author: GIBBONS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Douglas B. DROZD, Appellant.
    No. 74-1963.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Feb. 24, 1975.
    Decided March 26, 1975.
    Stuart S. Ball, Ball, Elwell, Hayden, Livingston & Nelson, Newark, N. J., for appellant.
    William T. Pizzi, Asst. U. S. Atty., Jonathan L. Goldstein, U. S. Atty., John J. Barry, Asst. U. S. Atty., Chief, Appeals Div., Newark, N. J., for appellee.
    Before VAN DUSEN, GIBBONS, and HUNTER, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

Douglas Drozd appeals from a judgment of sentence following conviction on an indictment charging him with wilfully refusing to submit to induction in violation of 50 U.S.C., Appendix, § 462. Drozd waived both a jury trial and the provision of Rule 23(c) Fed.R.Crim.P. that the court on request find the facts specially.

The government presented no testimony, but offered four exhibits which were received in evidence. Exhibit G — 1 is the registrant’s selective service file. Exhibit G — 2 is a letter dated February 25, 1972 from Williard I. Silverberg, Regional Counsel for Region III, Selective Service System to the New Jersey State Director of the Selective Service System. Exhibit G — 3 is a letter from Mr. Silver-berg to the .State Director, dated March 16, 1972. Exhibit G-^4 is a letter from Mr. Silverberg to the United States Attorney for the District of New Jersey also dated March 16, 1972. When these exhibits were received in evidence, and certain historical facts which had been stipulated to were related, the government rested. Drozd then made a motion for a judgment of acquittal on the ground that the file did not establish that the Selective Service System properly rejected his conscientious objector claim. The court reserved decision and Drozd offered no testimony. The court, after reviewing the selective service file, found the defendant guilty. The sentence appealed from followed.

Before turning to the selective service file, we note that exhibits G — 2, G — 3, and G — 4, while interesting, do not add anything of substance to the government’s case. Exhibit G — 2 reads:

“The file of the subject registrant is returned.
It is the opinion of this office that the local board must state why the registrant failed to convince them of his sincerity. The reasons must be based on facts in the file derived from his personal appearance.”

The date stamps show that G — 2 was received at the New Jersey State Headquarters, Selective Service System on February 29, 1972, and at the Local Board March 30, 1972, although no copy appears in G — 1.

Exhibit G — 3 reads:
“The file of the subject registrant is returned. He was reported to the United States Attorney for prosecution on this date.
Please notify this office of any change in status of the registrant.

Thank you for your cooperation.” The date stamp shows that G — 3 was received at State Headquarters on March 17, 1972.

G-4 addressed to the United States Attorney on the same day as G — 3, reads:

“Transmitted herewith is an original and one copy of SSS Form 301 in re the subject registrant.
The file has been reviewed and is procedurally correct.”

Thus it appears that as of February 25, 1972 the Regional Counsel of the Selective Service System was convinced that the Local Board’s statement of reasons for rejecting the registrant’s conscientious objector claim was insufficient. There is a gap in the record. G — 3 seems to have accompanied the return of Drozd’s selective service file by Mr. Silverberg to the State Director. Yet, there is no explanation as to how the file came back to Silverberg a second time. Nor is there any indication as to what was said which prevailed upon him to change his mind and recommend the case for prosecution. Possibly the inclusion of G’s — 2, 3 and 4 in the government’s case reflects a degree of unenthusiasm for the position of the Selective Service System in Drozd’s case. This, of course, is speculation.

Turning to G — 1, the selective service file, we find that Drozd registered with Local Board # 40 on October 7, 1966. The Board classified him II — S on November 8, 1966 since he was a student at Seton Hall University. On November 7, 1968 he was classified I — D when he became a member of the Army ROTC. On October 7, 1970 Local Board # 40 was notified that he had been dropped from the ROTC program. On October 19, 1970 Drozd requested an SSS Form 150. It appears that this request was made in person at the Local Board, since a handwritten note making the request is dated, but not date stamped, as seems to be the case with communications the Local Board receives by mail. The same date he was classified I — A. On October 19, 1970 Drozd was reclassified I — A, and on November 12, 1970 he was ordered to report for an Armed Forces Physical Examination. On November 19, 1970 the Local Board sent Drozd a Form 150 which, on its face, instructed him to “complete and return within 30 days.” His Form 150 was received by the Local Board on December 18, 1970. It sets forth not merely a prima facie claim, but a rather thorough and on the surface quite convincing claim that Drozd had gradually become convinced of his conscientious objection to all wars on religious grounds.

Despite the fact that he had a Form 150 on file with the Local Board, the record shows that on April 21, 1971 the Board again classified him I — A. There is no minute or record in the file reflecting the reasons for that action, or even the vote thereon. However, a Selective Service System Report of Information signed by the Board Secretary and dated February 4, 1971 contains this interesting information:

“Recruiter at ROTC at Seton Hall Univ. asked about above-named registrant.
He said they had so much trouble with him and if ever we needed him or his colonel for any help we should let him know.
This registrant is now in the Virgin Islands. I wrote and told him to have his physical transferred but he failed to do so.”

Although the Local Board had apparently already rejected his conscientious objector claim on April 21, 1971 it wrote to him on May 27, 1971.

“Local Board No. 40 members request that you appear for a hearing on June 8, 1971 (Tuesday evening) at 9:30 p. m., at 205 W. Main St., Somerville, N. J. with reference to your claim for conscientious objector.”

The Board record shows that this was a statutory reopening of his classification and a hearing on his Form 150 claim. Its action appears on the hearing record’s cover sheet as follows: “1624.-2(d) — Case Re-Opened. — Reclassified as Class IA.” Attached to the cover sheet are three pages. One is a handwritten summary, apparently of the June 8 interview by someone not identified. The other two, typewritten, are in cryptic question and answer form, reflecting, apparently, Drozd’s interrogation by the Board member who conducted the interview. The interrogation is more suggestive of the attitude of the Board member than of the registrant. For example:

“All wars have been fought in vain— we are still fighting — basic structures of bible have influenced me strongly. You feel the past wars have been fought in vain — as far as cost of human life — How about the cost of your freedom?
Do I understand we should just roll over dead and give up freedom? The line is drawn when it is a question of life or death.
You would be content to live under restrictions? In any situation I would try to do what I could as an individual — to do what I think is right.
Do you have a family? If their life was taken in war you wouldnt [sic] do anything about it. No, I wouldn’t revenge.”

There is no objective evidence in Drozd’s answers suggesting his insincerity. There is no comment in the records of the interview with respect to his demeanor. On the sheet where the Board action is recorded there appears in unidentified handwriting:

“failed to convince local board of sincere conscientious objection to all war on religious or philosophical grounds.”

This statement is the only actual recording of the Local Board’s reasons. The extent of its ambiguity can best be gleaned from the interpretation of the Board Secretary in her letter of June 10, 1971:

“The local board has denied your request for conscientious objector classification because you failed to convince the board of your sincerity on your religious beliefs — or your objection to all wars.”

Actually the original Board statement made on the hearing cover sheet appears to mean that it was unconvinced of the sincerity of his objection to all wars, not that it was unconvinced of the sincerity of his religious beliefs. Moreover the Board statement refers to both religious and philosophical grounds, while the letter refers only to religious beliefs.

The district court, in denying the motion for judgment of acquittal did not state the reasons for its ruling. In a ruling on a motion to set aside the judgment, however, the court in a letter opinion said:

“The statement of the Third Circuit Court of Appeals In United States v. Neamand, 452 F.2d 25 (3d Cir. 1972) as to the sufficiency of the reasons set forth by the Board, although dicta, is applicable to this case. Under the Neamand standard, the reasons set forth by the Board were sufficient in this case.”

But compare, e. g., United States v. Andersen, 447 F.2d 1063, 1067 (9th Cir. 1971); United States v. Abbot, 425 F.2d 910, 913 (8th Cir. 1970). We need not, however, determine whether the Local Board’s ambiguous statement in this record was a sufficient compliance with the rule developed in Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), United States v. Crownfield, 439 F.2d 839 (3d Cir. 1971), and United States v. Neamand, 452 F.2d 25 (3d Cir. 1971). The statement of reasons that was significant here was not that of the Local Board but that of the Appeal Board, since Drozd took an administrative appeal. 32 C.F.R. § 1626.26 (1971); United States v. Jones, 468 F.2d 454, 457 n. 9 (3d Cir. 1972); United States v. Crown-field, 439 F.2d 839, 842 n. 2 (3d Cir. 1971).

When Drozd was notified of the Local Board action he took advantage of the procedure permitted by the then applicable regulations to add personally prepared written materials to his file. See 32 C.F.R. § 1626.12 (1971). This consisted of his own four page statement specifying in what matters he thought the Local Board erred, reiterating the sincerity of his religious beliefs, explaining his ROTC participation and eventual change of views, and expressing his willingness to undergo alternative service. He concluded:

“These are my honest feelings. I firmly believe that I am right and will adhere to them even if it means a prison term. I also have God on my side.”

Drozd also included letters from his pastor, his college roommate, his sister and a friend attesting to the sincerity of his religious beliefs. All of this written information was included in the record forwarded by the Local Board to the Appeal Board. There is no indication that the Appeal Board considered any of it. .Indeed the contrary appears, for in the .Selective Service Report of Information dated August 19, 1971, Panel No. 1, New ‘Jersey Appeal Board, recorded its action as follows:

“For the reasons set forth in the opinion of the local board, the I-A Classification is affirmed.”

Thus it affirmatively appears that the Appeal Board did not classify anew, but merely affirmed the action of the Local Board, and did not take into account the supplemental materials in the file added after the Local Board’s decision. Moreover, there is no “opinion” of the Local Board, and we cannot tell whether the Appeal Board refers to the June 8 notation of the Board action or the June 10 letter which added the dimension of insincerity of religious beliefs. The August 19, 1971 decision of the Appeal Board does not comport with the standards of Scott v. Commanding Officer, supra ; United States v. Crownfield, supra; United States v. Neamand, supra. The Appeal Board classification on the basis of which the induction order issued was unlawful.

Exhibit G — 1 is not sufficient to support a finding beyond a reasonable doubt that Drozd’s refusal to be inducted violated 50 U.S.C., Appendix, § 462. Accordingly there was insufficient evidence to support a conviction. The judgment appealed from will be reversed.

      . The file discloses that although Drozd had asked to be examined in the Virgin Islands he had left there in late February and returned to New Jersey. The file also discloses that he informed the Board and that on March 22, 1971, by arrangement with the Board he took his physical.

      . The governing regulation, 32 C.F.R. § 1626.-24 (1971), then provided:
      “(b) In reviewing the appeal and classifying the registrant, the appeal board shall not receive or consider any information other than:
      (1) Information contained in the record received from the local board.”

      . Drozd did report for induction, but, as he predicted in his letter to the Appeal Board, he refused induction and risked prison.


source: Caselaw Access Project

author: ALFRED T. GOODWIN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Victor F. MAGANA, Appellant.
    No. 74-1635.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1975.
    Rehearing and Rehearing En Banc Denied April 1, 1975.
    Alvin S. Michaelson (argued), Los Angeles, Cal., for appellant.
    Howard Matz (argued), Los Angeles, Cal., for appellee.
    Before MERRILL and GOODWIN, Circuit Judges, and WOLLENBERG, District Judge.

       The Honorable Albert C. Wollenberg, United States District Judge for the Northern District of California, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

Victor F. Magana challenges the district court’s refusal to suppress the evidence which led to his conviction under 21 U.S.C. §§ 841(a)(1) and 846.

On October 12, 1973, Officer Davenport of the Los Angeles Police Department received a tip from a reliable informant that two of his acquaintances (Bugarin and Gianetti) were prepared to sell Davenport eight ounces of heroin. The transaction was expected to take place the next afternoon.

Davenport and the informant met Bugarin near a residence at 10942 Hulme Street, Lynwood, California. Bugarin and the informant entered the house, and shortly thereafter returned to Davenport’s car. The informant told Davenport that he had seen the heroin. Acting satisfied with the pending purchase, Davenport went to the trunk of his car, pretending to get the money to pay for the heroin. Davenport blew his nose, a prearranged signal to police officers hidden nearby. The officers came out of hiding and arrested Davenport, Burgarin, and the informant.

Two other officers (Ripley and Stanley) had established a stakeout near the residence. Their mission was to await the arrival of the undercover team and ensure Davenport’s safety. When Davenport signaled, Ripley and Stanley drove into the driveway of the Hulme Street residence, where they saw a man (Magana) standing in the open garage. As the officers continued driving, Magana walked to the open garage door. Officer Ripley testified that he showed Magana his badge, and then saw Magana throw something down. Officer Stanley arrested Magana. After Stanley had arrested Magana, Ripley went into the adjacent garage and saw two condoms containing heroin. (The heroin was in plain view to one standing in the driveway near the garage, but Ripley said he discovered it only after he had entered the garage.)

Prior to Davenport’s signal, Ripley had seen Magana come from the front door of the house and walk down the driveway toward the garage. Ripley knew after the signal that an illegal transaction was in progress. Ripley did not know whether additional contraband or participants in the heroin scheme remained at the Hulme Street location. However, Ripley did have probable cause to believe that Bugarin had an uncaught partner in crime (Gianetti), even though the officers did not say they thought Magana was Gianetti. The officers did not know whether Magana was connected with Bugarin; they knew only that Magana was at a suspicious place at a suspicious time.

With the foregoing facts before him, Ripley had probable cause, after he was in the Hulme Street driveway, and after he saw Magana throw something away, to believe that Magana was one of the men the officers were seeking in connection with the heroin transaction just ■ completed. If Ripley and Stanley were lawfully in the driveway, then the arrest of Magana without a warrant was lawful, and the evidence which flowed from that arrest was not vulnerable to Magana’s motion to suppress.

We turn then to the question whether, on these facts, police officers have the right to drive into a private driveway to see whatever is there to be seen and to be in a position to follow up their investigation with an arrest, a search, and a seizure of evidence if further facts unfold.

The government contends that Magana’s driveway is not protected by the Fourth Amendment. In United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974), discussing the validity of a search originating with an entry upon a driveway, this court stated:

“It is by no means certain that the entry upon the driveway was contrary to the Fourth Amendment, even though there were no warrant or exceptional circumstances excusing failure to obtain one. The driveway may not have been such a place as to support a reasonable expectation of privacy on the part of the defendants. * * * However, for reasons that will appear, we need not and do not decide this question.” 488 F.2d at 7-8.

The question deferred in Bustamante-Gamez is before us again. The driveway where Magana was arrested was within the curtilage of the house Magana was using, but “a reasonable expectation of privacy,” and not common-law property distinctions, now controls the scope of the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The proper inquiry is whether the officers’ intrusion into the residential driveway constituted an invasion into “what the resident seeks to preserve as private even m an area which, although adjacent to his home, is accessible to the public * * *.” Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968).

A driveway is only a semiprivate area. The expectation of privacy which a possessor of land may reasonably have while carrying on activities on his driveway will generally depend upon the nature of the activities and the degree of visibility from the street. It would be equally unwise to hold, as a matter of law, that all driveways are protected by the Fourth Amendment from all penetrations by police officers as to hold that no driveway is ever protected from police incursions. The test in each case should be that of reasonableness, both of the possessor’s expectations of privacy and of the officers’ reasons for being on the driveway.

Here, the officers were providing security for their fellows who were known to be effecting the arrest of a narcotics dealer engaged in business in the residence of which the driveway formed a part. The act of the officers in turning into the driveway at the time and under the circumstances of this case was reasonable. Magana’s privacy was not unreasonably invaded when the officers entered his driveway and then saw him throw something away. See United States v. Capps, 435 F.2d 637 (9th Cir. 1970).

Magana has argued that his motion to suppress is governed by United States v. Connolly, 479 F.2d 930 (9th Cir.), cert. dismissed, 414 U.S. 897, 94 S.Ct. 248, 38 L.Ed.2d 139 (1973). In Connolly, agents knew that drugs had been removed from the premises in question not long before they arrived. But they did not know who might be inside, how long those persons may have been there, or what relationship they might have to an already arrested defendant. All that the agents knew in Connolly was that some contraband probably remained on the premises. In holding that a desire to make an arrest was no justification for the intrusion into the house, we stated that “[e]ven certain knowledge that contraband is within a dwelling does not constitute probable cause to arrest whoever happens to be inside * * 479 F.2d at 936. But the occupants were arrested inside their house after the officers broke in.

Here, the arrest did not involve intrusion into the house, and the narcotics in Magana’s garage were in plain view. We hold that the seizure of the narcotics was an incident of a lawful arrest. When the officers saw Magana throw something away, at or near the scene of a narcotics arrest then in progress, they could assume that the man they were about to arrest was party to the illegal activity and if not detained might destroy or conceal other evidence.

Because Magana’s arrest was legal, the motion to suppress the evidence seized in connection therewith was correctly denied.

Magana has advanced other arguments asserting infirmity in his consent to a further search that produced additional evidence used against him, but the district court found that the evidence seized was seized pursuant to a consent voluntarily given. The finding was supported by the record.

Affirmed.


author: TRASK, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. APICO INNS OF CALIFORNIA, INC., d/b/a Holiday Inn of America of San Bernardino, Respondent.
    No. 74-2556.
    United States Court of Appeals, Ninth Circuit.
    March 19, 1975.

      John F. Depenbrock, Jr., Atty. (argued), Paul J. Spielberg and Elliot Moore, Deputy Associate Gen. Counsel, NLRB, Washington, D. C., for petitioner.
    Andrew C. Peterson (argued), Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for respondent.
    Before CARTER, WRIGHT and TRASK, Circuit Judges.
   OPINION

TRASK, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order against Apico Inns of California, Inc., d/b/a Holiday Inn of America of San Bernardino pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., as amended. The Board found that respondent had fired employee and charging party, Reave Nichols, for filing a grievance over employment conditions with his union in violation of 29 U.S.C. § 158; the Board ordered respondent to cease and desist from further retaliations against employees for using union. grievance rights and to reinstate Nichols with back pay. Respondent employer contends that the Board lacked substantial evidence for its finding of retaliation and that even if there was substantial evidence for finding an illegal firing it was not proper to order reinstatement on the facts of this case. The Board’s Decision and Order is reported at 212 NLRB No. 46.

The Holiday Inn of San Bernardino operates a restaurant and cocktail lounge on its premises. The staff includes a restaurant manager, three or four waitresses, and day and evening bartenders. In December 1972 Doris Cunner was promoted from restaurant manager to Innkeeper of the Holiday Inn with duties including overall supervision of the restaurant and cocktail lounge. Soon after assuming her new job Cunner shifted Nichols from the evening bartender position to the day bartender slot.

Friction developed between Nichols and Cunner immediately upon the latter’s appointment as Innkeeper. During the next seven months Nichols engaged in a “campaign to undermine and replace her.” On several occasions Nichols made “derogatory and profane remarks” about Cunner in the presence of the waitresses and lounge customers. He stated that Cunner would not be Innkeeper very long. Nichols frequently drank with customers on and off duty in violation .of the Inn’s policy. He frequently remained on the premises after his shift in violation of Inn rules.

Nichols engaged in a number of other undesirable activities. He regularly made lewd remarks and suggestions to the waitresses and customers. Profanity was “just normal conversation” to Nichols. He caused at least one waitress to quit her job when he told her she would have to have sexual relations with him or he would make life difficult for her; he made similar advances to another waitress. Once Nichols called a waitress over to where he was seated drinking with a customer and solicited her to engage in an act of prostitution with the customer. On one occasion he was ordered to leave the lounge by Cunner after he became intoxicated and involved in an altercation. On one occasion he danced with customers while on duty. He frequently objected openly and profanely to mixing certain drinks that customers ordered. Sometimes Nichols would ignore the waitresses’ requests for orders while he continued to engage in conversation with customers. His favorite routine when a customer ordered a beer was to open the bottle, hold it to his fly, place a finger in the bottle opening, make a hissing sound — pretending he was urinating — and then serve the beer to the customer.

Cunner received numerous complaints from the waitresses and customers about Nichols’ behavior. At numerous times Cunner discussed with Nichols his objectionable actions and his resistance to her regime. She told him to reduce the profanity, but no improvement resulted. He denied making derogatory remarks about Cunner before customers and employees and did not respond to her request for cooperation. He denied making sexual advances to the waitresses. On February 25, 1973, she issued Nichols a written warning that he would be fired unless he stopped his practice of remaining at the lounge after his shift; Nichols continued to ignore the rule. Other employees had on occasion remained at the lounge while off duty, and profanity was not uncommon at the bar.

Matters came to a head in the summer of 1973. On June 24 Nichols complained to his union, Local 535, Culinary Workers, Bartenders and Hotel Service Employees, AFL-CIO. Cunner and the local business agent for the union discussed the problem that day at the Holiday Inn. On June 25 Cunner gave Nichols the following written notice:

“This will be the last notice given to you for your insubordination and laxity in your work. Our Company rules would be adhered to.”

When she handed the notice she said:

“I understand you contacted the Union. You are constantly doing this. I am not going to have this happen all the time.”

On July 31 Nichols wrote a letter to his union and to the president of Servico, Inc., the parent company of the Holiday Inn of San Bernardino, complaining of the hours he had been forced to work by Cunner. On August 3 when Nichols reported for work Cunner discharged him, stating:

“I understand that you wrote your Union and also Memphis. I am not going to have this anymore. You are a troublemaker. I am the Innkeeper and you are not.”

Nichols charged his employer with discharging him for engaging in protected union activity. The administrative law judge, after hearing evidence, so found and ordered the employer to cease such actions, but he declined to order the employer to reinstate Nichols with back pay. He stated:

“The lounge-restaurant work force at the Inn is small. If the restaurant and lounge business is to prosper, close cooperation between the bartender and the waitresses and a friendly, respectful attitude to and before the public by those employees is required. It is clear that Nichols’ conduct during those 7 months met none of these standards. He was profane, lewd, disrespectful, uncooperative and disruptive, despite repeated warnings and pleas to change his ways and his attitude. It would not suit the purposes of the Act to direct his reinstatement.”

The General Counsel to the NLRB filed objections with the Board to the judge’s remedy. The Company did not object to either the finding of retaliatory firing or to the favorable remedy decision of the administrative law judge. The Board agreed with the finding of the employer’s violation of 29 U.S.C. § 158. The Board, however, amended the administrative law judge’s recommended remedy to provide for reinstatement with back pay, reasoning that otherwise Nichols would have a right but no remedy and relying on Cunner’s failure to fire Nichols independently of his complaints to the union as an indication of Cunner’s acceptance of his conduct. The Board seeks enforcement of its orders in this court. It raises the following issues:

1. Is there substantial evidence on the record as a whole in support of the Board’s finding that Nichols was fired in retaliation for his protected union activities, in violation of section 8(a)(3) of the Act?

2. Did the Board abuse its discretion in ordering Nichols’ reinstatement with back pay?

The Board contends that the employer’s failure to object to the administrative law judge’s finding of a retaliatory firing precludes a challenge in this court to that portion of the Board’s decision. Under the applicable regulations, 29 C.F.R. §§ 102.46(h), 102.48(a), a party waives objections to findings and recommendations of the administrative law judge if he does not file objections thereto within specific time limits in 29 C.F.R. § 102.46. The governing statute, 29 U.S.C. § 160(e), section 10(e) of the National Labor Relations Act, states:

“No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused by extraordinary circumstance.”

No extraordinary circumstances having been alleged, this court cannot consider respondent’s assertion that there was not substantial evidence in support of the Board’s finding of a retaliatory firing. NLRB v. Pacific Electrical Contractor’s Association, 478 F.2d 853 (9th Cir. 1973) (per curiam); NLRB v. Jan Power, Inc., 421 F.2d 1058, 1061 (9th Cir. 1970).

The Board has authority to order reinstatement and back pay in order to effectuate the purposes of the National Labor Relations Act, section 10(c), 29 U.S.C. § 160(c). The Board has broad discretion in the choice of remedies. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 181, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. W. B. Jones Lumber Co., 245 F.2d 388, 390 (9th Cir. 1957). The normal remedy of reinstatement and back pay gives meaning to the Act’s guarantees.

The Board’s discretion is not, however, absolute, and reinstatement is not always enforced even after a discriminatory discharge. No reinstatement should be ordered if the policies of the Act are not furthered by such an order. NLRB v. Big Three Industrial Gas & Equipment Co., 405 F.2d 1140, 1143 (5th Cir. 1969). The Tenth Circuit has found that the policies of the Act were not furthered by ordering reinstatement of an employee illegally fired who later confessed to stealing from his employer. NLRB v. Breitling, 378 F.2d 663 (10th Cir. 1967). The Fifth Circuit has declined to order reinstatement of an employee illegally fired who had accumulated traffic violations while working for his trucking company employer and could thus endanger the company’s safety program, NLRB v. Big Three Industrial Gas & Equipment Co., supra, or who had threatened the president of the employer company with bodily harm in a premeditated manner, NLRB v. R. C. Can Co., 340 F.2d 433 (5th Cir. 1965). The Seventh Circuit has refused to order reinstatement of an employee illegally fired who had a disrespectful attitude towards his superior, made damaging statements to a customer of his employer, and made derogatory remarks about the personnel manager of his employer. NLRB v. National Furniture Mfg. Co., 315 F.2d 280, 286-87 n. 7 (7th Cir. 1963).

This court has stated the general standard in this type of case to be: “ . . . the misconduct which will

justify a court in refusing to enforce a Board order to rehire depends upon the degree and kind of the misconduct and each case must be decided on an ad hoc basis.”

NLRB v. Miller Redwood Co., 407 F.2d 1366, 1370 n. 2 (9th Cir. 1969). A test which is useful to the particular facts of this case is “do the circumstances ‘render it difficult for us to judicially enforce a renewal of a relationship that bids ill for all concerned’?” NLRB v. Yazoo Valley Electric Power Assoc., 405 F.2d 479, 480 (5th Cir. 1968), quoting, NLRB v. National Furniture Mfg. Co., supra, 315 F.2d at 286-87 n. 7. An employee may not seek to topple his supervisor from authority and then claim protection of the Act because his plan included the use of union grievance procedures. NLRB v. Red Top, Inc., 455 F.2d 721 (8th Cir. 1972). In this case Nichols was found to be engaged in a campaign to undermine and displace Cunner. His behavior was uncooperative and disruptive of employee relations. Given the small size of the business and the necessity for cooperation among employees, it would be an impossible situation if Nichols were reinstated.

The Board distinguishes some of the above cases and other similar cases on the ground that the undesirable behavior of the employee was discovered after the firing and thus was not merged with the illegitimate retaliatory motive. The Board’s argument is not valid. First, the cases do not place any weight on the timing of the employee’s misconduct. Second, in NLRB v. Big Three Industrial Gas & Equipment Co., 405 F.2d 1140 (5th Cir. 1969), and apparently in NLRB v. National Furniture Mfg. Co., 315 F.2d 280 (7th Cir. 1963), most of the employee’s undesirable activities were discovered by the employer prior to the illegal discharge.

The evidence here clearly shows that the charging employee was and is unfit for the job for all of the reasons recited. Reinstatement with back pay would not effectuate the policies of the Act. It would reward conduct both reprehensible in quality and egregious in scope. We reverse the portion of the Board’s order which provides for the reinstatement of Nichols with back pay and deny enforcement thereof; we affirm the order which requires the Company to cease and desist from committing the unfair labor practices found and to post notices in conformity with this decision.

      . Culinary Workers, Bartenders and Hotel Service Employees, Local 535, AFL-CIO.

      . Counsel for the Board argued that the record did not support the administrative law judge’s finding that Nichols was engaged in a campaign to undermine Cunner. Since the General Counsel did not challenge this finding before the Board it would appear that he would be bound to the same extent that the employer is bound by the finding of illegal firing which it did not oppose. The Board appears to concede that those findings not challenged by the General Counsel are binding on it. The regulations support this view. 29 C.F.R. §§ 102.-46(h), 102.48(a). At oral argument, counsel for the Board conceded that the findings of the administrative law judge characterizing Nichols’ conduct were supported by the evidence.


author: LINDBERG, Senior District Judge:

text:
    Jose Luiz ORTIZ-BARRAZA, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1905.
    United States Court of Appeals, Ninth Circuit.
    March 19, 1975.

      Gilbert Veliz (argued), Tucson, Ariz., for appellant.
    James E. Mueller, Asst. U. S. Atty. (argued), for appellee.
    Before BARNES and CARTER, Circuit Judges, and LINDBERG, District Judge.

       Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation.

   OPINION

LINDBERG, Senior District Judge:

The defendant has appealed from his conviction for violation of 21 U.S.C. §§ 952(a), 960(a)(1) (1970), importation of one thousand eighty-one pounds of marijuana, and of 21 U.S.C. § 841(a)(1) (1970), possession with intent to distribute the same marijuana. We affirm.

The two-count indictment was returned on January 24, 1974. After a plea of not-guilty, a motion to suppress evidence was filed by the defendant. Two hearings, one pre- and one post-trial, were held concerning the motion. On April 2, 1974, the motion to suppress was denied. Meanwhile, a trial to a jury had resulted in a guilty verdict on both counts. The district court entered judgment of conviction on April 2, 1974, and ordered the defendant committed. Notice of appeal was timely filed.

The only error asserted on appeal was the district court’s denial of the motion to suppress evidence. The defendant has urged that the search of his camper, in which the marijuana was discovered, was unlawful. In support of this proposition, it has been argued that the discovering tribal police officer acted in excess of his authority by conducting the search as part of an investigation of suspected state and federal law violations committed by the defendant, a non-Indian. In addition, the defendant has claimed that the search conducted violated constitutional prohibitions against unreasonable searches. We hold that the tribal officer acted within the scope of his authority and that the search conducted by him was reasonable under the circumstances.

The facts are not in dispute. On the morning of January 5, 1974, Officer Robert Antone, Jr., had been patrolling the streets of Sells, Arizona. Sells is within the confines of the Papago Indian Reservation. Antone was then employed by the tribe as a police officer, and he was using a police patrol car which was both distinctively marked and had red lights on top. Officer Antone had parked in front of the trading post on the main street in Sells and, subsequently, had observed a white Ford pickup truck, on which were mounted a camper and Arizona license plates. The truck had turned off the San Miguel Gate road onto the main street.

The truck and camper were muddy and dirty, and the curtains in the camper were closed. The San Miguel Gate road passes from Sells through San Miguel and on to the Mexican border. From San Miguel to the border, the road is unpaved. Other roads in the area are also unpaved. There had been rain recently.

Antone observed the driver of the camper. The driver and sole occupant of the vehicle was a young Mexican male whom Antone did not recognize. The residents of the area near the San Miguel Gate road are either Papago Indians or priests and nuns associated with a mission at Topawa. It was Antone’s testimony that he could recognize all of the non-Indians who lived in the vicinity of the San Miguel Gate road. Occasionally, of course, non-Indian visitors travel in the area.

Officer Antone decided to stop the driver of the camper and check the camper’s registration and the license of the driver in order to ascertain to whom the vehicle belonged. Accordingly, Antone followed the camper onto the state highway. Before Antone was required to stop the camper, the driver had stopped of his own volition on the highway shoulder and had gotten out. Antone then turned on the flashing red lights mounted on the patrol car, drove up behind the camper and stopped. Antone approached the driver, who had not yet reentered the vehicle.

When Antone asked the driver, who was the defendant, for his driver’s license and vehicle registration, the defendant stated in Spanish that he spoke no English. Because Antone spoke little Spanish, he frisked the defendant, looking for the identification papers sought. Finding neither driver’s license nor registration, Antone had the defendant wait in the patrol car while the truck cab was checked for registration. No identification papers were found either in the cab or on the ground near the vehicle.

At this point Officer Antone believed that he had discovered an alien who had entered the country and was transporting either illegal aliens or controlled substances. Antone determined to search the vehicle. Upon opening the camper door, burlap sacks containing the marijuana involved in this prosecution were discovered. The defendant was taken to the Papago detention facility and held for transfer to the drug enforcement administration.

Officer Antone has testified that he was employed by the Papago tribe rather than by the Department of the Interi- or, Bureau of Indian Affairs (BIA). Antone has also stated that he had not been granted a certificate which, under certain Arizona procedures, would have rendered him a peace officer for that state.

I.

Indian tribes possess an inherent sovereignty except where it has been specifically taken away from them by treaty or act of Congress. United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 717-718, 42 L.Ed.2d 706 (1975); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, South Dakota, 231 F.2d 89 (8th Cir. 1956). Intrinsic in this sovereignty is the power of a tribe to create and administer a criminal justice system. “An Indian tribe may exercise a complete [criminal] jurisdiction over its members and within the limits of the reservation subordinate only to the expressed limitations of federal law.” F. Cohen, Handbook of Federal Indian Law 148 (1942 ed. as republished by the University of New Mexico Press). The status of Indian tribes as dependent sovereigns with inherent but limited powers (which include the power to draft a constitution and to enact law) has been recognized by Congress. 25 U.S.C. § 476 (1970).

Also intrinsic in the sovereignty of an Indian tribe is the power to exclude trespassers from the reservation. 1 Op. Atty. Gen. 465 (1821); Department of the Interior, Office of the Solicitor, Federal Indian Law 438, 439 (1958). A tribe needs no grant of authority from the federal government in order to exercise this power. F. Cohen, Handbook of Federal Indian Law 306 (1942 ed. as republished by the University of New Mexico Press). It has at times been held that tribes may not exercise criminal jurisdiction over non-Indians. Ex parte Kenyon, 14 Fed.Cas.No.7720 (1878). Such holdings, if presently valid, have not derogated from the sovereign power of tribal authorities to exclude trespassers who have violated state or federal law by delivering the offenders to the appropriate authorities.

Indian tribal police forces have long been an integral part of certain tribal criminal justice systems and have often performed their law enforcement duties to the limits of available jurisdiction. W. Hagan, Indian Police and Judges (1966). The propriety of operation of tribal police forces has been recognized, presently and in the past, by the federal government. 18 Op. Atty. Gen. 440 (1886); 25 U.S.C. § 13 (1970); Act of May 15, 1886, ch. 333, 24 Stat. 29, 43; 25 C.F.R. §§ 11.301 et seq. (1974). Thus, as a general proposition, we have little difficulty in concluding that an Indian tribe may employ police officers to aid in the enforcement of tribal law and in the exercise of tribal power.

On January 6, 1937, the Papago Indians adopted a constitution which was, in addition, approved by the BIA. Under the constitution the Papago Council was empowered, article five, section three:

(b) To provide for the maintenance of law and order and the administration of justice by establishing a tribal court . and a police force, and defining the powers and duties of such courts and police, (c) To remove or exclude from any of the three Papago Reservations non-members who occupy reservation land without lawful authority and whose presence may be injurious to the peace, happiness or welfare of the members of the tribe.

Pursuant to its constitution, the Papago Council adopted a code of law which contained the following' provision, chapter six, section two:

Any person, undesirable, not a member of the Papago Tribe who, within the Gila Bend, Sells and San Xavier Reservations, commits any act which is a crime under Federal or State Laws, or which would be a misdemeanor under the Ordinance of the Papago Tribe, if committed by a member thereof, may be forcibly ejected from these Reservations by any Police Officer, Officer of the United States Indian Service, or Tribal Police, and may be turned over to the custody of the United States Marshal or Sheriff or other officer of the State of Arizona, for prosecution under Federal or State Law.

On June 1, 1972, the Papago Council adopted a special resolution ordering an investigation to be made and the taking of other necessary action, including the hiring of additional policemen, in order to stop marijuana smuggling from Mexico into the United States through the Papago Reservation.

We find that the actions of the Papago Council, taken together with the Papago Constitution and the applicable law previously discussed, clearly establish the authority of a tribal police officer, like Officer Antone, to investigate any on-reservation violations of state and federal law, where the exclusion of the trespassing offender from the reservation may be contemplated. Compare, 25 C.F.R. § 11.304(b)(3).

Our holding, in a sense, parallels that rendered in Settler v. Lameer, 507 F.2d 231 (9th Cir., 1974). In Settler it was noted, in another context, that the power to regulate is only meaningful when combined with the power to enforce. That principle may be applied in the instant case. The power of the Papago to exclude non-Indian state and federal law violators from the reservation would be meaningless were the tribal police not empowered to investigate such violations. Obviously, tribal police must have such power.

As a final word on the subject of Officer Antone’s authority, we note that the fact that the events of interest here may have occurred within the right-of-way for a state highway avails the defendant nothing. Rights of way running through a reservation remain part of the reservation and within the territorial jurisdiction of the tribal police. See, Gourneau v. Smith, 207 N.W.2d 256 (N.Dak.1973); 18 U.S.C. § 1151 (1970).

II.

In searching the defendant and his camper, Officer Antone was required to avoid effecting a constitutionally unreasonable search. 25 U.S.C. § 1302(2) (1970). We hold that the search conducted in the instant case was reasonable.

In observing the unfamiliar and muddy camper driven by an unknown non-Indian and proceeding through the reservation coming from the direction of the Mexican border, Officer Antone acquired information sufficient to constitute a founded suspicion warranting a stop to check for a driver’s license and registration. Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). There is, of course, some question here whether a stop may be said to have occurred. The pat-down of the defendant was justifiable. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and see, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Officer Antone’s founded suspicion ripened into probable cause to search the camper when no driver’s license, registration or identification were discovered upon the defendant, and the proximity to Mexico together with the other facts previously adverted to suggested an illegal crossing of the international border, perhaps involving smuggling of contraband. Such probable cause supported the inquiry which ultimately revealed the marijuana. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

CONCLUSION

The judgment of the district court is affirmed. The tribal police officer was authorized to investigate within the reservation state and federal law violations thought to have been committed by non-Indian offenders. The search of the defendant and of the vehicle were reasonable under the circumstances.

      . Sells is approximately twenty miles from the : Mexican border as the crow flies, approximately twenty-five miles from the Mexican border via the San Miguel Gate road. Between Sells and the border, the San Miguel Gate road is intersected by through highways only twice. These highways are, for the most part, ungraded and unimproved roads which connect the San Miguel Gate road with state highway eighty-six near Tracy and Gunsight, Arizona. These highways pass by the Mesquite Mountains and traverse the San Simon Wash and the Vamori Wash. The highways are some thirty-five or more miles in length. ses Sheets Number 5, 6, and 10, General Highway Map of Pima County, Arizona, prepared by the Photogrammetry and Mapping Division of the Arizona Highway Department in cooperation with the United States Department of Commerce, Bureau of Public Roads (1961, revised 1972, 1974); and see, General Highway Map of Arizona, prepared by the Photogrammetry and Mapping Division of the Arizona Highway Department (1974). From these facts it appears that there is a high probability that a non-resident found travelling north on the San Miguel Gate road has crossed the international border.

      . If we are wrong, and Officer Antone did not have such power as a tribal police officer, then he was acting as an individual and his acts would not be within the scope of constitutional provisions. United States v. Ogden, 485 F.2d 536 (9th Cir. 1973); cert. den. 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974).


author: ZIRPOLI, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jorge CASTELLANOS-MACHORRO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rosa CASTELLANOS-COTA, Defendant-Appellant.
    Nos. 74-2858, 74-2859.
    United States Court of Appeals, Ninth Circuit.
    March 17, 1975.

      D. Ivan Dirkes (argued in 74-2858), Clarence W. Finley (argued in 74 — 2859), San Diego, Cal., for defendants-appellants.
    William A. Shaw, Asst. U. S. Atty. (argued), for plaintiff-appellee.
    Before BROWNING and WRIGHT, Circuit Judges, and ZIRPOLI, District Judge.

       Honorable Alfonso J. Zirpoli, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

ZIRPOLI, District Judge.

Jorge Castellanos-Machorro (Jorge) and his wife, Rosa Castellanos-Cota (Rosa), appeal from their convictions for transporting, concealing, and conspiracy to transport and conceal aliens illegally within the United States. Their sole contention on appeal is that they were denied due process of law because the Government released certain aliens and returned them to Mexico before appellants were able to interview these aliens. They rely upon this court’s decision in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971). We affirm.

Appellants were the managers of the Flamingo Motel in San Ysidro, California, near the Mexican border. They were indicted, along with four others, in an eleven-count indictment. The first count charged that they conspired to violate 8 U.S.C. section 1324 by encouraging and facilitating the entry into the United States of aliens not lawfully entitled to enter. The remaining ten counts related to the concealment and transportation of five named aliens. As to each of these five aliens, the indictment charged appellants with one count of violation of 8 U.S.C. section 1324(a)(2) and another of violation of 8 U.S.C. section 1324(a)(3). Citing the release of 88 aliens apprehended while allegedly travelling north from the Flamingo Motel and the release of approximately 200 other aliens discovered in the vicinity of the motel, appellants moved to dismiss on the basis of Mendez-Rodriguez, supra. The trial court denied the motion after a hearing.

Appellants then agreed to submit the case to the court based on stipulated facts reciting what the testimony of the Government’s witnesses would be at trial. The Government’s case was strong. In addition to the testimony of the Border Patrol Agent and the five aliens whose transportation formed the basis of the second through eleventh count, the prosecution had testimony from four former drivers for the smuggling operation. The drivers testified that they had each picked up aliens at the motel on orders from one of appellants’ codefendants, giving an envelope containing money to one or the other of the appellants and receiving in return an envelope containing addresses of relatives and friends of the aliens to whom they should be delivered in the Los Angeles area. There was no testimony to connect Rosa with the transactions out of which the second through eleventh counts grew, but three of the drivers stated that they had dealt personally with Rosa on occasions when Jorge was not present. See C.T. 62, 65, 66; cf. C.T. 68. The trial court found Jorge guilty on all eleven counts and found Rosa guilty on the first count. It sentenced Jorge to five years’ imprisonment concurrently on all counts and Rosa to serve one year.

Appellants contend that their ability to defend against the charges made was unconstitutionally foreclosed by the Government when it released the 88 aliens it had apprehended travelling north from the Flamingo Motel. We conclude that the controlling principles for this case were those enunciated in United States v. McQuillan, 507 F.2d 30 (9th Cir., 1974). Appellants there had been convicted of possession of marijuana with intent to distribute it. They were apprehended, along with four Mexican aliens, attempting to cross the border on foot, and backpacks containing marijuana were found nearby. An agent of the Drug Enforcement Administration interviewed the four aliens and decided not to charge them with smuggling the marijuana, mainly because they did not appear to him to be soiled and sweaty — as they would have been had they been carrying the backpacks— while appellants did. The aliens were returned to Mexico. The court affirmed, distinguishing Mendez-Rodriguez on several grounds: (1) in that case there was no question but that the aliens returned to Mexico were in fact eyewitnesses to, and active participants in, the crime with which defendant was charged; (2) in that case appellant had an alibi which might have been corroborated by the missing witness; (3) there was at least a “strong probability” that the missing witness could have provided material and relevant information concerning the events constituting the crime. It concluded that

Mendez-Rodriguez is inapplicable to the instant case because there is nothing to indicate that the aliens here were witnesses to the crime of which appellants were convicted, and nothing to indicate the barest possibility that their testimony could have been of any benefit to the accused.

Applying that standard to this case, it is clear that Jorge has no basis for challenging his convictions on counts two through eleven of the indictment. The five aliens to whom these counts related were all available to him. He makes no claim that any of the 88 aliens who were released had any connection with the transactions that formed the basis for counts two through eleven; their testimony could not conceivably exculpate him. While under the concurrent sentence doctrine, we need not reach his challenge to his conviction on the conspiracy count, see United States v. Moore, 452 F.2d 576 (9th Cir. 1971), we reject his argument on that count for the same reasons we reject Rosa’s argument.

Rosa was convicted only of conspiracy, and she argues that these 88 aliens could have offered testimony that would have helped her defend against that charge. Yet she can offer no persuasive basis for concluding that their testimony would even be admissible. Her argument that it would be admissible seems to devolve into two basic contentions. First, she claims that these aliens could testify that she did not smuggle them. Assuming that to be true, the court cannot see how such testimony would be admissible since it would not in any way impeach the testimony of the drivers who said that they dealt personally with her in the smuggling operations. Indeed, there is no reason to believe that the aliens smuggled by these drivers were in any way privy to the arrangements between them and the drivers. Rosa’s second contention depends upon speculation that these witnesses might open up whole new vistas of defense strategy. She speculates, for example, that some of them might testify that they were actually smuggled by some other person at the Flamingo Motel — a permanent resident of the motel, perhaps. She does not suggest that such a person exists, nor does she explain how such testimony would be admissible in light of the Government’s reliance on the testimony of the drivers who .claim to have dealt personally with her. Even if someone else were engaged in smuggling aliens through the motel, it would not be relevant to her case. In short, Rosa cannot propose any basis for believing that the 88 aliens could conceivably have aided her in defending against the conspiracy charge. It was therefore no violation of her rights for the Government to release them before she had an opportunity to interview them.

The judgments are affirmed.

      . The court is unable to determine with any accuracy what the circumstances of apprehension or release of these 200 aliens were; their release does not seem to be involved in this appeal.

      . In her memorandum in support of her motion to dismiss at trial, Rosa did not stress the arguments discussed in the text, but contended that she was being deprived
      of any opportunity whatsoever to attempt to establish whether or not those 300 or more persons deported by the government may have in fact been entitled to be in the United States, whether or not their last entry into the United States had been within the preceding three years .
      C.T. 49. Such testimony would not, of course, be admissible at trial, since the persons transported by the four drivers successfully reached Los Angeles and were not, to our knowledge, apprehended by the Government. It is additionally worth noting that her argument to the trial court presupposes that these aliens were wrongfully deported, since it relies on the prospect that they had a right to enter the country.


author: JAMES M. CARTER, Circuit Judge.

text:
    David Lowell REWAK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2213.
    United States Court of Appeals, Ninth Circuit.
    March 12, 1975.

      Mary M. Ash, Carl L. McConnell, San Mateo County Legal Aid Society, Redwood City, Cal., Warren Derbidge, Western Idaho Legal Aid, Boise, Idaho, for petitioner-appellant.
    Sidney E. Smith, U. S. Atty., Boise, Idaho, for respondent-appellee.
    Before CARTER and HUFSTEDLER, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge.

Petitioner David Lowell Rewak brought this petition for a writ of error coram nobis, alleging that he had been improperly sentenced pursuant to 18 U.S.C. § 3651 at a time when he was eligible for sentencing as a youth offender under 18 U.S.C. § 5010. Because his sentence had been completed in 1965, petitioner invoked the jurisdiction of the district court under the All Writs Statute, 28 U.S.C. § 1651. The district court denied the writ and petitioner brought this appeal. We reverse and remand for resentencing.

In 1963, petitioner was convicted of interstate transportation of a stolen vehicle, in violation of 18 U.S.C. § 2312. He was given an eighteen months suspended sentence and placed on probation for two years. Although the sentencing judge was aware of petitioner’s age (19 years old), no mention was made of the possibility of sentencing him under the provisions of the Youth Corrections Act, 18 U.S.C. § 5010. The Supreme Court recently held that a sentencing judge must make an explicit “no benefit” finding that an eligible defendant would not benefit from sentencing under the Act before imposing an alternative sentence under a different statute. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).

Petitioner claims that his adult criminal record is causing him difficulty in obtaining employment as a security guard and a nurse because his conviction bars him from obtaining a firearm permit for work as a guard or licensing as a nurse. His petition seeks to obtain re-sentencing under the Act, enabling him to attempt to persuade the sentencing court to give him an early termination from probation under 18 U.S.C. § 5021, thereby clearing his record.

The district court, writing prior to the Supreme Court decision in Dorszynski, supra, held that petitioner had been improperly sentenced under this court’s decision in United States v. Jarratt, 471 F.2d 226 (9 Cir. 1972), but declined to issue the writ. The court reasoned that coram nobis was only available to protect against “manifest injustice”; and, in view of the fact that petitioner had a bad prior record as a juvenile and had committed a misdemeanor while on federal probation, it was most unlikely that he would have been given an early discharge if he had been sentenced under the Act. Petitioner contends first, that Dorszynski should be retroactively applied, and second, that his good record from 1965 until the present would be considered at any resentencing and would create a substantial likelihood of his early discharge.

RETROACTIVE APPLICATION OF DORSZYNSKI

In Belgarde v. United States, 503 F.2d 1054 (9 Cir. 1974), this court applied Dorszynski to a sentencing that had occurred prior to the date of that decision. The question of the retroactivity of Dorszynski was neither raised nor discussed and, accordingly, Belgarde may not be controlling on the question of whether Dorszynski should be applied prospectively only. However, Rewak’s petition on collateral attack was pending when the Supreme Court spoke in Dorszynski.

Further, the court below found that not only had the sentencing court failed to make an explicit “no benefit” finding, but that such a finding could not even be implied from the record as a whole, as required by Jarratt, supra. We conclude that the district court was correct in holding that petitioner had been improperly sentenced under Jarratt.

Accordingly, we do not reach the issue of the retrospective application of Dorszynski, and dispose of the case on the coram nobis issue.

ISSUANCE OF THE WRIT OF ERROR CORAM NOBIS

The district court, applying Jarratt, supra, held that the petitioner had been improperly sentenced, but also held that he had not demonstrated the requisite “manifest injustice” for the issuance of a writ of error coram nobis. This decision was based on the court’s belief that petitioner’s bad prior record as a juvenile and his conviction of a misdemeanor during his federal probation would most likely have precluded his achieving early release from probation even if sentenced under the Act in 1963. Therefore, he had not suffered a “miscarriage of justice” due to the failure to sentence him under the Act.

The district court erroneously assumed that resentencing must be based solely upon the facts as they existed in 1963 to 1965, whereas it is a common practice in resentencing to take into consideration events and conduct occurring subsequent to the original sentence. The required pre-sentence report must be up-to-date. United States v. Carmichael, 152 U.S.App.D.C. 197, 469 F.2d 937, 939 (1972). And, a harsher sentence on resentencing must be justified by reference to conduct of the defendant occurring subsequent to the original sentencing. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969). Upon resentencing, then, the sentencing court will be free to take into account the evidence marshalled by petitioner in support of his “rehabilitation”, and to give it such weight as the court deems just.

On the present record petitioner has alleged, uncontradicted by the Government, that his criminal record handicaps him in obtaining employment as a security guard or a nurse. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) and Holloway v. United States, 393 F.2d 731 (9 Cir. 1968) both indicated the importance of collateral consequences in determining whether to issue a writ of error coram nobis. In Holloway, supra, the court stated that “[o]ne of the purposes of coram nobis is to allow a defendant to attack a conviction notwithstanding the fact that he has completed sentence.” 393 F.2d at 732. See Morgan, supra, 346 U.S. at 512, 74 S.Ct. at 253 (“Although the term has been served, the results of the conviction may persist”).

Petitioner also claims that he has rehabilitated himself, and has presented uncontradicted supporting affidavits. Dorszynski noted that the benefits of sentencing under the Act extend even to those whose previous sentences had expired, for they could request resentencing under the Act and perhaps achieve early termination and expungement of their records. Dorszynski, 418 U.S. at 429, 94 S.Ct. at 3046, n. 6. In light of the strong Congressional policy in favor of the potential rehabilitation of youthful offenders, id. at 433, 94 S.Ct. at 3048, the failure of the original sentencing court to make an explicit (or even implicit under Jarratt) “no benefit” finding, and the uncontested matter in the petition and petitioner’s supporting affidavits, we conclude that petitioner has demonstrated the requisite “manifest injustice” for the issuance of the writ. Petitioner may not avail himself of 28 U.S.C. § 2255 as did Dorszynski. The extension of the rehabilitative goal of the Act to those who have completed their sentences and petitioner’s inability to obtain desired employment warrant issuance of a writ of error coram nobis in this case.

The judgment of the district court is reversed and the cause remanded for re-sentencing.


author: PER CURIAM:

text:
    COLONIAL REALTY CORPORATION, Plaintiff-Appellant, v. John MacWILLIAMS, Jr., et al., Defendants-Appellees.
    No. 596, Docket 74-2280.
    United States Court of Appeals, Second Circuit.
    Argued March 20, 1975.
    Decided March 20, 1975.
    William E. Haudek, New York City (Pomerantz, Levy, Haudek & Block, New York City, on the brief, Richard M. Meyer, A. Arnold Gershon, New York City, of counsel), for plaintiff-appellant.
    Simon H. Rifkind, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief, Morris B. Abram, Richard A. Mescon, Julie Kitzes Herr, New York City, of counsel), for defendants-appellees.
    Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and MacMAHON, District Judge.

       Of the Southern District of New York, sitting by designation.

   PER CURIAM:

This case was affirmed in open court. In order to afford our decision precedential value, however, and conclusively to resolve this question within our circuit, we issue this brief per curiam. We affirm for the reasons stated in open court by Chief Judge Kaufman, and in Judge Gurfein’s opinion below, 381 F.Supp. 26 (S.D.N.Y.1974).

      . Rule § 0.23 of the United States Court of Appeals for the Second Circuit provides in pertinent part:
      Where a decision is rendered from the bench, the court may deliver a brief oral statement . . . Since these statements do not constitute formal opinions of the court and are unréported and not uniformly available to all parties, they shall not be cited or otherwise used in unrelated cases before this or any other court.

      . The statement delivered from the bench was as follows:
      We agree with Judge Gurfein that the rule announced in Stella v. Graham-Paige Motors Corp. [132 F.Supp. 100 (S.D.N.Y.1955), remanded on other grounds, 232 F.2d 299 (2d Cir.), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956)] — that transactions occurring on January 1 and June 30 do not fall within the statutory period of “less than six months” — is dispositive of this case. That principle has not proved unworkable or difficult to apply, nor does it do any violence to the central purpose of the securities law, since the six-month requirement it implements is essentially an arbitrary legislative guidepost. Moreover, every legal research tool an investor might consult, from Professor Loss’s treatise to Jennings and Marsh has cited Stella as controlling authority.
      Under these circumstances, we believe that the doctrine of stare decisis is the wise policy. We do not believe that the defendants should be penalized for patterning their transactions after the formulation, announced in Stella, which has been followed for almost two decades. Accordingly, we affirm.


text:
    Cleo JOHNSON et al., Plaintiffs-Appellees, v. John HARDER, Defendant-Appellant.
    No. 598, Docket 74-2424.
    United States Court of Appeals, Second Circuit.
    Argued March 21, 1975.
    Decided March 26, 1975.

      Francis J. MacGregor, Asst. Atty. Gen., Hartford, Conn. (Robert K. Killian, Atty. Gen., on the brief), for defendant-appellant.
    Norman J. Johnson, Waterbury, Conn. (Waterbury Legal Aid, on the brief), for plaintiffs-appellees.
    Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and MacMAHON, District Judge.

       Of the Southern District of New York, sitting by designation.

   PER CURIAM:

This ease was affirmed in open court. In order to afford our decision precedential value, however, and conclusively to resolve this issue within our circuit, we issue this brief per curiam. For the reasons stated by Chief Judge Kaufman in open court, we affirm on Judge Blumenfeld’s opinion below, 383 F.Supp. 174 (D.Conn.1974).

      . Rule § 0.23 of the United States Court of Appeals for the Second Circuit provides in pertinent part:
      Where a decision is rendered from the bench, the court may deliver a brief oral statement. . . . Since these statements do not constitute formal opinions of the court and are unreported and not'uniformly available to all parties, they shall not be cited or otherwise used in unrelated cases before this or any other court.

      . The statement delivered from the bench was as follows:
      We agree with Judge Blumenfeld that the Connecticut regulations conflict with the federal scheme for providing OASDI benefits. The federal statutes and regulations, taken in conjunction with Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), evidence a clear intention that OASDI funds be used for the beneficiary’s needs, as he or his representative payee may best determine. It would subvert this scheme to permit a state to automatically treat such benefits as available for the needs of a parent or of other children. We are buttressed in our opinion by the interpretive letter written by John Costa, the administrative official charged with interpreting the OASDI provisions, whose views are entitled to great weight. Accordingly, we affirm on Judge Blumenfeld’s opinion below.


text:
    Bjorn JENSEN et al., Plaintiffs-Appellants, v. The NATIONAL MARINE FISHERIES SERVICE (NOAA) et al., Defendants-Appellees.
    No. 73-3125.
    United States Court of Appeals, Ninth Circuit.
    March 11, 1975.

      Douglas M. Fryer (argued), Seattle, Wash., for plaintiffs-appellants.
    Charles F. Mansfield, Asst. U. S. Atty. (argued), Washington, D. C., for defendants-appellees.
    Before TRASK and CHOY, Circuit Judges, and MURRAY, District Judge.

       Honorable William D. Murray, Senior United States District Judge, from the District of Montana, sitting by designation.

   OPINION

TRASK, Circuit Judge:

This is an appeal from an order of the district court dismissing appellants’ complaint for lack of jurisdiction. The action below was for a declaratory judgment and an injunction against the enforcement of a regulation of the International Pacific Halibut Commission [Commission], and of the Northern Pacific Halibut Act of 1937, 16 U.S.C. §§ 772b, 772d, 772e, which provide criminal penalties for the violation of the Commission regulations. Appellees are National Marine Fisheries Service, and Philip Roedel, Director, who seek to enforce the regulations, and the United States.

Appellants are owners and operators of fishing boats who fish in the Pacific Ocean by means of otter trawls. They catch fish by dragging nets along the ocean floor. They complain of a regulation enacted by the Commission which prohibits them from keeping halibut which they catch in their nets incidentally to other fish upon which they concentrate their efforts. The regulation requires them to return the halibut to the sea after they are caught in the nets. In 1971 the scientific staff of the Commission recommended that the trawlers be permitted to keep a certain percentage of the halibut taken in specific areas. The Commission did not adopt the staff’s view and reenacted the regulation. This suit followed.

The Commission was' created by a treaty, the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, March 2, 1953, [1954] 5 U.S.T. 5, T.I.A.S. No. 2900. The treaty provides that the Commission will enact regulations to preserve the fishery with the approval of the President of the United States and the Governor General of Canada. The power of the President to approve the regulations was delegated to the Secretary of State by Executive Order No. 11467, May 1,1969, 34 Fed.Reg. 7271. In 1972 the Commission reenacted the regulation here complained of, and it was approved by the Secretary.

In the district court appellants predicated their claim of jurisdiction on the Administrative Procedure Act [APA], 5 U.S.C. §§ 702, 704, and on 28 U.S.C. § 1346 (Tucker Act). On appeal they assert jurisdiction only under the APA. The bases of appellants’ arguments are: (1) that the Secretary’s action in approving the regulation constituted agency action within the meaning of 5 U.S.C. §§ 702, 704, and therefore is reviewable in federal court; and (2) that the action of Congress in passing 16 U.S.C. §§ 772b, 772d and 772e was an unconstitutional delegation of legislative power to the President because it provided no guidelines concerning the approval of regulations adopted by the Commission.

For the purposes of this appeal the Secretary’s actions are those of the President, and therefore by the terms of the APA the approval of the regulation at issue here is not reviewable. The APA provides: “This chapter [APA] applies, according to the provisions thereof, except to the extent that . . . (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). Since presidential action in the field of foreign affairs is committed to presidential discretion by law, Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948); United States v. Curtiss-Wright Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 81 L.Ed. 255 (1936), it follows that the APA does not apply to the action of the Secretary in approving the regulation here challenged. Indeed, the Supreme Court has held that such decisions are political in nature and therefore do not present a justiciable “case or controversy” within the meaning of Article III of the Constitution. Chicago & Southern Air Lines Inc., supra, 333 U.S. at 111-12, 68 S.Ct. 431.

The bar of nonjusticiability also prevented the district court from assuming jurisdiction of the claim that Congress had unlawfully delegated its power to the President. Appellants have shown no actual injury from the action of Congress complained of. The mere existence of the statutes does not suffice to create a “case or controversy” within the meaning of Article III.

“The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.” United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947).

Since appellants presented only the possibility of their prosecution for violation of the regulation, they have failed to establish the existence of a “case or controversy.” United Public Workers, supra; see O’Shea v. Littleton, 414 U.S. 488, 493-99, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

Even had appellants cleared the hurdle of nonjusticiability, the delegation of power here at issue was not improper.

“[C]ongressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” United States v. Curtiss-Wright Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936).

Congress properly allowed the President discretion to approve the regulations of the Commission.

The order of the district court dismissing appellants’ action for lack of jurisdiction is affirmed.


author: ROSENN, Circuit Judge.

text:
    James M. TUNNELL, Jr., and Mildred S. Tunnell v. The UNITED STATES of America, Appellant. Robert W. TUNNELL and Eolyne K. Tunnell v. The UNITED STATES, Appellant.
    Nos. 74-1675, 74-1678.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 7, 1975.
    Decided March 11, 1975.
    As Amended April 23, 1975.

      Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Richard W. Perkins, William A. Friedlander, Tax Div., Dept, of Justice, Washington, D. C., for appellant.
    James M. Tunnell, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Robert W. Tunnell, Georgetown, Del., pro se and as attys. for other appellees.
    Before ADAMS, ROSENN and WEIS, Circuit Judges.
   ROSENN, Circuit Judge.

Taxpayers, Eolyne K. and Robert W. Tunnell, and Mildred S. Tunnell and James M. Tunnell, Jr., formed two partnerships to develop and operate two mobile home parks known as “Pot Nets” and “Indian Landing” in Sussex County, Delaware. Third parties lease lots on a long term basis in both parks for the purpose of placing thereon mobile homes for use as summer and weekend dwellings.

Both mobile home parks are situated on land which, in its original state, was part marsh, part cultivated, and part forested. Low-lying marshes separated the wooded and cultivated areas from the open waters of Indian River Bay, and, being soft and wet, were unsuited for either buildings or roads. In order to construct the parks, taxpayers designed and dredged channels, called lagoons, and used the material produced by the dredging to fill the marshland, thus enabling the construction thereon of roads, and recreational and living areas.

Bulkheaded lagoons, more aesthetically pleasing than the marshlands, provide a safe and very convenient harbor for the boats of the residents of the parks. The lagoons also provide improved surface water drainage for the flat and low terrain on which the parks were built.

The wooded areas in their original state also were unsuited for construction. Taxpayers therefore thinned out portions of these areas and cleared the remaining land. All of the solid land areas were then graded, shaped, and landscaped for use as home sites, roads, and recreational areas. When completed, the parks featured home sites, private roads, street lights, water and electricity lines, landscaping, and various recreational facilities.

On the partnership tax returns for the years in dispute, taxpayers had depreciated the total cost of constructing the lagoons. Useful lives of ten and twenty years were claimed for the Pot Nets and Indian Landing lagoons, respectively. Taxpayers also had deducted as operating expenses the costs of clearing, grading, landscaping, and staking out the mobile home lots.

The Commissioner disallowed these deductions. Taxpayers paid under protest the taxes allegedly due plus interest, and then brought suit in the district court for a refund. In the district court, they sought to depreciate as capital expenditures the amounts previously deducted as operating expenses in the returns.

The district court held that the lagoons were depreciable, and allowed the depreciation deductions to be based upon the total cost of building the lagoons. The court equated the useful lives of the lagoons with the useful lives of the parks, which it believed the Commissioner had agreed were twenty years. The court also held depreciable over a period of twenty years the costs of clearing, landscaping, and staking out the land because the benefits of these expenditures were peculiar to the operation of the parks. Depreciation deductions for the expenses of grading the land were disallowed because the grading produced benefits which would run with the land after the operation of the parks had terminated. The useful lives of the grading benefits therefore were indeterminate and not depreciable.

The Government appeals. It now concedes that the costs of designing and constructing the lagoons, and of clearing, staking out, and landscaping the land were depreciable. Based on the IRS Depreciation Guidelines, Rev.Proc. 62 — 21, 1962 — 2 Cum.Bull. 418, the Government also concedes the useful lives of the lagoons and of the landscaping to be twenty years. The Government argues, however, that the district court erred in calculating the depreciable basis of the lagoons, and in assigning useful lives of twenty years to the clearing, landscaping, and staking out of the land. We find merit in the Government’s contentions, vacate the judgment, and remand.

The basic rule, according to Treasury regulations, is that depreciation will be allowed on that sum which will, at the end of the estimated useful life of the depreciable property, equal the cost or other basis of the property less its salvage value. Treas.Reg. § 1.167(a)-l(a) (1956). Salvage value is the “amount (determined at the time of acquisition) which is estimated will be realizable upon sale or other disposition of an asset when it is no longer useful in the taxpayer’s trade or business . . ..” Treas.Reg. § 1.167(a)-l(c)(l) (1956). This rule of depreciation, controversial as it may have been at one time, was approved in Massey Motors v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960).

The district court, in allowing taxpayers to depreciate the total cost of designing and constructing the lagoons, apparently assumed that the assets created by these expenditures would have no value at the end of twenty years. Two assets were created: the lagoons themselves, and the material used to fill, grade, and convert the surrounding marshlands into dry usable land. The lagoons, the Government now concedes, will be worthless at the end of twenty years. The fill, however, created additional value in the land, a value having an indeterminate life, and this fill, therefore, is not subject to depreciation. Treas.Reg. § 1.167(a)-2 (1956). We see no reason to disregard this value merely because it is a by-product of the dredging. Indeed, deducting such value in calculating the amount to be depreciated is consistent with the intent of Congress “not to make taxpayers a profit . . . but merely to protect them from a loss.” Massey Motors v. United States, supra, 364 U.S. at 101, 80 S.Ct. at 1416. We believe, therefore, the proper amount recoverable by depreciation is the total cost of designing and constructing the lagoons less the sum it would have cost the taxpayers to obtain the necessary quantity of fill from their own property, if possible, or elsewhere to grade and convert the marshlands into suitable, dry land for the operation of mobile parks.

The Government argues, however, that since taxpayers, by not proving the cost of the land fill and thereby not proving this excess amount, did not meet their burden of proving the amount to which they were entitled as a depreciation deduction. We agree that taxpayers have the burden in a refund suit of proving not only an entitlement to a refund but also the amount of the entitlement. Crosby v. United States, 496 F.2d 1384 (5th Cir. 1974). Had the taxpayers been aware that this excess amount was to have been in controversy, we would also agree that the taxpayers would not be entitled to any refund for depreciation of the lagoons. Both the deficiency notice and the pretrial order, however, show that the Government disallowed the depreciation deductions not because the deductions disregarded the salvage value of the land fill, but because the Government regarded the lagoons as inextricably associated with the land and not depreciable at all. Not until the concluding testimony of the last witness did the Government make explicit the theory upon which it now relies. Under these circumstances, we believe it unfair to deny taxpayers their deductions for failure to meet their burden of proof. We believe that, under the circumstances of this case, justice requires that we remand to the district court so that taxpayers may have the opportunity to prove the amount on which depreciation properly may be recovered.

With respect to the deductions for clearing and staking out the land, the district court, under the impression that the Commissioner had agreed to useful lives of twenty years for the parks, equated the useful lives of these improvements with the useful lives of the parks. We find no fault with such equation. An examination of the record, however, discloses that while the Commissioner had agreed that many of the various physical components of the parks had useful lives of no more than twenty years, he had made no such agreement about the useful lives of the parks. To equate the useful lives of the parks with the useful lives of many of the parks’ physical components was error.

Taxpayers argue that the useful lives of the parks were twenty years for two reasons: (1) so many of the physical components of the parks would wear out within twenty years that the usefulness of the parks would likewise terminate; and (2) the value of the parks inextricably was tied to the lagoons whose useful lives the Government concedes to be twenty years.

A review of the record leaves us unclear as to whether taxpayers have carried their burden of proof on either of their contentions. Therefore, we also remand the case to the district court for further evidence and findings on this issue. See Hoffman Motors Corp. v. United States, 473 F.2d 254 (2d Cir. 1973). To be successful on remand, taxpayers must show that the useful lives of the parks inextricably are related to the useful lives of the lagoons or to the sum of the parks’ physical components that will wear out within twenty years so that the parks’ usefulness qua parks thereupon will terminate.

The judgment of the district court will be vacated and the case will be remanded for further proceedings consistent with this opinion.

The parties shall bear their own costs.

      . Our statement of the facts has been limited to those relevant to this appeal. A fuller version appears in the opinion of the district court. 367 F.Supp. 557 (D.Del.1974).

      . Taxpayers argue that since the lagoons, having useful lives of twenty years, will fill with the dredged material, the fill also has a useful life of only twenty years, and thus will be worthless at the end of that period.
      We do not believe that the record supports the assertion that the lagoons will be filled with the dredged material. Indeed the argument is directly contradicted by the district court’s finding, which we believe is supported by the record, that the land improved by the fill will not wear out. 367 F.Supp. at 563.

      . This formulation assumes that the total cost of designing and constructing the lagoons exceeds the cost of the fill. If this assumption proves to be incorrect, taxpayers will not be able to recover any amount in depreciation.

      . The deficiency, notice provided in pertinent part:
      The property in this case does not meet any of the requirements necessary for the application of the depreciation deduction . . .. The costs of lagoons that is [sic] being disallowed consisted of the initial dredging of the lagoons. In conclusion, a taxpayer must show clear provision for any deduction claimed and the deduction in this case does not qualify under Section 167, but represents a capital expenditure that should be added to the cost of the land. It is clear that land or any cost that is inextricably associated with land is not subject to the depreciation allowance. The reason for this is that it has a life that is not susceptible to measurement .... Therefore, . the depreciation deduction is being disallowed.

      . The pretrial order provided in pertinent part:
      (d) . . . Defendant contends that [the expenditures for creating the lagoons] are for permanent land improvements with indeterminable useful lives for which no depreciation or expense deductions are allowable ....
      ****** (i) Defendant expects to prove that plaintiffs are not entitled to take depreciation deductions for the cost of the initial dredging of lagoons and permanent land improvements ....

      . Since we must remand, we deem it appropriate to note that the Government’s brief concedes that taxpayers’ costs for designing and laying out the lagoons are depreciable over the useful life of the lagoons. These costs, however, were lumped together with payments for staking out mobile home lots and were not separately established. In view of our holding, a breakdown may be necessary should the district court determine that the useful life of the parks qua parks exceeds twenty years.

      . The physical components that will wear out include water systems, electrical systems, television equipment, streets, street lights, playground equipment, piers, docks, bulkheading, slips, groins, jetties, and swimming pools.