author: WIDENER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Molden ATKINSON and Jimmy Cicero Atkinson, Appellants.
    Nos. 74-1034, 74-1035.
    United States Court of Appeals, Fourth Circuit.
    Argued Sept. 30, 1974.
    Decided Feb. 24, 1975.

      Robert N. Levin, Washington, D. C. (Silver, Freedman & Levin, Washington, D. C., John D. McConnell, Jr., and Broughton, Broughton, McConnell & Boxley, Raleigh, N. C., on brief), for appellants in both cases (Gene Braswell, Goldsboro, N. C., on brief for appellants in No.'74-1034; Herbert B. Hulse, Goldsboro, N. C. on brief for appellants in No. 74-1035).
    Christine A. Witcover, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., and Joseph W. Dean, Asst. U. S. Atty., on brief), for the U. S.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge.
   WIDENER, Circuit Judge:

The appellants, Molden and Jimmy Atkinson, whose cases were consolidated for trial, were convicted by a jury of both counts of a two count indictment for possession of heroin with intent to distribute and for distribution of heroin, both in violation of 21 U.S.C. § 841(a)(1). Jimmy Atkinson, a young adult offender, was committed to the custody of the Attorney General for 15 years, and Molden Atkinson was committed for 15 years on each of the two counts with the terms to run consecutively.

They have raised, through briefs filed by two different sets of attorneys, a number of issues regarding their trial. These issues include: (1) Were they prejudiced by remarks and comments of the trial judge and entitled to a mistrial? (2) Did the trial court commit reversible error in its charge to the jury with respect to their alibi defense? (3) Whether the government failed to disclose information as to the criminal background of a prosecution witness and whether there was such perjured testimony by that witness as to require a new trial? (4) Did the court err in not ordering production under the Jencks Act, 18 U.S.C. '§ 3500, of a report filed by a prosecution witness? (5) Did the court improperly allow a prosecution witness to identify the appellants following a photographic line-up? There is an additional issue raised as to Molden Atkinson only which is whether the trial court committed reversible error in imposing consecutive sentences for the two counts on which he was convicted. We find no error except that relating to the sentencing of Molden Atkinson.

The convictions here stem from a heroin purchase made by an agent of the State Bureau of Investigation of North Carolina, Curtis Douglas. On July 18, 1973, Douglas made contact with the Atkinsons in Goldsboro, North Carolina. Present with Douglas at the time was Arthur Burke, a confidential informant, who introduced Douglas to Molden Atkinson. Burke was present throughout the transaction. Douglas asked Molden Atkinson about the possibility of purchasing some heroin and Molden thereafter agreed to sell it to Douglas. Douglas, Burke and Molden Atkinson then proceeded to Molden’s home, where they were joined shortly by Jimmy Atkinson, who had earlier conferred with his brother out of the presence of the two prosecution witnesses. The heroin was then produced by the Atkinsons and Douglas paid them $1200. At trial, they presented an alibi defense.

Issues (1) and (2), relating to the court’s comments at trial and the court’s instruction as to the alibi defense, were raised in a brief filed by the retained counsel who represented the appellants at trial. Also raised in that brief was the question of the sentencing of Molden Atkinson. After this brief was filed, Molden Atkinson filed a pro se petition on behalf of himself and his brother Jimmy. In this petition, he disclaimed the first brief and requested additional time to file another brief. Thereafter, new counsel was retained by the appellants and a second brief was filed. In the second brief, the issues above numbered (3), (4) and (5) were raised.

As to the first issue, the appellants contend they were denied a fair trial by the court by virtue of remarks and actions of the trial court in the presence of the jury. Appellants allege that the trial court erred in not granting their motion for mistrial based on the challenged remarks. In their brief on appeal, appellants contest statements by the trial judge to the effect there should be no repetitious cross-examination, comments by the judge directing counsel to limit certain cross-examination relating to the alibi defense, inquiries by the court of counsel as to the purpose and relevance of certain direct examination of a defense witness, requests by the court to limit certain lines of questioning, allowance by the judge of a “line” or “running” objection to the defense counsel as to certain testimony, and a statement by the trial judge that he hoped to hear certain testimony before the court recessed for Thanksgiving. The defendants do not claim error in any one of these actions and statements of the court, but contend that taken together they could only have the effect of prejudicing the jury against them.

A motion for mistrial based on certain acts and statements of the trial judge was made after the evidence was con-eluded, in chambers, and not transcribed by the court reporter. The trial court, giving the defendants the benefit of the doubt, summarized the substance of the motion as an objection to the demeanor of the court in its attempt to pressure the attorneys to shorten the examination and cross-examination and also as an objection to the court’s attempts to bring out certain facts. ■

Counsel then stated that their motion for mistrial was “certainly not as extensive as the court indicated.” They stated they were not badgered and that they were able to present their evidence “pretty well,” but that they felt they had been prejudiced by a statement the court had made regarding cross-examination of a government witness. What the defendants apparently referred to was the judge limiting the cross-examination of an expert chemist who had identified the substance as heroin. After an extensive cross-examination as to the way he made the tests, the judge finally required the defendants’ attorney to ask a conclusory question to get to the point. We find no error. The trial judge may impose reasonable limits on the extent of cross-examination. 3A Wigmore on Evidence, § 944 (Chadbourn rev. 1970).

In reviewing the statements of the trial court, we find that the court did not abuse its discretion. A reading of the transcript does not show any atmosphere hostile to the defendants; neither does it show any partiality of the trial judge nor any indication by him as to his opinion as to the character or credibility of the defendants, or their guilt.

It is the duty of a trial judge to see that the facts of the case are properly developed and that the jury is not left in confusion. United States v. Ostendorff, 371 F.2d 729, 732 (4th Cir. 1967), cert. den., 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229 (1967). In fulfilling this duty, the court may act to clarify testimony and restrict questioning that the court feels will be unproductive and confusing. We stated in Simon v. United States, 123 F.2d 80, 83 (4th Cir. 1941), cert. den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941), that it “cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or a moderator at a town meeting.” The trial judge, through strictly maintaining impartiality, has “no more important duty than to see that the facts are properly developed and that their bearing upon the question at issue are clearly understood by the jury.” Simon, at 83.

In addition, the trial judge here properly instructed the jury to draw no inference against either side to whom an admonition of the court may have been addressed, not to assume the court held any opinion on the matters to which its questions related, and to judge for themselves the questions of fact of the case without regard to what the court may have said during the trial. We are of opinion there was no error in refusing to grant the mistrial, and so far as the cumulative effects of the trial judge’s rulings are claimed to have deprived the defendants of a fair trial, we find no error, much less plain error as claimed.

The second issue, raised as plain error, is whether the trial court committed reversible error in its charge to the jury with respect to the alibi defense. The portion of the charge now being challenged is: “If, after consideration of all the evidence you have a reasonable doubt whether the defendants were present at the time and place the alleged offense was committed, you should acquit the defendants, otherwise you should convict them.”

Appellants assert that this language may have left the jury with an incorrect impression as to the requirement that the government must prove beyond a reasonable doubt all the elements of the offense charged. In support of this assertion, the appellants cite Baker v. United States, 324 A.2d 194 (D.C.C.A. 1974). In that case the Court of Appeals for the District of Columbia held prejudicial an instruction that read: “If the Government does prove to you beyond a reasonable doubt that the Defendant did not act in self-defense, then you must find the Defendant guilty.”

The Baker case is distinguishable from this case in two significant respects. First, in Baker there was objection at trial to the contested instruction, while no objection was made by the appellants in the case at hand. Second, even assuming that error might be found in the contested instruction in isolation, such was cured by the trial judge when he instructed the jury that they were “not to single out one instruction alone as stating the law, but you must consider the instructions as a whole,” and that, as to both counts of the indictment, “I remind you that the burden is always upon the prosecution to prove beyond a reasonable doubt every essential element of the offense charged in the indictment.”

Reading the contested instruction with the charge as a whole, we find no plain error and decline to reverse. F.R.Cr.P. 52(b).

The third issue raised is an assertion that the government failed to disclose information as to the criminal background of prosecution witness Arthur Burke and that Burke committed such perjury as to require a new trial. Burke testified that he had not been arrested or convicted of any narcotics related offense, but admitted to narcotic addiction and prior convictions of non-narcotics related offenses. After the trial, appellants’ counsel investigated Burke’s background and discovered a variety of narcotics arrests of Burke, many or all of which were not prosecuted. Also discovered were convictions of a non-narcotics related nature that Burke had failed to disclose at trial.

Appellants contend that the drug cases not prosecuted were highly relevant in light of Burke’s denial that he was a paid informer. The jury, appellants assert, had a right to know the nature and quality of the witness.

Defendants contend the government violated its duty to disclose information they now feel it should have discovered relating to Burke’s background. There is, however, no allegation that the United States Attorney had knowledge of any perjury or the information alleged to have been withheld. Indeed, defendants’ brief takes pains to point out there is no claim that the prosecuting attorney had this knowledge at the time of the trial. We do not feel the government prosecutor here had any duty under the standard set in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), to disclose information to the defense when it is not even charged that government attorneys were in possession of the information. Giglio goes to the denial by a witness, who was an accomplice, of an agreement not to prosecute him, which the government later admitted existed, not the denial by a witness, not an accomplice, on cross-examination of facts which are cumulative and go to his credibility, and the true state of which was not known, and may not be inferred to have been known by this record, to the prosecutor.

In connection with the evidence as to Burke’s prior arrests, appellants filed with this court a motion under F.R. Cr.P. Rule 33 for Stay of Further Proceedings and Remand, based on the newly discovered evidence as to Burke’s criminal background. We deny the motion. First, the defendants have not shown they meet the requirement that they show that the failure to learn of the evidence was not due to lack of diligence on their part. United States v. Costello, 255 F.2d 876, 879 (2nd Cir. 1958), cert. den. 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); 2 Wright, Federal Practice and Procedure, Criminal, § 557, pp. 515, 520-22. We feel also that a motion for a new trial on the ground of after discovered evidence should more properly be made in the district court. See 2 Wright, Federal Practice and Procedure, Criminal, § 557, p. 534. While we deny the motion for remand, the denial is without prejudice to the defendants to make the motion for a new trial on the ground of after discovered evidence in the district court should they be so advised. People of the Territory of Guam v. Inglett, 417 F.2d 123 (9th Cir. 1969). We express no opinion upon the merits of such motion if made.

The defendants assert error by the court in not ordering the production under the Jencks Act, 18 U.S.C. § 3500, of a written report by the witness Douglas. At trial, they did not request the report but rather sought only the notes used by the witness to refresh his memory, which were turned over to them.

Since no motion for production of the report was made at the trial, they may not now complain. The language of the Jencks Act is clear that a request is necessary to require production under that Act. Without such a motion, failure of the government to voluntarily produce the report is not error. Its existence was known of and discussed during the examination of the witness.

The defendants also challenged a photographic identification made by Douglas prior to trial, and allege that the use of a photographic array may have tainted his identification of the appellants, and that the government should have produced the photographs for inspection by the defense. The fact that Douglas had viewed a photographic array in which he identified the defendants was first brought out on cross-examination. They did not object to the reference to the photographic line-up nor did they request that the pictures be produced. There is no indication in the record that the array was impermissibly suggestive. The record rather suggests there was substantial opportunity and an independent basis for Douglas to have made an identification without needing assistance from a photographic array. Neither do we think there was any duty to turn over the photographs to the defense when no request was made for them.

Appellant Molden Atkinson asserts that the two 15-year sentences imposed on him exceeded the permissible sentencing limit for his involvement in the drug transaction. On the facts of this case, we agree. His possession of the drug was not shown to exist separately from the moment in which the heroin was transferred to the government agent. Only when he produced the heroin for the sale was his possession shown to exist. Under these circumstances, while the single act was proof of two offenses, we are of opinion it was not the intent of Congress to increase the maximum sentence when two violations of the same subsection of the statute are shown by a single act. Cf. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).

Our ruling as to sentencing under 21 U.S.C. § 841(a)(1) is based on the limited factual situation presented here. We do not reach the question of multiple sentencing under other situations which may or may not arise.

The judgment of the district court is accordingly affirmed except as to the sentencing of Molden Atkinson. The case is remanded to the district court for the sole purpose of its vacating one of the two sentences imposed on him.

Affirmed in part; reversed in part; and remanded.

      . The two counts of the indictment:

        First Count — That on or about the 18th day of July, 1973, in the Eastern District of North Carolina, JIMMY CICERO ATKINSON and MOLDEN ATKINSON did knowingly, willfully and intentionally possess with the intent to distribute a controlled substance as defined in Title 21, United States Code, Section 812, Schedule I(b)(10), said controlled substance being and consisting of approximately five and one-quarter (5lA) spoons of heroin, in violation of the provisions of Title 21, United States Code, Section 841(a)(1).

        Second Count — That on or about the 18th day of July, 1973, in the Eastern District of North Carolina, JIMMY CICERO ATKINSON and MOLDEN ATKINSON did knowingly, willfully and intentionally distribute a controlled substance as defined in Title 21, United States Code, Section 812, Schedule I(b)(10), said controlled substance being and consisting of approximately five and one-quarter (5V-i) spoons of heroin, in violation of the provisions of Title 21, United States Code, Section 841(a)(1).

      . The relevant portion of the statute, 21 U.S.C. § 841 reads:
      (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; .

      . Burke freely admitted on the witness stand a substantial criminal record and that he was an informer. He stated that he was only paid his expenses, and the very narrow question of whether he was paid anything else or whether he was a regular informer is apparently the real thing the defendants take issue with.
      We have also considered Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1934) (known use of perjured testimony); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (deliberate failure to correct denial, by a witness who was an accomplice, of an agreement to recommend a reduced sentence, which agreement had been made by the assistant prosecuting attorney); and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (failure of prosecuting attorney to disclose exculpatory statement upon request). We are of opinion none of these cases require reversal here.


source: Caselaw Access Project

author: WINTER, Circuit Judge: WIDENER, Circuit Judge

license: Public Domain

text:
    The AGE OF MAJORITY EDUCATIONAL CORPORATION, and Glen Burnie Adult Sex Education Club, by its President, David Wilder, Appellants, v. David PRELLER et al., Appellees. MODERN SOCIAL EDUCATION, INC., and Maryland Adult Sex Education Club, by its President, Richard Kivert, Appellants, v. David PRELLER et al., Appellees.
    Nos. 73-1394, 73-1395.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1973.

    Resubmitted In Banc Oct. 10, 1974.
    Decided March 4, 1975.

      Burton W. Sandler, Towson, Md., for appellants in No. 73-1394.
    William E. Seekford, Towson, Md., for appellants in No. 73-1395.
    Thomas G. Young, Asst. Atty. Gen. of Md. (Francis B. Burch, Atty. Gen., on brief), for appellees in Nos. 73-1394 and 73-1395.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, In Banc.

       Argument was before a panel consisting of BOREMAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.

   WINTER, Circuit Judge:

On the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the district court dismissed the complaints of two allegedly nonprofit “sex education” clubs, which had instituted suit before they began operations seeking a declaratory decree that various provisions of Article 66A (the Maryland motion picture censorship statute) and Article 27 (the Maryland criminal code) of the Annotated Code of Maryland were unconstitutional, and an injunction to restrain defendants from issuing criminal process, including search warrants, from making arrests or seizures and from instituting prosecutions against plaintiffs by reason of their exhibition and sale of printed sexually-oriented materials and films depicting explicit sexual activity. The district court also declined to request that a statutory three-judge court be convened to adjudicate plaintiffs’ claims that certain of the Maryland statutes were unconstitutional as applied to allegedly bona fide educational organizations. Additionally, the district judge denied plaintiffs’ motion to disqualify him on the ground that he was personally biased and prejudiced against plaintiffs. Finally, the district court declined to permit one of the plaintiffs to file an amended complaint. All of these rulings are sought to be reviewed in these appeals.

We sustain all of the rulings of the district court, albeit one for reasons different from those assigned by it, except dismissal of the complaints insofar as plaintiffs seek declaratory judgments. The holding in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), decided after the decision of the district court, requires the latter result. Accordingly, we affirm in part and reverse in part, and remand for further proceedings.

I.

In a thorough and complete opinion, Modern Social Education, Inc. v. Preller, 353 F.Supp. 173 (D.Md.1973), the district court set forth the allegations of plaintiffs’ complaints and the context in which the litigation was instituted, all, as the district court so aptly characterized, as “another battle in the long standing war between enforcement officials of the State of Maryland and those who seek to show or distribute sexually oriented films or printed materials in the City of Baltimore” and its southern environs. 353 F.Supp. at 174. The district court recounted how, immediately after a three-judge district court had upheld the validity of Maryland motion picture censorship law, including its application to the exhibition of motion pictures in coin-operated machines to individuals in private booths, plaintiffs were incorporated, purportedly as nonprofit educational corporations, and made plans to operate “sex education” clubs which admitted as members all applicants except law enforcement officers who would pay the membership fee. Members obtained the privilege of viewing films of explicit sexual activity upon payment of other charges and of purchasing sexually-oriented printed material. The clubs were located in singularly inappropriate locations for bona fide educational institutions, and, indeed, were in the same locations where other enterprises, unabashedly commercial and not educational, had been located until their operations were suspended as the result of the activities of law enforcement personnel in carrying out the prohibitions of Maryland’s motion picture censorship and obscenity laws.

We need not recount the facts in this opinion. Reference to that of the district court suffices except to point out that while plaintiffs were not only assiduous in timing the institution of litigation in the district court so that filing of the suits preceded actual operations and the possibility that plaintiffs would be prosecuted in a state court, plaintiffs were also successful in controlling the sequence of events. When the complaints were filed, the fact is that no prosecutions against plaintiffs had begun in any Maryland court under any Maryland statute.

II.

Younger v. Harris held that, when prosecution under a state statute has begun, the possible unconstitutionality of that statute does not justify an injunction against good attempts to enforce it absent a showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. 401 U.S. at 54, 91 S.Ct. 746. The main prop of the holding was the strong federal policy “to permit state courts to try state cases free from interference by federal courts.” 401 U.S. at 43, 91 S.Ct. at 750. This policy, in turn, is grounded upon the general equitable doctrine that equity should not interpose its decree where the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief, and upon the accepted concept of “comity,” that is, “a proper respect for state functions, a recognition . . . that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” 401 U.S. at 44, 91 S.Ct. at 750.

Of course in Younger, an indictment under California law had been returned against Harris before he sought to invoke federal equitable relief so that there was no occasion for Younger to decide if the special principle of nonexercise of federal jurisdiction which it restated had any application when a state prosecution was imminent, anticipated, or threatened, but not yet begun, when federal litigation was instituted. 401 U.S. at 41, 91 S.Ct. 746. We, however, had occasion to consider this question in Joseph v. Blair, 482 F.2d 575 (4 Cir. 1973), decided seven months after the district court decided the instant cases. There, we held that the Younger special principle of nonexercise of federal jurisdiction “neither authorized nor required the non-exercise of federal jurisdiction” when it appears that “there is neither criminal nor civil litigation pending in a state court in which questions sought to be raised in federal litigation by the same parties or those in privity with them are present.” 482 F.2d at 578. See also Lynch v. Snepp, 472 F.2d 769 (4 Cir. 1973). And this interpretation of Younger is confirmed by the analysis of its holding in Steffel v. Thompson, supra. Thus, we are constrained, consistent with our prior holdings, to disagree with the district court’s conclusion in the instant cases that “Younger v. Harris bars the granting of federal injunctive relief in a case such as the present one in which criminal prosecution of the plaintiffs not only was expected and imminent at the time the federal action was filed but also was commenced within a short time thereafter.” (Emphasis added.) 353 F.Supp. at 180.

It does not follow, however, that reversal of the decree dismissing the complaints insofar as they sought injunctive relief is required. Younger v. Harris clearly recognizes that, even aside from the special rule of nonexercise of federal jurisdiction when a plaintiff seeks to enjoin a pending state prosecution, the granting or withholding of equitable relief is to be determined by general principles of equity. Our decision in Joseph v. Blair also recognizes this principle. There, we affirmed the grant of interim equitable relief by Judge Merhige, where no state prosecution was pending, upon his finding that plaintiffs would suffer irreparable injury, if injunctive relief were denied; but in reversing Judge Kellam’s dismissal of the complaint on the authority of Younger, even though no state prosecution was pending, we did not direct the granting of interim or permanent equitable relief. Rather, we directed further proceedings and indicated in note 6, 482 F.2d at 580, that other considerations might well justify the granting or withholding of an injunction. The principle is important because we are persuaded on the record before us that plaintiffs must be denied equitable relief at least on the familiar, equitable doctrine of unclean hands.

As the opinion of the district court sets forth, the constitutionality of Iviaryland’s obscenity laws and motion picture censorship law was fully established at the time that plaintiffs were incorporated, instituted suit, and began operations. 353 F.Supp. at 174-76. True it is that, in Star v. Preller, 413 U.S. 905, 93 S.Ct. 3054, 37 L.Ed.2d 1016 (1973), Star v. Preller, 352 F.Supp. 530 (D.Md.1972) (Star I), upholding the validity of the motion picture censorship law, was subsequently vacated and remanded for reconsideration in the light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), et al. — only to be upheld again in Star v. Preller, 375 F.Supp. 1093 (D.Md.1974), aff’d 419 U.S. 956, 95 S.Ct. 217, 42 L.Ed.2d 173 (1974) (per curiam). But the fact is that at the times of incorporation, filing suit and beginning operations, decrees of a court of competent jurisdiction upholding the constitutional validity of both Maryland statutes were outstanding and unreversed. As the opinion of the district court also shows, in this state of the law, plaintiffs acted with great dispatch, if not unseemly haste, after Star I was decided; the places of operation of both plaintiffs are the same locations where there have been previous arrests and seizures of books, magazines and films on grounds of obscenity and noncompliance with the censorship statute; the places of operations of both plaintiffs are singularly inappropriate for bona fide educational institutions; and plaintiffs designedly brought suit before beginning operations in a deliberate strategy to avoid the possibility of any exercise of state jurisdiction. While we agree with the district court that the present record is not sufficiently complete that we can say with certainty that plaintiffs are not bona fide educational institutions, we do think that the cumulative effect of the factors we have identified is to establish that plaintiffs do not come into a court of equity with clean hands so that they are barred from injunctive relief even if their legal contentions are otherwise meritorious. As we construe Younger v. Harris, it permits a race to the courthouses, federal and state, between the private citizen who wants federal relief against enforcement of an allegedly invalid state statute, and state law enforcement officers who seek state process to enforce the laws that it is their responsibility to carry out. But, under traditional concepts of equity, our reading of Younger v. Harris is that it does not permit the race to be rigged by those who would seek equitable relief before beginning operations and about whom there are ineluctably strong suspicions of the bona fides of their proposed operations.

. III.

As we have indicated, Steffel v. Thompson requires us to reverse the order of the district court insofar as it dismissed plaintiffs’ prayers for declaratory relief. Steffel not only confirmed our reading of Younger, that Younger, and its articulation of the special principles restricting the grant of equitable relief, were limited to cases where there was a pending state prosecution, it also held that when there was no pending state prosecution, neither the Younger special principles nor, with the exception of a limited number of special cases, the traditional prerequisites to equitable relief, as, for example, a demonstration of irreparable injury, were applicable to a request for declaratory relief. This is so, the Court said, because “a declaratory judgment will have a less intrusive effect on the administration of state criminal laws,” 415 U.S. at 469, 94 S.Ct. at 1221, and “engrafting upon the Declaratory Judgment Act a requirement that all of the traditional equitable prerequisites to the issuance of an injunction be satisfied before the issuance of a declaratory judgment is considered would defy Congress’ intent to make declaratory relief available in cases where an injunction would be inappropriate.” 415 U.S. at 471, 94 S.Ct. at 1222.

Thus, consistent with this holding, the doctrine of unclean hands would not bar plaintiffs from declaratory relief and the district court must adjudicate plaintiffs’ prayers for declaratory judgment on their merits.

IV.

What we have said with regard to plaintiffs’ ineligibility for injunctive relief disposes of plaintiffs’ contention that it was error for the district judge to decline to request that a statutory three-judge court be convened to pass on plaintiffs’ claims of unconstitutionality of the Maryland statutes. In Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4 Cir. 1970), we decided that “[i]f it appears to the single district judge . . that the complaint does not state a substantial claim for injunctive relief, he need not request the convening of a three-judge court,” and that “[ijnsubstantiality in the claim may appear . . because injunctive relief is otherwise unavailable” (footnotes eliminated), 429 F.2d at 611. Since we conclude that plaintiffs had unclean hands as a matter of law and therefore the district court was required to withhold equitable relief, it follows that the district judge could act alone and was not required to request that a three-judge court be convened. Of course, he need not request a three-judge court in order to adjudicate plaintiffs’ prayers for declaratory relief. Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970).

V.

Two points remain for decision: plaintiffs’ claim that the district judge should have disqualified himself on plaintiffs’ affidavits of prejudice and bias, and the claim of plaintiff Modern Social Education, Inc. (Modern) that the district judge was in error in declining to allow the filing of an amended complaint tendered by that plaintiff. The contentions require only brief comment.

The question of whether the district judge incorrectly declined to disqualify himself was reviewed by us on application for a writ of mandamus, and the writ was denied. Modern Social Education, Inc. v. Harvey, No. 73-1028 (unreported), January 15, 1973. The denial was on the merits and we will not consider the question anew.

Plaintiff Modern’s amended complaint, purportedly filed after defendants had filed a responsive pleading to the original complaint, dropped one party plaintiff, added two new parties plaintiff, and added six police officers and two state judges as parties defendant. Because parties were both dropped and added, Rule 21, F.R.Civ.P., required that leave of court be sought and obtained as a prerequisite to filing the amended complaint. Modern did not seek such leave and, indeed, was adamant that it would not seek such leave. Under such circumstances, the district court was plainly correct in declining to receive the amended complaint.

Affirmed in part; reversed in part. Costs to be divided equally between the parties.

WIDENER, Circuit Judge

(concurring):

I concur in the result reached by the majority except I would, on remand, just prior to entry of the final order, require the vacation of the entire judgment and at the conclusion of the case the entry of a fresh order. Mitchell v. Donovan, 398 U.S. 427, 432, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970).

As to part II of the opinion of the court, I think the majority goes unnecessarily out of its way, in a mechanical application of the race to the courthouse test, to reject the reasoning and a perfectly sound finding of the district court made in its excellent opinion. I do not disagree that unclean hands may be a cause to reject injunctive relief.

It should be understood that the State criminal proceedings referred to throughout were “presently under way” at the time the district court entered its order. 353 F.Supp. 173, 179. That being true, the district court considered the principles of Younger were applicable. Its view receives support in the case of Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974), a case apparently not considered by the majority.

Allee was an appeal from a three-judge district court which had enjoined the enforcement of five Texas statutes, three of which had been repealed prior to the time the Supreme Court heard the case. While sustaining an injunction issued under the ancillary jurisdiction of the three-judge court as to other aspects of the case, the part of the opinion which ought to concern us first has to do with the directions to the district court on remand. In remanding the case for the district court to make more precise findings in order to determine whether or not the principles of Younger should apply, the court stated:

“Although both parties here have assumed the relevance of Younger, we have been unable to find any precise indication in the District Court opinion or in the record that there were pending prosecutions at the time of the District Court decision.” 416 U.S. 802, 817, 94 S.Ct. 2191, 2201. (Italics added)

Explaining that the union organizing effort, which was the source from which the controversy arose, took place five years before, the court then explained that it seemed “ . . . likely that any state prosecutions initiated during the effort would have been concluded by that time [the filing of the district court’s opinion] unless they had been restrained by a temporary order of the federal court . . .,” and went on there was “ . . .no indication that such an order was ever issued.” 416 U.S. 802, 817, 94 S.Ct. 2191, 2201. I submit no such explanation was necessary in the opinion if the court were not ruling that Younger applied if the State prosecutions had been commenced prior to the entry of the district court’s order instead of prior to the institution of the suit.

As to the Texas statutes not repealed, on remand, the Court directed the district court:

“If there are pending prosecutions then the District Court should determine whether they were brought in bad faith, for the purpose of harassing appellees and deterring the exercise of First Amendment rights, so that allowing the prosecutions to proceed will result in irreparable injury to the appellees. If there are no pending prosecutions and only declaratory relief is sought, then Steffel clearly controls and no Younger showing need be made.” 416 U.S. 802, 820, 94 S.Ct. 2191, 2203.

The wording of this direction to the district court would be quite misleading unless the time referred to was not earlier than the entry of the order by the district court, not the institution of the suit. For the court directs the application of Dombrowski -Younger principles on remand if the State proceedings are pending, not have been pending since before the institution of the federal proceeding.

Thus, a literal reading of the language of the Court from its most recent opinion on the subject indicates that it takes the same view of the matter as did the district judge in this case, and, while it may give weight to the race to the courthouse, declines a mechanical application of the test, as is made by the majority here, which would exclude in all instances adherence to the Younger standards in each case in which the federal proceeding is instituted first, although the State proceeding may have been instituted prior to the entry of the order of the district court.

But if it be argued that the language I have quoted from Allee is taken from a direction of the Court to the district court on remand, and, instead of being read literally, creates another nice distinction in the maze of DoihbrowskiYounger cases which have come in the years following Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that Younger principles may apply to a case on remand but not when heard in the district court, and this is the necessary holding of the majority here if its opinion is to be made consistent with Allee, then my difference with its reasoning goes further.

The district court decided:
“Accordingly, plaintiffs are not entitled to injunctive relief in this Court because they have not suffered nor have they been threatened with any irreparable damage, much less any that is both ‘great and immediate’.” 353 F.Supp. 173, 182.

The opinion of the majority neither takes into account nor refers to the quoted finding of the district court which should be applicable in any case in which injunctive relief is sought, even though the requirement of irreparable injury is a Younger requirement. The Supreme Court has made this clear in Allee. In discussing whether or- not the injunction issued was an appropriate exercise of the court’s equitable powers, and in deciding that the part of the decree under consideration created no interference with prosecutions pending in the State courts so that Younger did not apply, the court stated:

“Nonetheless there remains the necessity of showing irreparable injury, ‘the traditional prerequisite to obtaining an injunction’ in any case. Younger, supra, 401 U.S., at 46, 91 S.Ct. [746], at 751.” (Italics added)

My point is that we ought not to so firmly fix the position of this court by a mechanical application of the race to the courthouse test that we automatically reject all of the Younger principles in each case merely because the federal proceeding was filed before the institution of the State proceedings. We do not have before us a case seeking an injunction in which no State proceedings were filed. That' question was reserved in Steffel, see esp. 415 U.S. p. 463, 94 S.Ct. 1209, and the reservation was emphasized in Allee, 416 U.S. n. 15, p. 820, 94 S.Ct. 2191.

Since I understand the inference from Steffel to be that declaratory judgment proceedings need not interfere with a pending State criminal prosecution, although that question was not before the court, I see no harm, on the facts of this case, in allowing the declaratory judgment proceeding to continue along its course in the federal court and at the same time, by not issuing an injunction, allowing the criminal proceeding to continue on its way in the State courts. Such, of course, is the necessary result arrived at here. I note the affirmative rule set out in Allee as to when Steffel “clearly controls,” 416 U.S. p. 820, 94 S.Ct. 2191, is not accompanied by a corresponding negative, unless one may be inferred.

       It may be argued, based upon Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); and Spielman Motor Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1934), that notions of comity mitigate against the right to injunctive relief to prevent a threatened criminal prosecution even though the prosecution has not begun when the action for federal injunctive relief is instituted. It is unnecessary to consider the validity of this argument, because we think that the doctrine of unclean hands is a complete bar to plaintiffs’ obtaining equitable relief.

      . Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

      . For a good discussion of the DombrowskiYounger line of cases, see Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974), esp. p. 1163, et seq. Since the precise subject under consideration in Allee was the application of Younger, I find no reason to believe the Court did not mean what it said.


author: K. K. HALL, District Judge:

text:
    JEFFCO MANUFACTURING COMPANY, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.
    No. 74-1851.
    United States Court of Appeals, Fourth Circuit.
    Argued March 4, 1975.
    Decided April 2, 1975.
    Edwin O. Norris and James W. Bradford, Jr., Kingsport, Tenn. (Hunter, Smith, Davis, Norris & Treadway, Kings-port, Tenn., on brief), for petitioner.
    Jay E. Shanklin, Washington, D. C. (Michael S. Wolly, Washington, D. C., on brief), for respondent.
    Before BUTZNER and FIELD, Circuit Judges, and HALL, District Judge.
   K. K. HALL, District Judge:

The decision and order of appellee, National Labor Relations Board, affirmed the rulings, findings and conclusions of the Administrative Law Judge, including his conclusion of law that appellant, Jeffco Manufacturing Company, “by withholding merit increases from its employees during the pendency of the Union’s representation petition, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.” On this review Jeffco petitions for denial of enforcement of the Board’s decision and order and the Board petitions by cross-application for enforcement of the order.

Late in 1972 Jeffco instituted a plan for discretionary merit wage increases for its employees. Some months later union negotiations for recognition and representation prompted the union to suggest to Jeffco in writing that “pending the outcome of these proceedings that you make no changes in personnel, wages or working conditions.” Jeffco notified its employees that “no merit increases are to be granted” until after the representation election and that the “Company cannot make any discretionary changes in wages or benefits during this period.” Employee merit reviews were continued but merit wage increases were discontinued during the period. The Board confirmed the findings that Jeffco acted in good faith but was legally wrong. In his decision the Administrative Law Judge observes: “Whether a raise was granted, and its precise amount, varied, and was in that sense discretionary, but the standards were carefully set forth, and supervisors were given lengthy rating sheets for the various classifications.”

The statute provides that it shall be an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed” under the law relating to employee organization and collective bargaining. Section 8(a)(1), Labor Management Relations Act of 1947, as amended. 29 U.S.C., § 158(a)(1). The language of the law is not clear and certain. The union had suggested to Jeffco in writing that during the negotiation and election period no changes be made “in personnel, wages or working conditions.” Jeffco had advised its employees that it could not “make any discretionary changes in wages or benefits during this period.” The granting of merit wage increases during the period would have resulted inevitably in charges of unfair labor practices. National Labor Relations Board v. Katz, 869 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The employer is placed in a dilemma. National Labor Relations Board v. Dorn’s Transportation Company, 405 F.2d 706, 715 (2d Cir. 1969). We find no bases in the record supporting the determinative issue of law as stated by the Administrative Law Judge and affirmed by the Board. No employer action or conduct is found interfering with, restraining or coercing employees in a manner constituting unfair labor practices as defined in the law. The path of the law needs to be marked and charted to the end that labor and management may develop and accomplish lawful, just and practical working relationships. In the context of this case, upon the record, the briefs and oral arguments, we find and conclude that Jeffco engaged in no unfair labor practices. J. J. Newberry Co. v. National Labor Relations Board, 442 F.2d 897 (2d Cir. 1971). Appellant’s petition for denial of enforcement is granted and appellee’s cross-application for enforcement is denied.

Enforcement denied.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. John Rufus ETHERIDGE, Appellant.
    No. 597, Docket 74-2310.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 29, 1975.
    Decided March 19, 1975.

      Sheila Ginsberg, The Legal Aid Society, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for appellant.
    Gary Woodfield, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and OAKES and GURFEIN, Circuit Judges.
   OAKES, Circuit Judge:

This appeal involves one not so simple question concerning the construction of the statute, 18 U.S.C. § 912, relating to impersonation of a federal officer, a statute that has been in the books with only certain minor modifications since 1884. Act of 1884, ch. 26, 23 Stat. 11. On a stipulation of facts the appellant was tried in the United States District Court for the Eastern District of New York, Jacob J. Mishler, Chief Judge, without a jury. Appellant was convicted of falsely personating an employee of the United States and in such pretended character demanding and obtaining a sum of money — a loan of $200 from Army Emergency Relief — under the statute. He appeals from his sentence of three years’ probation, the execution of which was stayed pending appeal.

The stipulated facts were that appellant identified himself as a current member of the United States Army, 552d Engineers, Fort Knox, Kentucky, by obtaining first a request for leave form from the Headquarters Company of the United States Army Chaplain School and then a temporary ID card from the Identification Section on the basis of a representation that his wallet with his identification had been stolen. He had obtained papers from the New York City Police Department indicating that he had lost his wallet. He then applied to Army Emergency Relief, claiming that he was on leave, had been robbed and needed $200 to pay his hotel bills and return to Kentucky. While monies of the Army Emergency Relief are not United States Government funds, only active duty and retired military personnel and their dependents are entitled to them. Army Emergency Relief gave Etheridge a loan of $200 in the form of a check which he cashed. He shortly thereafter obtained a permanent identification card and proceeded to the Base Finance Office and received $65 partial pay. On his second trip to the Finance Office he was found out and surrendered. Throughout these events he was not a member of the United States Army.

18 U.S.C. § 912 provides as follows: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both.

Appellant, while conceding that through his false personation or pretense he did obtain a thing of value, claims that he did not “assume or pretend to be acting under the authority of the United States or any department, agency, or officer thereof . . . .” Rather, he argues he was not purporting to act on behalf of the Government; he was acting only on behalf of himself. To interpret the act otherwise, his argument runs, would be to render the clause “acting under the authority of the United States” unnecessary in that it would have been sufficient for the statute simply to have said “whoever falsely assumes or pretends to be an officer or an employee of the United States . . His argument at least in the abstract derives support from two reported cases, United States v. York, 202 F.Supp. 275 (E.D.Va.1962), and United States v. Grewe, 242 F.Supp. 826 (W.D.Mo.1965), and one unreported one, United States v. Martin, No. 31902-CD (S.D.Cal. July 15, 1963). He argues further that there is a Department of Justice “administrative practice” as set forth in Memo No. 784, dated August 31, 1973 (hereinafter Department of Justice Memo), from the Assistant Attorney General in charge of the Criminal Division to all United States Attorneys, that “unless the subject has also pretended to be acting under color of Federal authority or expressly or implicitly suggested that the valuable thing demanded or obtained was necessary for the performance of his official duty,” id. at 16, the Department’s policy is not to initiate prosecution where all that the impersonator has done is apply for credit, register for lodging or cash a personal check. In the light of our recent United States v. D’Amato, 507 F.2d 26, 27 (2d Cir. 1974) (false statement statute, 18 U.S.C. § 1001), it is argued that while this “policy” does not control the question of statutory construction it does partake of an administrative or prosecutorial interpretation as to the application of the statute.

We deal with the post-argument “administrative practice” contention first. In United States v. D’Amato, supra, we noted that no case had ever held the false statement statute, 18 U.S.C. § 1001, applicable in private civil litigation. The absence of cases under the statute, essentially unchanged since 1934, was treated as an administrative interpretation of its applicability. Here, however, we have an administrative memo responding to two district court cases, United States v. Grewe, supra, and United States v. York, supra (although no court of appeals case). The Departmental Policy announced in the memo we read to be just that — policy limited to the facts of those two cases. We therefore turn to an examination of the statute, its history and the decided cases in an effort to determine its applicability to the case at hand.

A predecessor to this statute was § 32 of the Criminal Code of March 4, 1909, ch. 321, § 32, 35 Stat. 1088, 1095. In United States v. Barnow, 239 U.S. 74, 36 S.Ct. 19, 60 L.Ed. 155 (1915), it was held to prohibit two separate offenses: one, falsely assuming or pretending to be an officer or employee acting under the authority of the United States or any department or officer of the Government, and taking upon oneself to act as such, in other words, false pretense plus an overt act; two, “falsely assuming or pretending to be an officer or employe[e], etc., and in such pretended character demanding or obtaining” from anyone or from the Government any money, etc., or other valuable thing. Id. at 75, 36 S.Ct. at 20. The Court held that the statute stated an offense even though the person charged was falsely personating a supposititious employee of the Government who never existed in fact or whose class never existed. In so holding, the Court through Mr. Justice Pitney upheld the authority of Congress to enact the statute on the basis that it was important that the “spirit of respect and good will for the government and its officers sh[ould] generally prevail.” Id. at 78, 36 S.Ct. at 21. Barnow held that since it is “the false pretense of Federal authority that is the mischief to be cured” it mattered not whether the pretender named an existing or nonexisting office or officer. Id. at 78, 36 S.Ct. at 21.

In Lamar v. United States, 241 U.S. 103, 36 S.Ct. 535, 60 L.Ed. 912 (1916), the charge was one of falsely assuming and pretending to be a member of Congress with the intent to defraud certain named individuals; the defendant, Lamar, was alleged to have taken upon himself to act as such member of Congress. It does not appear whether Lamar represented that he was acting on behalf of the United States or whether he obtained something of value as a congressman acting in his personal capacity since there is no published district court decision and neither the court of appeals, 227 F. 1019, nor the Supreme Court recites the facts. One gathers from the appellant’s argument, however, 241 U.S. at 104, 36 S.Ct. 19, that it was not charged or proven that the defendant pretended to act “under the authority of the United States.” The Solicitor General argued that “It is not necessary that defendant’s pretense be to act lawfully under the authority of the United States.” 241 U.S. at 106, 36 S.Ct. 19. The Solicitor General cited Littell v. United States, 169 F. 620 (9th Cir. 1909), and United States v. Ballard, 118 F. 757 (W.D.Mo.1902), in addition to Barnow.

Lamar stands for rejection of the contention that “no offense was stated since it was not charged that in pretending to be an officer the accused did an act which he would have been authorized to do under the authority of the United States had he possessed the official capacity which he assumed to have.” 241 U.S. at 113-14, 36 S.Ct. at 538. The Court held that the doing in the falsely assumed role of any overt act, whether it would have been legally authorized had the assumed capacity existed or not, was prohibited by the statute because the “words ‘acting under the authority of the United States’ are words designating the character of the officer or employee whose personation the clause prohibits [not words] applied only as limiting and defining the character of the overt act from which criminality is to arise . . . .” 241 U.S. at 114, 36 S.Ct. at 539 (emphasis added). The Court goes on to say that its construction of “acting under the authority of the United States” is impelled by virtue of the fact that in clause 2 “there is no re-expression of the prohibition against assuming or pretending contained in the first clause except as that prohibition is carried over and made applicable to the second by the words ‘or shall in such pretended character demand,’ etc.” 241 U.S. at 215, 36 S.Ct. at 539. The Court significantly goes on to say that

[a]s it is obvious that the acts made absolutely criminal by the second clause are acts which may or may not have been accomplished as the result of exerting in the pretended capacity an authority which there would have been a lawful right to exert if the character had been real and not assumed, it results not only that the conflict which we have indicated would arise from adopting the construction claimed, but the error of such contention as applied to the first clause is conclusively demonstrated.”

241 U.S. at 115, 36 S.Ct. at 539 (emphasis added). Thus the Court construes clause 2, the “or in such pretended character” clause here in question, as prohibiting acts which may or may not have been accomplished as the result of exerting in the pretended capacity the authority of the United States or of a department or officer thereof. Without necessarily being a direct decision, Lamar at the very least, we think, gives us a strong indication that the clause “acting under the authority of the United States” goes solely to designate the character of the officer or employee and not to limit or define the character of the overt act under clause 1 or to limit the kind of acts penalized under clause 2. Clause 2 does not say “in such pretended character and under such pretended authority.”

While Lamar does not itself cite Littell v. United States, supra, on which the Solicitor General relied, it might be suggested that that case involved our factual situation and is the only court of appeals case which does so. There a conviction was affirmed by the Ninth Circuit when an impersonator of a United States Secret Service officer answered a matrimonial advertisement and obtained board, lodging and a loan of $600 for a personal investment. While he did so on the basis of his statement that he was in the city to superintend and hasten work on the Federal Building and other government works, he argued that obtaining food, lodging and money was not “under the authority of the United States.” The court rejected the suggestion that the Act applied only to the extortion of money or property from another by asserting a claim for money or property due or owing the United States, which, “in his pretended official capacity,” the accused represents that it is his duty to collect. 169 F. at 622. The court held that the gist of the offense was the false personation as evidenced by certain acts, including under the second clause the obtaining of money or property from anyone. 169 F. at 622-23.

We come, then, to United States v. York, supra, where a teenaged girl established credit to buy a dress by filling out a card falsely listing her employment as an FBI clerk, a job she only expected to get. In that appealingly written ease District Judge Michie held that she could not be convicted of violating § 912 because, while she concededly pretended to be an employee, she did not pretend to be acting under the authority of an agency of the United States but rather was acting on her own in buying the dress. 202 F.Supp. at 277. The court went on to add that she did not “in such pretended character . . . obtain” the dress, in that she did not ask the credit manager for credit because she was an employee of the FBI and she was in no sense acting in the pretended character of an employee of the FBI; rather, she had asked for the dress and for credit before the question of employment ever came up. Id. No cases were cited in York, but the district judge did say that if he held otherwise it would “read out of the statute the required pretense of ‘acting under the authority of the agency’ and also the words ‘in such pretended character.’ ” Id.

United States v. Grewe, supra, held that there was no offense stated under either clause of the statute when the defendant cashed checks at a hotel, falsely representing that she was employed by the United States Army Audit Division. The checks were to pay for her lodging and to provide her with personal funds. The court followed United States v. York as “soundly reasoned,” saying, “There is a vast factual difference between representing that one is ‘acting under the authority of the United States’ and merely representing that one is ‘employed by the United States.’ ” 242 F.Supp. at 829.

We agree with the Government that this case is distinguishable from York and Grewe because in those cases there was no nexus shown between the federal impersonation and the fraud. Here, however, the appellant not only falsely represented himself to be an employee of the United States, but also while acting in this capacity and solely by virtue of the pretense obtained a loan from Army Emergency Relief. As Chief Judge Mishler below put it,-the “defendant received financial assistance because he represented himself to be a member of the United States Army.” (Emphasis in original.) Since monies from Army Emergency Relief are available only to a limited class of Army employees or retirees and appellant’s representation placed him within the class of Army employees, he was able to obtain the loan.

Appellant argues that in any event the Government’s construction makes the phrase “acting under the authority of the United States” or at least the word “acting” meaningless. We have previously held, however, that an indictment merely alleging false personation is insufficient, and that “acting” is a conjunctive element of the offense. United States v. Harmon, 496 F.2d 20 (2d Cir. 1974). We do not need to hold, as Lamar, supra, indicated, that the statute prohibits simply the false assumption or pretense of an office or employment which exists (or is pretended to exist) under the authority of the United States (when coupled with an act as such or an act of demanding or obtaining, etc.). Here the money obtained was obtainable only by military personnel (or retirees); it was only while acting as such and by - virtue of acting as such that appellant obtained it. We will leave to another day — one which hopefully may never again arise in the light of the Department of Justice Memo, supra — the question whether a violation occurs when it is the misrepresentation of employment that is the key to extension of credit, the fact that the employment is federal being purely incidental.

Judgment affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. David Barnard CRAWFORD, Appellant.
    No. 74-1695.
    United States Court of Appeals, Fourth Circuit.
    Submitted February 14, 1975.
    Decided April 3, 1975.
    John K. Grisso, U. S. Atty., and Jack L. Marshall, Asst. U. S. Atty., on brief for appellee.
    David B. Crawford, pro se.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

This is an appeal by David Crawford from an order of the district court dismissing his motion for a modification of his sentence to make it indeterminate under 18 U.S.C. § 4208(a)(2). Crawford was convicted of violations of 18 U.S.C. § 472 and § 473 and, on October 29, 1971, was sentenced to a prison term of ten years. The conviction was affirmed on appeal. United States v. Crawford, Slip Op. 71-2022 (4 Cir. May 30, 1972). On April 15, 1974, the district court received from Crawford a petition entitled “Motion for Amended Sentence.” The petition requested that Crawford’s “straight” ten-year sentence be modified so that parole eligibility could be calculated pursuant to the indeterminate sentencing provisions of 18 U.S.C. § 4208(a)(2). The district court, construing the document as a motion for reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, dismissed for lack of jurisdiction since the motion proposing modification of the sentence was filed later than the 120-day period allowed by the rule. Crawford has appealed, pressing the claim that Rule 35’s 120-day time limit does not apply since he is not technically requesting that his ten-year sentence be reduced. For reasons hereinafter stated, we affirm.

Crawford has directed our attention to several instances where, in unpublished orders, district court judges, including one within our own circuit, have granted motions identical to the one he submitted long after Rule 35’s time limit had expired. Nevertheless, the published authorities appear to be in full agreement in adopting the view that Rule 35 is applicable. United States v. Regan, 503 F.2d 234 (8 Cir. 1974); United States v. Bryan, 498 F.2d 366 (5 Cir. 1974); Banks v. United States, 365 F.Supp. 594 (N.D.Miss.1973); United States v. Rush, 60 F.R.D. 211 (D.Minn.1973). We have carefully examined the briefs and authorities and conclude that motions to modify sentences so that parole may be determined under 18 U.S.C. § 4208(a)(2) must be submitted pursuant to Rule 35’s time constraints. We agree that modification of a sentence to include the provisions of 18 U.S.C. § 4208(a)(2) is in effect a reduction in sentence; “[w]ere the court to accede to defendant’s request, the actual time he might serve well could be shortened. Certainly, this is a reduction in the practical sense as well as the legal sense.” United States v. Rush, supra, at 212. Since Crawford’s motion was not timely filed, relief under Rule 35 is unavailable. United States v. Koneski, 323 F.2d 862 (4 Cir. 1963). Rule 45(b), Fed.R.Crim.P., specifically prohibits enlarging the time otherwise provided for filing a petition pursuant to Rule 35.

If we were to accept Crawford’s argument that his petition is not properly a motion for “reduction” of sentence within the scope of Rule 35, the district court would be without any authority to modify the sentence originally imposed. United States v. Regan, supra, 503 F.2d at 238. In Bradley v. United States, 410 U.S. 605, 611, 93 S.Ct. 1151, 1155, 35 L.Ed.2d 528 (1973), the Supreme Court strictly construed the language of 18 U.S.C. § 4208 to conclude that “the decision to make early parole available under § 4208(a) must be made ‘[u]pon entering a judgment of conviction,’ which occurs before the prosecution has ended.” (Emphasis added.) Cf., United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928); Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955). The Supreme Court noted in Bradley that imposition of the sentence in a criminal case constitutes final judgment and terminates the prosecution. The statute itself, therefore, does not authorize adding a § 4208(a) provision after a sentence is originally imposed.

While there may be merit to Crawford’s assertions that penal rehabilitative efforts would be facilitated by the possibility that a straight sentence could be changed to one of indeterminate length, any change in 18 U.S.C. § 4208(a) or Rule 35 is for Congress and not the courts.

Accordingly, the judgment of the district court is affirmed.

Affirmed.


author: PER CURIAM: WIDENER, Circuit Judge

text:
    Tyrone Power MOORE, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1260.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 10, 1975.
    Decided Feb. 25, 1975.

      William F. Dobbs, Jr., Charleston, W. Ya. [Court-appointed counsel] (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief) for appellant.
    Wayne A. Rich, Jr., Asst. U. S. Atty. (John A. Field, III, U. S. Atty., Robert B. King, Asst. U. S. Atty., on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
   PER CURIAM:

Tyrone Power Moore appeals his conviction of possessing a prohibited firearm, a violation of 26 U.S.C. §§ 5861 and 5871. The indictment charged that Moore possessed a “sawed-off 12 gauge shotgun.” The weapon introduced at trial, however, was certified to be a “[f]ire-arm made by inserting a 11 inch piece of galvanized pipe into barrel of flare gun and welding same with solder. The pipe is of the size that will chamber a 12 gauge shotgun shell.” [sic]. Section 5845 of Title 26 of the United States Code defines “firearm” to include a “shotgun” having a barrel of less than 18 inches; a “shotgun” is “a weapon designed or redesigned . . . and intended to be fired from the shoulder ..” Because his weapon clearly was never intended to be fired from the shoulder, Moore contends it is not a “shotgun” and therefore not a “firearm” proscribed by Section 5861. This argument overlooks the further definition of “firearm” as “any other weapon” which means “a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell

Moore, however, suggests that reliance on the provision for “any other weapon” creates a fatal variance between the indictment and the proof at trial. Nevertheless, it is clear that he was in no way prejudiced by the variance in the instant case. Prior to trial, defense counsel was supplied with a copy of the Treasury Department Certification, which fully described the modified flare gun. Thus, the indictment is most properly read as charging possession of an unlawful firearm; the faulty description is mere surplusage.

Moore contends finally that it was error to allow an agent of the Bureau of Alcohol, Tobacco and Firearms, who was qualified as a firearms expert to testify that the weapon was a prohibited type of shotgun within the meaning of federal law. While it may be preferable to avoid expert testimony going to the ultimate issue, we can discern no prejudice to Moore. His weapon was clearly an unlawful one, and any conceivable error in the admission of expert testimony was harmless.

Affirmed.

WIDENER, Circuit Judge

(dissenting):

I think the principal error in this case is that the government simply indicted the defendant under the wrong statute, and the fact that he may have been guilty under another statute does not furnish sufficient reason for affirming his conviction of a crime which he did not commit.

Moore was charged in the indictment and convicted of “unlawfully and knowingly possess[ing] a firearm, that is, a sawed-off 12-gauge shotgun which was not registered ... as required by ... §§ 5861(d) ..” Since a “shotgun” is a weapon designed or redesigned and intended to be fired from the shoulder, as specifically defined in 26 U.S.C. § 5845(d), the flare gun in Moore’s possession was not such a weapon. This is admitted by the majority.

What the majority overlooks is that § 5845 not only defines firearm but also, in separate subsections, defines “shotgun,” in subsection (d), and “any other weapon,” in subsection (e). “The term ‘any other weapon’ means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length . . etc. 26 U.S.C. § 5845(e).

Since § 5845 describes separately and in different subsections a “shotgun” and “any other weapon,” when the United States indicted Moore for possessing a “shotgun,” it assumed the burden of proving that the weapon Moore possessed fitted within the precise statutory definition. This it did not do.

I further do not agree that the testimony of the expert was harmless error. Granted that admitting the testimony was erroneous, in this case it should not be held harmless because there was no other evidence at all that the weapon possessed by Moore was a “sawed-off . shotgun” for which he was indicted. Indeed, the opinion of the majority implicitly finds that the testimony of the expert was so erroneous as to be without merit as it recites “because his weapon was never intended to be fired from the shoulder.” The admission of the patently erroneous testimony of the expert into evidence was compounded by the form of the question illustrated by the quoted question and answer.

“Q. Mr. England, based on your training and experience and your particular knowledge and investigation of Government’s Exhibit No. 1, is Government’s Exhibit No. 1 a prohibited type of sawed-off 12 gauge shotgun within the meaning of federal law?
MR. THRIFT: Objection.
THE COURT: Overruled.
A. Yes, it is.” (Italics added)

I am of opinion this testimony was not only very damaging, in the case at hand it invaded the province of the jury, for the statutory definition of the weapon, the possession of which is charged to Moore, is quite clear and does not leave room for opinion testimony peculiarly within the knowledge of an expert witness.

The effect of the testimony is well described by the emphasis placed on it by the United States Attorney in his argument to the jury:

“Don’t get hung up on whether or not the weapon comes within the meaning of prohibited firearms or not, ladies and gentlemen. Mr. England told you as an expert witness that it does. It does.”

And, if this were not enough, the district judge then charged the jury as to the possession of “any other weapon” from § 5845(e), a crime for which the defendant had not been indicted.

In summary, I believe the testimony complained of should not have been admitted, and am of opinion this ease falls within the reasoning of Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); and Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Cf. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

If the United States wishes to reindict Moore for unlawful possession of a weapon described by § 5845(e), that is a matter up to the prosecutor. I would reverse.


text:
    Maurice GOLDBERG et al., Plaintiffs-Appellants, v. ARROW ELECTRONICS, INC., Defendant-Appellee, and State of New York, Defendant.
    No. 770, Docket 74-2615.
    United States Court of Appeals, Second Circuit.
    Argued March 24, 1975.
    Decided March 25, 1975.
    Samuel M. Sprafkin, New York City (Mandel M. Einhorn, New York City, on the brief), for plaintiffs-appellants.
    Geoffrey M. Kalmus, New York City (Ellen R. Nadler, and Nickerson, Kramer, Lowenstein, Nessen, Kamin & Soil, New York City, on the brief), for defendant-appellee.
    Before KAUFMAN, Chief Judge, MULLIGAN, Circuit Judge and THOMSEN, District Judge.

       Of the District of Maryland, sitting by designation.

   PER CURIAM:

Goldberg directs his attack primarily at § 623(e) of the New York Business Corporation Law (McKinney’s Consol. Laws, c. 4, 1963), which requires a corporation to pay the fair market value of shares dissenting to a merger only if the merger is consummated. On January 31, 1973 Arrow Electronics, Inc. abandoned the merger to which Goldberg had dissented on May 25, 1972; in the interim, under § 623(e) and (f), Goldberg had lost his status as a shareholder and became a claimant. Since the price of Arrow declined during this period, Goldberg complains that the restriction on resale of his shares, coupled with the termination of Arrow’s obligation to pay for his shares when it abandoned the merger, violates due process.

We find little merit to Goldberg’s contention. Section 623 is a rational scheme for determining the rights of shareholders when they oppose a merger. Goldberg was fully aware of this scheme, and the potential deprivations it entails, when he chose to dissent. Moreover, the particular provision under attack — that excuses a corporation from paying for a dissenter’s shares if the merger is abandoned — is clearly designed to maximize the power of minority shareholders. A corporation would be induced to abandon a merger when it could not afford to pay dissenters for their shares — precisely what occurred in this case.

Thus, ultimately Goldberg claims merely that Arrow has abused § 623 by speculating in Goldberg’s shares — protracting the appraisal process, and abandoning the merger only when the market declined below the price it would have to pay for his shares. Not only does this allegation not rise to constitutional dimension — the sole federal concern in this matter — but it has twice been rejected by state courts. Goldberg v. Arrow Electronics, Inc., No. 22146, 1972 (Spec.Term, Pt. 1, Jan. 8, 1973) (Murtagh, J.); Goldberg v. Arrow Electronics, Inc., No. 22146, 1972 (Spec. Term, Pt. 1, Apr. 2, 1973) (Chimera, J.), modified, 42 A.D.2d 890, 347 N.Y.S.2d 597 (1st Dept. 1973), app. dismissed, 33 N.Y.2d 1004, 353 N.Y.S.2d 966, 309 N.E.2d 428 (1974).

Since Goldberg’s due process claim is so palpably without merit, we need not consider Arrow’s contentions that its acts are not “state action,” and that the state court proceedings are res judicata of this § 1983 action.

Affirmed.


author: MERRILL, Circuit Judge: REAL, District Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Wayne LILLY, Defendant-Appellant.
    No. 74-1063.
    United States Court of Appeals, Ninth Circuit.
    Feb. 11, 1975.

      Richard Carstensen (argued), Billings, Mont., for defendant-appellant.
    Keith Burrowes, Asst. U. S. Atty. (argued), Billings, Mont., for plaintiff-appellee.
    Before MERRILL and ELY, Circuit Judges, and REAL, District Judge.

       Honorable Manuel L. Real, United States District Judge for the Central District of California, sitting by designation.

   OPINION

MERRILL, Circuit Judge:

Appellant and two companions, all members of the Assiniboin Indian Tribe, after an evening spent drinking beer at several different parties or locations, decided at 1:30 a. m. to obtain more beer from an establishment located on the Fort Peck Indian Reservation. At that establishment an altercation occurred, the proprietor was shot and killed and beer was stolen.

Appellant was indicted for first-degree murder as defined in 18 U.S.C. § 1111 (1970) in that he “did unlawfully kill one William Carl Veseth, a human being, committed in the perpetration of a robbery, by shooting him with a rifle * * *.” He was convicted following jury trial.

Appellant assigns as error the failure of the district court to instruct the jury that robbery is a crime requiring specific intent and that intoxication may negate the existence of specific intent. The district court rejected appellant’s proposed instructions and instead charged as follows:

“You may not find the defendant guilty of first-degree murder by reason of a killing during the perpetration of a robbery, unless you find beyond reasonable doubt that at the time of the killing the defendant was engaged in the perpetration of a robbery as defined in these instructions.
Whoever, within the special territorial jurisdiction of the United States, by force and violence takes from the person or presence of another anything of value is guilty of robbery.
Elements required to be proved in order to establish robbery are:
1. That Steven Wayne Lilly did take beer from the person or presence of William Carl Veseth.
2. That such act was done by force and violence.
3. That the act was done within the exterior boundaries of the Fort Peck Indian Reservation.”

The charge with respect to robbery was based on 18 U.S.C. § 2111 (1970). The Government contends, as it did below, that since specific intent is not expressly required by § 2111 it is not an element of the offense of robbery as there defined and as used in § 1111.

We cannot agree. Prior to revision in 1948 the section defining robbery did require specific intent. This was achieved by use in the section of the qualifying term “feloniously,” which had been recognized as signifying the element of specific intent to steal in robbery at common law. See United States v. Baker, 24 F.Cas. 962, 965 (No. 14,501) (C.C.S.D.N.Y.1861); United States v. Durkee, 25 F.Cas. 941, 943 (No. 15,009) (C.C.N.D.Cal.1856); R. Perkins, Criminal Law 279-80 (2d ed. 1969). The offense as thus enacted was accepted as the crime of robbery as known to the common law. See Collins v. McDonald, 258 U.S. 416, 420, 42 S.Ct. 326, 66 L.Ed. 692 (1922); see also United States v. Nedley, 255 F.2d 350, 355-57 (3d Cir. 1958). It was not until the 1948 revision to its present language that the word “feloniously” was dropped from the section. In light of United States v. Porter, 431 F.2d 7 (9th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970), and other cases dealing with the first paragraph of 18 U.S.C. § 2113(a) (1970), where similar language is used, it may be that specific intent is no longer required by § 2111. But see Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). That question we do not reach. We confine our ruling to robbery as that term is used in § 1111.

Section 1111, defining murder, was drawn without change from Act of March 4, 1909, ch. 321, § 273, 35 Stat. 1143 (codified as 18 U.S.C. § 452 (1946)). When that predecessor was enacted, robbery, either at common law or by statutory definition, see United States v. Carll, 105 U.S. 611, 612-13, 26 L.Ed. 1135 (1882), was a crime of which specific intent was a necessary element. The. Reviser’s Notes to the 1948 revision indicate no intention to alter the elements of “robbery” as used in § 1111. See H.R. Rep.No.304, 80th Cong., 1st Sess. Al, A89-90 (1947), 1948 U.S.Code Cong.Serv. 2434, 2444, 2545 (special pamphlet ed.).

There were special and important reasons for requiring that element when robbery was to serve as the basis for felony murder — reasons that may not apply to § 2111 or the first paragraph of § 2113(a). It was robbery’s specific intent that served to supply the element of premeditation. If the Government be correct in its view that robbery today, as that term is used in § 1111, does not require specific intent, the extraordinary result would be that first-degree murder, the essence of which historically has been cold-blooded premeditation in the nature of poisoning or lying in wait, could, as federal felony murder, be committed without specific intent to commit any crime at all. If the element of premeditation or its surrogate is to be completely eliminated from federal first-degree murder in this fashion, congressional intent to this effect should, in our view, be more expressly stated than it was in the case of the 1948 revision which resulted in § 2111.

We conclude that specific intent remains an element of robbery as used in § 1111; that appellant was entitled to an instruction to that effect and to the effect that intoxication may negate the existence of specific intent, cf. Kane v. United States, 399 F.2d 730, 736 (9th Cir. 1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699 (1969); that it was error not to instruct to this effect.

Appellant’s remaining assignments of error either need not be reached or are without merit.

Reversed and remanded for a new trial.

REAL, District Judge

(dissenting):

This appeal arises from the indictment and conviction of Appellant for first degree murder in that he “did unlawfully kill one William Carl Veseth, a human being, committed in the perpetration of a robbery by shooting him with a rifle, in violation of Title 18 U.S.C., Sections 1153 and 1111.” This charge is what is commonly called felony-murder.

The facts, as presented by the record on appeal are relatively clear. Appellant in the company of co-defendants James Red Dog and Ralph Clancy had been drinking beer (the record is devoid of evidence as to how much Appellant actually had to drink). Running low on their supply of beer, Appellant accompanied by co-defendants Red Dog and Clancy went to Bill’s Pizza Palace to “obtain some more beer.” Arriving at the Pizza Palace Appellant and Red Dog went to the back door of the Pizza Palace while Clancy stayed with the car.

In response to Appellant’s and Red Dog’s knock Bill Veseth, the owner of Bill’s Pizza Palace opened the back door. In the ensuing moments Veseth was shot and Red Dog entered the Pizza Palace and took several cases of beer. Veseth later died as the result of the gunshot wounds inflicted during the scuffle at the back door of the Pizza Palace.

Appellant has raised several alleged errors committed by the trial judge during the trial. The only one which merits detailed consideration is the assigned error that the trial court refused to and failed to instruct the jury upon specific intent as a necessary element of felony-murder and the concomitant refusal to give any instructions on intoxication as it bears upon the specific intent to properly explain the necessary elements of the offense (violation of 18 U.S.C. § mi).

The crime with which appellant was charged and subsequently convicted is cognizable by direct enactment of Congress defining both murder and robbery rather than by the Assimilative Crime Statute, [18 U.S.C. § 13] applying state law to Federal enélaves.

Title 18 U.S.C. § 1111 basically unchanged since its enactment in 1897 provides in its pertinent part:

§ 1111. Murder.
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder committed in the perpetration of, or attempt to perpetrate, any robbery ... is murder in the first degree.

Felony-murder included within 18 U.S.C. § 1111 obviates the intent of killing a human being with malice aforethought and the trial judge properly instructed the jury upon the treatment of “malice aforethought” as used in the statute.

Appellant’s claim of the requirement of specific intent as affected by a proffered defense of intoxication is somewhat vague but can only have reference to the elements of robbery.

Robbery at common law is defined in various ways, but most commonly as the felonious taking of money or goods of value from the person of another or in his presence, against his will, by force or by putting him in fear.

With common law robbery already an established crime the Congress enacted into federal statutory law at least as early as 1820 a robbery statute applicable to such an offense committed within the admiralty, maritime and territorial jurisdiction of the United States. The statute provided:

Whoever, by force and violence, or by putting in fear, shall feloniously take from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.

This language survived revisions of the Federal Criminal Code in 1909 and 1940. But in 1948 a massive revision of the criminal code brought changes which are significant to the intent aspect of the definition of “robbery” as found in the federal statutory scheme. The 1948 revision brought the robbery offense language to:

Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.

18 U.S.C. § 2111.

As evident from the language quoted, the Congress dropped the word “feloniously” found in previous statutory language in its enactment of the present statutory scheme creating a federal robbery offense. Does this create a specific intent offense? This is a question of first impression in the interpretation of 18 U.S.C. § 2111.

A preliminary exclusion is helpful: in deleting “feloniously” from Section 2111 Congress eliminated the animo furandi (felonious) intent to steal present in the common law definition of robbery.

That changes were occurring in 1948 is evident from the Reviser’s Notes to Section 2112 where “felonious taking” was eliminated from that section as being covered by Section 641 — a theft statute whose words required — and do now require — definition by application of the common law. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). But Morissette is inopposite to an interpretation of a statute which needs no construction of common law words “embezzles, steals, purloins or knowingly converts to his own use . ” The language of § 2111 is clear that “Whoever, ... by force and violence, or by intimidation, takes from the person or presence of another anything of value . . . ” This requires only 1) the taking from the person or presence of another, 2) something of value, 3) by the use of force or intimidation. None of these elements partake of the quality of common law specific intent. The gravamen of the offense is not the intent to permanently deprive, i. e. to steal, but is the taking by force, fear, or intimidation. For these reasons I cannot agree with the majority that this language purports to require a “specific intent permanently to deprive the owner of the property taken of use of that property” i. e. an intent to steal.

Perhaps the difference here is a semantic one which confuses criminal intent with specific intent. The traditional instruction upon specific intent is as follows:

“The crime charged in this case is a serious crime which requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, (or knowingly failed to do an act which the law requires,) purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.
An act or a failure to act is ‘knowingly’ done, if done, voluntarily and intentionally, and not because of mistake or accident or other innocent reason.” 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.03 at 273-74 (2d Ed. 1970).

The language of § 2111 does not meet this definition of specific intent. The trial court properly instructed the jury on the elements of robbery as defined in § 2111.

Since I have concluded that specific intent is not required no instruction of intoxication was necessary. But there is yet another reason why the intoxication instruction was not necessary in this case. Although there was evidence of “drinking” there was no evidence upon which the jury could as reasonable men conclude that Appellant was intoxicated.

I would affirm the judgment.

      . “(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
      Any other murder is murder in the second degree.”

      . “Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.”

      . The predecessor of § 2111 read as follows:
      “Whoever, by force or violence, or by putting in fear, shall feloniously take from the person or presence of another anything of value, shall be imprisoned not more than 15 years.”
      Act of March 4, 1909, ch. 321, § 284, 35 Stat. 1144 (codified as 18 U.S.C. § 463 (1946)).

      . We note in passing that under § 1111 all murder, including second-degree murder and felony murder, requires “malice aforethought.”

      . In the Reviser’s Notes to § 2111 the only reference made to any change in setting forth the elements of the offense was: “Minor changes were made in phraseology.” H.R. Rep.No.304, supra, at A134, 1948 U.S.Code Cong.Serv. at 2595 (special pamphlet ed.).

      . We note that in sentencing defendant after the conviction here vacated the district court did not make the finding, required under 18 U.S.C. § 5010(d), that defendant, who was under 22 years of age at the time of conviction, would not benefit from the special forms of treatment provided under the Youth Corrections Act. See Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); Belgarde v. United States, 503 F.2d 1054 (9th Cir. 1974). This oversight can be cured if appellant is convicted in a new trial.

      . There was testimony that between the three —Lilly, Red Dog and Clancy — they had “roughly maybe two six packs of beer”. Clancy testified he had 3 or 4 but that cannot lead this court to the conjecture about how much beer Appellant consumed.

      . Clancy testified that there was discussion of obtaining beer from Bill’s Pizza Palace. Another witness, Margaret Lindsay, testified concerning a conversation “about going to the Pizza Palace and holding it up and obtaining four cases of beer.”

      . 18 U.S.C. § 1153, as pertinent here, merely extends Federal jurisdiction to the offenses of murder and robbery as they are committed by Indians within the Indian country, i. e., upon an Indian reservation.

      . 18 U.S.C. § 1111.

      . 18 U.S.C. § 2111.

      . Title 18 U.S.C. § 13 provides in pertinent part:
      § 13. Laws of states adopted for areas within Federal jurisdiction.
      Whoever within or upon any of the places now existing or hereafter reserved or acquired [jurisdiction of U. S.] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable . . within the State ... in which such place is situated, by the laws thereof . . shall be guilty of a like offense and subject to a like punishment.

      . Title 18 U.S.C., Ch. 103 — Robbery and Burglary, § 2111 et seq.

      . Although this court has not had occasion to interpret 18 U.S.C. § 2111, it has reviewed 18 U.S.C. § 2113(a) a bank robbery statute with comparable language. Section 2113(a) provides inter alia:

      (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association
      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      In comparing this language with that of § 2111 it is evident that both require 1) the taking from a person, 2) anything of value, 3) by the use of force or intimidation. The only difference is that § 2111 applies to special maritime and territorial jurisdiction while § 2113 is applicable to banks. Significantly, both sections are devoid of the word “feloniously” which is generally included in the common law definition of robbery. In United States v. Porter, 431 F.2d 7 (9th Cir. 1970), cert. denied 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970), this court concluded that the language of § 2113 quoted above does not include specific intent as an element of the offense. Id. at 10. In holding today that specific intent is an element of an offense under § 2111, the majority thrusts upon the legal world an irreconcilable discrepancy. Two statutes with virtually identical language have been construed so that in one (§ 2111) specific intent is an element and in the other (§ 2113) it is not. Such a disparity should not exist and it is my belief that Porter was decided correctly and that § 2111 in the instant case should be construed in accordance with the dictates of Porter.

      . H.R.Rep.No.304, 80th Cong., 1st Sess. 2595 (1947). _

      . This is the only aspect of the change to which “intent” could apply. The fact that it here substitutes the otherwise necessary specific intent in a murder prosecution does not change the intent quality of § 2111.