author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Paul M. ROBINSON, Jr., Appellant.
    No. 73-1654.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1973.
    Decided April 11, 1974.

      Paul M. Robinson, Jr., pro se.
    Paul A. Scott, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

This pro se appeal by Paul M. Robinson, Jr., from his conviction of a petty offense in a United States Magistrate’s court has brought to our attention some serious irregularities and deficiencies in the magistrate’s procedures as well as one of the regulations presently in effect at the Washington National Airport. Finding the charges and proceedings flawed in practically every aspect, we reverse the conviction.

The factual background appears to be as follows:

On December 11, 1972, the appellant was issued two citations at Washington National Airport by airport officer, James McRae, Jr. One charged him with the failure to comply with an officer’s directions, while the second charged him with “disorderly conduct — abusive language” and the legend “18-1-237” which apparently was intended to refer to Section 18.1-237 of the Virginia Code.

As a preface to his findings of fact the magistrate states that Robinson “was charged and convicted of a violation of a petty offense, Disorderly Conduct (Use of abusive language), Title 14, Code of Federal Regulations, Section 159.71.” On this charge the magistrate recites the facts as follows. While issuing the traffic ticket to Robinson, Officer McRae asked for his permit and registration. When the defendant asked about the nature of the charge McRae advised that it was for failure to comply with an officer’s direction and continued writing the citation. Thereupon the defendant stated that he did not have time to “fuck around court all day” and that the officer was a “common bastard for giving him the ticket.” The officer testified that Robinson repeated the phrase “common bastard” on at least one more occasion, whereupon a cruiser was called and the defendant was taken to the station house. While noting that the defendant’s testimony was somewhat at variance with that of the officer, the magistrate elected to accept the officer’s version of the incident. In his “Conclusions of Law” the magistrate states “[t]he defendant was guilty of a violation of Title 14, Code of Federal Regulations, Section 159.71.”

First of all, we find the regulatory scheme under which Robinson was charged so ambiguous and irregular that we seriously doubt it can furnish a basis for his conviction. To demonstrate the regulatory infirmity, it is necessary to review its history to some degree. The authority of the Federal Aviation Administration and its predecessor agencies to control and maintain the Washington National Airport is derived from the D.C.Code, Title 2, Section 1602 (now Title 7, Section 1302). The regulations originally promulgated by the Administrator were codified in 14 C.F. R., Part 570, and included regulations governing personal conduct at the airport which were specifically drafted by the Administrator for that purpose. It was such a specific regulation which was considered and upheld by this court in Finn v. United States, 256 F.2d 304 (4 Cir. 1958).

In 1962, however, the Administrator revised the regulations by deleting Part 570 and adding a new Part 159 covering both Washington National Airport and Dulles International Airport. The new Part 159 states that it is issued under the authority of D.C.Code Title 2, Section 1602 (now Title 7, Section 1302), and includes regulations covering a variety of conduct and activity incident to the operation of the airports. Section 159.191 authorizes fines of not more than $500 or imprisonment for not more than six months, or both, for violations of any of the Rules prescribed in Part 159, “including any provision incorporated by reference.” Section 159.71 is in-eluded in “Subpart D — Rules of Conduct” and reads as follows:

“Pursuant to Section 13 of Title 18, U.S.C., and except as otherwise provided in this part, the criminal laws of Virginia relating to the following apply on the Airport: '
(a) Disorderly conduct
(b) Gambling
(c) Obscene literature
(d) Drunkenness”

While the Administrator properly referred to the D.C.Code as his authority to promulgate all of the regulations in Part 159, we are at a loss to understand his purported use of the Assimilative Crimes Act of 1948 in Section 159.71. Whether he intended to incorporate the pertinent Virginia criminal statutes by the general references in the regulation or was attempting some form of “selective assimilation” under 18 U.S.C. § 13 is not at all clear. In any event, we find this novel and hybrid use of the Assimilative Act utterly improper. That Act was designed to assimilate the entire state criminal law into any appropriate federal enclave and does not contemplate selective incorporation. It operates ex proprio vigore and requires no authority such as Title 7, Section 1302 of the D.C.Code, for its implementation. By its terms, a person whose conduct constitutes a crime under the state law “shall be guilty of a like offense and subject to a like punishment.” (Emphasis added). Since the federal statute embraces both the of.fense and the punishment prescribed by state law the Administrator’s attempt to selectively incorporate the state offenses under the Assimilative Act while substituting the regulatory penalties of Section 159.191 for those prescribed by the state legislation was without warrant.

Aside from the questionable validity of the regulation as drafted its alloyed character infects, fatally we think, all of the proceedings incident to Robinson’s conviction. As heretofore stated, the citation referred to Section 18.1-237 of the Virginia Code which reads in part as follows:

“If any person arrived at the age of discretion profanely curse or swear or get or be drunk in public he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than one nor more than twenty-five dollars.”

The citation makes no reference whatever to 14 C.F.R. § 159.71. Conversely, the Conclusion of Law in the Magistrate’s Statement merely recites that the defendant was found guilty of a violation of Title 14, Code of Federal Regulations, Section 159.71, with no Virginia statutory reference. Such a conviction could facially embrace (a) disorderly conduct; (b) gambling; (c) obscene literature; or (d) drunkenness. The offense -can be narrowed to disorderly conduct in violation of subsection (a) by reading into the conviction the prefatory statement of the magistrate. In turn, however, since the charge of disorderly conduct was based upon the abusive language used by Robinson, the offense could fall within any one of three Virginia statutes. One is Section 18.1-237 hereinbefore quoted. Another is 18.1-255 which reads as follows:

If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a misdemeanor, and on conviction fined in any sum not less than two dollars and fifty cents nor more than five hundred dollars, in the discretion of the jury or the judge trying the case without a jury.”

The third is 18.1-253.2 which reads in part:

If any person behaves in a riotous or disorderly manner in any street, highway, public building, or any other public place, other than those mentioned in the preceding section (§ 18.-1-253.1), or causes any unnecessary disturbance in or on any public conveyance, by running through it, climbing through windows nr upon the seats, failing to move to another seat when lawfully requested to so move by the operator, or otherwise annoying passengers or employees therein, he shall be guilty of a misdemeanor.

The magistrate did not specify which if any, of these statutes was the basis of Robinson’s conviction, but the Government in its brief states that the defendant was found guilty under the last quoted statutory section. We find nothing whatever in the record to support this assumptive statement in the Government’s brief and if, in fact, this was the basis for the conviction it was at variance with the statutory charge on the citation. On the record before us we find the charge against Robinson and his subsequent conviction so vague and ambiguous that it violated the most rudimentary concepts of Constitutional due process and the Sixth Amendment.

Aside from the foregoing observations, we find the proceedings in the magistrate’s court deficient in the following respects:

(1) The record contains no written consent by Robinson to be tried before the magistrate as required by Rule 3(b) of the Magistrates Rules.
(2) The record contains no written waiver by the defendant of a record of the proceedings as required by Section 3(c)(2) of the Magistrates Rules.
(3) As heretofore stated, the record contains no formal order entered by the magistrate specifying the charge against the defendant and his conviction thereon.

In addition, the record contains no order of the district court specifying the nature of the conviction in the magistrate’s court or its disposition of the appeal. The only information in the record is found in the copy of the Docket entries of the district court which carries the cryptic statement: “This matter came on for an appeal from the Magistrate. Appeal from magistrate— affirmed, copies [sic] of minutes — sent.” Rule 8(d) of the Magistrates Rules provides that “the scope of appeal shall be the same as one on an appeal from a judgment of the district court to a court of appeals.” The Rule clearly contemplates the entry of a formal order by the district court specifying the conviction in the magistrate’s court from which the appeal is taken and reflecting the disposition of the appeal by the district judge.

Finally, while we have no direct authority over the Federal Aviation Administration, we suggest that the difficulties encountered in this case could be eliminated to a large degree by revising 14 C.F.R. § 159.71 to eliminate the attempted incorporation by reference of the criminal laws of Virginia, and drafting specific regulations tailored to the problems and needs of the airport facilities.

For the reasons stated, Robinson’s conviction is reversed.

Reversed.

      . 14 C.F.R. § 159.71.

      . There is no transcript of the proceedings in either the magistrate’s court or the district court. However, incident to Robinson’s appeal to the district court, the magistrate filed a document entitled “MAGISTRATE’S STATEMENT OP THE CASE-FINDINGS OP PACT AND CONCLUSIONS OP LAW.” AYe assume this document was designed to comply witli Rule 23(e), F.R.Crim.P. See United States v. Harrington, 492 F.2d 1240 (4 Cir. 1974). In any event, our statement of facts is based upon these “Findings” of the magistrate, together with the few documents filed as a part of the record on this appeal.

      . This citation appears to have a statutory reference on its face which, however, has been penned over and obliterated. Below this, on the citation appear the words “Not Guilty.” Other than this the record is devoid of any information relative to the disposition of this charge. The Government’s brief states that this citation charged a violation of Title 18, U.S.Code, Section 13, assimilating Section 46.1-183 of the Code of Virginia, and that it was dismissed by the magistrate who held that this section of the Virginia Code was “informational and not a criminal charge, due to its vagueness.” We find nothing in the record to support this statement, but assume it was based upon oral information obtained from the magistrate’s office.

      . Section 570.71 read in part as follows :
      “No person while on the airport or in any building located on the airport, shall * * * * *
      (e) Use profane or vulgar language.”

      . Notice of the proposed change was published in 27 Fed.Reg. 7035, July 25, 1962.

      . The new regulations were published in 27 Fed.Reg. 9443, September 22, 1962.

      . Sub-section (d) was added by amendment of December 11, 1968. 33 Fed.Reg. 18367.

      . 18 U.S.C. § 13.

      . The latter explanation is suggested to us by the amendment of 14 C.F.R. § 159.11(b) which incorporated by reference Chapter 4 of Title 46.1, Motor Vehicles, of the Code of Virginia, 1950, as amended. The amendment states in part: “The penalties provided by Virginia law for violations of these rules and prohibitions are not incorporated.” In his explanation in 30 Fed.Reg. 1037, February 2, 1965, the Administrator stated that the proposal made it possible to prosecute violations of the Virginia laws “under the lesser penalties provided for violations of Part 159.”

      . " See 18 U.S.C. §7.

      . United States v. Press Publishing Co., 219 U.S. 1, 9, 31 S.Ct. 212, 55 L.Ed. 65 (1911).

      . Since the charge against Robinson involved only spoken words, his conviction under any of the three statutes poses a substantial constitutional problem. See Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L. Ed.2d 408 (1972).

      . Cipes forewarned of this difficulty in his statement:
      “The use of a citation or violation notice as a pleading, other than in the most simple traffic case, presents constitutional problems. * * * The usual form of citation or violation notice does not provide the specificity demanded of a criminal pleading, although the Magistrates Rules suggest in a backhanded way, that such specificity is required. Unless the forms in use are changed, or officers are instructed to provide more information in the existing forms, the government may find itself faced with a large volume of dismissals in petty offense cases.” [footnotes omitted] 8 Moore’s Federal Practice —Cipes, Criminal Rules, § 3.01 Magistrates Rules (2d ed. 1973).

      . Cf. Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L.Ed. 644 (1948).


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    Edwin Charles MOORE, a/k/a Charles E. Moore, Appellant, v. Charles L. WOLFF, Warden, etc., Appellee.
    No. 73-1774.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided April 23, 1974.
    P. M. Conley, Lincoln, Neb., for appellant.

      James J. Duggan, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before GIBSON, BRIGHT, and STEPHENSON, Circuit Judges.
   GIBSON, Circuit Judge.

Petitioner, Edwin Charles Moore, appeals the District Court’s denial of his petition for a writ of habeas corpus. Petitioner was charged and convicted in Nebraska state court of assault with intent to rape and sodomy and sentenced to concurrent five year terms of imprisonment. Moore’s claim, that his oral incriminating statements made after appointment of counsel but without counsel present were used against him at trial in violation of his Sixth Amendment right to counsel, was rejected by the Nebraska Supreme Court on direct appeal.

Moore then filed this petition for writ of habeas corpus in the District Court, asserting that his Sixth Amendment right to counsel was violated. Judge Denney, after a hearing on the merits, denied the petition. Upon careful consideration of the questions raised by petitioner, we affirm the decision of the District Court denying relief.

There is no dispute over the facts involved in this case, nor any doubt about petitioner’s guilt, but petitioner raises yet another interesting question on the breadth of the Fifth Amendment protection against self-incrimination when the Sixth Amendment command for appointment of counsel has been met.

The incident out of which the charges arose occurred September 27, 1971, outside of Lincoln, Nebraska. Petitioner was subsequently questioned by Lincoln police regarding the incident and denied involvement. On October 2, 1971, with his consent he appeared in a line-up at which no identification was made by the victim. October 4, 1971, he was given a polygraph examination, following which he was taken into custody. The next day he was arraigned in Lancaster County Court and requested appointment of counsel. The Public Defender’s Office was appointed to represent petitioner.

That same evening, with full knowledge that counsel had been appointed for petitioner, he was questioned by detective Jerry Thomas. This was the first in-custody interrogation of the petitioner, and was done without informing his appointed counsel or affording him an opportunity to be present. After being fully informed of his Miranda rights, petitioner orally admitted his involvement in the incident. Upon being asked to sign a written confession, he refused until he had an opportunity to talk to his attorney. The questioning immediately ceased.

The Nebraska trial court, after a hearing out of the presence of the jury, determined that his waiver of counsel was voluntarily, knowingly and intelligently made. This finding was affirmed by the Nebraska Supreme Court and approved by the District Court. Petitioner does not challenge that he received the Miranda warnings or voluntarily made the oral incriminating statements. His argument instead is that after the appointment of counsel no interrogation can take place without counsel being notified and given an opportunity to be present. Without notice and opportunity to be present it is argued that the accused cannot “knowingly and intelligently” waive his Fifth Amendment privilege.

Ee cannot agree. Although Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312 (1967), contains a footnote by then Circuit Judge, now Chief Justice, Burger indicating his belief that Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966) would require the presence of counsel at all interviews once an accused was represented, such has not been the unanimous view in the circuits squarely presented with the question. United States v. Cobbs, 481 F.2d 196 (3rd Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); United States v. Springer, 460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1973); Wilson v. United States, 398 F.2d 331 (5th Cir. 1968), cert. denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969); Coughlan v. United States, 391 F.2d 371 (9th Cir.), cert. denied sub nom., Coghlan v. United States, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); cf. United States v. Barone, 467 F.2d 247 (2d Cir. 1972).

If an accused can voluntarily, knowingly, and intelligently waive his right to counsel before one has been appointed, there seems no compelling reason to hold that he may not voluntarily, knowingly, and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. Of course, the Government will have a heavy burden to show that the waiver was knowingly and intelligently made, Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602, but we perceive no compelling reason to adopt the per se rule advocated by petitioner. In fact, Miranda expressly recognizes that such interrogation may continue without presence of counsel, though the burden of showing a knowing and intelligent waiver is a heavy one. Here, the facts establish beyond any doubt that the Government’s burden was discharged and petitioner’s waiver was voluntarily, knowingly and intelligently made.

Petitioner’s reliance on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1963) is also misplaced. In Massiah, there could not have been any waiver of right to counsel because of the surreptitious tactics employed by the Government agents. It should not be read so broadly as to hold that there may never be a valid waiver after indictment or arraignment. See United States v. Crisp, 435 F.2d 354, 358 (7th Cir. 1970), cert. denied, 402 U. S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971). Petitioner’s culpatory statements and admissions were triggered not by any trickery or cajolery of the police officers but by confrontation with his confederate, who had admitted the offense and implicated petitioner.

Petitioner raises one other contention. He argues that the state prosecutor violated an ethical duty imposed by the Code of Professional Responsibility in using the accused’s statement against him knowing it was obtained out of the presence of and without notification to his attorney. This position has received support in the cases. See, United States v. Thomas, supra; Wilson v. United States, supra; Mathies v. United States, supra. However, such a violation has not been felt to rise to the level of constitutional error, nor even to compel reversal in those federal prosecutions where reversal might have been made under the general supervisory powers of the courts of appeals over federal district courts. In this case the ethics of the state prosecutor is a matter for state court resolution, not properly cognizable upon a petition for writ of habeas corpus.

The judgment of the District Court denying petitioner habeas corpus relief is affirmed.

      . The Honorable Robert V. Denney, United States District Judge, District of Nebraska, denied the petition on September 4, 1973, in an unreported memorandum decision.

      . State v. Moore, 189 Neb. 354, 202 N.W.2d 740 (1972).

      . See, Disciplinary Rule 7-104, ABA Code of Professional Responsibility.


author: ADAMS, Circuit Judge.

text:
    Rogers C. B. MORTON, Secretary of Interior, United States Dept. of Interior v. DELTA MINING, INC. Rogers C. B. MORTON, Secretary of the Interior, United States Department of the Interior v. G. M. W. COAL COMPANY, INC. Rogers C. B. MORTON, Secretary of Interior, United States Dept. of the Interior v. Edward MEARS et al.
    Appeal of UNITED STATES of America, in Nos. 73-1752-73-1753, 73-1848.
    Nos. 73-1752, 73-1753, 73-1848.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 10, 1974.
    Decided March 20, 1974.
    As Amended June 12, 1974.

      John L. Murphy, Chief, Government Regulations Section, Crim. Div., Richard I. Chaifetz, Atty., Dept, of Justice, Washington, D. C., for appellant; Richard L. Thornburgh, U. S. Atty., of counsel.
    Frederick R. Blackwell, Washington, D. C., Franklyn E. Confien ti, Cauley, Birsic & Conflenti, Pittsburgh, Pa., for Delta Mining, Inc. and G. M. W. Coal Co., Inc.
    Harold R. Schmidt, Rose, Schmidt & Dixon, Pittsburgh, Pa., John L. Kilcul-len, Washington, D. C., for Edward Mears, and others.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The question on this appeal is whether, under the Federal Coal Mine Health and Safety Act, the Secretary of Interior may assess civil penalties against mine operators without making and publishing factual findings. The district court, in which the Secretary sought enforcement of assessment orders against the defendant mining companies, held that the orders were invalid because of the absence of such findings, and the Secretary appealed.

The Act was passed in 1969 to “protect the health and safety of the Nation’s coal miners.” At various times during 1971, inspectors of the Bureau of Mines, Department of Interior, entered and inspected the coal mines operated by the various defendants, seeking to determine the extent of compliance or noncompliance with the Act, and with the regulations promulgated thereunder. During the course of these visits the inspectors detected a number of violations of the Act or the regulations. In each such instance, an inspector served the defendant in question with a notice of the infraction. Each notice stated that the particular violation had to be abated by a certain date. On the date set for abatement, the inspector returned to the mine and, upon determining that the violations had in fact been abated, furnished the defendant with a notice to that effect.

After the abatement of each violation and the notification of the defendant involved, the local office of the Bureau of Mines sent copies of the notices of violation and abatement to the Bureau’s central office in Washington, D.C. There an Assessment Officer reviewed the various notices and sent proposed penalty assessment orders to the defendants.

The proposed penalty assessment orders informed each defendant that the Assessment Officer, after giving “due consideration” to certain statutory criteria, intended to assess civil penalties in various amounts; that the defendants could protest the assessments in writing; and that the defendants had a right, secured by statute, to request hearings. Each defendant protested the orders. However, the Assessment Officer did not consider that a reduction in the size of the penalties was called for, and he accordingly notified the defendants of his affirmance of the proposed orders.

The defendants were also notified, upon affirmance of the proposed orders, that they had 15 days in which to request a hearing, and that upon their failure to do so within the prescribed time the proposed orders would become the final orders of the Secretary. No hearings were requested and the final orders of the Secretary were entered. When the defendants failed to pay the assessments set forth in the final orders, this action for enforcement was brought in the district court.

Section 109(a)(3) of the Act provides in part as follows;

“A civil penalty shall be assessed by the Secretary only after the person charged with a violation under this chapter has been given an opportunity for a public hearing, and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur and the amount of the penalty which is warranted, and incorporating, when appropriate, an order therein requiring that the penalty be paid. . . . Any hearing under this section shall be of record and shall be subject to section 554 of Title 5.”

Section 109(a)(1) enumerates six factors to be considered by the Secretary in determining the amount of any penalty assessment:

“In determining the amount of' the penalty, the Secretary shall consider the operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation.”

The proposed orders of assessment which the defendants received from the Assessment Officer were on preprinted forms which recited, in some instances, that the six factors set out in the statute had been considered. The final orders entered by the Secretary did not mention the six statutory criteria at all, but merely set forth the Secretary’s finding that a violation “did, in fact, occur.” The defendants contend, and the district court agreed that in omitting from the final orders express findings of fact relating to the statutory criteria for determining the amount of the penalty, and so providing no assurance of any considered application of these criteria, the Secretary failed to satisfy the requirements of section 109(a)(3).

The Secretary counters that the language of section 109(a)(3), requiring a “decision incorporating his findings of fact therein,” applies only when a defendant has requested an oral hearing, and that when, as here, the Secretary makes a “decision” without any hearing, it is unnecessary under the statute to include any findings of fact. We reject this^ contention and affirm the district court’s grant of summary judgment in favor of the defendant mine operators.

We note that, in ordering penalty assessments without making express findings, the Secretary was acting pursuant to, and in apparent conformity with, the pertinent Regulations of the Department of Interior Regulation 100.4(h) provides that once a proposed order of assessment has been made, the operator charged shall have 15 days in which to accept such order of the Assessment Officer or to seek a “formal adjudication.” Acceptance, or failure to request an adjudication, results under the Regulation in the proposed order becoming “the final assessment order of the Secretary.” Thus, the Regulations appear to contemplate the very procedure that was utilized here: a proposed order became final without the Secretary himself making findings on the question of penalty amount The question before us then, narrows to whether the Regulations themselves, as implemented, were consistent with the requirements of the Coal Mine Health and Safety Act.

As noted above, the Act provides that a civil penalty may be assessed only after the operator “has been given an opportunity for a public hearing.” The language of the Act would appear to require also that, whether or not the operator requests a hearing, the assessment must be made “by [the Secretary’s] decision incorporating his findings of fact therein, that a violation did occur and the amount of the penalty which is warranted.” The Secretary seeks refuge from this interpretation by pointing to the legislative history, which, he asserts, supports his reading of section 109.

Nothing in that history convinces us, however, that any departure from the plain import of the statutory terms is warranted. There is not a modicum of evidence in the reports from either House of Congress, nor in the Conference Committee report on the compromise bill that became section 109, that would indicate an intent to dispense with findings of fact where no hearing is requested.

Another consideration, apparent on the face of section 109, tends to indicate that findings are required when a violator does not seek a hearing as well as when he does. When a hearing is requested, the section 109 triggers the application in that proceeding of section 5 of the Administrative Procedure Act which, by incorporating section 8 of the APA, requires that the final decision of the Secretary be accompanied by findings. Thus the language in section 109 itself requiring findings would be merely duplicative if it did not refer to some situation other than that in which a hearing is requested and held. While duplication and repetition in statutory language are certainly not unheard of, it would seem a salutary' rule to avoid reading the terms of a statute as mere surplusage in the absence of some proof that they were so intended. Lacking such proof here, we conclude that Congress intended every final assessment order of the Secretary to be accompanied by findings of fact.

Findings of fact, explicit and public, are necessary to assure that the administrative process not degenerate into arbitrariness or, worse, into discrimination and spite. Thus, though flexibility and the capacity to make rapid determinations are vital weapons in every administrator’s arsenal, “we cannot assume in the absence of adequate explanation that proper standards are implicit in every exercise of administrative discretion.” Judicial review of a final administrative determination is heralded as a right, and such review is rendered practically impossible, or at least vastly more difficult, where the agency’s decision is not accompanied by express findings.

Though it might not be beyond Congress’ power to provide for the entry by the Secretary of penalty assessment orders without findings of fact, such a provision would run against the grain of much of our administrative jurisprudence. The Secretary has failed to adduce any evidence that Congress intended, in enacting section 109, to permit some final determinations to be entered without such findings. Indeed, there is substantial evidence, on the face of the statute, just to the contrary. We therefore hold that the assessment orders in this case were invalid and that, to the extent they were entered in conformity with the Regulations, those Regulations too were invalid.

In so holding, we observe that the Bureau of Mines had not, at the time these assessments were made, established or adopted any detailed guidelines to assist Assessment Officers in the application of the six statutory criteria set out above for the exaction of civil penalties. The absence of any such guidelines led the Comptroller General, in a report on the Bureau of Mines, to state that:

“We [the Comptroller General] were unable to determine the adequacy of the consideration given to the six factors and the basis for the penalties assessed in [400] sample cases.
* * * * *
“ . . . [T]he mine operators did now know how the factors should be considered and weighed in determining the amount of the penalty.”'

Guidelines would go far toward assuring that penalty assessments bear a real and substantial relation to the six congres-sionally-seleeted factors. In the absence of such guidelines — and their promulgation is for the Secretary, not the courts —the clear mandate of section 109 must suffice. That mandate requires, at a minimum, that each final assessment order be accompanied by the Secretary’s express findings, concerning both the fact of violation and the appropriate penalty amount.

We are in full sympathy with the goals and spirit expressed in the Coal Mine Health and Safety Act, and we have listened with concern to the Secretary’s claim that a requirement of findings in every case may handicap efforts at effective enforcement of the Act’s penalty provisions. Yet, we do not consider it appropriate to substitute for Congress’ directive the Secretary’s, or our own, notions of how best to administer the Act. Though the attainment of safe, reasonably healthy conditions in the coal mines is a commendable statutory objective, so too is the assurance that no one, be he miner or coal -magnate, be treated arbitrarily or discriminatorily in any administrative proceeding.

Moreover, it may well be that the requirement of findings of fact in every case will mitigate, not worsen, the administrative burden east upon the Secretary by his duty to enforce the Act. Where the proposed orders entered by the Assessment Officer, and the final orders of the Secretary, evince that full consideration has been given to the statutory criteria, mine operators may be less inclined to challenge the assessments by way of either administrative hearings or judicial proceedings. That is to say, without some positive indication of the Secretary’s basis for calculating a particular assessment, an operator cannot make a reasoned judgment whether a penalty is a fair -one, or a merely arbitrary exaction. Thus, by making explicit findings of fact in each instance — that is, by making public a process that ought to be undertaken anyway — the Secretary may well forestall numerous costly and time-consuming adjudicative proceedings.

We are aware that, only -recently, the District of Columbia Circuit reached a conclusion concerning the Act that is at odds with our holding in this case. In National Independent Coal Operators’ Ass’n v. Morton, 494 F.2d 98 7 that court reasoned that “the operator’s failure to request a hearing suggests that he does not dispute the fact of violation nor disagree with the appropriateness of the specific penalty proposed,” and that “[w]here no issue is disputed by the operator, we do not believe that Section 109(a)(3) requires the Secretary to prepare a formal decision which merely would consist of the same information already contained in the proposed assessment order.”

At least two considerations serve to distinguish the cases before us from that apparently confronting the District of Columbia Circuit in National Independent. First, in the cases before us, the defendant operators’ failure to request a hearing in no way suggests that the appropriateness of the penalty amount went undisputed. In each instance, the operators lodged protests with the Assessment Officer, indicating that the propriety of the amounts was a hotly contested issue. In these circumstances, we are reluctant to infer from the operators’ failure to request hearings that their objections to the penalty amounts ’ suddenly ceased. There are other equally plausible reasons, cost and inconvenience among them, to explain the defendants’ failure to seek formal hearings.

Second, a decision by the Secretary which sets out his findings of fact in these cases and thus demonstrates a considered application of the criteria of section 109, would not “consist of the same information already contained in the proposed assessment order.” As indicated above, the proposed assessment orders in this case contained no “information” other than pro forma recitations that the six criteria for determining penalty amount had been considered. Thus, findings of fact in these cases would provide the operators with information they had not yet received, information to which, under our view of the Act, they are entitled.

Thus, at least in the context of these enforcement actions, we adhere to the view that each final decision of the Secretary must be accompanied by findings of fact, concerning both the fact of violation and the magnitude of the penalty.

The judgment of the district court will be affirmed.

      . 30 U.S.C. § 801 et seq.

      . Separate enforcement proceedings were brought against G.M.&W. Coal Co., Inc., Delta Mining, Inc. and Edward Mears, d/b/a M.Y. Coal Company. The cases involve identical issues, and so the appeals were consolidated in this court. The several appellee coal companies are referred to herein collectively, as “defendants.”

      a. 30 U.S.C. § 801(g) (1).

      . 30 C.F.R., Ch. 1, subch. O.

      . In most instances, the Assessment Officer consolidated several violations into one. proposed penalty assessment order.

      . When a protest is made to a proposed order, the Assessment Officer may either vacate, modify or affirm the proposed order. If the proposed order is vacated, the proceeding ends there; if it is modified or affirmed, the violator has the right to seek a hearing, which is held at a location as near as possible to the coal mine involved.

      . Section 109(a)(4) of the Act, 30 U.S.O. § 819(a)(4), provides for actions in the district courts to enforce penalty assessment orders.

      . 30 U.S.O. §819 (a) (3).

      . 30 U.S.O. §819 (a)(1).

      . One proposed order lists, as having been considered, the six criteria of section 109(a)(1). Some of the others merely state that consideration has been given to “all available information, including the gravity of the violation.”

      . The “finding” that a violation “did in fact, occur, ” — which is required under section 109 — was originally made by the Assessment Officer. Curiously, the Assessment Officer did not make the finding of violation, in some cases, until several months after the entry of the proposed orders of assessment.

      . The Secretary characterizes the entry of a final order after failure of the violator to request a hearing as a type of “default judgment,” and argues that since the operator has willingly forfeited his “day in court,” he will not be heard to object to the absence of findings. This reasoning is appealing but, as will be shown, not applicable.

      . 30 C.F.R. Pt. 100, effective January 14, 1971. The Part 100 Regulations were amended in some small details on June 15, 1972, and were indefinitely suspended on April 24, 1973. See 38 Fed.Reg. 10085, 4/24/73. The references in this opinion are to the Regulations in force between January 14,1971 and June 15, 1972.

      . 30 C.F.R. § 100.4(b). There are other Interior Regulations (30 C.F.R. § 301.50, now 43 C.F.R. Part 4) dealing with penalty assessments, the relevance or validity of which we do not pass upon here.

      . It is apparent that the “findings” of the Assessment Officer on the issue of penalty amount, where made, were little more than pro forma recitations that the pertinent statutory criteria had been considered. See Note 7, supra, and accompanying text. In view of the realities of the penalty assessment procedure, we reject the contention that the “findings” as to penalty amount set out in some of the proposed orders were the sort of findings, contemplated by section 109. Mere recitation that the statutory criteria for gauging penalty amounts have been given “due consideration” will not convince us “that the agency has . . . really taken a ‘hard look’ at the salient problems and has . . . genuinely engaged in reasoned decision-making.” Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 851 (1970) cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971).

      . Indeed, the statutory language appears so unequivocal that we question whether resort to legislative history is even appropriate in interpreting section 109. See Schiaffo v. Helstoski, 492 F.2d 413, No. 72-21-67/68, (3d Cir., Jan. 4, 1974), slip op. at 428; Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527 (1947).

      . See H.Rep. 91-563, 91st Cong., 1st Sess., and S.Rep. 91-411, 91st Cong., 1st Sess. The documents are included in Legislative History of Federal Coal Mine Health and Safety Act, compiled by the House Committee on Education and Labor, at pp. 569, 93, respectively.

      . See H.Rep. 91-781, 91st Cong., 1st Sess.

      . 5U.S.C. § 554.

      . 5U.S.C. § 557.

      . The Secretary also mounts a semantic argument against the district court’s construction of the statute, by asserting that the word “therein” in section 109 refers to the hearing, and not to the “decision” of the Secretary. Thus, he claims, when no hearing is held, there can be no “findings of fact therein.” Since the word “decision” follows “hearing” in the statute, the most natural and probable referent of “therein” is “decision,” not “hearing.” Words in statutes ordinarily should be accorded their most common, everyday meanings. See, e. g., Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). Nor can we fail to note that section 109 makes a second use of the word “therein,” the referent of which is clearly “decision” and not “hearing.” See text accompanying note 7, supra.

      . See Note, Administrative Findings Under Section 8(b) [of the APA], 51 Va.L.Rev. 459, 462-64 (1965); K. C. Davis, Discretionary Justice, ch. VI (1969).

      . Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 596 (1971).

      . See PBW Stock Exchange, Inc. v. Securities and Exchange Comm’n, 485 F.2d 718, 750 (3d Cir. 1973) (dissenting opinion of Adams, J.).

      . See Environmental Defense Fund, Inc. v. Ruckelshaus, supra, 439 F.2d at 598: “Courts should require administrative officers to articulate the standards and principles that govern their discretionary decisions in as much detail as possible. . . . Discretionary decisions should more often be supported with findings of fact and reasoned opinions.” See also K. C. Davis, supra, at 103-106.

      . As noted in Note 9, supra, the Part 100 Regulations have now been indefinitely suspended.

      . Report by the Comptroller General to the Conservation and Natural Resources Subcommittee, House Committee on Government Operations, entitled “Improvements Needed in the Assessment and Collection of Penalties — Federal Coal Mine Health and Safety Act of 1969” (July 5, 1972).

      . Id. at 25-26.

      . No. 73-1678 (D.C.Cir., Feb. 11,1974).

      . Id., pp. 991-992.

      . The District of Columbia’s decision in National Independent appears to buck the drift of much of that Court’® prior administrative jurisprudence. See, e. g., Ruckelshaus and Greater Boston Television, supra; D.C.Federation, of Civil Ass’ns v. Volpe, 148 U.S.App.D.C. 207, 459 F.2d 1231 (1972); Calvert Cliffs’ Coordinating Comm. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Station KFH v. FCC, 101 U.S.App.D.C. 164, 247 F.2d 570 (1957).

      . National Independent, supra, involved a suit to enjoin application of the civil penalty assessment procedures embodied in the Pt. 100 Regulations.

      . IVe have considered and have rejected two other contentions of the Secretary, (1) that the enforcement procedure in the district court cures any defects in the Secretary’s final order, and (2) that by failing to object to the lack of findings in any administrative proceeding the defendants have failed to “exhaust administrative remedies,” and so are barred from objecting in the courts. In connection with the second contention, we note that once a final order has been entered, there is no opportunity to lodge an objection with the Secretary or Bureau of Mines.


author: MANSFIELD, Circuit Judge:

text:
    CONTINENTAL INSURANCE COMPANY et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 638, 1072, Dockets 73-2194, 73-2424.
    United States Court of Appeals, Second Circuit.
    Argued March 11, 1974.
    Decided April 9, 1974.

      Frederick T. Shea, New York City (Joel A. Forkosch, Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, of counsel), for petitioners.
    Michael S. Wolly, Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Alan D. Cirker, Atty., N. L. R. B., Washington, D. C., of counsel), for respondent.
    Before MANSFIELD and TIMBERS, Circuit Judges, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   MANSFIELD, Circuit Judge:

Continental Insurance Company, Underwriters Adjusting Company and Underwriters Adjusting Company of Illinois (the “Company” herein) have petitioned us to review and set aside an order of the National Labor Relations Board (the “Board” herein) issued against the Company on July 11, 1973, directing it (1) to cease its refusal to bargain collectively in good faith with the American Communications Association, Communications Trade Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the “Union” herein) as the certified bargaining representative for certain Company employees located in two certified bargaining units, (2) to cease making changes in wages and other terms and conditions of employment of employees in the two units without giving notice to the Union and affording it an opportunity to bargain collectively with respect to such changes, and (3) to take affirmative action to carry out its bargaining duties under the Act. The order was based on the Board’s finding that the Company had violated §§ 8(a)(5) and 8(a)(1) of the Act, 29 U. S.C. §§ 158(a)(5) and (a)(1). The Board has filed a cross-application for enforcement of its order. The sole issue before us is whether there is substantial evidence in the record as a whole to support the Board’s findings. We find that there is and accordingly deny the Company’s petition and grant the enforcement requested by the Board.

On March 6, 1968, following elections conducted by the Board, the Union was certified as the bargaining representative for claims adjustors, examiners and investigators employed by the Company in two bargaining units, its New York City branch and a branch in Newark, New Jersey. Despite certification, the Company refused to bargain with the Union on the ground that the designated bargaining units were inappropriate, being limited to single branch offices. On April 15, 1969, we enforced a Board order requiring the Company to bargain in good faith with the Union, 409 F.2d 727 (2d Cir. 1969). Despite the passage of almost six (6) years since the certification of the Union as the exclusive bargaining agent and almost five (5) years since our original order no agreement has been reached by the parties. Part of this seemingly interminable delay is attributable to the Company’s appeal from our enforcement of the Board’s bargaining unit determination and order which the Company unsuccessfully sought to have reviewed by the Supreme Court, 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969). As a result, the Company did not agree to sit down with the Union until December 1969.

The lion’s share of the six-year delay arises from the parties’ inability to reach agreement, despite some 27 bargaining sessions held during the period from December 1969 to June 22, 1971. During the course of these negotiations the Union on June 9, 1970, filed charges with the Board alleging that the Company, in violation of § 8(a)(5) and (1) of the Act, had failed to bargain in good faith. This led to the Board’s issuance of a consolidated complaint to which the Company filed an answer amounting to a general denial. Hearings were held before Administrative Law Judge Herbert Silberman during the period from March 3, 1972, to July 25, 1972, culminating in his issuance of detailed findings and conclusions on December 13, 1972. He found that “the Company conducted its negotiations with no desire or intention of reaching any agreement with the Union,” a conclusion based upon a detailed analysis of the evidence, which revealed that the Company had prolonged negotiations unduly by various delaying tactics, including unreasonable fragmentization of bargaining sessions, captious questioning of the Union’s proposals, and presentation of Company proposals that were unnecessarily complicated, outside of the scope of mandatory collective bargaining, or patently unfair and unreasonable. He further found that the Company had violated its duty to bargain collectively with the Union by by-passing the Union as the employees’ exclusive bargaining agent and dealing directly with the employees, unilaterally transferring some out of the unit and adjusting the wages of others. Since his description of the parties' negotiations and of the evidence underlying his findings is set forth in careful detail in his decision, we see no necessity for restating the evidence here except to the extent that we refer below to selected items which play a part in determining whether his findings are supported by substantial evidence.

In a decision and order entered on July 11, 1973, the Board, affirming in toto the Administrative Law Judge’s findings and conclusions, adopted his recommended order. Chairman Miller dissented from the finding of refusal to bargain in good faith, contending that the Company’s conduct in certain respects amounted to no more than “hard bargaining.” However, he joined in the Board’s affirmance of the conclusion that the Company had violated § 8(a) (5) and (a)(1) by failing to notify the Union in advance of the Company’s intent to transfer certain employees out of one of the units to a new branch office in Hackensack, New Jersey, and by unilaterally establishing overtime rates for work in packing and shipping files to Hackensack.

DISCUSSION

The Board’s findings must, of course, be upheld if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Fitzergerald Mills Corp., 313 F.2d 260, 268 (2d Cir.), cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963). At the outset we summarize those basic principles by which we are governed in reviewing a charge of bad faith bargaining.

The duty imposed on the parties under § 8(a)(5) to bargain collectively does not obligate a party to make concessions or yield a position fairly maintained, NLRB v. American National Insurance Co., 343 U.S. 395, 404, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); NLRB v. Patent Trader, 415 F.2d 190 (2d Cir. 1969), modified, 426 F.2d 791 (2d Cir. 1970); NLRB v. General Electric Co., 418 F.2d 736, 756 (2d Cir. 1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257, rehearing denied, 397 U.S. 1059, 90 S.Ct. 1352, 25 L.Ed.2d 680 (1970). On the other hand, the parties are obligated to do more than merely go through the formalities of negotiation. There must be a “serious intent to adjust differences and to reach an acceptable common ground,” NLRB v. Insurance Agents Union, 361 U.S. 477, 485, 80 S.Ct. 419, 425, 4 L.Ed.2d 454 (1960). To conduct negotiations as a kind of charade or sham, all the while intending to avoid reaching an agreement, would of course violate § 8(a)(5) and amount to “bad faith” bargaining. Sophisticated pretense in the form of apparent bargaining, sometimes referred to as “shadow boxing” or “surface bargaining,” see NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960), will not satisfy a party’s duty under the Act; and where years pass without an agreement being reached, the conduct of the parties must be scrutinized carefully, especially when experience discloses that collective bargaining agreements are usually reached in a fraction of that time.

The problem, therefore, in resolving a charge of bad faith bargaining, is to ascertain the state of mind of the party charged, insofar as it bears upon that party’s negotiations. Since it would be extraordinary for a party directly to admit a “bad faith” intention, his motive must of necessity be ascertained from circumstantial evidence, NLRB v. Patent Trader, supra 415 F.2d at 197 (2d Cir. 1969). Certain specific conduct, such as the Company’s unilateral changing of working conditions during bargaining, may constitute per se violations of the duty to bargain in good faith since they in effect constitute a “refusal to negotiate in fact,” NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Absent such evidence, however, the determination of intent must be founded upon the party’s overall conduct and on the totality of the circumstances, as distinguished from the individual pieces forming part of the mosaic. NLRB v. Genera] Electric Co., supra 418 F.2d at 756. Specific conduct, while it may not, standing alone, amount to a per se failure to bargain in good faith, may when considered with all of the other evidence, support an inference of bad faith.

Applying these principles here, we are satisfied from our examination of the record as a whole that substantial evidence supported the Board's finding that the Company had bargained in bad faith. Viewed in its entirety the record reveals that the Company pursued a pattern of tactics designed to delay the negotiations as long as possible, to denigrate and undermine the Union, to make it impossible for the Union to reach a collective bargaining agreement without virtually surrendering its right to represent the employees in disputes over working conditions, and to make it appear to the employees that they would be worse off with Union representation and a collective bargaining agreement than if they had neither. Since the Board’s findings are amply supported by persuasive proof it is unnecessary for us to analyze in detail each and every aspect of the Company’s conduct evidencing its insincerity. A few examples will suffice.

At the outset of negotiations, which were delayed for more than 1% years by the Company’s pursuit of an appeal from the Board’s bargaining unit determinations, the Company refused to bargain jointly for its two units certified by the Board, even though the Company was represented by one spokesman for both units, Frederick T. Shea, Esq., the Union’s proposals for both were virtually identical, and joint negotiations would minimize delay without in any way affecting the Company’s right to bargain separately for each unit. Instead the Company insisted upon wasteful; dupli-cative sessions with respect to each unit, which necessitated repetitious discussion of identical terms and unnecessarily prolonged the bargaining process. From this evidence the Board was entitled to infer that the Company’s objective was to delay and frustrate the bargaining process.

Turning to the content of the bargaining sessions themselves, the Company’s proposals and its positions with respect to such basic terms and conditions as Union recognition, vacations, severance pay, wage rates, grievances and arbitration procedure all provide ample evidence of Company insincerity. For instance, in objecting to the Union’s proposal for inclusion of the usual provision for recognition of the Union as the sole and exclusive collective bargaining representative for each of the units, the Company made wholly unreasonable demands with respect to matters entirely outside the scope of mandatory collective bargaining under the Act, such as that the Union agree not to organize or represent any other Company employees. When it came to severance pay, although the Company had been following the practice of paying such pay to terminated employees, it took the position for the first four months of negotiations that it was flatly opposed to severance pay. It then made a proposal which was so inadequate as to be patently disingenuous. Similarly, with respect to vacations the Company’s sole representative for some time took the extraordinary position that vacations were not an earned right but were provided to enable employees to do a better job for the Company. He then proposed stringent eligibility requirements that disregarded existing practices permitting employees to select their vacations on the basis of seniority

Another Company proposal that could only serve as a roadblock related to grievance, arbitration and no-strike provisions. The.Company proposal defined a “grievance” as “an alleged violation by the Company of the clear and unambiguous terms of the language explicitly set forth in [the] Agreement. . . .” The Company could determine whether or not it would allow a “grievance” which was properly processed by the Union to go to arbitration and the Union would be permitted to suspend the no-strike clause only if (1) either the Company or the Union did not wish to submit the matter in dispute to arbitration, (2) the matter in dispute constituted a “grievance,” and (3) the Company had in fact violated the Agreement as alleged in the “grievance.” These latter conditions — i. e., whether the matter in dispute constituted a “grievance” and whether the Company had in fact violated the Agreement — would be determined, in the event of a strike, by an arbitrator who would be picked exclusively by the Company.

Acceptance by the Union of the Company’s proposal would have constituted a waiver of any right to process a grievance or strike arising out of any matter not specifically covered in the Agreement and, at the time it made this proposal, the Company was insisting on including only a limited number of subjects in the contract. Moreover, a Union determination that the no-strike clause was suspended because the Company had violated the explicit terms of the Agreement was subject to reversal by an arbitrator selected exclusively by the Company, with severe consequences for those who participated in the strike. We agree with the Administrative Law Judge’s conclusion that under this proposal there would rarely be an instance “where the Union could safely consider the no-strike clause suspended.” The effect of the clause would have been to place the employees in a worse position than if they had no contract at all and to require the Union in effect to waive its right to represent employees with respect to disputes over employment conditions. The Board was fully justified in concluding that the proposal was not made in good faith.

Another example of the Company’s bad faith is found in the terms of its wage increase proposals, which were less than the increases given to its employees the previous year and which made no provision for retroactivity. Furthermore the Company proposed in effect to bargain individually with respect to each separate employee by granting increases in such amounts and at such times as it deemed appropriate for the employee. Hand in hand with these foot-dragging proposals the Company sought to undermine the Union’s position as the bargaining representative of the employees by continually refusing the Union’s proposal that it put into effect the Company’s suggested increases without prejudice to further bargaining on the subject, following which the Company put the increases into effect with an announcement to the employees blaming the Union for the delay.

Finally the Company’s strategy of obstruction is supported by evidence of its unilateral transfer of six employees from its Newark unit to its newly opened Hackensack office, without any discussion with the Union on the subject until the Union learned of the transfers and demanded a meeting, and by its unilateral grant of salary adjustments without any opportunity to the Union to bargain over the matter. This conduct separately violated the Company’s duty to bargain solely with the Union as the certified and exclusive bargaining agent of the employees and not to deal directly with the employees themselves. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Utica Observer-Dispatch v. NLRB, 229 F.2d 575, 577 (2d Cir. 1956); Lion Oil Co. v. NLRB., 245 F.2d 376, 378 (8th Cir. 1957). A unilateral grant of a wage increase constitutes an independent violation of the Act, regard-. less whether any showing of bad faith is made. NLRB v. Consolidated Rendering Co., 386 F.2d 699, 704 (2d Cir. 1967). The Company’s conduct further evidences an intention to by-pass,, undermine and discredit the Union as the exclusive bargaining agent in the two units. NLRB v. National Shoes, 208 F.2d 688 (2d Cir. 1953); NLRB v. Century Cement Mfg. Co., 208 F.2d 84 (2d Cir. 1953).

We recognize that after considerable delay the Company withdrew or modified some of its more extreme and obfuscatory proposals. However, the time wasted on negotiation with respect to them served the Company’s overall effort to frustrate arrival at an agreement, with the result that we are confronted with unconscionably protracted negotiations which have made a mockery of bargaining procedure, delaying the outcome for several years. We further appreciate that some of the Company’s bargaining positions and proposals, standing alone, might not support the charges against it. When the totality of the circumstances are considered upon the record as a whole, however, we have no hesitancy in concluding that the Board’s findings of unfair labor practices on the part of the Company were supported by substantial evidence.

The Board’s application for enforcement of its order is granted and the Company’s petition for review is denied.

      . Section 8 of the Act, 29 U.S.C. § 158, provides in pertinent part:
      “(a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      * * * * *
      (5) to refuse to bargain collectively with the representatives of his employees.

      . That the Company could have bargained simultaneously for both units without any adverse effects upon its position is evidenced by the fact that it finally did so in the last few meetings, which were held after more than a year of separate sessions.


author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dwight Edward DAMITZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry Louis VARVIL, Defendant-Appellant.
    Nos. 73-2945, 73-2902.
    United States Court of Appeals, Ninth Circuit.
    April 8, 1974.

      Murray B. Guterson (argued), Culp, Dwyer, Guterson & Grader, Seattle, Wash., for defendants-appellants.
    Charles Pinnell, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and TAYLOR, District Judge.

       The Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Varvil and Damitz appeal from their convictions at a non-jury trial of conspiracy to possess with intent to distribute and possession with intent to distribute quantities of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.

Appellants’ arguments on appeal concern the validity of a search warrant, the validity of the seizure of a notebook, and the sufficiency of the evidence.

I. Validity of the Search Warrant The search warrant was issued on the basis of an affidavit sworn to by one Larry Dean Annas on November 21, 1972. Annas had been arrested at approximately 9:00 p. m. on November 20 on charges of illegally selling heroin. He agreed to cooperate with the arresting agents, saying that he would take them to a cabin in North Bend, Washington, which he believed to contain approximately 500 pounds of marijuana. He told the agents that he had seen marijuana in the cabin previously, that he had recently transported for Varvil in a 1965 Cadillac a trunkful of marijuana bricks, and that he believed the marijuana was being stored in the cabin. He also gave the agents two marijuana bricks which he said that he had taken from the Cadillac and kept for himself. Annas then accompanied six or seven agents to the cabin, which would have been hard to find if the way were not known. The agents approached to within thirty yards of the cabin and saw a white 1965 Cadillac, matching Annas’ description, parked in front of it. Two agents thereupon drove Annas to Seattle, where he met with Assistant United States Attorney Pinnell from 2:00 a. m. until about 6.30 a. m. on November 21.

Mr. Pinnell prepared the following affidavit for a search warrant based upon Annas’ story:

1. On approximately November 13, 1972, Harry Lewis [sic] Varvil gave me a 1965 Cadillac bearing California license plates and directed me to drive to San Diego, California, to pick up approximately 500 bricks of marijuana. He told me there was $35,000 in cash in the back of the car. Following his directions, I drove to San Diego, arriving on approximately November 15, 1972, and called him for further directions. Varvil told me to leave the car in front of my motel with the keys under the mat. He stated that the car would be returned to me in several days, filled with marijuana. On November 16, 1972, .1 picked the car up in El Centro, California. I examined the trunk and found that it was full of marijuana wrapped in white and green paper.

2. On November 17, 1972, or 18, 1972, I arrived in Tacoma, Washington, and turned the car with the marijuana over to Varvil. When he picked up the car Varvil stated he was going to keep the marijuana in his cabin in North Bend, Washington. I kept three of the bricks of marijuana and have turned the two remaining bricks over to Special Agent Vance Huffman on November 20, 1072.

3. On the morning of November 21, 1972, I went to the cabin described in the warrant with Agents of the Office for Drug Abuse Law Enforcement. While there I noted that the car I drove to California was in front of the cabin.

4. I know that Varvil uses the cabin as a stash because approximately one week ago I was in the cabin with Var-vil and saw a large amount of marijuana. Varvil stated he had about 250 to 300 bricks of marijuana in the cabin at that time.

At 6:30 a. m. the agents, Pinnell and Annas drove to the home of United States Magistrate Froelich. Annas swore that the affidavit was true and signed it in Froelich’s presence; Froe-lich questioned him briefly and then issued a search warrant, which was executed about one hour later.

At the suppression hearing and trial Annas admitted that his affidavit contained numerous false statements. The statement in paragraph #1 that Varvil “told me there was $35,000 in cash in the back of the car” was false. In paragraph #2, the statement that Varvil said that he was going to keep the marijuana in the cabin at North Bend was false. He “stated that they was going to take the car up to the cabin, and I had been up to the cabin before, so I figured that the cabin would be in North Bend where it was before when I had been up there.” Concerning paragraph #’4, Annas had been at the cabin about ten days earlier, but, in his own words, “I didn’t see a real large amount of marijuana, I saw a boxful of marijuana sitting on a desk. . . . ” Moreover, although Varvil did state that he had used the cabin as a “stash place for a couple hundred pounds of bricks,” he did not state that the bricks were “in the cabin at that time.” Rather, he had stored the bricks there at an earlier time.

Despite Annan’ false statements in the affidavit, the trial court denied appellants’ pre-trial motion to suppress, finding that the government agents were unaware of the false statements when the search warrant was executed:

THE COURT: I do have some problems with the credibility of Mr. Annas. It is difficult to sort out his story. However, I do find from listening to the government agent witnesses, particularly Agent Huffman, and reading the affidavit and hearing the testimony of Mr. Annas as to his explanations, that the government agents were unaware of the falsity, that [sic — of?] the affidavit, when it was executed, and they had no cause to be suspicious of any statement in it, he supplied them apparently with two portions of the two bricks of the marijuana, he took them to the cabin, and there is the Cadillac. Of course, the most- serious matter in connection with the affidavit is this business about seeing a large amount of marijuana and we come to find out from his testimony here that it was a very small amount, remnants. But I don’t think that "that discrepancy is material enough to void the affidavit.
As to this $35,000.00 in cash, his explanation here is that he obtained that information when he was in San Diego, apparently, and not when he was assigned the mission before the trip started. I think that is a small discrepancy.
What I am finding is that there is no evidence that the false portions of the affidavit invalidated the showing of probable cause. I am denying the motion.

a. May the veracity of the affidavit be challenged?

Appellants argue that because the search warrant was issued on the basis of a materially false affidavit, the affidavit was therefore defective as a showing of probable cause and the fruits of the search must be suppressed. Some circuit courts have held that if the allegations in an affidavit contain a prima facie showing of probable cause, the defendant may not challenge the underlying validity of the affidavit. More recent decisions, however, have permitted such a challenge. The Supreme Court has extensively examined the sufficiency of the allegations contained in affidavits to show probable cause, but it has not squarely decided whether a defendant may go behind the face of an affidavit to challenge the veracity of the allegations. The Court last faced this issue in Rugendorf v. United States, 1964, 376 U.S. 528, 531-532, 84 S.Ct. 825, 827-828, 11 L.Ed.2d 887, where it stated:

Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish “probable cause”; However, assuming, for the purposes of this decision, that such attacks may be made, we are of the opinion that the search warrant here is valid.

The major reason advanced for not allowing a defendant to challenge the veracity of an affidavit is that to do so would reduce the function of the magistrate to a mere formality. See, e. g., Rosencranz v. United States, 1 Cir., 1966, 356 F.2d 310, 317. This rationale seems to disappear, however, in the light of Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; and Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, which authorize state and federal courts, respectively, to second-guess the magistrate and review the sufficiency of the affidavit. A review of the veracity of the affidavit may also be dictated by the exclusionary rule. A warrant is issued in an ex parte proceeding, in which there is no effective way for the magistrate to determine the veracity of the allegations; the most he can do is question the affiant and examine the affidavit for internal consistency. We therefore hold that it was proper for the trial court here to allow a challenge to the veracity of the affidavit.

b. May false statements in the affidavit be disregarded if those that are true support a finding of probable cause?

In determining whether there is probable cause to support the issuance of a search warrant, we are limited to the allegations contained within the four corners of Annas’ affidavit. United States v. Anderson, 9 Cir. 1971, 453 F.2d 174. Probable cause is shown when the affidavit sets forth facts and circumstances sufficient to warrant a man of reasonable caution to believe that the items to be searched for are located at the premises to be searched. The affidavit must also meet the test of Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, further explicated in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The affidavit must reveal the “underlying circumstances” from which Annas concluded that there was marijuana in the Cadillac and the cabin, and the magistrate must be able to conclude from the affidavit that the informant is reliable and trustworthy.

Stripping the affidavit of Annas’ lies, the following allegations remain:

1. Varvil gave Annas a 1965 Cadillac and directed him to drive to San Diego to pick up approximately 500 bricks of marijuana. Annas followed Varvil’s directions, leaving the car at a particular location and later picking it up in El Centro, California, when he found that the trunk of the car was filled with marijuana.

2. Annas returned the car to Varvil, who stated that he was going to take the car up to “the cabin.” Annas had kept four of the bricks of marijuana, two of which he turned over to a federal agent.

3. On the morning of November 21, Annas led federal agents to what he thought Varvil meant when the latter referred to “the cabin” in paragraph #2. He had been there before. The 1965 Cadillac was in front of the cabin.

4. Annas knew that Varvil used the cabin to store marijuana because on November 11, 1972, Annas had seen a “boxful of marijuana sitting on a desk” in the cabin. Varvil also told Annas on November 11 that he, Varvil, had used the cabin as a “stash” for marijuana in the past. Annas did not personally observe marijuana in the cabin on November 21, but had seen marijuana there on November 11.

The standard for probable cause is neither a prima facie showing of criminal activity nor guilt beyond a reasonable doubt. United States v. Harris, 1971, 403 U.S. 573, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723; Spinelli v. United States, supra; 393 U.S. at 419, 89 S.Ct. 584. The magistrate is not required to determine whether in fact the items to be searched for are located at the premises to be searched, but only whether there is reasonable ground to believe that they are there. That standard is clearly met here. Annas’ affidavit meets the test of Aguilar and Spinelli. The affidavit “contains [s] a sufficient statement of the underlying circumstances from which the informer concluded that” Varvil’s cabin contained marijuana. Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. 584.-Annas’ reliability is demonstrated by his admitted participation in the conspiracy to obtain marijuana as well as his voluntary surrender of two marijuana bricks to federal agents. These statements and actions were against Annas’ penal interest and therefore meet the reliability test of Aguilar and Spinelli. United States v. Harris, 1971, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723. See also Quigg v. Estelle, 9 Cir., 1974, 492 F.2d 343.

We hold that, if the portions of the affidavit that are true are sufficient to show probable cause, the warrant is valid, even though other portions of the affidavit are false, at least in a case like this one, where the affidavit is that of a third party, not that of a government agent. The case might be different if a government agent had made an affidavit containing material false statements.

c. Is good faith reliance by government agents on the affiant’s veracity sufficient to sustain the affidavit?

Assuming arguendo that the affidavit here does not constitute probable cause to issue a search warrant, we hold alternatively that good faith reliance by the government, including the arresting agents and the Assistant United States Attorney, on the knowingly and materially false statements of a nongovernment affiant will support an affidavit sufficient on its face. A rule excluding evidence because of a Fourth Amendment violation should be motivated by a basic purpose of the Amendment and the exclusionary rule, namely the deterrence of lawless police action. See Linkletter v. Walker, 1965, 381 U.S. 618, 636-637, 85 S.Ct. 1731, 14 L.Ed.2d 601. This is why the intentional misstatement by an affiant who is a federal agent may vitiate the affidavit, the warrant and the search. See e. g., United States v. Morris, supra, 477 F.2d at 662; United States v. Upshaw, supra, 448 F.2d at 1222. The affiant who made the misrepresentation here, however, was a non-government informer, and the federal agents had reasonable grounds to believe his story. They did not participate in lawless police action, but rather engaged in exemplary police behavior by making a good faith attempt to verify Annas’ story. They obtained from Annas some of the marijuana he had allegedly transported from California for Varvil, and they accompanied him to check to see whether the cabin he referred to had any connection with Varvil. No purpose of the Fourth Amendment would be served by excluding evidence obtained by good faith reliance by the government on an informer who lies.

Appellants attack the government’s good faith by contending that the federal agents “were experienced in the tragedies of heroin addiction, knew that the affiant was addicted, and must have realized that either he would be in a state of such panic at missing his 'fix’ or that he was actually under the influence of the drugs when the agents placed him in the magistrate’s presence.”

Informants are usually not members of high society. He who informs on alleged criminals is often a criminal himself; informants in narcotics cases are often drug addicts. The fact that an informant is a known drug drug addict does not make his statements per se unreliable. Although Annas testified that he gave himself an injection of heroin while in the custody of federal ■ agents, the agents who testified did not feel that Annas was either under the influence of heroin or in a state of withdrawal while in federal custody. Under these circumstances, we do not feel that the government agents’ knowledge that An-nas was a heroin addict undermined their good faith reliance on his false statements. The record supports the trial court’s determination that the government agents were unaware of the falsity of the affidavit.

II. Seizure of the Notebook.

The search warrant authorized search for and seizure of “a quantity of controlled substances, to wit, marijuana, together with paraphernalia for packaging marijuana.” The agents seized, in addition to marijuana and a small scale, a yellow notebook found on top of a counter next to the scale. The notebook contained a series of numbers which the evidence at trial disclosed corresponded closely with the weight in grams of each marijuana brick. A handwriting expert testified that the handwriting in the notebook was the handwriting of Damitz.

Appellants argue that the seizure of the notebook went beyond the scope of the search warrant. We disagree. The seizure of the notebook was clearly justified under the “plain view” exception to the warrant requirement. The agents had a valid “warrant to search a given area for specified objects, and in the course of the search” they “came inadvertently across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, 1971, 403 U.S. 443, 465, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564. See also Louie v. United States, 9 Cir., 1970, 426 F.2d 1398, 1402; United States v. Teller, 7 Cir., 1969, 412 F.2d 374, 379. Moreover, the fact that the notebook was “mere evidence” and not an “instrumentality of the crime” does not invalidate the seizure. Warden v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.

III. Sufficiency of the Evidence.

A government chemist testified that the substance seized from the cabin which was submitted to him for analysis was “marijuana.” 21 U.S.C. § 802 excludes from the term “marihuana” certain parts of the plant Cannabis sativa L., such as the mature stalks of the plant, oil or cake made from the seeds of the plant, etc. The chemist testified only that the substance he examined was “marijuana,” and appellants argue that the government did not establish that the substance seized from the cabin was the part of the marijuana plant the possession of which is illegal. This argument is without merit. The term “marihuana” is precisely defined in 21 U.S.C. § 802, and it must be presumed that the witness’ use of that term referred to the parts of the plant defined therein. The failure of the defense to object, cross-examine, or present defense witnesses on what the substance was supports the presumption that everyone knew what the chemist was referring to when he used the term.

Affirmed.

      . See, e. g., Kenney v. United States, 1946, 81 U.S.App.D.C. 259, 157 F.2d 442; Gracie v. United States, 1 Cir., 1926, 15 F.2d 644, 646; cf. United States v. Bowling, 6 Cir., 1965, 351 F.2d 236, 241-242.

      . See, e. g., United States v. Morris, 5 Cir. 1973, 477 F.2d 657, 662-663; United States v. Harwood, 10 Cir., 1972, 470 F.2d 322, 324-325; United States v. Upshaw, 5 Cir., 1971, 448 F.2d 1218, 1221-1222; United States v. Roth, 7 Cir., 1967, 391 F.2d 507, 509; United States v. Gillette, 2 Cir., 1967, 383 F.2d 843, 848-849 (dictum); United States v. Ramos, 2 Cir., 1967, 380 F.2d 717, 720 (dictum); United States v. Suarez, 2 Cir., 1967, 380 F.2d 713, 715-716 (dictum); United States v. Freeman, 2 Cir., 1966, 358 F.2d 459, 463, n. 4 (dictum); King v. United States, 4 Cir., 1960, 282 F.2d 398, 400, n. 4 (dictum); United States v. Pearce, 7 Cir., 1960, 275 F.2d 318, 321-322.
      Numerous legal commentators liave also discussed this question. See e. g., Forkosh, The Constitutional Right to Challenge the Content of Affidavits in Warrants Issued Under the Fourth Amendment, 34 Ohio St. L..T. 297 (1973) ; Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971); Mascolo, Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity, 44 Conn.B.J. 9 (1970) ; Note, Testing the Factual Basis for a Search Warrant, 67 Colum.L.Rev. 1529 (1967) ; Note, The Outwardly Sufficient Search Warrant Affidavit: What If It’s False?, 19 U.C.L.A.L.Rev. 96 (1971).

      . See, e. g., United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

      . This is not to hold that a trial court must always permit a He novo determination of the validity of the warrant. See Judge Frankel’s opinion in United States v. Halsey, 257 F.Supp. 1002 (S.D.N.Y.1962).

      . “It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention.” Aguilar v. Texas, supra, 378 U.S. at 109, n. 1, 84 S.Ct. at 1511 (emphasis in original).

      . See Berger v. New York, 1967, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040.

      . Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. 584.

      . Annas’ affidavit falsely stated that he had kept only three marijuana bricks.

      . Appellants erroneously (and superciliously) assert that “[n] either the warrant nor the affidavit connects the cabin in any way with defendant Damitz or Varvil. It could have been the summer home of a Supreme Court Justice ‘ for all the affidavit shows.” The presence in front of the cabin of the very car Varvil gave Annas to drive to California connected the cabin with Varvil.

      . Dumbra v. United States, 1925, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032.

      . See also Olmstead v. United States, 1928, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L. Ed. 944 (Brandéis, X, dissenting) : “If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

      . Annas was with the federal agents for a continuous period of approximately 14 hours.


author: POOS, Senior District Judge.

text:
    William L. ROBERTS, as Administrator of the Estate of James O. Roberts, Deceased, Plaintiff-Appellant, v. James ACRES and the Village of Markham, a municipal corporation, Defendant-Appellee.
    No. 73-1088.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 5, 1973.
    Decided March 19, 1974.

      Leo E. Holt, Arthur R. Waddy, Chicago, Ill., for plaintiff-appellant.
    John G. Poust, Stephen E. Sward, Chicago, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and POOS, Senior District Judge.

       The Honorable Omer Poos, Senior Judge for the Southern District of Illinois, is sitting by designation.

   POOS, Senior District Judge.

This appeal is taken from the District Court’s dismissal of plaintiff’s amended complaint. Initially, plaintiff, as Administrator of the Estate of James O. Roberts, Deceased, filed a complaint purporting to state a cause of action arising under 28 U.S.C. Sec. 1343, 42 U. S.C. Sec. 1983, and the Fourteenth Amendment to the United States Constitution. Named in this suit as defendants were James Acres, individually, and the Village of Markham, a municipal corporation. Upon motion of the defendants, the complaint was dismissed; defendant, James Acres, being dismissed due to plaintiff’s failure “to include any statement that points up a factual basis for relief under the federal claim.” The Village of Markham was dismissed in accordance with the Supreme Court’s decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960).

Subsequent to the determination plaintiff filed an amended complaint addressed specifically to the individual defendant, James Acres, and attempting to correct those deficiencies which resulted in the earlier dismissal. The amendment alleges, inter alia, that at all pertinent times the defendant was a duly appointed, qualified and acting police officer of the Department of Police of the Village of Markham. As such the defendant was acting under color of the statutes, ordinances, regulations, customs and usages of the State of Illinois, the County of Cook and the Village of Markham. That on or about January 12, 1971, defendant, acting with force and arms and without' right or provocation, assaulted and shot plaintiff’s decedent in so grievous a manner that he died as a direct and proximate result thereof. It is further alleged that at the time of the shooting plaintiff’s decedent was not committing any crime nor had he committed any crime prior thereto ; nor was there a warrant for his arrest, or any other process issued out of any court of competent jurisdiction. The complaint therefore concludes that as a direct result of defendant’s acts under color of law, the plaintiff’s decedent was executed without being afforded due process or the equal protection of the law as guaranteed to him under the Fourteenth Amendment to the United States Constitution.

Again the District Court dismissed plaintiff’s complaint pursuant to defendant’s motion, “the new pleading adds nothing of significance to the original pleading . . it is subject to defendant’s motion to dismiss.” This appeal is taken from that order.

Modern commentators adhere to the proposition that the Federal Rules of Civil Procedure sanctions “notice” pleading. The complaint is designed to apprise the defendant of the incident out of which a cause of action arose and the general nature of the action. The relevant facts may be determined by discovery, with the pleadings being liberally construed so as to do substantial justice and facilitate a proper decision on the merits. Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961). This rationale is explicated in judicial decisions construing the function of complaints and their sufficiency when attacked by a motion to dismiss.

“In appraising the sufficiency of a complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Gruen Watch Co. v. Artists Alliance, 191 F.2d 700 (9th Cir. 1951) and Hughes v. Noble, supra.

On numerous occasions the Courts have specifically addressed the issue of the sufficiency of a civil rights complaint to withstand a motion to dismiss. It has oft been repeated that complaints under the Civil Rights Act are to be liberally construed. Eaton v. Bibb, 217 F.2d 446 (7th Cir. 1955); Birnbaum v. Trussell, 347 F.2d 86 (2nd Cir. 1965). This liberal construction by the Courts has led to the conclusion that the

“only elements which need to be present in order to establish a claim for damages under the Civil Rights Act are that the conduct complained of was engaged under color of state law, and that such conduct subjected the plaintiff to the deprivation of rights, privileges, or immunities secured by the Constitution of the United States.”

Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir. 1962). It is with these principles and judicial proclivities in mind that the instant complaint is examined.

As hereinbefore noted the complaint alleges that at all times pertinent the defendant, James Acres, was a duly appointed and acting police officer for the Village of Markham. While acting under color of law and without right or provocation the defendant did assault James Roberts, plaintiff’s decedent, the direct consequence of which was death. These allegations are sufficient to establish that defendant acted under color of state law, the first element required as per Marshall, supra, for an individual’s conduct is engaged in under color of state law if clothed with the authority of the state and purporting to act thereunder, whether or not the conduct complained of was authorized or, indeed, even if it was proscribed by state law. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960); Screws v. United States, 325 U.S. 91, 111, 65 S. Ct. 1031, 89 L.Ed. 1495 (1946).

The plaintiff further alleges that the shooting by defendant occurred while decedent was not committing any crime nor had he committed any offense prior thereto, nor was there any process issued out of any court of competent jurisdiction. As a direct result of the conduct, under color of law, of defendant, James Acres, the plaintiff’s decedent was killed without being afforded due process or equal protection of the law as guaranteed under the Fourteenth Amendment to the United States Constitution. It is readily apparent that the allegations contained herein set forth a deprivation of constitutional rights, for the Fourteenth Amendment prohibits state officials from taking life except in accordance with due process of law. Screws v. United States, supra; United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1965). Therefore, the second element necessary to state a cause of action under the Civil Rights Act is met by the instant complaint.

Accordingly, plaintiff’s complaint has properly set forth those criteria necessary to formulate a valid cause of action under the Civil Rights Act. As this Court stated in Hardwick v. Hurley, 289 F.2d 529, 530-531 (7th Cir. 1961),

“In Monroe v. Pape, the Court said that section 1979 (1983) should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions. This could be read to mean that in the opinion of the Supreme Court it wouldn’t make any difference what purpose the officers had in striking or beating the plaintiff . In the case at bar, the complaint did state that the acts of the defendants constituted a violation of the Fourteenth Amendment.”
In conformity therewith this case must be tried on its merits, dismissal of the complaint is inappropriate.

The defendant has cited numerous cases supporting the contention of dismissal in that the plaintiff has failed to allege sufficient facts to bring the complaint within the purview of Sec. 1983. It may simply be said that the cases cited exemplify to the extreme the deficiencies which a complaint may possess. Such infirmities range from those due to draftsmanship by a layman to those inherently encountered in the realm of conspiracy litigation. Suffice it to say that these cases are inapposite and are therefore of little precedent value for the case at bar.

Finally, the Court addresses itself to the dismissal of the complaint pertaining to the defendant,' Village of Markham, Under the rationale of Monroe v. Pape, supra, the District Court’s order of dismissal was proper.

Accordingly we hold that the motion to dismiss the complaint against the Village of Markham was properly granted. However, the complaint should not have been dismissed against the individual defendant, James Acres; this judgment must be and is hereby reversed.

      . Memorandum of Opinion and Order, Frank J. McGarr, U.S. District Judge, June 26, 1972.

      . Memorandum Opinion and Order, Frank J. McGarr, U.S. District Judge, December 11, 1972.

      . Although the characterization “notice” pleading has fallen into disrepute by some commentators. Wright and Miller, Federal Practice and Procedure: Civil Sec. 1202, page 63.

      . Wright and Miller, Federal Practice and Procedure: Civil Sec. 1202.