stat. 1151.

      . The contention also contradicts the law of this Circuit, United States v. Cargill, Inc., 5 Cir., 1966, 367 F.2d 971, aff’d sub nom. Wyandotte Co. v. United States, 1967, 389 U.S. 191, 196, 203, 88 S.Ct. 379, 19 L.Ed.2d 407. This Court in Cargill (at 975) held that “it is illogical to conclude that a vessel is not an obstruction” under 33 U.S.C.A. § 403 merely because this is given separate treatment under 33 U.S.C.A. § 409; the latter statute, this Court reasoned, “seems more likely to be just an emphatic restatement of the Section 10 (33 USCA § 403) prohibition against creating an obstruction.

      . § 409. Obstruction of navigable waters by vessels; floating timber; marMng and removal of sunken vessels

      It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft: or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as “sack rafts of timber and logs” in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411 to 416, 418, and 502 of this title.
      Mar. 3, 1899, c. 425, § 15, 30 Stat. 1152.

      . See Hickman v. Taylor, 3 Cir., 1948, 170 F.2d 327, 329, cert. den., 336 U.S. 906, 69 S.Ct. 485, 93 L.Ed. 1071, 1949, where the Court in dicta recognized that the failure to mark a sunken but intact carfloat that later resurfaced violated § 409.

      . Kaiser v. Traveler’s Ins. Co., E.D.La., 1973, 359 F.Supp. 90, 94 (sunken vessel tied to bank and “immediately adjacent thereto”,) Reading Co. v. Pope and Talbot, Inc., E.D.Pa., 1961, 192 F.Supp. 663, 666, aff. 3 Cir., 1961, 295 F.2d 40; Red Star Towing and Trans. Co. v. Woodburn, 2 Cir., 1927, 18 F.2d 77, 78.

      . Lydy v. Beto, 5 Cir., 1968, 399 F.2d 59; Rogers v. Wainwright, 5 Cir., 1968, 394 F.2d 492.

      . Tate v. Short, 1971, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130.

      . Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir., 1969, 412 F.2d 1011, 1969 A.M.C. 1513, cert. dism’d, Fidelity and Cas. Co. v. Grigsby, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531; Mississippi Valley Barge Line Co. v. Indian Towing Co., 5 Cir., 1956, 232 F.2d 750, 56 A.M.C. 1761; Legnos v. M/V OLGA JACOB, 5 Cir., 1974, 498 F.2d 666.

      . Not the least problem is the right to limit liability, 46 U.S.C.A. §§ 183-185, 188. The Second Circuit lias held in Chinese Maritime Trust, Ltd. v. Republic of Viet Nam, 2 Cir., 1973, 478 F.2d 1357, that there is no right to limit since the owner is in privity by his knowledge that 33 U.S.C.A. § 409 requires removal. Against this holding, a strong argument might be marshalled that limitation protects the owner against consequences of a non-privity occurrence, one of which may be statutory obligations. See Olympic Towing Corp. v. Nebel Towing Co., Inc., 5 Cir., 1969, 419 F.2d 230 (en banc, see Brown, Chief Judge, dissenting).

      . See also United States v. Ream, 5 Cir., 1974, 491 F.2d 1243, in which we indicated the strong likelihood that this Circuit would not follow the Seventh in entertaining the selective-prosecution defense. United States v. Falk, 7 Cir., 1973, 479 F.2d 616.