author: WILLIAM A. McRAE, Jr., District Judge:

text:
    The COCA-COLA COMPANY et al., Plaintiffs-Appellants, v. FEDERAL TRADE COMMISSION, Defendant-Appellee.
    No. 72-2270.
    United States Court of Appeals, Fifth Circuit.
    Feb. 15. 1973.

      Charles Gowen, Atlanta, Ga., Edward Wolfe, Mario Diaz-Cruz, Thomas Kiernan, New York City, for Coca-Cola Co.
    Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Emmet J. Bondurant, Atlanta, Ga., Gordon Spivak, New York City, for Coea-Cola-Thomas, 3rd.
    Randolph W. Thrower, William M. Hames, Atlanta, Ga., Elberton Coca-Cola Bottling Co.
    John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Ronald M. Dietrich, James T. Timony, Harold D. Rhynedance, Jr., General Counsel, Federal Trade Comm., Washington, D. C., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, INGRAHAM, Circuit Judge, and McRAE, District Judge.
   WILLIAM A. McRAE, Jr., District Judge:

The litigation from which this appeal arises is peripheral to proceedings that the Federal Trade Commission, defendant-appellee, (FTC) initiated on July 15, 1971, against The. Coca-Cola Company, Coca-Cola Bottling Co., Inc., Coca-Cola Bottling Works, Inc., and Coca-Cola Bottling Works 3rd, Inc., plaintiffs-appellants (The Companies). The FTC brought these administrative proceedings (Docket No. 8855) pursuant to its authority and responsibility “to prevent . . . corporations . . . from using unfair methods of competition in commerce . . . ” 15 U.S.C. § 45(a) (6). The FTC has alleged principally that territorial restraints incident to sales and trademark licensing by The Companies constitute an antitrust violation. The merits of this contention, which the FTC has made the basis of complaints against seven similar enterprises, are not at issue here.

In Docket No. 8855, The Companies set up as an affirmative defense the failure to join as indispensable parties each of the seven hundred ninety-two individual bottling companies with whom The Companies have contractual relationships or, alternatively, the failure to join representative bottling companies sufficient to protect mutually antagonistic interests of relevant subclasses of bottling companies. Thereafter, the FTC permitted seven bottling companies in their individual capacities to intervene in Docket No. 8855, and these Bottlers-Intervenors adopted the position of The Companies on the indispensable party issue.

On January 7, 1972, the hearing examiner denied the motions to dismiss. Seeking intra-agency reconsideration of the hearing examiner’s adverse decision on the indispensable parties question, The Companies and the Bottlers-Intervenors asked for and obtained de novo review by the Commission. After a hearing, the Commission, also, denied the motions to dismiss in Docket No. 8855 on March 23, 1972.

On April 18, 1972, The Companies and the Bottlers-Intervenors filed their complaint in the Northern District of Georgia seeking a declaratory judgment on the indispensable parties question and asking that the FTC be enjoined from proceeding further unless there was joinder of the parties adjudged indispensable. The District Court, 342 F.Supp. 670, granted FTC’s motion to dismiss and denied relief. We affirm that disposition of the case. The Court below did not reach the merits of the controversy about the indispensability of the contract bottlers or appropriate class representatives, nor do we. We agree that judicial resolution of that question at this juncture would be premature.

In Frito-Lay, Inc. v. Federal Trade Commission, 380 F.2d 8 (5th Cir. 1967), this Court declined to disturb the decision of the District Court not to interfere in the ongoing Commission proceeding even though the plaintiff there alleged that “the administrative proceeding was outside of the jurisdiction of the Commission.” Id. at 9. Plaintiffs in the present case allege nothing that comes so close as the allegations in Frito-Lay, Inc., to fitting within the tightly circumscribed exceptions to “the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938).

The Federal Trade Commission Act, 15 U.S.C. § 41 et seq., contemplates judicial review only of “an order of the Commission to cease and desist,” 15 U.S.C. § 45(c), and then only “in the court of appeals of the United States.” Id. This scheme is fully consonant with the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The Supreme Court has said, moreover, that where Congress “has enacted a specific statutory scheme for obtaining review, . . . the doctrine of exhaustion of administrative remedies . . . requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness.” Whitney Nat’l Bank v. Bank of New Orleans, 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965). If a procedure for review prescribed by statute ought to be deemed exclusive absent an explicit requirement, there can be little doubt in the present case that the mandatory provision of the Federal Trade Commission Act that “the jurisdiction of the court of appeals . shall be exclusive,” 15 U.S.C. § 45(d) means what it says. This is not to suggest, however, that a different disposition of this case would have been warranted if the plaintiffs had come directly to this Court. Texaco, Inc. v. Federal Trade Commission, 301 F.2d 662 (1962).

The present case is not one raising “questions particularly high in the scale of our national interest because of their international complexion,” McCulloch v. Marineros de Honduras, 372 U.S. 10, 17, 83 S.Ct. 671, 675, 9 L.Ed.2d 547 (1963) and, therefore, affording “a uniquely compelling justification for prompt judicial resolution,” id., of a controversy normally left to an agency for initial disposition. Nor is the present case one in which the imposition of criminal sanctions turns on the procedural niceties of administrative law. See, e. g., Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1969); United States v. Davila, 429 F.2d 481 (5th Cir. 1970).

The most widely recognized exception to the general rule against judicial consideration of interlocutory agency rulings is the class of cases where an agency has exercised authority in excess of its jurisdiction or otherwise acted in a manner that is clearly at odds with the specific language of a statute. The leading case of this kind is Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). In Kyne, the National Labor Relations Board had grouped professionals with non-professionals in the same bargaining unit without a vote of the professionals, in defiance of an express statutory prohibition. Since this “was an attempted exercise of power that had been specifically withheld,” at 189, 79 S.Ct. at 184, it was properly enjoined by the District Court. The rule that only “a plain contravention of a statutory mandate” justifies district court intervention before termination'of election procedures in labor cases has been followed in this Circuit, Boire v. Miami Herald Publishing Co., 343 F.2d 17, 24 (1965), and an analogous rule has been applied to Federal Trade Commission proceedings. Federal Trade Commission v. J. Weingarten, Inc., 336 F.2d 687 (5th Cir. 1964). The rule that agency action “contrary to a specific mandate of . [an] Act [of Congress]” Templeton, supra, at 1069, is remediable judicially before administrative proceedings are at an end has been applied in the context of other agencies, notably in selective service cases, see, e. g., Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). What is as clear as this exception to the general requirement of exhaustion of administrative remedies, however, is that plaintiffs in the present case do not fit within it.

The remaining “exception” to the requirement that courts await final agency action before reviewing disputes engendered by the conduct of administrative proceedings “has,” as the learned trial judge observed, “only limited application in the Fifth Circuit,” citing Boire v. Miami Herald Publishing Co., 343 F.2d 17, 21 n. 7 (5th Cir. 1965). Although by now it is probably a correct statement of the law even in our own circuit that an “assertion of constitutional right . . . not transparently frivolous . [gives] the District Court jurisdiction” to hear an attack on an interlocutory agency order, Fay v. Douds, 172 F.2d 720 (2nd Cir. 1949) (L. Hand); Contra, Volney Felt Mills, Inc. v. Le Bus, 196 F.2d 497 (5th Cir. 1952), the “fact that the attack is voiced in conelusory language of a denial of due process and like constitutional rights does not warrant stopping . . . [an administrative agency] in its tracks.” Bokat v. Tidewater Equipment Co., 363 F.2d 667, 672 (5th Cir. 1966). When, as in the present case, parties bring suit in District Court alleging the deprivation of specific constitutional rights or, indeed, specific statutory rights, Leedom v. Kyne, supra, the District Court has jurisdiction to inquire into the preliminary question of whether judicial vindication of the alleged rights is appropriate in a given procedural setting, and if so, whether such rights have been infringed and how they ought to be redressed.

In the present case, the plaintiffs specifically complain that, if the proceedings before the Commission continue and FTC prevails, The Companies will be subject to two inconsistent decrees, viz., the apprehended Commission order and a consent decree entered by a District Court in The Coca-Cola Bottling Co. v. The Coca-Cola Co., 269 F. 796 (D.Del.1920). A contention of res judicata is not cognizable by courts until administrative proceedings are at an end, SEC v. Otis & Co., 338 U.S. 843, 70 S.Ct. 89, 94 L.Ed. 516 (1949), and we intimate no view as to the merits of this contention. The plaintiffs go further, projecting the outline of disarray and disaster sketched by the technical res judicata argument by conjuring up the vision of The Companies defending some 800 lawsuits simultaneously. This formidable problem, plaintiffs argue, might be avoided by the expedient of making all potential litigants parties to the Commission proceeding.

The “right” to be free from defending a multiplicity of lawsuits is not a statutory right, not a constitutional right and, in the context of the present ease, not a right at all but an equitable principle properly looked to by an equity court only after it has satisfied itself that it has the power and responsibility to do equity. The extraordinary remedy of judicial-intervention in agency proceedings still in progress is unavailable unless necessary to vindicate an unambiguous statutory or constitutional right, and only when this condition is satisfied will a court look to the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief. To adopt the plaintiffs’ position, on the other hand, would be to make the rule that judicial intervention to “correct” an interlocutory agency ruling is available wherever an agency ruling differed from some equitable maxim.

In paint, plaintiffs’ argument is grounded not on a right unequivocally vested in them by statute but on asserted constitutional rights of third parties, namely the non-joined bottlers’ respective rights to due process. It is always refreshing when giant corporations evince solicitous regard for others’ rights —and we have learned to expect refreshment from The Coca-Cola Company — but it is no occasion for judicial review of interlocutory agency decisions. As to the plaintiffs’ own right in this regard, we have little to add to Judge Friendly’s scholarly discussion in Pepsi Co., Inc. v. Federal Trade Commission et al., Nos. 72-1911, 72-1912, 2nd Cir.1972, 472 F.2d 179. See, e. g. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967).

The plaintiffs are asking that a procedural, “case-handling” decision be overturned in media res to require joinder “with the concomitant complication and clutter of the hearing.” L. Jaffe, Judicial Control of Administrative Action 444 (1965). If trial courts are insulated from this kind of interference, see 28 U.S.C. § 1292(a), certainly administrative tribunals ought to be and, indeed, they generally have been immune from interlocutory review of procedural rulings. E. g., Texaco, Inc. v. Federal Power Commission, 117 U.S.App.D.C. 268, 329 F.2d 223 (1963), cert. denied, 375 U.S. 941, 84 S.Ct. 346, 11 L.Ed.2d 272 (1964); Chicago Automobile Trade Association v. Madden, 328 F.2d 766, 769 (7th Cir.) cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). If plaintiffs eventually prevail on review of the final order and it is necessary to begin anew with Commission proceedings, it will not be the first time events have taken that course. See Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345 (1951). For the time being, plaintiffs “must, as all others similarly situated must, wait with such fortitude and patience as . [they] can muster.” Volney Felt Mills, Inc. v. Le Bus, 196 F.2d 497, 498 (5th Cir. 1952).

Affirmed.

       Judge McRae prepared the above opinion before his death January 27, 1973.

      . The six other manufacturers of soft drink syrups are Dr Pepper, Cott, Crush, Royal Crown Cola, Pepsi Cola and The Seven-Up Company. The same contentions plaintiffs make here were unsuccessfully pressed by The Seven-Up Company in The Seven-Up Company v. Goodhope et al., 349 F.Supp. 551 (E.D.Mo., Sept. 12, 1972) and by Pepsi Co., Inc., in Pepsi Co., Inc. v. Federal Trade Commission et al., 343 F.Supp. 390 (S.D.N.Y.1972), aff’d Nos. 72-1911, 72-1912, 472 F.2d 179 (2 Cir. 1972) (Medina J., dissenting).

      . At oral argument, counsel for appellants suggested that at least three classes of bottlers should be represented: “true metropolitan,” “quasi-metropolitan” and “non-metropolitan.”

      . Appellants Elberton Coca-Cola Bottling Co., Roddy Manufacturing Company, Westminster Coca-Cola Bottling Company, Inc., Coca-Cola Bottling Company of Keene, Inc., Ann Arbor Coca-Cola Bottling Company, The Scioto Coca-Cola Bottling Company, and Texas Coca-Cola Bottling Company (hereinafter BottlersIntervenors).

      . Agency action made reviewable by statute and final agency action for winch there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there lias been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

      . The decision in Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir. 1971) stands for the proposition that the question of the propriety of district court action does not turn on whether clear statutory language requires action to be taken or to be forborne,

      . Like the majority in Pepsi Co. Inc. v. Federal Trade Commission et al. Nos. 72-1911, 72-1912, 472 F.2d 179 (2nd Cir. 1972), we are “astonished” at the “proposition that a court would hold one person liable to another for doing something within the United States which a federal administrative agency, acting within its jurisdiction, has found to be necessary for the enforcement of a federal regulatory statute.”


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. E. W. SAVAGE & SON, INC., Appellant. UNITED STATES of America, Appellee, v. ADAMS DOUGHERTY LIVESTOCK COMMISSION COMPANY, Appellant. UNITED STATES of America, Appellee, v. OLSEN-FRANKMAN COMMISSION COMPANY, Appellant.
    Nos. 72-1429-72-1431.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 12, 1973.
    Decided March 13, 1973.
    Rehearing and Rehearing En Banc Denied April 12, 1973.
    David V. Vrooman, Sioux Falls, S. D., for appellant.
    David Gienapp, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This is a combined appeal by three livestock commission firms from an entry of directed verdicts and judgments for conversion of livestock owned by a third-party defendant, Robert W. Shields, not a party to this appeal. The livestock in issue were subject to a Farmers Home administration mortgage executed by Shields. In directing the verdicts, the trial court held that under South Dakota law defendants were agents of Shields, the original debtor, and personally liable for assisting him in the alleged conversion. The trial court’s memorandum decision is reported at 343 F.Supp. 123 (D.S.D.1972).

On May 6, 1968, Shields borrowed $26,000 from F.H.A. As evidence thereof, a promissory note and accompanying security agreement were executed. The note called for repayment of the loan on June 1, 1969. Pursuant to the execution of this note, a financial statement was properly filed with the register of deeds. In accordance with F.H.A. procedure, a farm and home plan was prepared. The security agreement listed 127 head of mixed cattle, including the proceeds to be derived therefrom, which were subsequently purchased by Shields between July 17 and July 31, 1968. Thereafter, a second agreement covering the same loan was executed dated August 6, 1968. A financing statement covering the August 6, 1968 agreement was also filed.

On or about June 14, 1968, Shields was instructed by one Robert Kennedy, the local F.H.A. District Supervisor, that he was to dispose of the cattle on or about June 1, 1969; that checks in payment for the secured property were to be made jointly payable, adding F.H.A. as a payee; that if any sale were made varying from the terms of the agreement, prior F.H.A. approval would be required; and that Shields was to account to the F.H.A. county office for any proceeds before they were expended.

On August 8, 1968, two days after giving the cattle as security, Shields made an unauthorized sale of 12 head of the mortgaged cattle to Canton Livestock Sales Company. On August 12, 1968, F.H.A. approved this sale by accepting the proceeds which were in the form of a check that included F.H.A. as payee.

Between August 27, 1968 and March 4, 1969, Shields made the following unauthorized sales to defendants: (1) to defendant Savage, 34 head at a total cost of $3,835.89; (2) to defendant 01-sen-Frankman, 48 head totalling $9,498.00; (3) and 37 head to defendant Adams-Dougherty Livestock Commission, totalling $7,886.98. None of the proceeds of the sales paid to Shields were ever received by F.H.A.

At the close of all the evidence, the trial court orally expressed the view that there was no issue of fact to be determined by the jury and therefore directed a verdict in favor of the Government. In so doing the Court observed that the most that could be argued was that F. H.A. in directing the debtor to include F.H.A. as joint payee when livestock was sold was that this constituted a conditional waiver which was not complied with by Shields, and therefore as a matter of law F.H.A. was entitled to a directed verdict in its favor.

Appellants now contend that the evidence shows as a matter of law that F.H.A. gave express and/or conditional consent to the debtor to sell the cattle covered by the security and therefore cannot recover, or in the alternative, that the issue of consent involves a fact question which should have been submitted to the jury. Appellee urges that the trial court correctly determined as a matter of law that the evidence shows that no express, implied or conditional consent regarding the sale of the livestock involved had been given Shields and therefore the United States was entitled to the judgment rendered. Appellee further contends that the livestock in question was “basic” farm security and under applicable law the security was not released by F.H.A. county officials and further, had they done so, they were without authority to bind the Government. We find the latter contentions correct and dispositive of this appeal.

Under the terms of the security agreement, the incumbered property was “basic security” as distinguished from “normal farm income security.” These terms are defined in the Code of Federal Regulations as follows:

“(a) Basic security consists of all equipment serving as security for Farmers Home Administration loans. It also consists of all foundation herds and flocks, including replacements, which serve as a basis for the farming operation outlined in the Farm and Home Plan ....
“(b) Normal farm income security consists of all security property not considered as basic security. This will include crops, livestock, livestock products, and poultry covered by Farmers Home Administration liens which are sold in the usual course of operating the farm business.

7 C.F.R. § 1871.5 (1967) states that the authority to release security for F. H.A. loans secured by basic security is different than that for normal farm income security, and that “County Supervisors are authorized hereby to release basic farm security when the property has been sold or exchanged for its fair market value, and the proceeds are used for . . .,” certain enumerated purposes.

In connection with this provision, only two basic conditions were imposed by F.H.A. as a prerequisite to receiving the consent of the county supervisor — that the checks would be made jointly payable to Shields and F.H.A., and that Shields would come to the county office and account for the proceeds before they were expended. Thus, when these two conditions were followed in carrying out the sale to Canton Livestock on August 8, 1968, despite the sale initially being unauthorized, F.H.A. approved the transaction in order for Shields to purchase substitute or replacement cattle pursuant to 7 C.F.R. § 1871.5(a)(2), supra." Such approval by F.H.A. does not operate as consent for Shields to sell free of the mortgage. Instead, it operates as a “mere offer of the mortgagee to release the mortgage upon certain conditions being met.” Rapid City Pro. Cr. Ass’n v. Transamerica Ins. Co., 184 N.W.2d 49, 51 (S.D.1971); see also, Cassidy Commission Company v. United States, 387 F.2d 875, 879-880 (10th Cir. 1967). In the matter at hand, the required conditions were not complied with and there was no release of the Government’s liens.

Defendants suggest that in construing these regulations, we held in United States v. Hansen, 311 F.2d 477 (8th Cir. 1963), that the County Supervisor may give consent to such a sale, and where consent is given the lien is extinguished. The Hansen decision dealt with “normal farm income security.” No “basic security” was involved. Therein, the F.H.A. County Supervisor authorized the mortgagor to sell the normal farm income security. The question was whether the County Supervisor had been vested with authority to waive the mortgage lien in that instance. The trial court made a finding of fact that F.H.A. had consented to the sale in question, and further that the County Supervisor had the authority to do so. In affirming this Court noted that “Regulation provisions for disposing of normal farm income security are considerably more liberal than those relating to basic securities.” Hansen, supra, 311 F.2d at 479. Hansen is distinguishable in that it dealt with a different type of security.

Assuming arguendo that local F.H.A. officials did waive the liens involved in this case, such action being contrary to the published regulation would not be binding on the Government. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947); United States v. Ulvedal, 372 F.2d 31, 35 (C.A.8 1967).

Affirmed.

      . See United States v. Kramel, 234 F.2d 577 (8th Cir. 1956), holding that state law controls in actions by the United States to enforce its rights under F.H.A. farm mortgages. But see, United States v. Hext, 444 F.2d 804, 807-808 (5th Cir. 1971), holding that a uniform federal interpretation is required.

      . See, 7 CFR § 1871.7 (1972). A “farm and home” plan, or Form FHA 431-2 is basically an information statement which reflects information relative to the borrower’s operations.

      . The Court reserved the right to file a memorandum opinion setting out with more clarity its views, which it did at 343 F.Supp. 123.

      . 7 C.F.R. § 1871.5 (1967). 31 Fed.Reg. 14213-14 (Nov. 1966), effective during the period of this agreement. The section is substantially the same ns 7 C.F.R. § 1871.8 (1972).

      . “(1) To pay on the debts owed to the Farmers Home Administration which are secured by liens on the property sold.
      (2) To purchase from the proceeds of the sale, or to acquire through exchange, property more suitable to the borrower’s needs, subject to the following conditions : The new property, together with any proceeds applied to the indebtedness, will have security value to the Farmers Home Administration at least equal to that of the lien formerly held by the Farmers Home Administration on the old property. The new property must be made subject to a lien in favor of the Farmers Home Administration by the execution of a new security instrument or by operation of the “replacement” or “after acquired property” clauses in lien instruments.
      (3) To make payments to other creditors having liens on the property sold which are superior to the liens of the Farmers Home Administration provided any amount remaining after payments are made to the other creditors is used in accordance with the provisions of subparagraphs (1) and (2) of this paragraph.
      (4) To pay costs required to preserve or realize on security property because of an emergency or catastrophe when the need for funds cannot be met through a Farmers Home Administration loan in sufficient time to prevent the borrower and the Farmers Home Administration from suffering a substantial loss.”

      . Compare, Quaker Oats Co. v. McKibben, 230 F.2d 652 (9th Cir. 1956). The Ninth Circuit Court of Appeals affirmed the trial court which held that the mortgagee had by implied agreement, given the mortgagors permission to sell directly to third parties and without written consent so long as any check drawn in payment was made jointly payable to mortgagors and mortgagee. Unlike the instant cause, payment by the purchasers of the secured property in issue was by cheek made payable to both mortgagors and mortgagee.

      . See n. 5.


author: PELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Anthony SICILIA, Defendant-Appellee.
    No. 72-1366.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 8, 1972.
    Decided March 1, 1973.
    Rehearing Denied April 13, 1973.

      James R. Thompson, U. S. Atty., Matthias A. Lydon and William T. Huyck, Asst. U. S. Attys., Chicago, Ill., for appellant.
    Louis Carbonaro, Chicago, Ill., for appellee.
    Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal by the Government, pursuant to 18 U.S.C. § 3731, from an order of the district court finding that special agents of the Federal Bureau of Investigation had failed to advise Sicilia of his constitutional rights pursuant to the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that, therefore, all of “the evidence procured was illegally seized and inadmissible.” On February 26, 1970, four F.B.I. agents went to the A & S Cartage Company pursuant to information given them by a confidential informer that one of three Clark fork lift trucks stolen from an interstate shipment was on the premises. Only Agents DiStefano and Mieseler went inside. Agent Mieseler, who had not previously been involved in the investigation, had gone on this trip because he had known the president of A & S Cartage, Anthony Sicilia, from a previous but unrelated investigation.

There is a substantial discrepancy between the parties’ versions as to what the agents said and did during the initial interview with Sicilia. The agents both testified that they informed him of the nature of the investigation and that he told them that he had recently purchased a Clark fork lift. The agents, according to their testimony, then asked him to sign a consent to search form, which he did. Thereafter they searched the building and found the stolen vehicle. When they returned to the office, the agents then read Sicilia the standard statement of rights (Miranda). He refused to sign the waiver or discuss the fork lift truck further.

On the other hand, Sicilia testified, and the district court in its findings of fact found Sicilia’s testimony in this respect to be true, that the agents did not inform him of the nature of the investigation, that they did not read him the consent to search form, that he never knowingly signed such a form, and that the only form he signed was what he thought was a receipt for the seized fork lift. Sicilia also testified, and the district court found to be true, that the agents asked him questions about his recent purchases of fork lifts. On the basis of these findings the district court concluded that at the time the agents arrived on the premises “the investigation was no longer a general inquiry into an unsolved crime but began to focus on a particular suspect, to-wit: the defendant. This court finds that the defendant was entitled to be given the Miranda warnings prior to being questioned. . . . ”

The only citation of authority by the district court in support of its order was the Miranda case. We note that the Court stated that the principles there announced “deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 477, 86 S.Ct. at 1629. Here it cannot be contended that Sicilia was the subject of in-custody interrogation. Rather he was at most the subject of limited questioning in the comforting confines of his own office at a company of which he was the chief executive officer. To avoid this obvious limitation on the applicability of Miranda to this case, the district court apparently adopted the focus theory enunciated in United States v. Dickerson, 413 F.2d 1111 (7th Cir. 1969).

In Dickerson, this court held that once a taxpayer was under criminal investigation he must be given a warning of his constitutional rights as spelled out in Miranda before any further questioning can take place. It is from this decision that Sicilia on appeal, and apparently the district court in the proceedings below, extrapolates the theory that once a criminal investigation “focuses” on an individual he must be warned of his constitutional rights. In our view this analysis is inaccurate. The nature of the facts in Dickerson limits its general applicability. That case revolves about the distinction between two types of I. R.S. agents: revenue agents and special agents. In general, special agents are concerned with criminal investigations. On the other hand, the audit type of investigations are handled by revenue agents with no particular contemplation of criminal prosecution. There, therefore, is considerable potential for the taxpayer being misled as to the nature of the investigation. In the case of the F.B.I. agents, they are ordinarily associated in the public view with criminal investigation. Specifically in the present case there was no ambiguity in the investigative call on Sicilia — the agents were out to catch a thief. Thus, the underlying rationale for Dickerson, the potential for confusion in the mind of the person being interviewed as to the nature of the inquiry, can be said to justify an expansion of the Miranda requirements beyond the in-custody case for the warning to be required.

The potential for confusion not being present in the case before us, we decline to extend the Dickerson requirement of Miranda warning to it. We find no special risk that Sicilia was misled as to the nature of the investigation. He was neither in custody nor “otherwise deprived of his freedom of action in any significant way.” See Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311 (1969).

At the time the agents initially interrogated Sicilia, there is no indication in the record which would have brought about an in-custody type of situation. Even if the agents had had positive proof that the stolen fork lift was on the premises of A & S Cartage, rather than just the uncorroborated tip of an informant, there would have been no reason to assume that Sicilia, even though he was president of the corporation, had been the individual who had purchased the stolen fork lift, or that he even had any special knowledge of its presence on the premises. The fact that after the F.B.I. agents had specifically identified the Clark fork lift as one of those stolen and Sicilia had stated that he had purchased it, the agents then gave Sicilia a Miranda warning is irrelevant to the issue of the first interview. We can only attribute this to some feeling on their part in the nature of an abundance of caution. United States v. Krilich, 470 F.2d 341, 349 (7th Cir. 1972). A probably unnecessary subsequent Miranda warning can scarcely create the necessity for such warning in the earlier and different factual situation.

Sicilia also argues that the search which discovered the stolen Clark fork lift truck was invalid because he was not warned of his rights similar to a Miranda warning. Thus, the district court found that he was not given a consent to search form, even though the Government did produce a consent to search signed by Sicilia who obviously was not an unsophisticated derelict. Si-cilia argues that, even if we were to hold this finding of the district court clearly erroneous, we would still have to invalidate the search since the consent to search form itself is not a sufficient warning of Miranda rights. On the facts of this case, we hold that there was a valid consensual search of the premises of A & S Cartage and that the discovery of the stolen fork lift was not illegal. As to the initial claim that the warnings required by the Fifth and Sixth Amendments under Miranda are a sine qua non to a valid consensual search under the Fourth Amendment, this court has clearly rejected such a view. United States v. Young, 471 F.2d 109 (7th Cir. 1972); United States v. Hayward, 471 F.2d 388 (7th Cir. 1972); United States v. Habig, 474 F.2d 57 (7th Cir., filed Jan. 24, 1973).

While some of Sicilia’s testimony may raise doubts as to its credibility, we have herein accorded the customary deference to the district court’s credibility determination based upon its observation of the witnesses. From that position, the district court chose to disbelieve the two F.B.I. agents and to accept the version presented by Sicilia.

Taking his testimony as true it is illuminating, and dispositive, on the present issue.

Q. Will you relate to the Court what questions they asked you and what answers you gave?
A. They asked me first whether I owned any Clark lift trucks. I said, “Yes.”
“Do you own any other type of lift trucks ?”
I said, “Yes.”
Meisler [sic] did all the questioning at that time. He said, “Did you purchase a Clark lift truck recently?”
And I said, “Yes, about two months ago I did purchase one.”
Then Meisler [sic] said, “Can we examine the lift trucks that you have on your docks ?”
And I told him, yes, he could see any of them.
At that moment I called up my superintendent, Jim Broderick, and told him that two fellows — I didn’t even tell them they were FBI — were coming down to examine all our lift trucks and I told him to show them all of them.
Later on, about five minutes later, he called back and he said one of the trucks that you recently purchased is in a trailer, we’re taking it over to our other warehouse.
I told Jim Broderick to show him— to show these agents that one, too. They went down and they were gone for some time—

No other reason appears in the record, and no other reason is suggested or suggests itself, for the F.B.I. agents to ask to look at lift trucks on the docks except that they were in some way involved in a crime or criminal investigation.

Not only did Sicilia consent to such a search by his own testimony, but he also called his superintendent and told him that two men were coming down to look at the lift trucks and that they were to be shown “all of them.” It is clear that Sicilia’s express consent was both voluntarily and intelligently given. Since no specific warnings were required prior to the search, we hold that the search was proper. We thus do not reach the question of whether the district court’s finding of fact relating to the signing of the consent to search form is clearly erroneous and should be set aside since it conflicts with the fact that there was a signed form and a signed receipt for the lift truck even though Sicilia testified, and the district court apparently found, that he signed only one paper that day.

For the reasons given hereinbefore the judgment of the district court is reversed and the case is remanded for further proceedings. While the case is not being remanded for a new trial within the technical meaning of Circuit Rule 23, the development of the factual situation as to one salient aspect of this litigation had progressed sufficiently for us to deem it advisable, and so to order, that the case be reassigned on remand to another judge.

Reversed and remanded.

      . Following an evidentiary hearing on December 9 and 11, 1970, the district court entered an order granting defendant’s motion to suppress. On March 13, 1972, another panel of this court determined that it could not rule on the case without findings of fact and conclusions of law. It therefore remanded the case to the district court directing it to make such findings, United States v. Sicilia, 457 F.2d 7S7 (7th Cir. 1972). On April 21, 1972, the district court entered the required findings of fact and conclusions of law. It is from this order that the Government appeals.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John H. JANSEN, Defendant-Appellant.
    No. 72-1246.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 30, 1972.
    Decided March 15, 1973.
    Rehearing Denied April 23, 1973.

      Carl M. Walsh, Maurice J. Walsh, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Dan K. Webb, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before ENOCH, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.
   PELL, Circuit Judge.

Defendant John Jansen appeals from his conviction by a jury of violating 18 U.S.C. § 111. The two-count indictment against him had charged that he “did forcibly assault, resist, oppose, impede, intimidate and interfere with” two named officers of the Internal Revenue Service while they were engaged in the performance of their official duties.

At 2 p. m. on July 8, 1971, officers Edward Grant and Larry Morris, accompanied by several other IRS employees, went to The Orange Tree Tavern in Chicago to collect $4784 in federal taxes allegedly past due or, in the alternative, to “seize” the tavern. On meeting the defendant, who managed the tavern which was owned by his father, the officers identified themselves and explained the purpose of their visit. Jansen responded that he did not have enough money on hand to satisfy the debt. Grant thereupon read him the levy and declared the business seized for nonpayment of taxes. When Jansen stated he could raise the money that day and requested additional time to accomplish this, the agents agreed to wait until 4 p. m. In the interim period, the agents proceeded with the seizure, e. g., had a locksmith change the locks and ordered the bartender to count and turn over to them the contents of the cash register.

Shortly before 4 p. m., the tax still unsatisfied, officer Grant suggested to Jansen that he begin to gather his possessions in readiness to leave the tavern, which would be closed. Jansen’s reaction to this announcement led to his indictment: (1) with arms upraised, he blocked the doorway and told the IRS officers he would not allow them to leave; (2) twice, by striking at officer Morris and holding down the telephone hook, he prevented Morris from calling the police; (3) he ignored Grant’s warning to stand clear; (4) he knocked Grant’s credentials from the agent’s hand and ran to the back of the cocktail lounge, where Grant pursued him and retrieved the credentials; and (5) he grabbed the moneybag holding the contents of the seized cash register from Morris’s hands and, when Morris started to give chase, raised his hands toward Morris. Later, after Jansen was arrested, officer Grant recovered the moneybag at which time he discovered $234 was missing.

Jansen urges reversal on the basis of certain alleged procedural errors, the most significant of which arises from testimony of his having had a prior conviction for a misdemeanor. The attention given to the earlier conviction supposedly distracted the jury from the real issues at stake and created ineradicable prejudice against the defendant.

Apparently in an effort to show Jansen’s good character, his counsel asked on direct examination: “Have you ever been convicted of a crime?” Jansen replied in the negative. At a subsequent conference between counsel and the court called at the Government’s request and held outside the presence of the jury, Jansen’s lawyer explained that he had made an unfortunate slip of the tongue; he and Jansen had practiced and he had intended to ask the question “Have you ever been convicted of a felonyV The defendant had been convicted of criminal damage to property, a misdemeanor under Illinois law. The Government attorney later elicited testimony from the defendant on cross-examination concerning the prior conviction. The trial court overruled defense counsel’s objection to the impeaching questions.

We find no abuse of discretion in the court’s determination not to strike the exchange between Jansen and his attorney, the course of action suggested by the attorney at the conference. Counsel had posed the question at the beginning of the direct examination. The prosecutor was well into his cross-examination of Jansen when the discussion with the court took place. That conference lasted until the end of the court day and was resumed the following morning. Thus, the jury had heard the defendant’s denial a substantial period of time before the defense attorney proposed that the exchange be struck. The purported fact had been placed without question before the jury, and we are unaware of any basis for saying that it was error not to strike out the question and answer, particularly in the belated posture here involved. If counsel had listened to his own words and had sought immediately to correct them, the result might have differed. He apparently did neither.

The Government acknowledges that, absent defense counsel’s question on direct, the prosecution would have been precluded from cross-examining Jansen about his prior misdemeanor conviction. It argues, however, that once the matter was raised, the prosecutor had a duty to impeach the veracity of defendant’s answer. The Government distinguishes this limited use of the misdemeanor conviction from an assault on Jansen’s general credibility as a witness. A defendant’s general credibility as a witness can be impeached only by a felony conviction. See United States v. Bishop, 457 F.2d 260, 262 (7th Cir. 1972). We also note that the court, in its charge, instructed the jury as to the limited purpose for which it was to consider the misdemeanor conviction.

Because Jansen made his statement on direct examination, the present case falls outside the rule that a witness may not be impeached by contradiction as to collateral or irrelevant matters elicited on cross-examination, see, e. g., United States v. Lambert, 463 F.2d 552, 557 (7th Cir. 1972). Further, although we are aware of Wigmore’s argument against allowing contradiction of all extraneous or volunteered assertions made on direct examination, 3A Wigmore, Evidence § 1007 (Chadbourn rev. 1970), decisions by the United States Supreme Court and by several courts of appeals, among them this court, strongly suggest that the impeachment here was permissible. See, e. g., Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); United States v. Rosenfield, 469 F.2d 598, 600 (3d Cir. 1972); United States ex rel. Walker v. Follette, 443 F.2d 167 (2d Cir. 1971); United States v. Holtzman, 440 F.2d 923 (7th Cir. 1971); United States v. Colletti, 245 F.2d 781 (2d Cir. 1957), cert. denied, 355 U.S. 874, 78 S.Ct. 125, 2 L.Ed.2d 78. We therefore hold that the trial court did not err in overruling the defendant’s objections to the impeachment questions.

On redirect examination, defense counsel attempted to rehabilitate his client. However, the court sustained objections to three of the five questions counsel posed. The result was that Jansen was allowed to respond only to queries whether he had ever been convicted of a felony and what his plea to the misdemeanor charge had been.

Although the circuits differ as to the extent to which they permit a witness, on redirect examination, to explain a conviction shown for impeachment purposes, most leave such rehabilitation to the discretion of the trial judge. E. g., United States v. Pinna, 229 F.2d 216, 219 (7th Cir. 1956). The cases we have found that treat this problem, however, involve the use of a prior conviction to impeach a witness’s general credibility. Here, through an admission elicited from the defendant, the prosecutor in effect corrected misinformation that Jansen had given on his direct examination. The wisdom of limiting discussion about the misstatement is thus much more obvious under these circumstances than when a party has tried to discredit a witness’s character. If not disallowed, defense counsel’s questions on redirect would have opened a clearly collateral matter. We therefore cannot agree that the trial judge abused his discretion in rejecting two of the “rehabilitative” questions: how old Jansen had been at the time of the conviction and What sentence he had received.

As for the third disallowed question — “When I asked you whether you had been convicted of a crime yesterday, what did you understand me to mean?” —we concur with the Government that the form of the question was bad. It called for Jansen’s subjective conclusion about his attorney’s intention.

Jansen also contends that the prosecutor made improper statements during closing argument about defendant’s credibility and that the trial judge made improper comments when ruling on defendant’s objection to those statements.

We find no reversible error. First, the prosecutor’s inadvertent reference to “United States v. Jansen” rather than to “The People of the State of Illinois v. Jansen,” the accurate title of the defendant’s misdemeanor case, could not have confused the jury or prejudiced Jansen’s right to a fair trial. Second, the Government attorney used the impeaching conviction as but one of several examples of what he considered to have been “lies” by the defendant. A prosecutor is allowed to comment on the credibility of a defendant who takes the witness stand. United States v. Deloney, 389 F.2d 324, 326 (7th Cir. 1968), cert. denied, 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417. Cf. United States v. Porter, 432 F.2d 548 (9th Cir. 1970), cert. denied, 400 U.S. 928, 91 S.Ct. 192, 27 L.Ed.2d 188. Third, the prosecutor’s rather ill-considered statement that by this false testimony Jansen had “perjured himself” was objected to, and the objection as made was sustained. When so ruling, the trial judge did not, as Jansen charges, imply that he agreed with the prosecutor’s characterization of the defendant’s testimony. Rather, as we read the record, the judge was explaining why he was sustaining the objection and why the jury should ignore the Government’s statement.

At trial, Jansen had two intended lines of defense: (1) his use of force had been so minimal as to be legally insignificant, and (2) emotional distress had caused him to act as he had on the afternoon of July 8, 1971, and he therefore had lacked the intent necessary to commit the crime charged. On appeal, the defendant emphasizes the second argument. He maintains that the trial court precluded the effective presentation of this “defense” by not permitting him to show that (a) the amount of the tax due was in controversy; (b) a certified check in the amount of the tax supposedly due was in fact delivered at about 4:20 p. m. but was refused by the agents; and (c) the defendant later received a refund of approximately $3500. In addition to the claim that the court ruled erroneously on these evidentiary matters, the defendant also contends that the court stated repeatedly in the presence of the jury that the proffered defense had nothing to do with the crime charged.

We find no reversible error. We first note that at least matters (a) and (c) were before the jury through Jansen’s own testimony. More importantly, however, we disagree that the three points, even if true, constitute a defense to a charge of violating 18 U.S.C. § 111 or negate the existence of an intent forcibly to assault, resist, impede, etc. This court’s decision in United States v. Spingola, 464 F.2d 909 (7th Cir. 1972), upon which Jansen relies, is inapplicable to this case.

“The purpose of this section [§ 111] is to provide federal officers the protection of federal courts when such officers are performing their duties.” United States v. Johnson, 462 F.2d 423, 427 (3d Cir. 1972). The statute’s aim is frustrated if an individual is allowed to resist federal agents when engaged in their official duties because the individual believes he owes less than the amount demanded. See United States v. Johnson, supra, where the Third Circuit upheld the trial court’s refusal to admit evidence tending to show that defendant, who had blocked the exit, was the true owner of property seized by IRS agents.

Jansen, however, seeks to avoid the force of section 111 by arguing that his motive in preventing Grant and Morris from leaving the tavern was to aid, not obstruct, the IRS officers in the performance of their duties, that is, the collection of delinquent taxes. The defendant mistakenly assumes that he had a right to delay the seizure of the premises; actually, the officers had waited until 4 p. m. as an accommodation to Jansen. We reject the defendant’s proposition that a private individual may decide how and when federal officers acting within the scope of their authority should carry out their duties. This is not the proper criterion for determining whether the individual has breached section 111.

As for the trial judge’s supposed negative comments on Jansen’s theory of defense, the transcript citations to which defendant refers us reveal no such prejudicial remarks.

Jansen next seeks reversal on the basis of the district court’s charge to the jury. Most of the contentions are within the framework of reference of “plain error,” which ordinarily, as it does here, connotes a failure by trial counsel to comply with the salutary purpose of Rule 30, Fed.R.Crim.P., to bring to the attention of the trial judge claimed deficiencies of both instructions to be given and those refused. Here, trial counsel failed to tender any instructions, and, although counsel were afforded an opportunity to object both before and after the giving of the charge, the defense’s minimal objections were not of a nature to point out to the experienced trial judge the errors which were first articulated on this appeal. In this context, we would be rendering scant service either to the letter or to the spirit of Rule 30 if we adhered to any lesser standard than that suggested in the Webster definition of “plain,” i. e., evident or obvious. On that basis, we find the contentions advanced to be without merit.

Jansen attacks the court’s “inference from conduct” general intent instruction as undermining the alleged defense of lack of specific intent. Without reaching the always troublesome question of whether specific intent is required for proof of guilt of a particular crime, we note that the district court did, in its charge, state the necessity of proof of specific intent before a conviction could be had, utilizing in this respect the La Buy instruction, 33 F.R.D. 523 (1963).

Jansen also attacks the court’s instruction on the burden of proof as conveying “a sense of rebuke for [defendant’s] daring to plead not guilty. . . .” Jansen’s interpretation of the court’s instruction is unwarranted as the challenged statements were part of a full discussion concerning the presumption of innocence and reasonable doubt.

Jansen attacks the failure of the court to give an instruction pertaining to the credibility of witnesses generally while including in its charge reference to the fact that “the defendant’s testimony is to be judged in the same way as that of any other witness, bearing in mind that he is the defendant in the case and of course has an interest in the result of the trial.” At best, trial counsel may have mildly and ambiguously suggested that the defendant is no different than any other witness, but, of course, he is different in that he does have an interest. We do not know why the general credibility of witnesses instruction was not given, but we do know that trial counsel neither suggested nor tendered it. While counsel on this appeal were not the trial counsel, and perhaps thereby are freer in finding fault, we are unable to agree with the contentions that the instructions deprived Jansen of a fair trial.

Finally, Jansen argues that the trial judge, in sentencing him, imposed “extra punishment” for his having elected to exercise his rights to plead not guilty and to have a jury trial. The judge sentenced Jansen to one year in prison and fined him $1500 on each count, the terms of imprisonment to run concurrently.

For this argument, Jansen relies on certain comments the judge made. If the judge did penalize the defendant for pleading not guilty, he, of course, acted improperly. See United States v. Lehman, 468 F.2d 93, 110 (7th Cir. 1972), cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232. We have carefully examined the pertinent portion of the transcript, however, and we conclude that the remarks, when read in context, do not bear the construction that defendant seeks to place upon them.

We first note that, prior to imposing sentence and before making the allegedly objectionable comments, the judge expressly complimented defense counsel: “I think your way of . . . defending the case was a wise one. If it could have been won, and I don’t think it could have been won, you chose the right way to do it.” Second, we find the group of statements ending with “The feeling of contrition here has come too late” to be ambiguous. A reasonable interpretation is that the judge “considered a policy of leniency following a plea of guilty to be proper but that sentence concessions flowing from such a plea are inapplicable to the full trial situation.” Lehman, supra, 468 F.2d at 110. Third, the final comments of which Jansen complains, particularly “He has chosen the wrong course in this case. ... He has aggravated his offenses,” came after the sentence had been pronounced and reflected, we believe, the judge’s impatience with defense counsel’s continuing to discuss mitigating circumstances. The judge considered the matter closed.

We have examined the other claimed errors and find them without merit. Accordingly, we affirm the conviction of John Jansen.

Affirmed.

      . 18 U.S.C. § 111 provides in part:
      “Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his offieial duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.”
      Section 1114 includes “any officer, employee or agent ... of the internal revenue . . . . ”

      . The transcript reads :
      “Q I believe you stated yesterday on direct examination, Mr. Jansen, that you had never been convicted of a crime, is that correct?
      “A Yes, it is.
      “Q Mr. Jansen, are you the same John [J] ansen who on August 27, 1964 was convicted of the crime of criminal damage to property in a case entitled People of the State of Illinois v. John Jansen?
      “A I pled guilty to damaging property, yes.”

      . The scope of the impeaching crime is often said to include a misdemeanor involving moral turpitude. McCormick, Handbook of the Law of Evidence § 43, at 90 (1954). While the misdemeanor of which Jansen was convicted is a crime, there is no contention that it involved moral turpitude.

      . Counsel dropped the matter and took no other tacks at rehabilitation. Also, there was no formal offer to prove. However, such an offer is unnecessary where it is clear what the substance of the proposed evidence would be. See United States v. Dellinger, 472 F.2d 340, 384 (7th Cir., 1972).

      . Wigmore’s comment that “it would seem a harmless charity to allow the witness to make such protestations on his own behalf as he may feel able to make with a due regard to the penalties of perjury” also does not refer to the limited impeachment situation present in the instant case. 4 Wigmore, Evidence § 1117, at 191 (3d ed. 1940 and 1970 Supp.).

      . We note that the jurors had been given information which could have enabled them to calculate Jansen’s age at the time of his misdemeanor conviction: Jansen had testified on direct that he was 29 years old, and, on cross-examination, he had said that he was the same John Jansen who had been convicted in 1964.
      The question about the sentence imposed was clearly intended to diminish the significance of the conviction. If Jansen had been allowed to answer, the Government might then have contended that it, too, should be allowed to go into the details surrounding the misdemeanor conviction in order to rebut the misleading inferences that such testimony might create. According to the Government, the misdemeanor charge had resulted from plea bargaining; the charge originally had been burglary and arson. In our opinion the district court properly curtailed the expeditions into these collateral and potentially confusing extraneous matters. Cf. United States v. Dow, 457 F.2d 246, 250 (7th Cir. 1972).

      . Cf. Finn v. United States, 219 F.2d 894, 901 (9th Cir. 1955), cert. denied, 349 U.S. 906, 75 S.Ct. 583, 99 L.Ed. 1242.


author: PER CURIAM:

text:
    Daniel SATIACUM et al., Appellants, v. Melvin R. LAIRD, Secretary of Defense, et al.
    No. 72-2054.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 4, 1972.
    Decided Nov. 5, 1972.
    Mr. Edward L. Genn, with whom Messrs. Ralph J. Temple, Washington, D. C., and Terrence A. Sidley, Alexandria, Va., were on the motion, for appellants.
    Mr. J. Michael McGarry, Asst. U. S. Atty., with whom Mr. R. Kenly Webster, Principal Deputy Gen. Counsel, Dept, of the Army, was on the opposition, for appellees.
    Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges,
   PER CURIAM:

The court has before it the application of Indians who seek to hold services at Arlington Memorial Cemetery, at the gravesites of two Indians buried there, and at the Amphitheatre for those who cannot be accommodated at those grave-sites. It is represented in both the papers before us, and by formal representation in open court, that the services will be purely memorial, religious and ritual in nature, and without any characteristic of being “partisan”- — a term used here, as it is used by the Government, to mean activities and expressions in support of or in opposition to policies of the Government.

There is no basis in the presentation of the case to us to dispute the veracity of the representation made by and in behalf of the plaintiff Indians. The Government did not contest the testimony of the Indian religious leader as to the nature of those services, including the ritual use of pipe and eagle feathers.

In considering the claim of plaintiff Indians that they are entitled to restrain the officers in charge of the Cemetery from prohibiting this service, we begin with the premise that the Government may validly prohibit partisan activity in the Cemetery.

The question arises out of the Government’s position that the use of the Cemetery may be denied on the ground that the memorial and ritual service at the Cemetery is “closely related” to other activities of a partisan nature being conducted during this week outside the Cemetery, by Indians who will be part of the group taking part in the service in the Cemetery.

Given the content of the services contemplated, as set forth above, they do not appear to be “closely related” to partisan activities outside the Cemetery.-

In response to questions at oral argument yesterday, it appears that the Government is of the view that section 205(a)(3) of the Department of the Army Technical Manual, governing Arlington National Cemetery operations, prohibits ceremonies at the Cemetery if they coincide in point of time with “partisan” activities outside the Cemetery, irrespective of the relationship between the content of the services and outside activities.

A serious question is presented whether such a regulation does not unduly trammel freedom of religion, by prohibiting memorial, religious services inside the Cemetery. There may also be a question as to the impingement on the right of free speech outside the Cemetery, and the right to visit the seat of Government to present grievances, by requiring those exercising such a right to give up a right of religious nature sought to be exercised during the same general period of time.

The papers before us further indicate that the application to hold the ceremonies was made in behalf of Indians who were coming to Washington merely for this purpose as well as Indians who were during the same period engaged in activities to seek changes in legislative or executive programs.

In view of these points, and in view of the absence of a close relationship between the proposed services and outside activities, the court concludes that plaintiffs have met their burden of showing a likelihood of success on the merits on the ground that the legal premise underlying the District Court’s denial of relief is erroneous. In view of the constitutional rights involved, plaintiffs plainly will suffer irreparable injury unless- the relief sought is granted.

Bennett v. McNamara, Civil Action No. 305-68 (D.D.C. February 5, 1968) motion for summary reversal and/or stay denied, No. 21,643 (D.C.Cir. February 6, 1968), relied on by defendants, does not call for a contrary result. Plaintiffs themselves in Bennett described in their papers the Arlington services “as an integral part” of their activities outside the Cemetery. From this, it was reasonably inferable that words and acts in the Cemetery services would relate to outside activities of a partisan nature. The services there contemplated, however dignified and ceremonial, were intended to be an integral part of the “partisan” efforts to change Government programs. The Bennett plaintiffs had come to Washington for the purpose of protesting the war in Vietnam, and their memorial service at Arlington for those who had died in that war was so clearly identified in content with the partisan nature of plaintiffs’ visit, that it could fairly be said that the services themselves were an expression of policy of a partisan nature.

Government counsel have indicated that they may wish to present this matter to the Supreme Court. Accordingly, our order will be stayed in effect until Monday noon, November 6, 1972.

APPENDIX

Department of the Army, Technical Manual 10-287, section 205(a)(3), states:

Partisan activities are inappropriate in national cemeteries, and all services or any activities inside the cemetery connected therewith must be nonpartisan in nature. A service will be considered partisan and therefore inappropriate if it includes commentary in support of an [sic] opposition to, or attempts to influence, any current policy of the Government of the United States or any state of the United States. If the service, although itself purely memorial, is closely related to partisan activities being conducted outside the cemetery, it will be considered partisan and therefore inappropriate.

      . The regulation appears as an appendix following this opinion.


text:
    UNITED STATES of America, Appellee, v. Michael E. JONES, Appellant.
    No. 72-1018.
    United States Court of Appeals, District of Columbia Circuit.
    Dec. 22, 1972.
    Rehearing Denied April 18, 1973.
    Messrs. Paul Daniel and Donald G. Avery, Washington, D. C. (both appointed by this Court), were on the brief for appellant.
    Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry, James E. Sharp, and William E. Reukauf, Asst. U. S. Attys., were on the brief for appellee.
    Before DANAHER, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.
   PER CURIAM:

The appellant had been at liberty on personal recognizance since August 20, 1969 when on March 19, 1971, he filed a motion to dismiss the indictment for lack of a speedy trial. The motion was denied and a jury trial went forward at once. The jury returned guilty verdicts on five counts charging assault with intent to commit robbery while armed and associated offenses. It is now urged that the conviction was invalid because of an inordinate delay which had given rise to a prima facie presumption of prejudice.

Just as the appellant’s guilt was overwhelmingly established, so was evidence of actual prejudice completely lacking.

Where we have discussed in our cases various gradations of distinctions under particular circumstances as we considered the applicability of the principles enunciated in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905), we have never lost sight of the important element of public justice. Here, and in the future, our assessment of that element as well as of the rights of the defendant must be guided by considerations outlined so cogently in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors there spelled out have indeed been analyzed and applied as affording a balancing test in United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129, as recently as September 25, 1972.

On February 15, 1969, one Gatling, an employee of Safeway Stores was to take a bag of money from a store to a bank. That employee was accompanied by an armed guard. Gatling, who was to drive the truck, presently found himself looking into the barrel of a gun. The culprit seized the bag of money, got out of the truck and fled, only to be pursued by the guard, and a gun battle ensued in the course of which Jones was wounded. The episode had been witnessed by a customer who had seen Jones earlier and who presently observed Jones trying to place a pistol in the trunk of a nearby car. An off-duty police officer saw Jones run past him at which time Jones still had the pistol in his hand. Within minutes, other police converged on the scene, the pistol Jones had carried was retrieved, and the officers noticed that three rounds had been fired. Various witnesses additionally contributed other details, indeed, seldom do we encounter so completely established proof of such a crime. Identification of Jones was established peradventure. Jones was promptly arrested, was indicted April 14, 1969, and arraigned 4 days later. On May 5th he filed a motion to suppress identification testimony and two motions relating to Grand Jury proceedings. Those motions were heard on June 27, the Grand Jury minutes were produced and ultimately the motion to suppress was withdrawn. Jones was released on personal recognizance on August 26, 1969.

The case was called October 3, 1969, October 21, November 13, December 5 and thereafter, but was not reached for trial. Jones was at liberty throughout the last mentioned period. He filed his motion to dismiss for want of a speedy trial on March 17, 1971. The motion was denied two days later and trial went forward immediately. We certainly cannot fault the trial judge in light of the record which we have carefully considered. We could, of course, dispose of the issues and speak only in general terms. We have decided, rather, to be more specific, and thus hopefully more helpful, by supplementing our earlier analysis in United States v. Parish, supra.

Thus, we turn back once again to Barker v. Wingo, supra. There the Court while not “disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought”, established a balancing test as the method by which claims of Sixth Amendment speedy-trial denials are to be resolved. In the process, Barker identifies particularly four factors of prime significance: “[I]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192. As this enumeration indicates, and indeed as Barker emphasizes, the accused’s conduct as well as the prosecution’s is to be weighed. Id. at 530, 92 S.Ct. 2182. The balance here decidedly disfavors appellant.

To be sure, the passage of 25 months before trial of a street-robbery case calls for an assessment of the circumstances contributing to the delay. See United States v. Ransom, 151 U.S.App.D.C. 87, 88, 465 F.2d 672, 673 (1972); Smith v. United States, 135 U.S.App.D.C. 284, 286, 418 F.2d 1120, 1122 (1969). No real basis appears here for faulting either side for the first ten months, which were largely consumed by the exigencies of indictment, pretrial motions and, as the record clearly enough reflects, efforts toward disposition of the case by plea. The undisputed explanation for not reaching trial during the ensuing fourteen-month period was the trial judge’s heavy involvement in other litigation. This is not to say that this hard fact completely answers appellant’s speedy-trial complaint, for while a “more neutral reason” like “overcrowded courts” is to be “weighted less heavily,” it is nonetheless to be counted “since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker v. Wingo, supra, at 531, 92 S.Ct. at 2192. It is to say that the delay was not “arbitrary, purposeful, oppressive or vexatious,” see Hinton v. United States, 137 U.S.App.D.C. 388, 393, 424 F.2d 876, 881 (1969); Smith v. United States, 118 U.S.App.D.C. 38, 41, 331 F.2d 784, 787 (en banc 1964), or “the result of . negligence or callous indifference to the requirement of speedy trial . . . ,” see Hedgepeth v. United States, 124 U.S.App.D.C. 291, 295, 364 F.2d 684, 688 (1966), and that it must be taken for the institutional delay that it really was.

Moreover, the burden on the court was not the only apparent reason for not getting to trial earlier during the last fourteen-month period. Appellant voiced no speedy trial considerations until two days before March 19, 1971, the date on which trial commenced, when he moved to dismiss the indictment. It is impossible to say that, despite the attendant difficulties, appellant would not have obtained an earlier trial had he asked for it. In Barker, the Court took pains to “emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U.S. at 532, 92 S.Ct. at 2193. There is no ineaningful assertion of the right where, as here, the accused waits until the eve of trial to invoke it, and then only as a basis for getting rid of the prosecution. The conclusion that the accused was uninterested in a speedy trial seems as inevitable here as the Court found it to be in Barker. Id. at 534, 92 S.Ct. 2182.

Lastly, the record falls short of indicating any substantial prejudice to appellant in consequence of the delayed trial. There is always, of course, a disquieting encroachment on personal liberty attendant upon any indictment— whether the accused is free on bail or not — -which can be dispelled only by trial and acquittal. Id. at 532-533, 92 S.Ct. 2182. But as Barker teaches, the impact of delayed trial is lessened considerably by pretrial release, and much more by a lack of prejudice to presentation of the defense. Id. at 530, 92 S.Ct. 2182.

Our appellant remained enlarged on bail for 17 of the 25 months complained of and, as the trial judge found, no embarrassment to his defense resulted. His sole contention in the latter connection is that an alibi witness died prior to trial, and that claim is discounted by the circumstances. Appellant did not mention the alleged witness to his counsel until the day the motion to dismiss. was filed, and the overwhelming evidence against appellant belies any thought that the witness — if indeed there was one — could possibly have swayed the jury’s verdict. See Coleman v. United States, 142 U.S.App.D.C. 402, 408, 442 F.2d 150, 156 (1971). Nor does it appear that the sentence imposed upon appellant was in any real way connected with the delay of trial. Appellant points to an observation, made in the report evaluating his potential for benefit from a commitment as a youth offender, that he was “comparatively older than the population within the Youth Center.” That statement, in light of other reported considerations seriously militating against youth offender treatment, was hardly capable of influencing his sentence.

We are entirely satisfied that the judgment must be

Affirmed.

      . See e. g., Part II of our opinion in United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971), and discussion in United States v. Dunn, 148 U.S.App.D.C. 91, 101, 459 F.2d 1115, 1125 (1972) and cases cited.

      . District Judge Aubrey E. Robinson, Jr. at the motions hearing observed:
      “We cannot make mechanistic decisions and try cases ad seriatim in terms of the chronology of the date of indictment, because to do so would work far greater injustices not only to individual defendants but to the system than could be conceived. Priorities develop for various and sundry reasons, and they have to be considered on an ongoing basis.