author: FEINBERG, Circuit Judge:

text:
    Kathleen M. FINNERTY, Individually and on behalf of all other persons similarly situated, Plaintiff-Appellant, v. James L. COWEN, Individually and as Chairman of the Railroad Retirement Board, and Caspar Weinberger, Individually and as Secretary of Health, Education, and Welfare, Defendants-Appellees.
    No. 78, Docket 74-1668.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 18, 1974.
    Decided Dec. 16, 1974.

      Jonathan A. Weiss, New York City (Toby Golick, Legal Services for the Elderly Poor, Jamaica, N. Y., Ellen Zweibel and Rolf N. Olsen, Jr., Law Students, New York City, Michael Lynch, Albany, N. Y., on the brief), for plaintiff-appellant.
    William J. Dreyer, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty. for the Northern District of New York, on the brief), for defendants-appellees.
    Before DANAHER, FEINBERG and MULLIGAN, Circuit Judges.

       Of the United States Court of Appeals for the District of Columbia Circuit, sitting by designation.

   FEINBERG, Circuit Judge:

Plaintiff Kathleen M. Finnerty, an elderly widow, receives benefits under both the Social Security and Railroad Retirement Acts. Both acts provide for a reduction of benefits when a recipient has certain types of income in excess of an amount fixed by Congress. After both the Social Security Administration and the Railroad Retirement Board reduced plaintiff’s benefits for this reason, she brought suit in the United States District Court for the Northern District of New York, challenging the constitutionality of the reductions. Chief Judge James T. Foley dismissed her complaint for failure to exhaust administrative remedies and for lack of subject matter jurisdiction. For reasons set forth below, we reverse and remand the proceeding to the district court.

I

In 1960, when she reached the age of 62, Mrs. Finnerty was found entitled to retirement insurance benefits of $42.40 a month under the Social Security Act. By 1970, this had been increased to $82.70 a month. In 1966, Mrs. Finnerty’s husband, a retired New York Central employee, died, and she was awarded a widow’s insurance annuity of $63.40 a month under the Railroad Retirement Act. That rate was increased at various times so that in 1970 Mrs. Finnerty was entitled to $75.35 a month and in 1972, $82.85 a month. Benefits under the two Acts are coordinated, according to appellant, so that each month appellant receives no more than her maximum entitlement had she been eligible under only one Act.

Not surprisingly, Mrs. Finnerty has found it necessary from time to time to supplement her income with part-time jobs. In 1970, she received from such work more than the $1,680 the Social Security Act then permitted a recipient to earn annually, while continuing to receive full benefits. Under provisions of that Act, 42 U.S.C. §§ 403, 404, the Social Security Administration thereafter required appellant to repay one half of her “excess earnings” for the month in which her earnings exceeded the permissible amount. In June 1972, the Railroad Retirement Board, referring to information received from the Social Security Administration, also took action because of the excess earnings in 1970. By letter dated June 1, 1972, the Board notified Mrs. Finnerty that she had been overpaid for the year 1970 and that to recoup the excess her railroad annuity would be withheld, effective immediately, for two months. See 45 U.S.C. § 228i(a). Appellant apparently admits that she received advice that she could appeal the overpayment determination. The June 1, 1972 letter did not, however, advise appellant that she might be eligible for waiver of recoupment under the statute and relevant Board regulations or that the regulations provided for other, less drastic methods of repayment. Mrs. Finnerty took no administrative appeal.

In December 1973, appellant commenced the action now before us against Caspar Weinberger, Secretary of Health, Education, and Welfare, and James L. Cowen, Chairman of the Railroad Retirement Board. Appellant alleged that the procedure under which the Board recouped the alleged overpayment denied her due process and violated the relevant statute and regulations because she received no prior notice or opportunity for a hearing or advice as to the right to apply for waiver of recoupment or chance to do so. The other principal claim in the complaint was that the “double deduction” from appellant’s benefits was improper. Both the Railroad Retirement and Social Security Acts require that one half of excess employment earnings be remitted. The amount forfeited is identical under both programs; the Railroad Retirement Act in 45 U.S.C. § 228e(i)(l)(ii) merely incorporates by reference a section of the Social Security Act, 42 U.S.C. § 403(f). According to appellant, beneficiaries situated as she is thus lose all their excess employment earnings, although they receive no greater benefits than persons entitled to benefits under only one program. The latter forfeit only half those earnings. Appellant claimed that this unconstitutionally discriminates against persons eligible for benefits under both programs.

As already noted, Chief Judge Foley dismissed the complaint on the grounds of failure to exhaust administrative remedies and lack of subject matter jurisdiction. This appeal followed.

II

Addressing ourselves first to the exhaustion requirement, there is no doubt that a recipient of benefits under the Railroad Retirement Act must ordinarily utilize administrative appeals before coming to federal court to contest the merits of an administrative determination. Appellant argues, however, that this is not the usual case. Her principal attack is on the procedures used by the Railroad Retirement Board. Thus, appellant points out, she received no notice, hearing or advice as to waiver before suspension of benefits in June 1972. Nor did the Board inquire whether she then had sufficient funds to meet her current daily needs; whether she was waiting for her June check to pay rent and medical bills, or to purchase medicine and food; or whether it would be less of a hardship for her to repay any overpayments actually established gradually over the next few months. According to appellant, the administrative process within the Railroad Retirement Board could not resolve whether these administrative procedures violated the Constitution or the relevant statute and regulations. Similarly, the agency itself could not declare unconstitutional those portions of the Railroad Retirement and Social Security Acts that allegedly discriminate against persons in Mrs. Finnerty’s class. Thus, appellant argues, she was not required to pursue any administrative remedies.

We believe that appellant is correct. Federal agencies like the Board “have neither the power nor the competence to pass on the constitutionality of administrative or legislative action,” Murray v. Vaughn, 300 F.Supp. 688, 695 (D.R.I.1969), citing Oestereich v. Selective Service Bd., 393 U.S. 233, 242, 89 S.Ct. 414, 393 U.S. 233 (1968) (Harlan, J., concurring), since the agency is not called upon to determine facts or to apply its expertise. Indeed, appellees seem to concede this general proposition but argue that the doctrine of exhaustion should apply here because there were “at least two unresolved issues of fact and law central to the appellant’s complaint.” The first is that “due to appellant’s own failure to file a statement of earnings,” the Board was never given a chance to consider that recoupment only for the overpayment in March 1970 was appropriate. The other is that there might have been a substantial issue of statutory construction, on which agency expertise would be useful, involving plaintiff’s claim that the interrelationship of the Social Security and Railroad Retirement Acts unconstitutionally deprived her of benefits. Neither argument justifies dismissal of plaintiff’s complaint to allow exhaustion. Even if the first contention is true, there was still some recoupment, which plaintiff says was effected. by illegal procedures. The second argument deals only with plaintiff’s claim of a worsened position because she was obtaining benefits under both statutes. More importantly, ap-pellees do not indicate on what issues agency expertise would be valuable in evaluating this claim.

Appellees also rely principally on two recent decisions, involving constitutional challenges to sections of the Social Security Act, which required exhaustion of administrative remedies: Bartley v. Finch, 311 F.Supp. 876 (E.D.Ky.1970), aff’d as to judgment of constitutionality, 404 U.S. 980, 92 S.Ct. 442, 30 L.Ed.2d 364 (1971); and Shisslak v. Richardson, 1A CCH Unemployment Ins.Rep. 116,238 (D.Ariz.1971). In Bartley, however, there was no discussion of the futility of exhaustion on constitutional claims. As to Shisslak, in view of the later reversal of that decision, 462 F.2d 1370 (9th Cir. 1972), we doubt that it now clearly supports the proposition for which it is cited. In any event, we agree with other recent opinions dispensing with the exhaustion requirement in situations where the very administrative procedure under attack is the one which the agency says must be exhausted. See McKart v. United States, supra; Martinez v. Richardson, 472 F.2d 1121, 1125 (10th Cir. 1973); Marsh v. County School Bd., 305 F.2d 94 (4th Cir. 1962); Francois v. Bushell, 325 F.Supp. 531, 533 (N.D.Cal.1971). Accordingly, we hold that it was error to dismiss the complaint in this case on the ground that plaintiff failed to exhaust her administrative remedy.

Ill

Turning next to the question of jurisdiction, the district judge considered and rejected plaintiff’s allegation that “six separate statutes” provided a proper jurisdictional basis. More sensibly, in this court appellant presses only three-28 U.S.C. § 1337 (commerce clause), 28 U.S.C. § 1361 (mandamus), and 28 U.S.C. § 1331 (federal question). Since we agree that the first provides the necessary jurisdiction, there is no need to consider the others, although we note that 28 U.S.C. § 1361 has been held applicable in analogous cases under the Social Security Act. Martinez v. Richardson, supra, 472 F.2d at 1125-1126; Mattern v. Weinberger, 377 F.Supp. 906, 914 (E.D.Pa.1974); Elliott v. Weinberger, 371 F.Supp. 960, 967-968 (D.Hawaii 1974); cf. Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971).

28 U.S.C. § 1337 provides that:

The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

In Murphy v. Colonial Federal Savings and Loan Ass’n, 388 F.2d 609 (2d Cir. 1967), we held that, while originally only actions arising under the Interstate Commerce Act were intended to be granted jurisdiction under section 1337, through the years the provision had been construed to cover actions arising under “all acts whose constitutional basis is the commerce clause,” and that “to found jurisdiction upon § 1337, it is not requisite that the commerce clause be the exclusive source of Federal power; it suffices that it be a significant one.” Id. at 614 — 615. This “constitutional basis” test of section 1337 applicability was accepted by Judge McGowan, writing for the three-judge court in Moreno v. United States Dep’t of Agriculture, 345 F.Supp. 310, 312-313 (D.D.C.1972), aff’d, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Cf. Sosa v. Fite, 465 F.2d 1227, 1229 (5th Cir. 1972); Imm v. Union R.R., 289 F.2d 858, 860 (3d Cir.), cert. denied, 368 U.S. 833, 82 S.Ct. 55, 7 L.Ed.2d 35 (1961). See further, C. Wright, Law of Federal Courts (2d ed. 1970), at 109, and cases cited in note 33.

According to its title, the purpose of the Railroad Retirement Act was “To establish a retirement system for employees of carriers subject to the Interstate Commerce Act.” Ch. 382, 50 Stat. 307 (1937), ch. 812, 49 Stat. 967 (1935). It is reasonably clear that a significant constitutional source of congressional power to enact the Railroad Retirement Act is the commerce clause. See California v. Anglim, 129 F.2d 455, 459-460 (9th Cir.), cert. denied, 317 U.S. 669, 63 S.Ct. 74, 87 L.Ed. 537 (1942); cf. Felter v. Southern Pacific Co., 359 U.S. 326, 329, 79 S.Ct. 847, 3 L.Ed.2d 854 (1959). This court has held that section 1337 jurisdiction does not lie in constitutional challenges to the Social Security Act. Aguayo v. Richardson, 473 F.2d 1090, 1101 (2d Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974); Almenares v. Wyman, 453 F.2d 1075, 1082 n. 9 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972). These holdings are distinguishable, however, because the constitutional basis of the Social Security Act is not the commerce clause, but rather the general welfare clause. Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 81 L.Ed. 1307 (1937); ch. 531, 49 Stat. 620 (1935).

Since section 1337 imposes no jurisdictional amount requirement, the fact that only a relatively small sum of money is at issue does not bar Mrs. Finnerty’s suit raising questions eminently federal in character. Thus, the district court had jurisdiction over this action under section 1337 and the rule of Murphy v. Colonial Federal, supra, at least as to the challenges to the procedures used by the Railroad Retirement Board to recoup overpayments and the equal protection claims against the Railroad Retirement Act. Once the district court had jurisdiction over these causes of action, it also had pendent jurisdiction to decide the claim, arising out of the same set of facts, that the double deduction from benefits caused by the joint operation of the Social Security and Railroad Retirement Acts is unconstitutional. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Cf. Hagans v. Lavine, 415 U.S. 528, 543-550, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

Finally, the Government argues that section 1337 jurisdiction is precluded by the specific review provisions of the Railroad Retirement Act, which require that an appeal from the Board be taken in the appropriate United States court of appeals. See note 6 supra. While this would preclude a suit in a federal district court to review an administrative decision of the Board in a particular case, for reasons already given we do not think this scheme of statutory review bars a claim which the administrative agency cannot properly decide. The Government also suggests that the absence of a substantial federal question precludes section 1337 jurisdiction. As will be seen below, we believe that the complaint contains sufficiently substantial claims to withstand a motion to dismiss for lack of jurisdiction.

In sum, we conclude that the district court erred in dismissing the complaint for lack of jurisdiction.

IV

In view of the foregoing, the case must be remanded to the district court, and we think it appropriate to offer guidance on other issues which the judge must now consider. The amended complaint in essence attacks four aspects of the Railroad Retirement Act. The first is the recoupment procedure, and we have called this part of plaintiff’s case the “due process claim.” The remaining three aspects of the Act, all allegedly denying plaintiff the equal protection of the laws, are the interrelationship with the Social Security Act, resulting in an alleged “double deduction”; the limitation on earned income as compared to unearned income; and the exemption from such limitation only for those over 72.

Because of this mixture of theories, plaintiff’s request to convene a three-judge court raises difficult procedural problems. The essence of her due process claim is that she should have received notice and a hearing prior to recoupment by the Railroad Retirement Board and a chance to furnish factual material to the Board before a decision was made on various relevant issues, e. g., whether plaintiff was “without fault,” and whether recoupment “would be contrary to the purpose of . the Act or against equity or good conscience,” because, for example, plaintiff was “dependent upon the current payment . . . for the necessities of life.” Plaintiff’s due process claim is a substantial one, worthy of careful consideration. See, e. g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Martinez v. Richardson, supra; Mattern v. Weinberger, supra, 377 F.Supp. at 916-919; Frost v. Weinberger, 375 F.Supp. 1312, 1320-1326 (E.D.N.Y.1974); Elliott v. Weinberger, supra, 371 F.Supp. at 969-974; Note, Procedural Due Process and the Termination of Social Security Disability Benefits, 46 S.Cal.L.Rev. 1263 (1973). Since the Railroad Retirement Act provides for recoupment without specifying exactly how this is to be done, plaintiff’s due process claim is, strictly speaking, an attack not on the statute but on the recoupment procedures devised by the Board. Our decision in Mills v. Richardson, 464 F.2d 995, 1000-1001 (2d Cir. 1972), indicates, therefore, that it is not necessary to convene a three-judge court to hear such a claim. Under Hagans v. Lavine, supra, 415 U.S. at 543-545, 94 S.Ct. 1372, 39 L.Ed.2d 577, it would be appropriate for the single district judge to decide the due process hearing claim separately.

Plaintiff’s remaining three assaults on the Railroad Retirement Act are based upon the unconstitutionality of the statute itself and would, if “substantial” enough, warrant the convening of a three-judge court. In Hagans v. Lavine, supra, 415 U.S. at 536-543, 94 S.Ct. 1372, the latest decision giving plenary consideration to the substantiality problem in this context, the Court stressed again that a fairly low standard applies. A three-judge court must be convened unless the claim is “wholly insubstantial,” “obviously without merit,” or if “its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject.” Id. at 537-538, 94 S.Ct. at 1379; Goosby v. Osser, 409 U.S. 512, 518, 33 S.Ct. 854, 35 L.Ed.2d 36 (1973). Of course, the district court would also be bound in the same way by applicable decisions of this court. Nieves v. Oswald, 477 F.2d 1109, 1112 (2d Cir. 1973).

Applying the standards enunciated by the Supreme Court, we hold that the district court erred in dismissing as insubstantial the claim that the double deduction from plaintiff’s benefits resulting from the interrelationship of the Social Security and Railroad Retirement Acts denied her the equal protection of the laws. While we indicate no view as to the merits of this claim, it is not so obviously without merit as to be insubstantial. It is at least arguable that the claimed double deduction is highly unjust. Nor is the claim completely foreclosed by any applicable appellate decision. The district court analyzed many cases in the portion of its opinion dealing with substantiality, but even the one most nearly on point, Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), hardly forecloses plaintiff’s claim.

Appellant’s remaining two claims are clearly less persuasive. See Gainville v. Richardson, 319 F.Supp. 16 (D.Mass.1970) (Wyzanski, J.); Carlough v. Richardson, 445 F.2d 864 (5th Cir. 1971), cert. denied, 404 U.S. 1026, 92 S.Ct. 696, 30 L.Ed.2d 676 (1972). Whether they also present sufficiently substantial constitutional issues to require a three-judge court is one of those nice questions engendered by the three-judge court statutes. We assume that plaintiff is more interested in bringing this lawsuit to a successful conclusion than in lifelong litigation on subtle procedural issues, and we note that all of the problems posed by the possible need for a three-judge court could be avoided if plaintiff on remand simply withdraws her prayer for injunctive relief. Rosario v. Rockefeller, 458 F.2d 649, 651-652 n. 2 (2d Cir. 1972), aff’d, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Nieves v. Oswald, supra, 477 F.2d at 1115-1116 and 498 F.2d 802, 803 (2d Cir. 1974); National Org. for Women v. Goodman, 374 F.Supp. 247, 248 n. 1 (S.D.N.Y.1974) (Gurfein, J.). The district court could then decide all the issues before it on the merits and the losing party would be entitled to appeal to this court. Moreover, plaintiff is not now in pressing need of injunctive relief since the allegedly illegal and discriminatory re-coupment has already taken place. Finally, it appears that a declaratory judgment would sufficiently protect plaintiff.

Accordingly, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.

      . Plaintiff also requested that her suit be designated as a class action and that a three-judge court be convened.

      . As will be seen below, see note 10, this assertion is of doubtful validity.

      . Although Mrs. Finnerty earned in excess of the monthly limit (then $140) in six different months, all but one were after she became 72 in May 1970, exempting her from the earnings limitation. Therefore, a deduction of $73 was imposed only for March 1970.

      . Citing 45 U.S.C. § 228i, 20 C.F.R. §§ 255.-4-, 14.

      . Appellant also alleged that the exemptions from the earnings limitation granted to persons over 72 years old, and for unearned income, were irrational and denied equal protection of the laws in violation of the fifth amendment.

      . 45 U.S.C. §§ 228k, 355(f); Smith v. Smith, 459 F.2d 1027 (5th Cir. 1972); Hoffman v. Dodd, 331 F.Supp. 393 (N.D.Ill.1971).

      . McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Williams v. Richardson, 347 F.Supp. 544, 548 (W.D.N.C.1972); cf. King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Wiesenfeld v. Secretary of H.E.W., 367 F.Supp. 981, 985 n. 7 (D.N.J.1973); Griffin v. Richardson, 346 F.Supp. 1226, 1230 (D.Md.), aff’d, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972).

      . Brief for appellees at 7.

      . See note 3 supra as to the limited deduction made by the Social Security Administration. According to appellees’ argument, the Railroad Retirement Board presumably would have limited its action in the same manner had it been fully advised of the facts.

      . While plaintiff correctly characterizes benefits under the Social Security and Railroad Retirement Acts as “coordinated,” see, e. g., 45 U.S.C. § 228e(g)(l); 42 U.S.C. § 402(f), her accompanying assertion — that her total benefits under both acts together are no greater than she would receive under only one of them — appears doubtful. See 45 U.S.C. § 228c(e); 20 C.F.R. §§ 225.6, 237.607; Kolonits v. Railroad Retirement Bd., 346 F.2d 367 (7th Cir. 1965); 1 CCH Unemployment Ins.Rep. 12,513. However, even though a claimant under both acts might receive up to 10% more benefits than a recipient of social security alone, this does not vitiate plaintiff’s basic claim that the double deduction for excess earnings is illegal.

      . These were: 5 U.S.C. §§ 70X-706 (Administrative Procedure Act); 28 U.S.C. §§ X33X, X337, 1346(a)(2) (Tucker Act), 1361; 42 U.S.C. § 405(g) (review of Social Security administrative decisions).

      . As to whether the Government’s contention that there is no possible jurisdictional basis for this action raises serious constitutional questions, see, e. g., Cortright v. Resor, 325 F.Supp. 797, 808-811 (E.D.N.Y.), rev’d on other grounds, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); H. Hart & H. Wechsler, The Federal Courts and the Federal System (2d ed. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler 1973) 356-60, 1158-62. We need not consider this question, however, since here § 1337 supports jurisdiction.

      . 45 U.S.C. § 228i(c).

      . 20 C.F.R. § 225.12(d).

      . We do not consider the dictum in Kelly v. Wyman, 294 F.Supp. 893, 901 n. 20 (S.D.N.Y. 1968), aff’d sub nom. Goldberg v. Kelly, supra, necessarily persuasive in this case. The Supreme Court did not rule on the question, and more importantly, the concept of procedural due process has evolved considerably in the six years since Kelly v. Wyman was decided in the district court.

      . 45 U.S.C. § 228i.

      . Belcher held that the equal protection mandate was not violated by a provision of che Social Security Act which required deductions from disability benefits to offset workmen’s compensation payments, but did not require such deductions for other benefits such as private disability payments. Cf. Goosby v. Osser, supra, 409 U.S. at 518-522, 93 S.Ct. 854 (evaluation of substantiality by distinguishing allegedly similar prior decision).

      . In this case, a three-judge court was convened, which ruled against plaintiffs on the merits.

      . On appeal, the Supreme Court described Rosario as an action for a declaratory judgment only, 410 U.S. at 756, 93 S.Ct. 1245, which may imply at least tacit approval of this procedural device.

      . Moreover, it would appear that a declaratory judgment would, as a practical matter, protect the members of plaintiff’s alleged class and make it unnecessary to consider further plaintiff’s request that her suit be designated as a class action. In any event, on the very general allegations of this complaint regarding the need for a class action, we would not hold that Judge Foley erred in refusing to designate a class. Cf. Rule 11 A, Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York.


source: Caselaw Access Project

author: CHOY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Albert Louis KEEN, Defendant-Appellant.
    No. 74-1468.
    United States Court of Appeals, Ninth Circuit.
    Nov. 27, 1974.
    Certiorari Denied April 21, 1975.
    See 95 S.Ct. 1655.

      Frank August Peters (argued), Tacoma, Wash., for defendant-appellant.
    J. S. Obenour, Asst. U. S. Atty., Tacoma, Wash, (argued), for plaintiff-appel-lee.
    Before DUNIWAY and CHOY, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell E. Smith, Chief Judge, United States District Court for the District of Montana, sitting by designation.

   OPINION

CHOY, Circuit Judge:

On December 6, 1972, a commercial fishing boat, the Hombre, was tied to a dock in Hoquiam, Washington. Its owner Donald Johnson, accompanied by a friend, stepped aboard and fired the ignition. The boat exploded and sank. Johnson lost both legs. The government produced evidence that Albert Keen some weeks earlier had attempted to hire some men to bomb the Hombre, and, failing in that attempt, had himself wired a bomb to the ignition. Keen was convicted by a jury of two violations of 18 U.S.C. § 844(i): first for attempting to destroy, by means of an explosive planted by hired third parties, property used in interstate commerce; and second for accomplishing this goal himself. He appeals. We affirm the conviction.

Keen’s principal contention is that the trial judge erred in admitting into evidence a damaging telephone conversation that had been recorded in violation of state law. A government agent recorded a conversation between Keen and an informer named Roy Doi-ron with Doiron’s prior consent. Under the laws of the State of Washington, a wire tap is illegal unless both parties to the conversation consent. R.C.W. § 9.73.030. The Government relies on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., as permitting governmental wire taps without a warrant when one party consents. 18 U.S.C. § 2511(2)(c). Section 2511(2)(c) is worded as an exception to that section’s general prohibition of judicially non-authorized wire taps, not as a positive authorization of such taps. In other words, section 2511(2)(c) left prior law of consensual wire taps intact. It is not clear, therefore, that Congress showed an intention to displace more rigorous requirements found in state laws.

Nevertheless, Keen overlooks the fact that the exclusionary rule is a remedy integrally bound up with the constitutional protections of the fourth amendment. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). It is a constitutional limitation on the introduction of evidence possessing conceded probative value. The Supreme Court has not been liberal in extending application of the exclusionary rule; it has restricted its application in wiretap cases to those whose fourth amendment rights have been violated directly. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Wire taps obtained with the consent of one party to a conversation do not violate the fourth amendment, however. Holmes v. Burr, 486 F.2d 55 (9th Cir.), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d 744 (1973). See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

Where no constitutional right has been abused, the admissibility of evidence is governed by common law principles, not by local statute. Wolfle v. United States, 291 U.S. 7, 13, 54 S.Ct. 279, 78 L.Ed. 617 (1934); Olmstead v. United States, 277 U.S. 438, 469, 48 S.Ct. 564, 72 L.Ed. 944 (1928); United States v. Woodall, 438 F.2d 1317, 1327 (5th Cir. 1970), cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971). See Fed.R. Crim.P. 26. At common law, evidence was admissible regardless of its illegal origins. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966). Therefore, wiretap evidence obtained in violation of neither the Constitution nor federal law is admissible in federal courts, even though obtained in violation of state law. On Lee v. United States, 343 U.S. 747, 754-755, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Olmstead v. United States, 277 U.S. 438, 469, 48 S.Ct. 564, 72 L.Ed. 944 (1928); United States v. American Radiator & Standard Sanitary Corp., 278 F.Supp. 241, 253 (W.D.Pa.1967), rev’d on other grounds, 388 F.2d 201 (3d Cir.), cert. denied sub nom. Decker v. United States, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 983 (1968). Cf. Zaroogian v. United States, 367 F.2d 959 (1st Cir. 1966).

Doiron’s recorded call to Keen was not an attempt to elicit a confession after the process had shifted from investigatory to accusatory within the meaning of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The Court in Escobedo was concerned with the unequal contest between a suspect taken into custody and a police interrogator. “The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture.” 378 U.S. at 489, 84 S.Ct. at 1764 quoting 8 Wigmore, Evidence (3d ed. 1940) at 309. Keen believed he was talking to an acquaintance by telephone, not to the police. He was subjected to no possibility of moral or physical coercion. He was thus not deprived of his sixth amendment right to counsel.

Keen’s other contentions can be disposed of rather swiftly. The district court exercised its discretion soundly in refusing to order separate trials on the two counts of the indictment. Keen’s destruction of the Hombre and his earlier attempts to employ others to do the deed were natural parts of a single narrative. Bayless v. United States, 381 F.2d 67, 72 (9th Cir. 1967). Evidence produced at a trial on one count would be admissible at a trial on the other to show Keen’s identity, motive, intent, and the existence of “a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other . . ..” Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 90 (1964). Under these circumstances, furthermore, the court did not abuse its discretion in refusing to instruct the jury that each charge and the evidence pertaining to it should be considered separately.

The jury was selected under the “Arizona system.” Thirteen prospective jurors were seated in the jury box and 15 more were seated behind counsel during voir dire. Counsel objects that he was unable to watch the reactions of all the jurors, especially while the judge interrogated the panel collectively. He claims that he consequently was unable to make intelligent use of his peremptory challenges. A trial judge certainly should endeavor during voir dire to give both sides a maximum opportunity to assess the predispositions and reactions of prospective jurors. Nonetheless, he is afforded a large measure of discretion in setting procedures for jury selection. Haslam v. United States, 431 F.2d 362, 364 (9th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). The record indicates a scrupulous attempt by the trial judge to be fair to Keen; we find no abuse of his discretion.

Keen argues that the government failed to produce evidence of the specific effect which Johnson’s boat had on interstate commerce. However, there was ample evidence that the boat was used in commercial fishing and that the catch was shipped interstate. Commercial fishing of the type concerned here is an industry affecting interstate commerce, and the court properly so instructed the jury. To the extent that Keen challenges the power of Congress to enact § 844(i), his argument is foreclosed by Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), in which the Supreme Court clearly rejected an analogous contention.

We have considered carefully appellant’s objections to the sufficiency of the evidence. We cannot say that, considered in a light most favorable to the government, the evidence did not permit the jury to conclude that Keen was guilty beyond a reasonable doubt. United States v. Gardner, 475 F.2d 1273, 1275 (9th Cir. 1973).

      . 18 U.S.C. § 844(i):
      (i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce

      . 18 U.S.C. § 2511(2)(c):
      (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception, [emphasis added]

      .. The exclusionary rule also bars use of evidence obtained in violation of other constitutional guarantees. See, e. g., Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). In addition, federal law may prohibit explicitly the admission of certain types of evidence. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937); Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968) (Communications Act of 1934, ch. 652, § 605, 48 Stat. 1103, forbidding divulgence of intercepted telephone messages, prohibited their introduction as evidence in court). The Court has also excluded confessions obtained in violation of the Federal Rules of Criminal Procedure. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

      . See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966):
      “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. n. 4: “This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.”


author: TONE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Stephen M. ISSOD, Defendant-Appellee.
    No. 74-1367.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 8, 1974.
    Decided Dec. 20, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1578.

      Ivan Michael Schaeffer, Atty., Crim., Dept, of Justice, Washington, D. C., William J. Mulligan, U. S. Atty., Milwaukee, Wis., for plaintiff-appellant.
    William M. Coffey and William Burke, Milwaukee, Wis., for defendant-appellee.
    Before MARIS, Senior Circuit Judge, HASTINGS, Senior Circuit Judge and TONE, Circuit Judge.

       Senior Circuit Judge Albert B. Maris of the United States Court of Appeals for the Third Circuit is sitting by designation.

   TONE, Circuit Judge.

The government appeals from an order of the District Court suppressing evidence.

Defendant Stephen M. Issod was indicted for knowingly and intentionally possessing with intent to distribute approximately 83 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). His motion to suppress the marijuana on the ground that it had been seized in violation of his Fourth Amendment rights, supported solely by a stipulation of facts, was granted by the District Court. United States v. Issod, 370 F.Supp. 1110 (E.D.Wis.1974). The following facts appear from the stipulation:

On February 2, 1972 at approximately 5:25 P.M. one Linda Silverstein appeared at the United Airlines Air Freight Terminal at the San Diego International Airport driving a van containing two trunks, weighing a total of 215 pounds. She turned the trunks over to the freight agent, consigning them to herself at an address in Madison, Wisconsin, with a notation to hold for pick up at Milwaukee airport, and received a copy of the freight bill.

Almost an hour later, at 6:20 P.M., the freight agent, according to the stipulation, “summoned” Agent C. J. McLaughlin of the California Bureau of Narcotics to the United Freight Terminal. At some point the freight agent opened one of the trunks and discovered what he suspected was marijuana. It is impossible to determine from the stipulation whether this occurred before or after McLaughlin arrived. The stipulation, after relating what the freight agent told McLaughlin about the delivery of the trunks, goes on as follows:

“The air freight agent informed Agent McLaughlin that he was suspicious of Miss Silverstein due to the fact that she was reluctant to give him an address in Madison, Wisconsin, and appeared extremely nervous throughout the whole transaction. The freight agent then [When? After he became suspicious or after informing Agent McLaughlin that he had been suspicious?] opened one of the foot lockers and found that it contained what he believed to be kilo bricks of marihuana. When the agent checked the contents of the foot locker and the trunk, he verified that it did in fact contain 88 kilos of marihuana.”

Five kilos of the marijuana were “retained as evidence in San Diego” by McLaughlin. The remaining 83 kilos were “allowed to proceed to Milwaukee,” in the trunks after McLaughlin had notified the San Diego and Milwaukee offices of the Federal Bureau of Narcotics and Dangerous Drugs of the shipment.

The trunks were flown by United to Milwaukee the next day and arrived there at about 4:50 P.M. They were unloaded from the airplane and escorted to the United Airlines Freight Terminal by Special Agent Richard L. Ripley of the Federal Bureau of Narcotics and Dangerous Drugs. They remained under continuous surveillance until the events of the following afternoon.

Late the next morning, February 4, a United Airlines agent at the freight terminal received a telephone call from a person whose voice was described by the agent as that of a young male. The caller inquired about the packages addressed to Linda Silverstein, and the agent responded that the packages had arrived. The caller then said that Linda Silverstein would be in the following day to pick them up. When the agent asked for the caller’s name, “he stuttered, then replied, ‘this is her brother.’ ”

Shortly after 3:00 P.M. the same day, a BNDD agent observed a man and a woman subsequently identified as defendant and Linda Silverstein drive into a parking lot adjacent to the United Airlines Freight Terminal in a green Pontiac sedan, which they parked. They left the car and proceeded to the freight office, where defendant asked one of the airline employees for directions to the men’s room. He then went to the men’s room while Linda Silverstein proceeded to arrange to pick up the trunks. She handed the consignee memo for the two trunks to the freight agent, who went to the back of the office and informed BNDD Agent Streicher that “the people for the Silverstein package were there.” Agent Streicher, dressed as a United Airlines employee, went to the front counter, handed the delivery invoice to Linda Silverstein, and asked her to sign the delivery receipt copy, which she did. He then asked “what type of vehicle she had and she replied that she and the individual she was with were in a Pontiac sedan.” Agent Streicher told her to back the vehicle up to the dock, which she did. Defendant “was waiting to assist in the loading of the packages” at the dock when they arrived. Agent Streicher helped defendant load one of the trunks into the car trunk, and then, with defendant in the rear seat and

Agent Streicher outside the door, they proceeded to load the other trunk into the passenger compartment of the car. While they were thus engaged another BNDD agent and detectives of the Milwaukee Police Department “converged on the vehicle,” and defendant and Linda Silverstein were placed under arrest. The agents and the Milwaukee Police Officers seized the two trunks and searched the vehicle and defendant. The present appeal concerns only the two trunks.

The admissibility of the evidence depends upon the validity of both the search in California and the seizure in Wisconsin. For reasons that will appear later, we are unable to determine on the record before us whether the California search was lawful. It is necessary to remand the case for the taking of evidence relating to that search, however, only if the Wisconsin seizure was valid. We accordingly consider the Wisconsin events first.

We assume for that purpose that the California search was not unlawful as to defendant, for if it were otherwise that would be the end of the matter. The information on which the federal agents and state officers acted in Wisconsin would be tainted and the Wisconsin seizure and search would therefore be unlawful. Wong Sun v. United States, 371 U.S. 471, 484-487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Assuming, however, that defendant was not deprived of Fourth Amendment rights by the California search, the information of the BNDD agents in Wisconsin that the boxes contained contraband was not tainted, and they were entitled to act upon that information.

During the 22-hour period the boxes were under the federal agents’ surveillance or control in Wisconsin before defendant and his companion arrived to take delivery, the agents could have obtained a warrant to search and seize the boxes. They could not, however, have obtained a warrant to arrest the person who would claim the boxes or to search the vehicle into which the boxes would be loaded, because they could not satisfy the Fourth Amendment’s requirement of an affidavit “particularly describing the place to be searched, and the person . . . to be seized” until those persons arrived to pick up the boxes. See Lowrey v. United States, 161 F.2d 30, 33 (8th Cir. 1947), cert. denied, 331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858 (1947).

Furthermore, the agents were not “obliged to intercept incipient criminality before the participation of others therein [could] be ascertained.” United States v. Pryba, 502 F.2d 391, 400 (D.C.Cir. 1974), cert. denied 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828, 1975; United States v. Schrenzel, 462 F.2d 765, 775 (8th Cir. 1972), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); United States v. Sizer, 292 F.2d 596, 599 (4th Cir. 1961). They were entitled to allow the delivery to be completed before arresting the consignee and her confederates. See United States v. Johnson, 469 F.2d 973 (5th Cir. 1972); United States v. Canesco, 465 F.2d 383 (5th Cir. 1972); United States v. Quinones-Alvarado, 464 F.2d 12 (5th Cir. 1972). Cf. also Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

The BNDD agents were therefore justified in waiting until defendant, who was not the named consignee and who left Linda Silverstein to present the delivery receipt to the freight agent and to arrange to take delivery of the boxes while he went to the men’s room, performed some unequivocal act with respect to the trunks, i. e., loading them into the car, before arresting him. By that time the trunks were in the car, and the search of the car was governed by Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), as applied in United States v. Menke, 468 F.2d 20, 22-24 (3rd Cir. 1972). See United States v. Curwood, 338 F.Supp. 1104, 1114-1115 (D.Mass.1972). Accordingly, the seizure and subsequent search of the boxes in Wisconsin were lawful unless based upon information obtained by an unlawful search in California.

We turn then to the warrant-less California search. The freight agent opened one of the trunks in the absence of any probable cause that would have authorized issuance of a warrant. Whether information obtained in that search is usable by the federal government depends upon whether the state narcotics agent participated. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). An inspection by a carrier without the participation of state or federal authorities is not a government search. United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973); United States v. Echols, 477 F.2d 37, 39 (8th Cir. 1973), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58 (1973); United States v. Blanton, 479 F.2d 327 (5th Cir. 1973); United States v. Tripp, 468 F.2d 569 (9th Cir. 1972), cert. denied, 410 U.S. 910, 93 S.Ct. 965, 35 L.Ed.2d 272 (1973); Clayton v. United States, 413 F.2d 297, 298 (9th Cir. 1969), cert. denied, 399 U.S. 911, 90 S.Ct. 2204, 26 L.Ed.2d 565 (1970); United States v. Pryba, supra, 502 F.2d 391, 397-402.

Unless the government is chargeable with participation in the initial opening of one of the trunks by the freight agent, neither the contents of that trunk nor testimony about what it contained should be suppressed. If the freight agent could lawfully open the trunk, he could also, upon discovering the contraband, lawfully notify law enforcement authorities of his discovery and show it to the state officer. See, e. g., United States v. DeBerry, supra, 487 F.2d 448, 450-451; United States v. Tripp, supra, 468 F.2d 569, 570; United States v. Pryba, supra, 502 F.2d 391, 401— 402. The officer’s opening of the other trunk without a warrant would not require suppression of the marijuana contained in the first trunk, if it can be identified, or testimony about it by the officer of the freight agent. At most, the marijuana found in the second trunk and testimony about it are subject to suppression.

The only information in the record bearing on whether the freight agent opened the first trunk on his own initiative without any request by the state narcotics agent (United States v. DeBer-ry, supra, 487 F.2d 448) or with sufficient participation by the state agent to make the search chargeable to the government (compare Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) with Gold v. United States, 378 F.2d 588 (9th Cir. 1967)) is the portion of the stipulation quoted above. The District Court inferred that the trunk was opened after the state agent arrived and with his participation, but we have read the stipulation carefully and are unable to reach the same conclusion. We cannot determine whether the state agent participated in the initial search. If he did not, the government is not chargeable with the search. It is therefore necessary to vacate the order and remand the case to the District Court with directions to take evidence to determine the facts surrounding the California search.

The government also argues that defendant does not have standing to challenge the legality of the California search. See Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Brown v. United States, 411 U.S. 223, 227-230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). This issue is raised for the first time in this court. Ordinarily a reviewing court will not reverse a judgment on a ground not raised in the trial court. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Wagner v. Retail Credit Co., 338 F.2d 598, 601 (7th Cir. 1941). We need not decide whether the failure to raise the standing issue below should preclude us from considering it now, because we are remanding for another reason, and upon remand the government will be entitled to raise the issue in the District Court. Betts v. Board of Education, 466 F.2d 629, 632 (7th Cir. 1972).

The order suppressing evidence is reversed, and the case is remanded for further proceedings consistent with this opinion. The District Court’s consideration of the motion to suppress not being a trial within the meaning of Circuit Rule 23, further proceedings will be conducted before the same judge.

Reversed and remanded.

      . Although the stipulation is unclear on this point, the trunks were apparently placed in two cardboard boxes after they were delivered by Silverstein and before they left San Diego. The first mention of the boxes is in the recital of what Agent McLaughlin told Special Agent Streicher of the Milwaukee Office of the Bureau of Narcotics and Dangerous Drugs in the telephone call notifying him of the shipment of marijuana. From that point on in the stipulation the two items are described as “parcels” or “packages.” We assume that the boxes were removed before delivery to Silverstein, but in any event we refer to “trunks” throughout.


text:
    The REEDSBURG BANK, Plaintiff-Appellee, v. APOLLO, Defendant-Appellee, v. Herbert R. NICHOLLS and Joan S. Nicholls, Proposed Intervenors-Appellants.
    No. 73-1921.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 17, 1974.
    Decided Jan. 7, 1975.

      Daniel W. Hildebrand, Madison, Wis., for proposed intervenors-appellants.
    James R. Clark, Milwaukee, Wis., for appellee.
    Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge J. Sam Perry of the Northern District of Illinois is sitting by designation.

   TONE, Circuit Judge.

This is an appeal from an order denying a motion to intervene in an in rem foreclosure proceeding under the Ship Mortgage Act, 46 U.S.C. § 911, et seq.

Between July 1970 and December 1972, plaintiff Reedsburg Bank made loans to Western River Steamboat Co., Ltd., to finance the construction of the Apollo, a stern-wheel vessel being built for use in the Wisconsin Dells as a sightseeing vessel, and to provide operating capital for Western River’s tourist operations in the Dells. The loans were in part secured by personal guarantees of Herbert R. Nicholls and Joan S. Nicholls, stockholders of Western River, who seek to intervene in this action.

In August 1972 Western River and the bank entered into a term loan agreement covering advances that had been made up to that time, and Western River gave the bank new promissory notes in the principal amounts of $75,000, $45,000, and $20,000, secured by a first preferred mortgage on the Apollo. An earlier note for $30,000, which intervenors had guaranteed, was incorporated into the $75,000 note. Whether intervenors guaranteed the full amount of the $75,000 note is in dispute.

When Western River defaulted, the bank commenced this action in admiralty against the vessel to foreclose the mortgage. Neither Western River nor the Nicholls were named as defendants. The bank exercised the option afforded by the Ship Mortgage Act to proceed in rem solely against the vessel. Western River did not appear. The Nicholls filed a motion to intervene, seeking a declaratory judgment that their guarantees were void or, in the alternative, an adjudication that the proceeds of the foreclosure be allocated to the amounts they had guaranteed and that the bank be precluded from later obtaining a deficiency judgment against them. The Nich-olls, who, like the bank, were residents of Wisconsin, had no property interest in the vessel and were not parties to the ship mortgage.

Gerald Matthews, an officer of Western River and also a guarantor of its indebtedness to the bank, filed a claim in the amount of $20,625.58 against the vessel for labor and services rendered to Western River. Pursuant to a stipulation between the parties and the proposed intervenors, the vessel was sold by the marshal at a public sale, the bank bidding it in at $70,000. The proceeds were deposited with the clerk to await resolution of the competing claims of the bank and Matthews.

After hearing, the District Court denied the motion for intervention and confirmed the sale of the vessel. The only issues still pending before the District Court concern the validity and priority of Matthews’ maritime lien. After the denial of intervention in this case the bank commenced an action in the Wisconsin state court against Western River, the Nicholls, and other guarantors to obtain a deficiency judgment and enforce the guarantees.

The District Court did not hold, and the appellee bank does not argue, that the Ship Mortgage Act precludes intervention. The right to intervene depends upon Rule 24, Fed.R.Civ.P.

The Nicholls sought alternatively to intervene as of right under clause (2) of paragraph (a) of Rule 24 and by permission of the court under clause (2) of paragraph (b) of that rule. The District Court held that the Nicholls did not satisfy the requirements for intervention of right and that they failed to establish the existence of an independent ground of federal jurisdiction for their claims, which the court held to be required for permissive intervention.

Appealability

Although appellee has not challenged the appealability of the order denying intervention, it is appropriate to observe that we find the order appealable. Under the traditional rule, an order denying intervention of right is unconditionally appealable, but an order denying permissive intervention is appealable only if the district court has abused its discretion. 3B J. Moore, Federal Practice 1124.15 (2d ed. 1974). This distinction, which means that the court of appeals must consider the merits of the discretionary intervention to determine whether the order is appealable, has no practical significance. Its only effect is to require that, if we agree with the district court on the merits, we dismiss the appeal instead of affirming. The Second Circuit, in reviewing a denial of intervention of right, has taken the position that the distinction should be eliminated:

“Commentators seem to agree that requiring appealability of an order to turn on the merits serves no useful purpose. They would prefer to consider all denials of intervention final orders and therefore appealable, but would reverse only when a party is entitled to intervention as of right or the trial court abused its discretion in denying permissive intervention. See Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 720, 740-51 (1968); 3B J. W. Moore, Federal Practice 124.15 at 24-565 (1969).
“Given the aim of the 1966 amendments to the Federal Rules which substituted ‘a practical rather than a conceptual emphasis in questions of intervention,’ [C. Wright, Handbook of the Law of Federal Courts 328 (2d ed. 1970)] the proper and sensible course is to assume that an order denying intervention is final for the purposes of appeal, and to go directly to the merits.” Ionian Shipping Co. v. British Law Insurance Co., 426 F.2d 186, 189 (2d Cir. 1970).

We agree with this analysis and proceed to consider the appeal from the order denying intervention on the assumption that we have jurisdiction to consider both the questions of intervention of right and permissive intervention. The standard of review of an order denying permissive intervention remains, of course, whether the district court abused its discretion.

Intervention oí Right

To intervene of right under Rule 24(a)(2), the Nicholls were required to satisfy three conditions:

(1) claim “an interest relating to the property or transaction which is the subject of the action,” i. e., “a significantly protectable interest,” Donaldson v. United States, 400 U.S. 517, 531 [91 S.Ct. 534, 27 L.Ed.2d 580] (1971);
(2) be “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest”; and
(3) show that their interest is not “adequately represented by existing parties.”

The District Court held that the first two conditions were not satisfied. We agree.

The “property or transaction which is the subject of the action” is the vessel Apollo and the preferred ship mortgage. The section of the act under which the action was brought, 46 U.S.C. § 951, provides as follows:

“A preferred mortgage shall constitute a lien upon the mortgaged vessel in the amount of the outstanding mortgage indebtedness secured by such vessel. Upon the default of any term or condition of the mortgage, such lien may be enforced by the mortgagee by suit in rem in admiralty. Original jurisdiction of all such suits is granted to the district courts of the United States exclusively.”

Notice by publication is required, but “actual notice of the commencement of any such suit” need be given only to the master, other ranking officer, or caretaker of the vessel and any person who has a recorded undischarged lien under 46 U.S.C. § 925. Failure to give notice is not a jurisdictional defect but merely subjects the libelant to damages in the amount of his interest in the vessel terminated by the suit. The Ship Mortgage Act also permits an action in personam against the mortgagor, 46 U.S.C. § 954(a), but the bank did not elect to proceed in that manner.

The sole function of the in rem proceeding is to foreclose the mortgage, effect the sale of the vessel, and establish the priority of all claims directly against the vessel. Upon proof that the mortgage qualifies as a “preferred mortgage lien,” “all pre-existing claims in the vessel are to be held terminated and thereafter are to attach to the proceeds,” which are to be distributed among the lienors. Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 35, 55 S.Ct. 31, 35, 79 L.Ed. 176 (1934). Since the Nicholls do not contend that the mortgage fails to qualify as a preferred ship mortgage under the definition in 46 U.S.C. § 922, or that they qualify as lienors, the narrow scope of the in rem foreclosure proceeding does not actually touch upon their interest, as the District Court properly concluded.

The Nicholls do not claim a proprietary interest in the vessel or a maritime lien against it; nor do they claim to be parties to the ship mortgage. Their claims relate solely to potential exposure to personal liability created, not by the ship mortgage or the foreclosure of the ship mortgage, but by personal guarantees given by them. Since the bank has not sued on the guarantees in this action, there is no possibility that the judgment would have an adverse effect on their liability under the guarantees. Similarly, the Nicholls’ claimed interest in requiring the proceeds of the mortgage sale to be applied to amounts guaranteed by them relates to the contract of guarantee and not to the foreclosure of the mortgage or the determination of the relative priority of liens.

The only arguable interest the Nicholls would have had in the subject of this action was in insuring that the price at which the vessel was sold at judicial sale was not unreasonably low. This possible interest, however, they did not plead or argue. In fact they allege in their proposed complaint that the vessel was worth at most approximately $75,000. They stipulated that the vessel could be sold, did not oppose the confirmation of the sale at $70,000, and do not now contend that the price was below the fair market value.

The Nicholls have shown no “significantly protectable interest,” Donaldson v. United States, supra, 400 U.S. at 531, 91 S.Ct. 534, economic or otherwise, in the foreclosure of the ship mortgage. Accordingly, they failed to satisfy the first condition of Rule 24(a)(2).

Even if the Nicholls’ claimed interest were assumed to relate in some way to the subject of this action and thus satisfy the first requirement of Rule 24(a)(2), their intervention of right must fail, because as a practical matter the disposition of this action will not impair or impede their ability to protect that interest. They will be entitled to assert in the action commenced in the state court to enforce their guarantees any defense or claims for relief they may have, including those related to the commercial reasonableness of the bank’s action, the validity of their guarantees, and the proper application of the proceeds of the mortgage sale. The District Court stated that it was not passing upon the merits of the intervenors’ claims and that they would be free to assert those claims in another forum. The bank has represented in its brief and in oral argument in this court that it will not contend in any state proceeding that the Nicholls’ claims should have been adjudicated in this federal action, and that representation, made for the purpose of inducing this court to act, would estop the bank from making any such contention in the state court if it were disposed to do so.

The Nicholls’ concern that the “exclusive jurisdiction” of the “admiralty court” may preclude them from presenting their claims in a state forum is also without foundation. The admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333 “is ‘exclusive’ only as to those maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien.” The state courts are left “ ‘competent’ to adjudicate maritime causes of action in proceedings ‘in personam,’ that is, where the defendant is a person, not a ship or some other instrument of navigation.” Madruga v. Superior Court, 346 U.S. 556, 560-561, 74 S.Ct. 298, 301, 98 L.Ed. 290 (1954). Thus even if the guarantors’ claims were viewed as maritime in character, the state court would be free to adjudicate them.

The same allocation of exclusive federal jurisdiction is made in the Ship Mortgage Act. Only the jurisdiction to foreclose the lien of the mortgage and to determine its priority in relation to that of other liens in a proceeding in rem is made exclusive by the Act. (46 U.S.C. § 951.) The Act confers federal jurisdiction over an action in personam in admiralty to obtain a deficiency judgment against the mortgagor (46 U.S.C. § 954(a); see also Supplemental Rules for Fed.R.Civ.P. for Certain Admiralty and Maritime Claims, Rule C(l)(b)), but leaves the state court with concurrent jurisdiction over such an action. Cf. Madruga v. Superior Court, supra, 346 U.S. at 560-561, 74 S.Ct. 298. There is no suggestion anywhere in the Act that issues other than those necessarily arising in the foreclosure action and issues concerning the enforceability of other maritime liens are within the exclusive jurisdiction of the federal court or must be adjudicated in the foreclosure action.

Clearly, the federal court does not have exclusive jurisdiction over claims relating to guarantees of indebtedness secured by a ship mortgage. In fact, as we hold below, an independent basis for federal jurisdiction must exist if such claims are to be asserted in the federal court.

The Nicholls also contend that if, as a result of the federal judgment, the bank receives the proceeds from the sale of the vessel without restriction, their bargaining position with regard to the balance still due will be adversely affected. Assuming that so nebulous an interest were cognizable under the rule, we see no realistic basis for the contention. The judgment in this case will determine only how much of the sale proceeds will be distributed to the bank, not how the bank must allocate these proceeds after it receives them. If the bank applies the proceeds incorrectly, the Nicholls will have an opportunity to challenge that application in the state court action brought to enforce the guarantees. There could be no significant impairment of the Nicholls’ negotiating position by the judgment in this action.

Permissive Intervention

The court may permit intervention under Rule 24(b)(2) “when an applicant’s claim or defense and the main action have a question of law or fact in common.” The district judge denied permissive intervention on the ground that it requires “the existence of an independent ground of jurisdiction to support it and I can discover in this record no independent ground of jurisdiction to support the intervention by the Nicholls.” Apparently counsel for the Nicholls did not contend in the District Court, as they do here, that an independent ground of jurisdiction was unnecessary but rather argued that “either explicitly or implicitly the Ship Mortgage Act provides some independent ground of jurisdiction,” a contention which the court rejected.

The general rule is that permissive intervention in an in personam action other than a class action must be supported by independent grounds of jurisdiction; but that it need not be so supported in an in rem action. 3B J. Moore, Federal Practice f 24.18[1] (2d ed. 1974). The rationale for this rule is that in an in rem proceeding the intervenors’ right is likely to ripen to an absolute right to intervene at a later stage, and the intervenors’ claim “should properly be regarded as ancillary, for the intervenors’ claim or defense can be heard in no other forum.” Id., at 24-752. In an in personam action, on the other hand, when the only basis for intervention is a common question of law or fact, there is no compelling reason to permit the litigation of a claim or a defense that could not have been asserted had the interve-nor been an original plaintiff or defendant. Id.

In the case at bar, although the main action is in rem, the Nicholls’ claims, which are in the nature of anticipatory defenses, are in personam and relate to claims in personam against the Nicholls which the bank has not asserted in this in rem action. Unlike a case in which the intervenor asserts some right against or interest in the res in a proceeding in rem, the Nicholls sought only an adjudication of their rights against the mortgagee. The Nicholls’ claims could not have been asserted in the federal court in the absence of the main action. They can be heard later in another forum. The same considerations that require an independent basis of jurisdiction when the main action is in personam are present here. The District Court properly held that the intervenors’ claims should be dismissed for want of jurisdiction.

If, moreover, the district judge had considered the question of permissive intervention on its merits, he would' have had to conclude that the requirement of Rule 24(b)(2) was not satisfied. The Nich-olls’ claims and the main action do not have any question of law or fact in common. No issue that could conceivably have arisen within the narrow scope of the ship mortgage foreclosure proceeding would have been the same as any issue the Nicholls sought to raise as interve-nors.

We agree with the District Court that neither the Ship Mortgage Act nor federal law emanating from that Act provides an independent ground of federal jurisdiction for intervenors’ claims and defenses. Nothing in the Act deals with the rights of guarantors of loans secured by ship mortgages or the manner in which the mortgagee is to apply proceeds received from the sale of collateral to reduce the indebtedness secured by the collateral.

The District Court’s order denying intervention was correct. The Nicholls will be entitled to raise in the state proceeding brought, inter alia, to enforce their guarantees, all of the questions which they seek to raise here. Accordingly, the order of the District Court is affirmed.

Affirmed.

      . The history of one case cited by appellants indicates that defenses to recovery on a guarantee of a ship mortgage are available even after a deficiency judgment has been entered by default in a suit combining in rem foreclosure and in personam action for deficiency judgment. In United States v. Krch, 1969 A.M.C. 1204 (N.D.Cal.1969), the guarantor argued discharge by novation in a subsequent federal action on the guarantee, and was apparently permitted to develop his defenses fully, though they did not prevail.


author: CASTLE, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Blackburn JACKSON, Defendant-Appellee.
    No. 74-1488.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 23, 1974.
    Decided Jan. 14, 1975.
    Rehearing and Rehearing En Banc Denied April 15, 1975.

      James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellant.
    Thomas H. Ramsey, Chicago, 111., Terence F. MacCarthy, Federal Defender Program, Chicago, 111., for defendant-ap-pellee.
    Before HASTIE  and CASTLE, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.

       Senior United States Circuit Judge William H. Hastie of the United States Court of Appeals for the Third Circuit, sitting by designation.

   CASTLE, Senior Circuit Judge.

The Government appeals under 18 U.S.C. § 3731 from a judgment of the district court dismissing its indictment of defendant Blackburn Jackson because of the Government’s refusal to comply with a pretrial order entered December 18, 1973, and for the additional reason that the defendant had been denied his right to a speedy trial. We find that the defendant has not been deprived of his sixth amendment guarantee of a speedy trial, but we also conclude that the district court properly required the Government to make a pretrial disclosure of witnesses to be called at the trial.

I.

The facts of this case are extensively detailed in the district court’s reported Memorandum Opinion, United States v. Blackburn Jackson, 374 F.Supp. 168 (N.D.Ill.1974). Briefly, on November 9, 1972, Blackburn Jackson was indicted on five counts of mail theft in violation of 18 U.S.C. § 1708 and was released on bail. Trial was set for February 26, 1973. This trial date was vacated when the Government informed the court that it anticipated the return of a new indictment, and on March 13, 1973 the Government filed a superseding indictment charging Jackson and others with conspiracy to commit mail theft and to forge Government checks in violation of 18 U.S.C. § 371, and with additional counts of mail theft and forgery in violation of 18 U.S.C. §§ 495 & 1708. Trial was scheduled for June 11, 1973, but for reasons undisclosed by the record, the trial was rescheduled for September 10, 1973. Prior to the September trial date, the case was reassigned to Judge Marshall as part of his initial calendar. Because older cases on his calendar were scheduled for trial in September, Judge Marshall vacated the September trial date, and set the case for trial on January 8, 1974, with a pretrial conference to be held on December 18, 1973.

At the pretrial conference, the Government sought a continuance because other commitments of the government attorney assigned to the case prevented the attorney from meeting the January 8 trial date. Defendant Jackson objected to any continuance, and orally demanded an immediate trial. However, on the Government’s motion, and in consideration of the court’s then pending trial schedule, the case was continued until April 15, 1974. At the close of the pretrial conference, the court issued an order which, inter alia, required both parties to submit a list of witnesses to be called at trial.

No action was taken by the Government with respect to the order until immediately before trial, now scheduled to begin April 8, 1974. On April 1, the Government requested clarification of the December 18 order, and on April 2 indicated that insofar as the order required the Government to submit its witness list to the defendant, it would not comply. Based on this refusal, and on the additional finding that the Government’s actions had deprived the defendant of his right to a speedy trial, Judge Marshall dismissed the indictment as to defendant Blackburn Jackson.

II.

A finding that the speedy trial guarantee has been violated must be evaluated in light of the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which four factors are weighed: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. As the Supreme Court noted, such a balancing test compels us to approach speedy trial cases on an ad hoc basis. Id.

We turn first to a consideration of the prejudice that the defendant has experienced. In Barker, the Court noted that what constitutes prejudice should be assessed in light of the interests that the speedy trial right was designed to protect, and the Court identified three such interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. at 2193. Of these three interests, however, only the second is of concern here. The first interest is not involved because the defendant was free on bail. As to the third interest, the defendant has never claimed, nor did the district court find, that his defense on the merits has been impaired.

The speedy trial guarantee was designed to protect against “emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial ..” Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973). See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). However, in United States v. Annerino, 495 F.2d 1159, 1163-1164 (7th Cir. 1974), we stated that “conclusory allegations of general anxiety and depression . . . constitute a showing of only minimal prejudice of a kind normally attending criminal indictment,” and found that this prejudice alone does not result in a constitutional violation without “a better showing on the other factors [length of delay and reason for delay] . . . .” See also United States v. DeTienne, 468 F.2d 151, 158 (1972), cert. denied 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973). The defendant here, in demanding a speedy trial, did not even make any conclusory allegations of emotional stress.

Further, an important indicator of the effect of any stress exerted on the defendant by the delay is the frequency and force of the defendant’s own demands for a speedy trial. Barker, supra, 407 U.S. at 529, 92 S.Ct. 2182. The defendant’s first demand for immediate trial did not occur until the December 18 pretrial conference, approximately thirteen months after indictment, and was then only made orally in response to the Government’s request for a postponement of the January 8 trial date. The defendant again demanded a speedy trial in a written motion to dismiss on April 3. In neither of these instances, however, did the defendant allege any prejudice, nor did the defendant forcefully press his demand. The demands were not frequent, were merely pro forma, and did not indicate the presence of any actual prejudice. See United States v. Ricketson, 498 F.2d 367, 372 (7th Cir. 1974). Thus, the district court could only find that the defendant had been prejudiced “by the mere pendency of the charges made against him.” (374 F.Supp. at 178). We conclude, therefore, that at most the defendant has suffered only that presumed prejudice accompanying the criminal process, and this, without more, does not amount to a constitutional violation.

At some point, however, this prejudice becomes intolerable when considered in light of the length of delay and the reasons for the delay. United States v. Annerino, supra, 495 F.2d at 1163; cf. United States v. Macino, 486 F.2d 750, 752 (7th Cir. 1973). That point is clearly not reached here.

The district court found that “the length of delay between indictment and disposition on the merits has been and will be unreasonable . . . .” (374 F.Supp. at 178). In calculating the length of delay, however, the period of delay attributable to review of an order appealable under 18 U.S.C. § 3731 should not be considered. The Supreme Court in United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966) reiterated that the speedy trial right is consistent with delays, and that while it secures rights to the defendants, “[i]t does not preclude the rights of public justice.” Section 3731, as amended, was designed to permit the Government to appeal from adverse dismissals, see United States v. Clay, 481 F.2d 133 (7th Cir.), cert. denied 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973), and insofar as appellate review is necessary for the fair administration of “public justice,” the resulting delay is both unavoidable and justifiable. Thus, in a similar context, the court in United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887, 890 (1972) excluded for speedy trial purposes the delay resulting from appellate review of an interlocutory trial order on the ground that “[t]he right of the Government to appeal decisions in the defendant’s favor before jeopardy attaches is designed to protect the interest of society in lawfully prosecuting criminal offenders . . ..” Although the Government should have pressed its appeal in a more timely fashion, we cannot find that this indicates that the appeal was taken in bad faith or for the sole purpose of delay, and in the absence of such findings, to put the onus of appellate delay on the Government would severely infringe the Government’s right to appeal.

Excluding the period of delay attributable to appeal, the delay at issue here measures seventeen months from the return of the indictment on November 9, 1972, until its dismissal on April 8, 1974. This delay is not extraordinary, and we have tolerated longer periods of delay in speedy trial cases. See, e. g., United States v. DeTienne, supra.

The reasons for the delay were essentially threefold: (1) the desire of the Government to seek a superseding indictment; (2) trial court congestion and case reassignment; and (3) Government unpreparedness. The first two reasons for delay must be weighed against the Government, Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182, but in these circumstances they do not weigh heavily. In United States v. Annerino, supra, 495 F.2d at 1163, we held that although the desire of, the Government to proceed against several defendants in a single trial does not warrant unquestioning acceptance, it nonetheless deserves some deference where the charge is conspiracy. And while the delay resulting from trial court congestion and case reassignment must rest against the Government, we do not here accord it much weight. United States v. Joyce, 499 F.2d 9, 20 (7th Cir.), cert. denied 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); United States v. Jones, 154 U.S.App.D.C. 211, 475 F.2d 322, 324 (1972).

As the Government concedes in its brief, it must bear full responsibility for the three month delay occasioned by Government counsel’s inability to meet the January 8 trial date. The delay, however, was brief, and it was not an attempt to gain a tactical advantage over the defendant or to harass him, circumstances which would weigh .very heavily against the Government. Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182. In view of the minimal prejudice the defendant has presumedly experienced, and in light of the fact that the total length of the delay was not inordinate and the reasons for a large part of it tolerable, we cannot find that the unwarranted three month delay tips the scale in the defendant’s favor. United States v. Joyce, supra, 499 F.2d at 21. Accordingly, we have weighed the Barker factors, and conclude that the defendant has not been deprived of his right to a speedy trial.

III.

The district court also dismissed the indictment because the Government refused to comply with the December 18 pretrial order directing the parties to submit to the court a list of witnesses to be called at trial. The Government contends that the district court exceeded its authority and abused its discretion in compelling such discovery. We disagree.

The Federal Rules of Criminal Procedure provide that “the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.” Rule 57(b). As presently constituted, however, Fed.R.Crim.P. 16(b) does not give the defendant the right to discover the Government’s list of prospective witnesses. United States v. Verse, 490 F.2d 280, 281-282 (7th Cir. 1973). The Government translates this to mean that the court lacks authority to order the Government to divulge its list of witnesses because such an order would be inconsistent with Rule 16(b).

To support its interpretation, the Government first relies on 18 U.S.C. § 3432 which provides, inter alia, that a person charged with a capital offense shall be furnished a list of witnesses to be produced at trial. Urging the application of the maxim inclusio unius est exelusio alterius, the Government argues that the statute demonstrates that Rule 16(b) was not designed to allow discovery of witness lists in noncapital cases. Second, the Government points to Proposed Fed.R.Crim.P. 16(a)(1)(E), 62 F.R.D. 271, 305 (1974) which would permit the defendant to discover the Government’s list of potential witnesses, and asserts that this similarly indicates that the present rule does not permit the discovery ordered here.

However, as Judge Marshall noted, the Government fails to distinguish between the right of the defendant to demand a list of witnesses, and the authority of the court to order such disclosure under the appropriate circumstances. 18 U.S.C. § 3432 and Proposed Rule 16(a)(1)(E) indicate that to give the defendant a right to demand a list of witnesses would be inconsistent with the Rules, but they do not in any manner suggest that the court does not possess the authority to order that such a list be disclosed. Thus, the present rule is no bar to the order entered here, and the courts that have considered the issue before us have recognized that the district court possesses, in the exercise of its inherent power to promote the proper administration of criminal justice, the authority to require the Government to disclose its list of witnesses to be called at trial. United States v. Richter, 488 F.2d 170, 173-174 (9th Cir. 1973); United States v. Baum, 482 F.2d 1325, 1331 (2d Cir. 1973); United States v. Jordan, 466 F.2d 99, 101 (4th Cir. 1972), cert. denied 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973); United States v. Moceri, 359 F.Supp. 431, 434 (N.D.Ohio), mandamus denied without reaching merits sub nom., United States v. Battisti, 486 F.2d 961 (6th Cir. 1973); United States v. Leichtfuss, 331 F.Supp. 723, 732 (N.D.Ill.1971).

The district court’s power is not unlimited, but the cases cited by the Government do not suggest that the district court lacks the authority to enter the present order. In Miner v. Atlass, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960) the' Supreme Court held that a district court sitting in admiralty lacked the power to order the taking of oral depositions for the purpose of discovery even though the General Admiralty Rules did not specifically prohibit such discovery. That case, however, provides no assistance to the Government, for as the Court itself noted, the decision was based on the “particular nature and history” of the enactment of the General Admiralty Rules. Id. at 649, 80 S.Ct. 1300.

The Government also relies on several cases in which procedures utilized by the trial court were held to be unauthorized. See United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972); United States v. Gray, 438 F.2d 1160 (9th Cir. 1971); United States v. Spock, 416 F.2d 165, 183 (1st Cir. 1969). The holdings of those cases, however, were based on the fact that the procedures employed by the trial judge conflicted either with protections accorded the defendant or with procedures firmly established by the Rules. The cases do not suggest that the district court lacks the inherent power, exercisable under appropriate circumstances, to assure the proper and orderly administration of criminal justice, and the conflicts encountered in those cases are not present here. In the absence of such conflicts, we agree with Judge Marshall’s analysis that the Rules are “more regulators than creators of authority,” (374 F.Supp. at 174), and find that the district court does possess the power to order the Government to disclose its list of witnesses to be called at trial.

The Government next claims that even if we find that the requisite authority exists, the trial court nonetheless abused its discretion because the discovery order was entered sua sponte and without a showing of materiality and reasonableness. The Government relies on United States v. Richter, supra, 488 F.2d at 174-175, which held that although the district courts do have authority to order disclosure of the list of prospective witnesses to be called at trial, the disclosure requested by the defendant should be made pursuant to the reasonableness and materiality standards of Fed.R.Crim.P. 16(b). However, Fed.R. Crim.P. 2 provides that the Rules “shall be construed to secure simplicity in procedure, fairness in administration and the elmination of unjustifiable expense and delay.” With this in mind, we do not believe, and do not think that Richter suggests that, under the appropriate circumstances, the discretion employed by the district court in the exercise of its authority need be limited to a defense showing of materiality and reasonableness.

The proper circumstances which would permit the court to order the Government to produce its list of witnesses are present here. The defendant and others were charged with conspiracy to commit mail theft and other substantive violations. During the course of status reports, the Government advised the trial court that the case would be quite lengthy because of the number of defendants and checks involved. At the December 18 pretrial conference, the Government again stated that the trial would be quite time consuming because they estimated that 100 checks and 100 witnesses would be involved. The case was described as “tedious [though] not particularly complex.” (374 F.Supp. at 172).

In light of these circumstances, Judge Marshall designed his pretrial order to attain the following objectives: (1) to enable the court to determine, with some degree of accuracy the length of time to be allocated to the trial of the case, thereby facilitating docket control; (2) to expedite the trial by fostering more purposeful cross-examination; and (3) to protect against the adverse consequences of the situation in which a juror is acquainted with a witness by permitting knowledgeable voir dire questions. (374 F.Supp. at 175 — 177). In this context, considering the requirements necessary to prove the elements of the offenses charged, and in view of the large number of defendants, witnesses, and exhibits thought to be involved, we find these objectives were proper and that the court’s order would further their attainment. If necessary, the Government could have, but here did not, seek a protective order under Fed.R.Crim.P. 16(e). We find, therefore, that the trial court did not abuse its discretion by ordering the mutual disclosure of witnesses to be called at trial.

Accordingly, the court’s dismissal based on the Government’s failure to comply with the December 18 pretrial order to the extent that it required the Government to provide a list of witnesses to be called at trial was proper. The judgment is affirmed in part; reversed in part.

Affirmed in part; reversed in part.

      . The defendant in his brief alleges that he was arrested for violation of 18 U.S.C. § 1708 on August 25, 1972, and that he was re-arrested for violation of that same section on September 28, 1972. The record contains two complaints charging the defendant with violations of the above section, one dated August 24, 1972, the other dated September 29, 1972, but the record does not indicate that these complaints were acted upon. Because the circumstances surrounding the alleged arrests are unclear, we find, as did the district court, that this prosecution originated with the return of the indictment on November 9. Even assuming, however, that the protection of the speedy trial guarantee was triggered on August 25, this would not affect our result.

      . In United States v. Cox, 475 F.2d 837, 841 (9th Cir. 1973), the court upheld a trial court’s dismissal of an indictment on speedy trial grounds while an appeal of an order granting suppression was pending. The court, however, did not set forth the reasons for finding that the defendant’s speedy trial guarantee had been violated, and thus the decision is no barrier to the result reached here.

      . Dismissal on this ground is also appealable under 18 U.S.C. § 3731. United States v. Battisti, 486 F.2d 961 (6th Cir. 1973); United States v. Richter, 488 F.2d 170 (9th Cir. 1973) . See also United States v. Clay, supra.

      . The present case is therefore unlike United States v. Feinberg, 502 F.2d 1180 (7th Cir. 1974) because there the court found that the Jencks Act specifically prohibited the trial court from ordering the Government to produce before trial statements made by a defendant to a prospective government witness.

      . Although Rule 57(b) provides that the courts may proceed in any lawful manner not inconsistent with the Rules, there exists some doubt as to whether 57(b) was intended to authorize the type of order entered here. See, e. g., United States v. Richter, supra, 488 F.2d at 173 n. 8. Unlike the Government, however, we do not find that the above decisions are “bottomed” on Rule 57(b), and our decision is not based on its scope.

      . Judge Marshall noted that he does not order such disclosure where the circumstances do not require it. 374 F.Supp. at 175 n. 9.