text:
    AIR PRODUCTS AND CHEMICALS, INC., and Stauffer Chemical Company, Plaintiffs-Appellants, v. UNITED GAS PIPE LINE COMPANY, Defendant-Appellee. ALLIED PAPER INCORPORATED, Plaintiff-Appellant, v. UNITED GAS PIPE LINE COMPANY, Defendant-Appellee.
    Nos. DC-23, DC-25.
    Temporary Emergency Court of Appeals,
    Argued June 28, 1974.
    Decided Sept. 3, 1974.
    Rehearing Denied Oct. 7, 1974.

      Peter J. Nickles, Covington & Burling, Washington, D. C. (John A. Hodges, John D. Taurman, Washington, D. C., on the brief), for appellants, Air Products and Chemicals, Inc., and others.
    S. White Rhyne, Jr., Mullin, Connor & Rhyne, Washington, D. C. (Arthur A. Munisteri, New York City, on the brief), for appellant, Allied Paper Inc.
    W. DeVier Pierson, Sharon, Pierson, Semmes, Crolius & Finley, Washington, D. C. (William B. Cassin, Houston, Tex., on the brief), for appellee.
    Before HASTIE, CHRISTENSEN and ESTES, Judges.
   PER CURIAM:

Contract purchasers of natural gas have taken these consolidated appeals under Section 211 of the Economic Stabilization Act of 1970, as amended (the Act), 12 U.S.C. § 1904 note (1972 Supp.), from ordei’s dismissing their complaints, 373 F.Supp. 474. The actions had been brought in the district court as private suits under section 210 of the Act against the plaintiffs’ supplier, United Gas Pipe Line Company (United), to recover allegedly unlawful overcharges.

Effective January 1, 1973 l/nited imposed upon 55 of its industrial contract customers, among them the appellants, large direct increases in the price of gas. Before doing so and unknown to its customers, United , through informal direct communication, had obtained a letter, dated November 16, 1972 and signed by Assistant General Counsel of the Price Commission upon the basis of which United concluded that under a regulation of the Price Commission, 6 C.F.R. § 300.308, it might properly “self-certify” its proposed increases and put them into effect without prior Commission approval, albeit subject to subsequent review and possible invalidation.

As customers who had not been heard before the price increases became effective, the appellants then made formal submissions to the Cost of Living Council (CLC), to which the powers and responsibilities of the Price Commission had been transferred, seeking a ruling that the price increases were unlawful. Thereafter, without explicitly addressing the merits of appellants’ contention, a letter signed by CLC General Counsel informed them that CLC declined “at this time” to intervene. Thus frustrated, the appellants filed the present suits.

Both actions were dismissed on the ground that, as private actions for relief under section 210 of the Act, they were premature. Failure to join the Cost of Living Council as an indispensable party was stated as an additional reason for dismissing the complaint of Allied Paper, Inc.

At the outset, we hold that failure to join CLC as a party did not in itself justify dismissal of the action. “If a party has been omitted who ought to be joined under Rule 19, the remedy is to join him, and dismissal is called for only if he cannot be served or his presence would destroy diversity.” C. Wright, Federal Courts, 2d ed., 306. Yet, we have no doubt that CLC should have been made a party to the actions below. Under all the circumstances reflected in this record and discussed later in this opinion, including many communications between individual parties and agency officials, we hold that the appropriate agency or officer of the United States should be made a party to the actions below so that the positions and views of those who administered the Act in connection with this controversy can be fully presented. Cf. Associated General Contractors of America, Inc. v. Laborers Int’l. Union, Em.App., 1973, 476 F.2d 1388.

This brings us to the major question, whether the appellants’ invocation of the remedy provided by section 210 of the Act was premature.

First, it is argued that, after being informed by General Counsel that CLC declined “at this time”, to interdict the price increases which had occasioned customer complaints, appellants should have asked for administrative reconsideration before suing United. The short answer is that the agency itself says that its practice and regulations do not provide for any such reconsideration at the request of a complainant purchaser in the situation of the appellants.

Allied’s counsel made several attempts to learn from General Counsel for CLC whether any further administrative remedies were available in this case. An affidavit of Allied’s counsel states that he was told that CLC intended to take no further action and that there were no administrative remedies remaining to Allied. On April 29, 1974, Allied received a letter from CLC General Counsel affirming the position stated earlier. The letter reads in part:

It is the Council’s position that under the Economic Stabilization Act and the Phase II regulations Allied had no further administrative remedies. There is no requirement in the regulations that a consumer complainant seek reconsideration of the Commission’s or Council’s refusal to act on a complaint submitted pursuant to 6 CFR 300.506. Nor do the regulations provide a procedure for reconsideration of the Commission’s or Council’s unpublished determination of issues in response to a request for a ruling. The General Counsel’s letter of May 18, 1973 did not constitute “initial action” as that term is defined in 6 CFR Part 305 and, consequently, did not require a request for reconsideration in order for Allied to exhaust its administrative remedies.

In Baldwin County Electric Membership Corp. v. Price Commission, Em. App., 1973, 481 F.2d 920, cert. denied, 414 U.S. 909, 94 S.Ct. 230, 38 L.Ed.2d 147, customers of a utility challenged the validity of the Price Commission’s approval of their supplier’s rate increase. The utility intervened in the district court and contended that the customers’ actions should be dismissed for failure to seek administrative reconsideration of the customers’ complaints. However, the Price Commission denied that reconsideration was available. Neither the district court nor this court in its opinion specifically mentioned this issue. However, both courts implicitly rejected the utility’s contention by upholding the Price Commission on the merits rather than disposing of the case on the motion to dismiss.

In our view, the “availability” of further admininstrative proceedings is a practical matter. When an agency itself has explicitly represented that reconsideration is not available after a certain type of ruling, and its regulations are not clearly to the contrary, resort to an otherwise available judicial remedy should not be precluded for failure to exhaust administrative remedies.

As a separate contention in support of the claim that these actions under section 210 are premature, it is argued that the appellants should first have sought, under section 211, judicial review of CLC’s unwillingness to suspend or revoke the price increases at this time. But this argument confuses the nature and functions of a section 210 private action with direct judicial review of agency action under section 211. The latter provides a judicial remedy for plaintiffs subject to price controls who have a complaint against the enforcing agency — e. g., that the agency has entered an order refusing to allow a seller to increase prices — or for other plaintiffs who have been aggrieved by formal decisions or orders that denied administrative relief to which they believe they were entitled under the Act and implementing regulations. In this case CLC has not promulgated any decision or issued any order that could be reviewed under that section. In contrast, section 210 provides a judicial remedy for plaintiffs who have a complaint against a private party, usually a seller, who the plaintiff contends has injured him through a violation of the Act or regulations. Resort to section 210 is appropriate here, because the matter in dispute is not the validity of an agency’s orders, but rather is the question of whether United, a private party, has increased its prices in violation of the regulations while CLC has stood by, declining to intervene. Plaintiffs, therefore, were entitled to bring this section 210 action against their seller to test the validity of its actions. Cf. McGuire Shaft & Tunnel Corp. v. Local 1791, U.M.W., Em.App., 1973, 475 F.2d 1209, cert. denied, 412 U.S. 958, 93 S.Ct.. 3008, 37 L.Ed.2d 1009.

Upon remand the district courts will have to determine whether the price increase in controversy was lawful. Admittedly, United put its price increase into effect by a “self-certification” procedure that was allowable under the Phase II Public Utility regulations of the Price Commission only if the proposed action would not increase the seller’s annual revenue by more than one percent. 6 C.F.R. § 300.308(d). If the similar increases imposed on all 55 of United’s direct industrial customers are aggregated, they increased United’s annual revenue by more than one percent. If not, no one customer’s increase was that large. Therefore, there must be judicial determination whether proper application of subsection 300.308(d) required aggregation in the circumstances of these increases.

The regulations, on their face, seem not to provide a clear and unequivocal answer to this question. In answering it the district courts will properly give weight to any rational administrative analysis and interpretation that may be presented.

Finally, if on remand no merit shall be found in the plaintiffs’ other contentions, the trial courts will be confronted by the contention that the price increases in controversy lacked such cost-justification as was required by 6 C.F.R. § 300.303(a). Although the customer complaints brought this question before the Cost of Living Council, the present record discloses no agency adjudication of its merits. Rather, General Counsel, himself not a delegatee of adjudicatory power, merely notified the complaining customers that the Cost of Living Council, “declines at this time to exercise its discretionary power to revoke or suspend the price increases . . . . ” This Delphic pronouncement leaves it unclear whether, and if so by whom, the increases were thought to be supported by adequate cost justification, or whether it was decided by someone for some reason not to consider this issue. In any event, the district courts may find it necessary to decide, aided by any expression and explanation of administrative views that shall be tendered, whether the increases were adequately justified as required by 6 C.F.R. § 300.303.

We cannot predict the precise course that hearings on the merits of the complaints will take. It is not our purpose here to restrict the trial courts in their exercise of judgment and proper discretion in the conduct of trial. We merely point out the context in which major issues may have to be decided.

The dismissal orders are vacated and the cases remanded for appropriate proceedings on the merits after the United States or the appropriate federal officer or agency shall have been joined as a party.

      . In the above quoted letter of April 29, 1974, CLC General Counsel explicitly stated that the agency had not “review[ed] the merits of the United Gas Price increase . ”

      . The legal conclusions stated by Assistant General Counsel in his letter of November 16, 1972, to United cannot suffice to establish their own correctness without a showing of their basis and rationale sufficient to demonstrate that they reflect a reasonable application of relevant law and regulations to the circumstances of these price increases.

      . The appellants have argued that aggregation and prenotification were required because that procedure was under these circumstances clearly called for by the underlying policy of the prenotification provision. Moreover, a recent ruling of the General Counsel of the Internal Revenue Service, ooncurretl in by the General Counsel of Price Commission (Price Commission Ruling 1972-292, 39 Fed.Reg. 28604), had required customer aggregation in an analogous situation. They attach little significance to what United views as a controlling November 16, 1972 letter to United from the Price Commission Assistant General Counsel stating that aggregation was not required because, they say, “there is no indication that the Assistant General Counsel was made aware of the fact that the contracts involved were substantially identical, that substantially identical price increases aggregating about $50 million were sought”.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Jasper J. MIRABILE, Appellant.
    No. 74-1367.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 9, 1974.
    Decided Oct. 15, 1974.
    Rehearing Denied Nov. 7, 1974.
    James L. Rider, Washington, D. C., for appellant.
    Michael A. DeFeo, Sp. Atty., Dept, of Justice, Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

The primary focus of this appeal is the federal mail fraud statute, 18 U.S.C. § 1341 (1970). Issues have been raised regarding the scope of that statute and its applicability in the context of a state misdemeanor violation, namely, fraudulent misrepresentation of gross sales on sales/use tax returns. In addition, this appeal challenges the trial court’s denial of a motion to dismiss on the basis of selective and discriminatory prosecution. We affirm.

Appellant Mirabile, owner and operator of a Kansas City, Missouri restaurant, was indicted by a federal grand jury in 1973. The indictment charged that Mirabile had devised and taken part in a scheme in which the gross retail sales of his restaurant were understated on the monthly sales/use tax returns that he caused to be mailed to the Missouri Department of Revenue. As a result, the state was defrauded of approximately $28,000 over a two and one-half year period. In United States v. Mirabile, 369 F.Supp. 1108 (W.D.Mo.1974), the district court denied a motion to dismiss the indictment and held that federal jurisdiction under § 1341 was proper. Subsequently, appellant was found guilty of mail fraud in a jury trial and placed on probation for five years.

The initial contention on appeal is that a scheme to defraud the state of Missouri by submitting false sales/use tax returns by mail is beyond the intended scope of § 1341. Appellant urges that the use of the mail fraud statute should be restricted to frauds involving federal injury and abuse of the Postal Service. It is argued that in furtherance of the intended purpose of the statute and in the interest of federal-state relations, all other fraud should be left to the states for enforcement. The fact that the statute has never been used in connection with fraudulent tax returns is, according to appellant, evidence of the error in the instant case.

However, the statute on its face is not limited in the manner suggested by the appellant; nor does it exempt the conduct in which appellant engaged. It clearly applies to “any scheme or artifice to defraud” in which the jurisdictional means (the mails) are employed. United States v. States, 488 F.2d 761, 764 (8th Cir. 1973). In the absence of a clear showing of contrary legislative intent, National Railroad Passenger Corporation v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), “the general rule of statutory construction requires the courts to ascertain the intent of legislation from the language used * * * if it is clear and plain and the act is internally cohesive.” Community Blood Bank v. F. T. C., 405 F.2d 1011, 1015 (8th Cir. 1969).

We must interpret the plain language of § 1341 “broadly and liberally * -x- * to further the purpose of the statute; namely, to prohibit the misuse of the mails to further fraudulent enterprises.” United States v. States, supra 488 F.2d at 764. Such an interpretation is totally consistent with the ever-expanding role the mail fraud statute has played.

The diversity of schemes brought within the purview of § 1341 illustrates the expansive reading that is generally given to that statute. See, e. g., United States v. States, supra 488 F.2d at 764-765; United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 155, 38 L.Ed.2d 61 (1973); United States v. Edwards, 458 F.2d 875 (5th Cir.), cert. denied, 409 U.S. 1029, 93 S.Ct. 459, 34 L.Ed.2d 148 (1972); United States v. Shewfelt, 455 F.2d 836 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972); United States v. Rosenblum, 339 F.2d 473 (2d Cir. 1964). Thus the contention that § 1341 was not meant to cover the fraud in the instant case is not persuasive.

Appellant argues that the application of § 1341 in this case is an impermissible intrusion into state affairs. However, the fact that the underlying fraud here may violate state law does not exclude it from the proscription of the mail fraud statute. Parr v. United States, 363 U.S. 370, 389, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); United States v. Flaxman, 495 F.2d 344, 349 (7th Cir. 1974); United States v. States, supra 488 F.2d at 767; United States v. Edwards, 458 F.2d 875, 880 (5th Cir.), cert. denied, 409 U.S. 1029, 93 S.Ct. 459, 34 L.Ed.2d 148 (1972).

Appellant’s contention is premised upon a basic misinterpretation of the rationale behind the mail fraud statute. This court recently stated, “[t]he focus of the statute is upon the misuse of the Postal Service, not the regulation of state affairs, and Congress clearly has the authority to regulate such misuse of the mails.” United States v. States, supra 488 F.2d at 767. In this case, as in States, principles of federalism do not provide a basis for reversal.

Appellant also alleges that the mailings in this case were not an integral part of the scheme to defraud and therefore the fraud does not fall within the proscription of the mail fraud statute. We disagree. In United States v. Nance, 502 F.2d 615 (8th Cir. 1974), this court discussed the “use of the mails” requirement in connection with § 1341 and stated:

* * -x- To bring the scheme within the ambit of the mail fraud statute, the mails must bá used for the purpose of executing the scheme, Kann v. United States, 323 U.S. 88, 93 [65 S.Ct. 148, 89 L.Ed. 88] (1944); must be employed before the scheme reaches fruition, United States v. Maze, 414 U.S. 395, [402] [94 S.Ct. 645, 38 L.Ed.2d 603] (1974); yet, need not be contemplated as an essential element of the scheme, Pereira v. United States, supra, 347 U.S. [1], at 8 [74 S.Ct. 358, 98 L.Ed. 435] (1954).

In the case before us, as in United States v. Flaxman, supra 495 F.2d at 348-349, the fraud did not reach fruition until the tax forms were mailed to the state revenue authorities. This fact distinguishes the instant case from United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), and brings appellant’s conduct in executing the fraud directly within the scope of § 1341. See United States v. Britton, 500 F.2d 1257 (8th Cir. 1974); United States v. Miles, 498 F.2d 394 (8th Cir. 1974); United States v. Gaskill, 491 F.2d 981, 984 (8th Cir. 1974).

Appellant’s final contention is that the trial court erred in denying his motion to dismiss the indictment for selective and discriminatory prosecution. We disagree. The trial court conducted an evidentiary hearing during which appellant presented his evidence with respect to the motion. This included cross-examination of the prosecutor who voluntarily testified with respect to certain interrogatories propounded by appellant. Although appellant claims his questioning of the prosecutor was unduly circumscribed by the trial court, we find no abuse of discretion in this regard. See United States v. Berrigan, 482 F.2d 171, 179-182 (3d Cir. 1973). Cf. United States v. Falk, 479 F.2d 616, 619-624 (7th Cir. 1973). We are satisfied from an examination of the hearing record that the trial court was warranted in holding that there was insufficient evidence to support a finding of selective and discriminatory prosecution.

Affirmed.

      . The statute, 18 U.S.O. § 1341 (1970), provides, in relevant part, as follows :
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises * * * for the purpose of executing such scheme or artifice or attempting to do so * * * knowingly causes to be delivered by mail according to the directions thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any (matter or thing whatever to be sent or delivered by the Postal Service) shall be fined not more than $1,000 or be imprisoned not more than five years, or both.

      . We similarly reject appellant’s attempt to equate the present case with Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 19, 77 L.Ed. 511 (1932). The interpretation that, we iiave given to § 1341 produces neither the “absurd consequences” nor the “flagrant injustice” that brought about the kiorreUs entrapment doctrine. Id. at 287 U. S. 446—452, 53 S.Ct. 19, 77 L.Ed. 511.


author: HUFSTEDLER, Circuit Judge:- PER CURIAM:

text:
    UNITED STATES of America, Appellant, v. Stuart CLEVELAND and Augustine Cleveland, Appellees. UNITED STATES of America, Appellant, v. Daven CHIAGO and Sanford Chiago, Appellees.
    Nos. 73-3604, 74-1113.
    United States Court of Appeals, Ninth Circuit.
    Sept. 25, 1974.
    Rehearing Denied Jan. 27, 1975.

      David Adler, Crim. Div., Dept, of Justice (argued), Washington, D. C., for appellant.

      Tom Karas (argued), Federal Public Defender, Phoenix, Ariz., Nick L. Rayes (argued for 74-1113), Phoenix, Ariz., for appellees.
    Before BARNES and HUFSTEDLER, Circuit Judges, and ENRIGHT, District Judge.

       Honorable William B. Enright, Southern District of California, sitting by designation.

   OPINION

HUFSTEDLER, Circuit Judge:-

Defendants Stuart and Augustine Cleveland, who are Indians, were charged under 18 U.S.C. § 1153 with assault with a deadly weapon upon named Indians and non-Indians, following an affray on an Arizona Indian reservation among the Clevelands and tribal and Arizona police. Defendants Daven and Sanford Chiago, also Indians, were charged with aiding and abetting an assault resulting in serious bodily injury to another Indian, an offense likewise occurring on an Indian reservation in Arizona. The district court dismissed the indictments on the ground that the statutes on which the prosecutions were founded unconstitutionally discriminated against these Indians in that Indians are subjected to harsher punishment than non-Indians who commit the same offenses, and, in prosecutions for assault with a dangerous weapon, the Government is given a lighter burden of proof in prosecuting Indians than is required in prosecuting non-Indians.

Federal jurisdiction for the prosecution of crimes committed on Indian reservations and the choice of federal or state criminal law in such prosecutions are based on 18 U.S.C. §§ 1152, 1153. Under section'1152 crimes committed by non-Indians against Indians and by Indians against non-Indians, with certain exceptions for Indian offenders, are subject to federal prosecution under federal substantive criminal law. Section 1153, before the 1966 and 1968 amendments, applied federal substantive criminal law to listed major offenses committed by Indians against Indians and non-Indians, including assault with a dangerous weapon. The relevant 1966 and 1968 amendments added assault resulting in serious bodily injury to the listed offenses and adopted state law to define that offense and assault with a dangerous weapon and to prescribe the punishment for both offenses.

The federal assault statute that is applicable to offenders subject to federal law is section 113, which in pertinent part, states:

“Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:
* * * -x- -» -X-
“(c) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by fine of not more than $1,000 or imprisonment for not more than five years, or both.
“(d) Assault by striking, beating, or wounding, by fine of not more than $500 or imprisonment for not more than six months, or both.”

The pertinent Arizona assault statutes are Arizona Revised Statutes sections 13-245(A)(5), 13-245(C), and 13-249. Section 13-245(A)(5) defines aggravated assault or battery as that in which “a serious bodily injury is inflicted upon the person assaulted,” for punishment of which section 13-245(0 prescribes a minimum of five years in prison. Section 13-249 provides:

“Assault with deadly weapon or force; punishment
“A. A person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, shall be punished
“B. A crime as prescribed by the terms of subsection A, committed by a person armed with a gun or deadly weapon, is punishable by imprisonment in the state prison, for the first offense, for not less than five years

Crimes committed by non-Indians against non-Indians on an Indian reservation are excluded from section 1152 because, absent a contrary provision in a treaty with the Indians, the state in which the reservation is situated has exclusive jurisdiction over such crimes. (New York ex rel. Ray v. Martin (1946) 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261; United States v. Ramsey (1926) 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039; United States v. McBratney (1881) 104 U.S. (14 Otto) 621, 26 L.Ed. 869.)

The interaction of sections 1152 and 1153, as amended, together with the impact of Martin, Ramsey and McBratney, produces the following results in cases of assault with a dangerous weapon and assault resulting in great bodily injury, when these offenses are committed on Indian reservations in Arizona:

(1) The Arizona law of assault applies to an offense committed by a non-Indian against a non-Indian because no federal jurisdiction exists.

(2) Federal law applies to an assault by a non-Indian against an Indian.

(3) Arizona law applies to an assault by an Indian against either an Indian or a non-Indian.

I

Counts II through VII of the Cleveland indictments each involve an assault by an Indian against a non-Indian. The due process and equal protection challenges to these counts are based on the claim that a non-Indian defendant who assaults with a dangerous weapon a non-Indian is subjected to the heavier burden of proof on the Government and to the less harsh penalties of 18 U. S.C. §§ 113(c), 113(d), whereas an Indian who assaults a non-Indian, is subjected to the lighter governmental burden and the harsher penalties of Arizona law. The constitutional attacks must fail because the premise is wrong. Non-Indians who assault non-Indians and Indians who assault non-Indians are both subject solely to Arizona law. The federal government has no jurisdiction to prosecute or to punish crimes in the former category, and Congress has adopted Arizona law in respect of the latter class. In the face of Martin, Ramsey and McBratney, supra, Congress could not have asserted federal jurisdiction to define the crime or to prescribe the punishment for non-Indian assaults on non-Indians. The effect of the 1966 and 1968 amendments to section 1153, subjecting Indians who assault non-Indians to state law was to create equal treatment of non-Indian and Indian defendants for this category of offenses, excepting only that the Indians are prosecuted in federal courts and non-Indian defendants are prosecuted in the state courts. The Indians do not contend that the difference in jurisdiction denies them either due process or equal protection.

II

Count I of the indictment against Augustine Cleveland, Count VIII against both Clevelands, and the indictment against the Chiagos each charge an assault offense committed by an Indian against an Indian. The equal protection arguments strike home in this instance because the 1966 and 1968 amendments to section 1153 created' substantial disparities between Indian defendants and non-Indian defendants who are charged with committing identical offenses. The sole distinction between the defendants who are subjected to state law and those to whom federal law applies is the race of the defendant. No federal or state interest justifying the distinction has been suggested, and we can supply none. The 1966 and 1968 amendments to section 1153 as applied to adopt Arizona law in defining and punishing assault with a dangerous weapon and assault resulting in serious bodily injury alleged to have been committed by an Indian against an Indian are violative of the equal protection requirement of the Fifth Amendment. (E. g., Johnson v. Robison (1974) 415 U.S. 361, 364-365 n. 4, 94 S.Ct. 1160, 39 L.Ed.2d 389; McLaughlin v. Florida (1964) 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (applying the equal protection clause of the Fourteenth Amendment); Bolling v. Sharpe (1954) 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884. Cf. Keeble v. United States (1973) 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844.)

Ill

The entire indictment of the Chiagos and Count I and VIII of the Clevelands’ indictment were properly dismissed. Although we have struck down only those portions of the challenged 1966 and 1968 amendments to section 1153 that adopt the Arizona law of assault as applied to an Indian’s assault on an Indian, we refuse to sever from the statute those parts of the amendments that are unconstitutional for the purpose of saving the indictments drawn upon the amended statute.

We firmly reject the Government’s invitation to rewrite the penalty provisions of the applicable statutes to equalize the punishment of Indians and non-Indians charged with assaulting Indians. Fixing the punishment for crimes is a legislative, rather than a judicial function. (Cf. United States v. Evans (1948) 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823.)

The dismissal of the Chiago indictment is affirmed. The dismissal of Counts I and VIII of the Cleveland indictment is affirmed. The dismissal of Counts II through VII of the Cleveland indictment is reversed, and the cause is remanded to the district court.

OPINION ON DENIAL OF REHEARING

PER CURIAM:

Nothing in our opinion forecloses a new indictment based on 18 U.S.C. § 1153 as it read prior to the amendments that have been constitutionally invalidated.

      . Section 1152 provides :
      “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
      “This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to . any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.”

      . Section 1153 then provided:
      “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same, laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. ((
      “As used in this section, the offense of burglary shall be defined and punished in accordance with the laws of the State in which such offense was committed.” June 25, 1948, c. 645, 62 Stat. 758; May 24, 1949, c. 139, § 26, 63 Stat. 94.

      . These amendments are italicized:
      “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

        “As used in tills section, the offenses of burglary, assault, with a dangerous weapon, assault resulting in serious bodily injury, and incest shall be defined and punished in accordance with the laws of the State in which such offense was committed.”
      As amended Nov. 2, 1966, Pub.L. 89-707, § 1, 80 Stat. 1100; Apr. 11, 1968, Pub.L. 90-284, Title V, § 501, 82 Stat. 80.

      . In a case involving offenses committed by Indians against non-Indians, similar constitutional arguments were rejected by this Circuit for similar reasons. Henry v. United States (9th Cir. 1970) 432 F.2d 114.

      . The statutory scheme, as applied in these cases, makes Indians subject to more severe punishment than are non-Indians (compare 18 U.S.C. § 113(c), (d) with Ariz.Rev.Stat. §§ 13-249, 13-245(A) (5), (C)) and reduces the prosecutor’s burden of proof (compare 18 U.S.C. § 113(c) with Ariz.Rev.Stat. § 13-249(A)).

      . Mull v. United States (9th Cir. 1968) 402 F.2d 571 upheld against constitutional attack the assault provisions of § 1153 as applied to an Indian assaulting with a dangerous weapon a non-Indian before the challenged amendments became effective. Prior to the amendments, assaults with a dangerous weapon committed by an Indian on an Indian were subject to federal law the same as a similar assault by a non-Indian on an Indian.


author: BIGGS, Circuit Judge.

text:
    UNITED STATES of America v. Alvin E. YOUNG et al., Appeal of Robert GREEN.
    No. 73-2044.
    United States Court of Appeals, Third Circuit.
    Argued April 16, 1974.
    Final Submission July 26, 1974.
    Decided Oct. 10, 1974.

      Jack M. Myers, Philadelphia, Pa., for appellant.
    Thomas J. McBride, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before BIGGS, ALDISERT and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

The appellant, Robert Green, was convicted in a consolidated trial of conspiring to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. § 841. Green’s four co-defendants were also convicted of this conspiracy, as well as various other violations of the Narcotics law.

The appeals of Green’s co-defendants were adjudicated in United States v. Harris, 498 F.2d 1164 (3d Cir., 1974). To the extent Robert Green relies by reference upon those issues raised by his co-defendants, we reject them for the reasons stated by Judge Rosenn in that opinion. The only remaining significant issue raised by Green on this appeal is that of double jeopardy.

The gravamen of this assertion of former jeopardy is an earlier indictment, No. 72-552, filed October 5, 1972, to which Green pleaded guilty on November 29, 1972. This indictment alleged a conspiracy among Robert Green, Oscar Peters, George Glover and others, unknown to the Grand Jury, to distribute 11 bundles of heroin, on or about the 20th day of September, 1972, in Philadelphia, and elsewhere, in violation of 21 U.S.C. § 841. Additionally, Green was charged in two counts with knowing and intentional use of a communications facility, i. e., a telephone, in aiding an attempt to distribute 11 bundles of heroin in violation of 21 U.S.C. § 843(b). The overt acts alleged in connection with this indictment related to activities taking place on or about September 20, 1972, in Philadelphia.

The indictment involved in the controversy sub judice, No. 73-193, filed April 3, 1973, charges that Robert Green conspired with Alvin E. Young, Harvey Johnson, Charles Harris, Harold E. Young, James H. Simmons, Linda Johnson, and other persons whose names were unknown to the Grand Jury, to possess with intent to distribute, and to distribute quantities of heroin in violation of 21 U.S.C. § 841. This count, the only one involving Robert Green, alleges a major conspiracy extending in duration from October 30, 1970 to April 3, 1973, which included purchasing of heroin in New York City, transporting the narcotics to Philadelphia, adulterating and packaging the heroin so obtained, and distributing the product.

The enumerated overt acts concerned activities in New York, New Jersey and Pennsylvania. Those pertaining to Green were limited to purchase of the heroin in New York and its subsequent transportation to Philadelphia.

Green alleges that the former indictment merely segregated a subsection of the overall conspiracy for independent prosecution; hence, it is argued, the instant prosecution places him in double jeopardy in violation of the Fifth Amendment.

The Government asserts that Green waived his Fifth Amendment guarantee against being placed in double jeopardy by his failure promptly to raise it in the course of the prosecution. Green’s counsel did not bring the prior conviction to the attention of the court until the 11th day of a 12 day trial when counsel were on the brink of beginning closing argument to the jury. To explain the delay, counsel for Green asserts that he did not learn of the prior conspiracy conviction until the day he brought it to the attention of the court.

It is manifest that a claim of double jeopardy is an affirmative defense which must be raised properly or may be deemed waived. United States v. Scott, 150 U.S.App.D.C. 323, 464 F.2d 832 (D.C.Cir. 1972); United States v. Buonomo, 441 F.2d 922 (7th Cir.), cert. denied 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971); Grogan v. United States, 394 F.2d 287 (5th Cir. 1967), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1968). See Rule 12, Fed.R.Crim.P. It is within the discretion of the district court, however, to determine whether or not the conduct of the defendant is such as to bar raising this affirmative defense. The District Court in the instant ease chose to consider the defense of former jeopardy on the merits, without reservation; thus, implicitly deciding that it had not been waived. We see no reason to disturb this determination. As we have said, counsel for Green stated that he did not realize until the 11th day of trial that his client was in jail because of the earlier conviction on an arguably similar charge. Moreover, it is less than clear that defense counsel’s inexplicable failure to investigate properly his client’s position would fit the requirement that a waiver of such a fundamental, constitutional right be knowing, intelligent, and voluntary. See Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Having determined that there has been no waiver, we turn to the merits. The District Court stated some of the general propositions to be used when evaluating a claim of former jeopardy, as follows:

“To support a claim of double jeopardy, it must be shown that the two offenses charged are in law and in fact the same offense. United States v. Ewell, 383 U.S. 116 [86 S.Ct. 773, 15 L.Ed.2d 627] (1966); Dryden v. United States, 403 F.2d 1008, 1009 (5th Cir. 1968). Offenses are not the same merely because they arise out of the same general course of criminal conduct, ‘they are the same only when the evidence required to support a conviction upon one of [the indictments] would have been sufficient to warrant a conviction upon the other.’ United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972).” 368 F.Supp. at 718.

These propositions must be tempered, however, with the consideration that a single conspiracy may not be subdivided arbitrarily for the purposes of prosecution. See, e. g., United States v. Tanner, 471 F.2d 128, 141 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v. Palermo, 410 F.2d 468, 470 (7th Cir. 1969); United States v. Edwards, 366 F.2d 853, 872 (2d Cir. 1966), cert. denied, 386 U.S. 919, 87 S.Ct. 882, 17 L.Ed.2d 790 (1967); United States v. Cohen, 197 F.2d 26, 29 (3d Cir. 1952).

The district court, upon consideration of the evidence before it, determined the existence of multiple conspiracies and a corresponding absence of any double jeopardy violation. This decision was based at least in part on the rationale that: the 1972 conspiracy occurred on or about a specific day (i. e,, September 20, 1972) as compared with the 1973 indictment which alleged an ongoing conspiracy from October 30th, 1970 to April 3, 1973; the evidence required to prove the 1973 indictment would be insufficient to convict on the 1972 indictment; the particular criminal act, to which Green pleaded guilty, i. e., a telephone call, was not mentioned in the 1973 indictment; the facts actually proved during the course of the trial were different than those alleged in the 1972 indictment; proof of facts essential to one charge and not the other were necessary; the 1973 indictment did not include Peters and Glover, even though these two names were known to the Grand Jury, and the government, as is evidenced by the 1972 indictment, and so could not be deemed included in the “persons unknown” category; and Green pleaded guilty to the prior indictment but innocent to the 1973 charges.

To the extent the district court relied upon the fact that Peters and Glover were not co-conspirators in the 1973 conspiracy charge, the finding of fact inherent in the determination of multiple conspiracies would appear to be based on an incorrect premise. Although Peters and Glover were not named by the Grand Jury, the inference that they could not be considered unnamed co-conspirators in light of the prior indictment was substantially rebutted by the comments of the prosecutor in the course of the trial. On the second day of the trial, during the testimony of one Linda Johnson, an unindicted co-conspirator, the name of Peters was raised and defense counsel objected. In rebuttal, the prosecutor stated as follows: “But I think there is no doubt that he [Peters] falls within the scope of an unindicted or unnamed co-conspirator. . . . ”

On that same day, George Glover was referred to by the prosecuting attorney as a “worker” for the same organization and Linda Johnson testified that Oscar Peters would hold the heroin after she was determined by her eo-conspira-tors to be “too hot.” Finally, during the summation by Green’s counsel, the prosecuting attorney complained to the court about counsel’s challenge to the government, before the jury, to show any connection between Robert Green and the alleged conspiracy. He asserted that counsel for Green was well aware of the connection with this organization by virtue of the prior conviction with George Glover and Oscar Peters, “two other workers in the Shaky Young Organization.”

Since we are unaware how the district judge might characterize this conspiracy or conspiracies had he taken account of these revelations and they effectively negate at least one basis of the stated rationale, we deem it appropriate to remand to the district court for determination of fact as to whether the two conspiracies alleged in the 1972 and 1973 indictments were in fact but a single, continuing conspiracy, arbitrarily broken up for the purposes of prosecution and hence violative of Green’s Fifth Amendment protections.

While, we draw no conclusion as to the ultimate disposition of this determination of fact, it is, we believe, worthwhile to take further cognizance of the comments of the prosecutor on the occasion of Green’s sentencing under the 1972 indictment. At this time, the Assistant United States Attorney addressed the judge as follows:

“The defendant is known to us to be a large trafficker in heroin. He distributes large bundles of heroin. He is not addicted to heroin.
* * * “we feei; as i stated before, that Mr. Green is a substantial dealer in narcotics. The forty-one bundles involved in this case may not be a house full, but that’s a large quantity of heroin. Just that alone would sell at about $100 to $110 a bundle on the street and would be worth $1,400 or a little more in another sell, and that’s the only transaction that we were fortunate enough to catch Mr. Green involved in.”

We note further that the district court gave great weight to the fact that Green pleaded guilty to the first indictment and innocent to the second indictment. Although the difference in plea is probative of multiple conspiracies, undue reliance should not be placed on it. A decision to plead guilty is often tactical and far from dispositive on the issue of whether the criminal conspiracies charged are in fact elements of the same agreement. See, e. g., North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L. Ed.2d 162 (1970).

Similarly, the district court may have placed undue reliance on the difference in the overt acts alleged in the two indictments. Different alleged overt acts are not necessarily inconsistent with an improper division of a single conspiracy into multiple crimes. It is the agreement which constitutes the crime, not the overt acts. United States v. Salerno, 485 F.2d 260 (3d Cir. 1973), cert. denied, 415 U.S. 994, 94 S.Ct. 1596, 39 L.Ed.2d 891 (1974). Proper weight must be given to consideration of whether the overt acts alleged in the first conspiracy charge were carried out in furtherance of the broad agreement alleged in the second indictment or whether these acts were carried out in furtherance of a different agreement.

The government has asserted that in the event there is an issue of material fact concerning the existence-of a single versus multiple conspiracies, this issue must be presented to the jury as would any other issue of material fact in a criminal case. It has been suggested that this may very well be the reason why counsel for Green failed to raise the issue of double jeopardy until subsequent to the close of the government’s case. Adoption of the government’s position in cases such as this would indeed place counsel for the defense in the unenviable position of having to bring before the jury the prior conviction, which ordinarily, of course, it would not be mandatory to do. It would be necessary for counsel to argue that the charge brought in the instant proceeding is in fact the same as that to which his client pleaded guilty and then if the jury were to determine the threshold question adversely to the defendant, to reverse field and assert that the defendant is not guilty on this occasion. We are not wont to place defendants in the position of being forced to increase substantially the probability of their conviction by their own assertions at the risk of waiving rather significant constitutional protection.

The finding of single or multiple conspiracies for the purpose of a double jeopardy defense does not go to the guilt or innocence of the accused. Correspondingly, it seems entirely appropriate that this determination be made by an evidentiary hearing prior to or, if necessary, subsequent to trial.

We will neither reverse nor vacate the judgment entered by the District Court. The case will be remanded for appropriate action pursuant to this opinion and this Court will retain jurisdiction of the cause. In the event there is no finding of double jeopardy following an eviden-tiary hearing, the extant conviction will stand.

      . The charges were brought under two indictments ; viz., 73-45 and 73-193, and were tried together. Green was charged only in count 1 of 73-193.

      . The trial of co-defendant James H.. Simmons was severed and he is not before us on this appeal.

      . The facts of this case were extensively reviewed in United States v. Harris, supra, and in the opinion of the District Court denying defendants’ motions for post-trial relief, 368 F.Supp. 697 (E.D.Pa.1973). We reiterate those facts only to the extent necessary to our disposition of this case.

      . The overt acts included storage of the heroin at the residence of Oscar Peters, various telephone calls between the conspirators in furtherance of the attempted distribution, and travel to a meeting place for the purpose of receiving delivery of the heroin. Robert Green was mentioned in two of the five enumerated overt acts. The first involved a telephone call to Peters inquiring as to the amount of heroin he had and the second, a telephone call informing Peters that he was sending Glover to pick up eleven bundles for which the latter had paid.

      . Jeopardy attached in the former prosecution with acceptance of the guilty plea. See United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973).

      . In his original brief to this Court, Green’s counsel stated that in the course of the “headlong rush to trial” Green was interviewed in prison but “unbeknownst to his counsel, Green was not incarcerated because he hadn’t been able to make bail, but because he was already serving a sentence of eight (8) years in prison, (to be followed by five (5) years of special parole) for violation of the identical statute .... Because of the unprecedented time pressure in preparing for a trial of great complexity in such a short period, this information did not come to counsel’s attention until the last day of trial. . . .” Brief of appellant at 2.
      In a letter to this Court, filed in response to questions raised at oral argument Green’s counsel stated that he “was informed as part of the interview [with Green] that he was serving eight (8) years on a plea of guilty. Counsel did not go into the facts or merits of this other case since the case was literally closed.”

      . Under Rule 12, Fed.R.Crim.P., the defense of former jeopardy may be raised by motion prior to trial since the manifest purpose of the rule is to dispose of such motions, if possible, without the need of a lengthy trial; see Dooling v. United States, 406 F.2d 192 (2d Cir.), cert. denied, 395 U.S. 11, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969), and because the double jeopardy protections are intended to avoid repeated prosecutions for the same offense, as well as repeated punishment. United States ex rel. Gibson v. Ziegele, 479 F.2d 773, 776 (3d Cir.), cert. denied, 414 U. S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973). See generally 8 J. Moore, Federal Practice « 12.03 [2] and 12.03 [4] (2d ed. 1973); 1 Wright, Federal Practice and Procedure § 193 (1969).

      . Transcript, June 20, 1973, at 72.

      . Transcript, June 20,1973, at 83.

      . Transcript, June 20, 1973, at 84.

      . Transcript, July 6, 1973, at 7.

      . It does not appear that the transcript of tlüs hearing was before the District Court in this case.

      . Transcript, January 10, 1973, at 28-29.

      . Supplemental Brief Two For Appellee at 12.

      . We are in substantial agreement with the opinion of Judge Watkins in United States v. H. W. Koontz Creamery, Inc., 232 F. Supp. 312 (D.Md.1964); see United States v. Berrigan, 482 F.2d 171, 175 (3d Cir. 1973).

      . See United States v. Berrigan, supra; United States v. H. E. Koontz Creamery, Inc., supra.

      . Ordinarily, the determination of former jeopardy should be made prior to trial. However, in the event that factual matters arise, e. g., the scope of a criminal agreement, the decision on the motion may be deferred to permit consideration of factual matters which may arise at trial. See, e. g., United States v. Whitted, 454 F.2d 642, 644 (8th Cir. 1972); United States v. Treadway, 312 F.Supp. 307 (D.Va.1970); United States v. DeSapio, 299 F.Supp. 436, 442 (S.D.N.Y. 1969) (pre-trial motion), post-trial sub nom. United States v. Corallo, 309 F.Supp. 1282 (S.D.N.Y.1970), aff’d. sub nom. United States v. DeSapio, 435 F.2d 272 (2d Cir. 1970), cert. denied 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971). See also 8 J. Moore, Federal Practice K 12.04 (2d ed. 1973); 1 Wright, Federal Practice and Procedure § 194 (1969).


author: HASTIE, Circuit Judge. SEITZ, Chief Judge

text:
    CHILDREN’S REHABILITATION CENTER, INC., a corporation, Appellant, v. The SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL NO. 227, AFL-CIO.
    No. 73-1748.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 18, 1974.
    Decided Aug. 7, 1974.
    Certiorari Denied Dec. 23, 1974.
    See 95 S.Ct. 681.

      Seitz, Chief Judge, dissented and filed opinion.
    Donald T. O’Connor, Randolph & O’Connor, Pittsburgh, Pa., for appellant.
    Condon, Klocke, Ange, Gervase & Sed-ita, Buffalo, N. Y., Louis B. Kushner, Pittsburgh, Pa., for appellee; Grace Marie Ange, Buffalo, N. Y., of counsel.
    Before SEITZ, Chief Judge, and HASTIE and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

On motion, the district court dismissed, for failure to state a claim upon which relief could be granted, an employer’s action for money damages for breach of contract against a union that represented its employees. The action was brought under Section 301 of the Labor-Management Relations Act of 1947. 29 U.S.C. § 185.

The complaint alleged that a strike, which had begun on December 4, 1972 and was still in progress, had been called by the union in violation of a no strike provision in the parties’ labor contract. For this breach damages were claimed in the amount of $550 per day, beginning December 4, 1972. The complaint also alleged that “on Friday, December 15, 1972, the work stoppage not having terminated, the Plaintiff notified the Defendant that it considers the Agreement to be terminated in its entirety”.

It was the theory of the district court that the employer’s admitted December 15 election to “terminate” the labor contract “in its entirety” deprived it of the remedy it now seeks.

In cases arising under Section 301 of the Labor-Management Relations Act the courts of the United States are shaping a national common law of labor relations. In that process it has been established that a violation of a no strike provision of a comprehensive labor contract does not ipso facto relieve the employer of the complex of legal obligations that the contract has imposed upon it. Drake Bakeries, Inc. v. Local 50, American Bakery Workers, 1962, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474; Local Union No. 721, United Packinghouse, F. & A. Workers v. Needham Packing Co., 1964, 376 U.S. 247, 84 S.Ct. 773, 11 L.Ed.2d 680. However, the cited cases do not reach the question whether such a breach could empower the employer, by a clear pronouncement to the union, unilaterally to abrogate the entire labor contract. That remedy for material breach of a contract was available at common law “at the option of the injured party, and it should be, and in general is allowed . . . for any breach of contract of so material and substantial a nature as would constitute a defense of an action brought by the party in default for refusal to proceed with the contract”. 12 Williston, Contracts, 3d ed. 1970, 186.

The district court, properly cited Boeing Airplane Co. v. Aeronautical Industrial District Lodge 751, I. A. M., W.D.Wash.1950, 91 F.Supp. 596, aff’d., 9th Cir. 1951, 188 F.2d 356, cert. denied 342 U.S. 821, 72 S.Ct. 39, 96 L.Ed. 621, as a precedent for the recognition of such power where a labor contract has been breached by a prohibited strike. Accord, United Electrical R. & M. Workers v. N. L. R. B., 1955, 96 U.S.App.D.C. 46, 223 F.2d 338. See also Local Joint Executive Board v. Nationwide Downtowner Motor Inns, Inc., W.D.Mo.1964, 229 F.Supp. 413, 416. Moreover, in the present case, the union has acquiesced in and now relies upon the termination of the labor contract. Therefore, the district court correctly stated in its dispositive order “that plaintiff cannot properly claim damages for continuing breach of labor contract . . . [after] December 15, 1972. . . .”

However, in dismissing the complaint the court denied relief for injury sustained before as well as after the December 15 contract termination, despite the claim for damages in the amount of $550 dollars per day, beginning December 4, 1972, and despite the fact that jurisdiction under Section 301 does not depend upon the amount in controversy.

It is arguable that the injured party’s abrogation of a breached labor contract should be effective only to free the parties of future obligations under their comprehensive long term bargain, and not to destroy any cause of action for pre-termination damages attributable to the breach. But we think that limitation should not be recognized in the evolving federal common law of labor relations.

A detailed labor contract promotes economic stability by defining terms and conditions of employment, usually for a term of several years. After most strikes, whether legal or illegal, that occur while a labor contract is in effect, work is resumed with a large part, if not all, of the labor contract intact. Certainly such continuity in the mutually agreed terms and conditions of employment is in the public interest and should be encouraged. On the other hand, fairness to an employer confronted by an illegal strike may dictate judicial recognition of contract abrogation or damages as alternative available remedies. But it is neither necessary nor desirable to encourage the termination of labor contracts by allowing both remedies. From this viewpoint, the loss of the right it otherwise would have to collect damages for a breach is not an unfair price for an employer to pay if it insists upon total and permanent relief from the obligations it accepted under a labor contract.

Accordingly, the judgment will be affirmed.

SEITZ, Chief Judge

(dissenting).

Plaintiff appeals from the dismissal, for failure to state a claim, of its damage action against defendant union for striking allegedly in violation of the parties’ contract. Plaintiff’s complaint states that plaintiff notified defendant that the strike not having ceased after a demand by plaintiff it “consider [ed] the Agreement to be terminated in its entirety.” The district court apparently concluded that this language amounted to a rescission of the collective bargaining agreement and that, having elected to rescind, the employer could not sue for damages.

Preliminarily, I note that the parties neither in their briefs nor in their argument here or, so far as appears from its order, in the district court questioned the existence of plaintiff’s right unilaterally to abrogate the entire labor agreement in response to defendant’s violation of a no-strike clause in the contract. Were I called upon to decide that issue, which is reached by the majority, I doubt that I could find allowing rescission of a labor contract consistent with the federal labor law.

. Certainly, this issue cannot be resolved simply by reference to rules governing traditional contractual relations; in suits such as this over bargaining agreements we must fashion a federal “common law,” guided by the policies of the federal labor laws. Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). One of the primary goals of our national labor laws is the promotion of industrial peace. To that end, parties are encouraged to enter into contracts, after collective bargaining, regulating the conduct of labor relations between them. While the parties cannot be forced by the NLRB or the courts to enter such an agreement, and the terms of any agreement are determined by the parties, where these terms are unclear the courts will interpret them in a manner likely to encourage stable and orderly labor relations. Contractual mechanisms for resolving disputes are interpreted broadly, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), and activities undermining agreed upon means of dispute resolution are held “implicitly” proscribed. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Local 174 v. Lucas Flour Co., 369 U.S. 95, 105-106, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).

Where parties have not clearly agreed to make their labor contract rescindable by the aggrieved party on breach, this policy of encouraging stable labor relations would seem to militate against interpreting bargaining agreements to allow rescission. If rescission is allowed in response to a strike or lockout, the whole contractual relation between the parties is destroyed; there is no contract to which to return after resolution of the often limited issue over which the strike or lockout occurred. And where, as here, the parties dispute whether there has in fact been a rescission, the resultant uncertainty is likely to prolong the disruption caused by the initial disagreement. During the lengthy period required for judicial resolution of this issue, the parties will differ not over a single substantive provision, but over the existence of any live agreement governing their relations. Certainly, there may be a limited deterrent effect in allowing the threat of rescission to check strikes and lockouts. I cannot, however, conceive that this benefit could offset the substantial disruption that allowing rescission would cause.

These policies which should control a decision, when appropriate, on the existence of a right to rescind, should also control our selection of a standard for finding rescission in this case. Assuming, as I must, that material breach of a collective bargaining agreement permits the aggrieved party to rescind the entire agreement, I would require that clear evidence of an intent to rescind must be produced by the party claiming that consequence.

The only permissible basis for finding an intent to rescind by the employer was plaintiff’s statement that “it considered] the Agreement to be terminated in its entirety.” This communication is couched in language that parties, courts and commentators have used for numerous disparate purposes. Although, for instance, an aggrieved party’s notification to the breaching party that the contract was “terminated” has been held to show rescission, Boeing Airplane Co. v. Aeronautical Ind. District L. No. 751, 91 F.Supp. 596, 613 (W.D.Wash.), aff’d, 188 F.2d 356, 357 (9th Cir.), cert. denied, 342 U.S. 821, 72 S.Ct. 39, 96 L.Ed. 621 (1951), there are numerous other instances where both courts and commentators have held that use of the word “termination” conveys quite different meanings, some consistent with retention of the damage remedy. 12 S. Williston, Contracts § 1455, n. 2 (3d ed. 1970); 5A A. Corbin, Contracts § 1236 (1964). Even the word “rescind” is used in situations where the contract is still in force. 12 S. Williston, Contracts § 1454A (3d ed. 1970).

. In light of the conflict the inference of rescission may have with the federal labor law and the different uses of the words employed by plaintiff, some consistent with retention of a damage claim, I believe the district court erred in finding, as a matter of law, that the plaintiff’s letter was clear evidence of plaintiff’s intent to rescind.

Since the evidence of plaintiff’s intent to rescind was not conclusive of rescission as a matter of law, I believe the issue was not properly reached on a motion to dismiss. Rather, the issue here was for the jury under proper instructions. If the jury found that plaintiff intended to rescind the contract, it also would be required to determine whether defendant relied on the rescission before the plaintiff declared his intent that the contract still have force. Only if both rescission and reliance are found should plaintiff’s damage claim be held barred.

Under the majority opinion, both these issues are taken from the jury. They have found not only that plaintiff’s intent to rescind appears conclusively from its communication, but' also that defendant has relied on plaintiff’s rescission sufficiently to bind plaintiff to its election of remedies. Thus, they state that “. . . the union has acquiesced in and now relies upon the termination of the labor contract.” I believe that, even under traditional contract doctrines, it is irrelevant that defendant now relies on the rescission as a. defense to plaintiff’s damage suit. To bar plaintiff’s damage claim, defendant must have relied to its detriment on plaintiff’s rescission before learning of plaintiff’s “changed” position, i. e., that it did not consider the contract rescinded.

The only basis for inferring that defendant relied on plaintiff’s alleged rescission is the continuance of the strike. Although defendant claims it would not have prolonged the strike but for plaintiff’s statement that the contract was terminated, this claim is hardly sufficient to establish reliance as a matter of law. The fact finder might well conclude that the continuance of the strike was not based on the union’s present interpretation of plaintiff’s communication.

For all these reasons I respectfully dissent.


text:
    UNITED STATES of America, Appellee, v. Ross Joseph STRADA, Appellant.
    No. 74-1323.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 9, 1974.
    Decided Oct. 10, 1974.

      Philip F. Cardarella, Kansas City, Mo., for appellant.
    Michael DeFeo, Sp. Atty., Dept, of Justice, Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal concerns the district court’s jurisdiction to revoke appellant’s probation and also raises collateral issues with regard to the revocation proceedings. Because we are satisfied that jurisdiction did exist and that the district court did not commit reversible error, we affirm.

Appellant was convicted in 1968 of violating 18 U.S.C. § 1084, sentenced to imprisonment for two years, execution of all but six months imprisonment was suspended and appellant placed on probation for five years commencing with his release from custody. Appellant Strada was released from imprisonment and began serving probation on March 28, 1969. On November 28, 1973 the government filed a Motion for Order of Arrest and To Show Cause Why Defendant’s Sentence of Probation Should Not Be Revoked, alleging nineteen violations of probation conditions. No such arrest order was issued, however, because appellant, through counsel, agreed to appear before the court voluntarily. A pre-hearing conference on the motion to revoke was held on January 17, 1974. A formal revocation evidentiary hearing commenced on January 22, 1974 and was completed after several days of testimony. On March 28, 1974 the court revoked appellant’s probation on the grounds that he had submitted false state sales/use tax returns and that he had hindered a police officer in the performance of his duty. A warrant was issued for appellant’s arrest at that time. Subsequently, appellant was sentenced to eighteen months imprisonment pursuant to 18 U.S.C. § 3653 (1970).

Appellant’s primary contention on appeal is that the district court was without jurisdiction to issue its March 28 order inasmuch as the five year probationary period ended on March 27, 1974. See 18 U.S.C. §§ 3651, 3653 (1970). Appellant concedes that an arrest warrant issued within the five year period is effective to toll the limitation, even if served beyond the date when probation expires. United States v. Bartholdi, 453 F.2d 1225, 1226 (9th Cir. 1972). However, appellant contends that since no warrant was issued until March 28, 1974, the computation of time is totally dispositive of this appeal. We believe that this issue need not be reached.

It is our view that the issuance of an arrest warrant within the five year period is not the exclusive means by which tolling of the period for revocation purposes can occur. We hold, as did the district court, that appellant, by consenting to appear before the court during the period of his probation, submitted himself to the district court’s jurisdiction and thereby tolled the running of the probation statute. We see no reason why the actual physical presence of the probationer before the court is not as effective a means of tolling the statute as is the mere issuance of a warrant for the arrest of a person whose precise whereabouts may be unknown. See generally United States v. Gernie, 228 F. Supp. 329, 333-335, 337-338 (S.D.N.Y.1964).

We recognize the vital significance of the fixed period of probation to probationers. As explained in Sanford v. King, 136 F.2d 106, 108 (5th Cir. 1943), “[w]hen a defendant is placed on probation he is told, in effect, that if he lives up to the conditions of probation for the required period he will then be a free man.” Thus, a revocation can occur after the probationary period only if the violation is one that occurred during that period and if formal revocation procedures — usually the issuance of an arrest warrant — are initiated during that period. See id. See also United States v. Bartholdi, 453 F.2d 1225, 1226 (9th Cir. 1972); Jutras v. United States, 340 F.2d 305 (1st Cir. 1964). In addition, a long delay between the issuance of an arrest warrant and its execution may be unreasonable and a deprivation of due process to such an extent that it divests the court’s subject matter jurisdiction. United States v. Gernie, supra, 228 F.Supp. at 332-339. See also Simon v. Moseley, 452 F.2d 306, 309 (10th Cir. 1971); McCowan v. Nelson, 436 F.2d 758, 760-761 (9th Cir. 1971). Cf. Shelton v. United States Board of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567, 574 (1967).

However, the revocation procedure in the instant case fully comports with the requirements of the applicable statutes and of due process. Well within the period of probation appellant was put on notice by the government’s motion that charges of probation violations had been lodged against him. While the motion for an arrest warrant was pending, appellant voluntarily agreed to and did appear before the court, an act that obviated the need for an arrest warrant and effectively reasserted the court’s jurisdiction over him. Strand v. Schmittroth, 251 F.2d 590, 599 (9th Cir.), petition for cert. dismissed, 355 U.S. 886, 78 S.Ct. 258, 2 L.Ed.2d 186 (1957). Once before the court, he could not challenge jurisdiction over his person. Sewell v. United States, 406 F.2d 1289, 1292 (8th Cir. 1969); Bistram v. United States, 253 F.2d 610, 612-613 (8th Cir. 1958). Clearly, appellant’s actions here effectively tolled the statute and vested in the court the power to issue its revocation order of March 28, 1974.

Appellant next argues that the absence of a preliminary hearing as required by the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), was a denial of due process. Specifically, the Gagnon decision holds that a preliminary hearing is required in the context of a probation revocation “under the conditions specified in Morrissey v. Brewer [408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ].” 411 U.S. at 782, 93 S.Ct. at 1760. One rationale for the Morrissey preliminary hearing requirement was to provide procedural safeguards with regard to the loss of liberty that accompanied an arrest for parole violations. 408 U.S. at 485-487, 92 S.Ct. 2593. Thus, Gagnon extends the right to such a hearing only to those probationers who are taken into custody and deprived of their conditional freedom. This is not the situation in the instant case. Appellant was not taken into custody until sometime after an adversary evidentiary hearing and a finding by the court that appellant had violated the terms of his probation. Thus the holdings in Morris-sey and Gagnon are not applicable.

Appellant’s further contention that he was entitled to a preliminary hearing solely as a discovery device is without merit. Coleman v. Burnett, 155 U.S. App.D.C. 302, 477 F.2d 1187, 1199-1200 (1973) . Finally we note that the record reveals that no request for a preliminary hearing was made. Under all these circumstances the court below did not err in failing to conduct a preliminary hearing.

Appellant further contends that his right to due process was infringed in that his probation was revoked on the basis of violations of state and municipal laws on which the applicable one year statutes of limitation had run. We are mindful of the Supreme Court’s statement in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1972), that statutes of limitation specify a “limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” Id. at 322, 92 S.Ct. at 464 (emphasis added). However, in the context of a probation or a parole revocation, a defendant is not entitled to the “full panoply of rights” that attend a criminal prosecution. Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593. See also United States v. Johnson, 455 F.2d 932, 933 (5th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972). Because due process is a flexible concept, each particular situation must be examined in order to determine what procedures are constitutionally required. Morrissey, supra, 408 U.S. at 481, 92 S.Ct. 2593. See also Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Boykins v. Fairfield Board of Education, 492 F.2d 697, 701 (5th Cir. 1974); United States ex rel. Martinez v. Alldredge, 468 F.2d 684, 686-687 (3d Cir. 1972), cert. denied, 412 U.S. 920, 93 S.Ct. 2737, 37 L.Ed.2d 146 (1973); United States ex rel. Walker v. Mancusi, 467 F.2d 51, 53 (2d Cir. 1972).

In the instant case the record reveals that the appellant was not prejudiced by the fact that the evidentiary hearing on revocation was held approximately one year after the state statutes of limitation had run. For example, as to the false sales/use tax charge, appellant’s primary defense was made on legal rather than factual grounds, thus eliminating any problems with regard to “staleness” that could result in prejudice. See Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970).

It must be emphasized that the trial judge is given a great deal of latitude in revocation proceedings. In order to justify a revocation order “[a] 11 that is required is enough evidence, within a sound judicial discretion, to satisfy the district judge that the conduct of the probationer has not met the conditions of the probation.” United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973). See also United States v. D’Amato, 429 F.2d 1284, 1286 (3d Cir. 1970); United States v. Nagelberg, 413 F.2d 708, 709-710 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct 569, 24 L.Ed.2d 502 (1970). Absent an abuse of discretion, the finding of a trial court in a revocation hearing cannot be disturbed. Burns v. United States, 287 U. S. 216, 222-223, 53 S.Ct. 154, 77 L.Ed. 266 (1932); United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971). See also United States v. Shapiro, 491 F.2d 335, 336 (6th Cir. 1974); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973). No such abuse is apparent here with regard to the state statutes of limitation. We believe that the facts of this case support the trial court’s actions and conclusions.

Appellant’s final allegations of error concern the trial court’s admission of the sales/use tax returns into evidence and the overall sufficiency of the evidence. We find these contentions to be lacking in merit and do not require discussion. Our careful examination of the issues raised on this appeal convinces us that the trial court did not err in revoking appellant’s probation.

Affirmed.

      . In relevant part 18 U.S.C. § 3653 (1970) states: “At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being sujiervised * * * may issue a warrant for Iris arrest for violation of probation occurring during the probation period.”

      . Although not specifically raised in this appeal, our review of the record reveals that tlie final revocation hearing held in this case fully satisfied the Morrissey/Gagnon due process requirements as set out in 408 U.S. at 488-489, 92 S.Ct. 2593.

      . We similarly reject appellant’s general charge of an abuse of discretion by the trial judge for revoking probation on the basis of misdemeanor violations.

      . Although the record is somewhat unclear as to the method by which the false state sales/use tax returns were transmitted to the state authorities, it is strongly implied that the mails were employed. If so, a violation of the federal mail fraud statute, 18 U.S.C. § 1341 (1970), would be involved. See United States v. Flaxman, 495 F.2d 345, 348-349 (7th Cir. 1974). That statute, with its five year statute of limitations, 18 U.S. C. § 3282 (1970), would have eliminated the jl/orioii-related issue.