author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ann HAYGOOD, Defendant-Appellant.
    No. 73-1630.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 11, 1974.
    Decided Aug. 6, 1974.
    Rehearing Denied Sept. 13, 1974.

      R. Eugene Pincham, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Michael D. Groark, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

The question presented is whether appellant has impermissibly been twice punished for the same offense in view of the fact that before she was sentenced in this case this charge had been considered by another sentencing judge.

Appellant was involved in the purchase of drugs from a Detroit source and their subsequent resale to a Chicago outlet. She was indicted twice, once for the Detroit purchases (71 CR 456) and separately for the Chicago sales (71 CR 457). As a result of a plea bargain, the latter charge was dismissed and superseded by a lesser charge (71 CR 1091), to which appellant pleaded guilty. After a presentence investigation which included reference to the Detroit purchases and the charge in this case (No. 456), then pending before Judge Parsons, Judge McMillen imposed a sentence of four years probation in Case No. 1091.

On the following day the parties appeared before Judge Parsons to discuss the possible dismissal of this charge (No. 456); no action was taken on that day and before any formal motion was filed, the case was transferred to Judge McLaren. Apparently after giving some consideration to a voluntary dismissal, the government decided to go forward with this case. Appellant’s counsel then moved to dismiss on double jeopardy grounds.

Judge McLaren found as a fact that when Judge McMillen imposed sentence in Case No. 1091, he had relied in part on the charge pending in this ease. Judge McLaren held, however, that such reliance by the sentencing judge in another proceeding did not place the appellant in jeopardy and, therefore, this action was not barred. In due course the parties stipulated to the relevant facts, appellant was convicted, and Judge Mc-Laren sentenced appellant to five years imprisonment. She now appeals, contending that she has, in effect, been punished twice for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656.

Appellant’s primary reliance is on constitutional protection against double jeopardy. She also argues, by analogy to the Wisconsin “read-in” practice, that procedural error was committed which we may use our supervisory power to correct.

I.

Jeopardy usually does not attach until the jury is impanelled, or at least until the judge before whom a charge is pending considers the evidentiary basis for the charge. When Judge McMillen imposed sentence in Case No. 1091, he clearly did not place appellant in jeopardy in this case. The offense to which appellant pleaded guilty in No. 1091 carried a lesser maximum sentence than this charge. Judge Mc-Millen had no power to find appellant guilty on this charge or to impose the sentence which the law authorizes after a finding of guilt. Judge McLaren was, therefore, correct in holding that jeopardy in this case (No. 456) did not attach when the factual basis for this charge was brought to the attention of Judge McMillen in Case No. 1091.

If anything which happened in Case No. 1091 created a constitutional bar to this proceeding, it must have been the entry of the judgment, predicated in part 'on the judge’s conclusion or assumption that there was a factual basis for the charge in No. 456. Quite clearly, however, a sentencing judge’s consideration of the biography of a convicted defendant does not confer transactional immunity for every possible misdeed which may have been revealed to the judge. The fact that a particular charge is pending in another court may make it inappropriate for the sentencing judge to inquire into that matter, but if he should attach some minimal significance to it, his exercise of the human faculty of judgment is not the constitutional equivalent of a formal judgment of the court forever barring a proceeding before another tribunal.

As a matter of constitutional law, we think the same result must obtain even though the two prosecutions were pending in the same district court —albeit before different judges — and even though they arose out of related transactions. Appellant argues to the contrary, but we think it is perfectly clear that the government had the right to separate the conspiracy charge involving the Detroit purchases (No. 456) from the substantive charge involving a Chicago sale (No. 1091) for purposes of trial and disposition. We therefore hold that the entry of judgment in No. 1091 did not constitute a constitutional bar to this proceeding.

II.

Appellant’s claim that procedural error was nevertheless committed is supported by the policies which undergird the constitutional protection against double jeopardy. There is an element of unfairness in allowing the prosecutor to bring an unadmitted and unproven charge to the attention of a sentencing judge; presumably the decision to dismiss or to prosecute that charge will normally depend upon the prosecutor’s appraisal of the first punishment as either adequate or inadequate to vindicate the government’s interest in disposing of two separate charges. In a practical sense, therefore, the prosecutor has two opportunities to use one charge as a basis for imposing what he regards as an adequate sentence. The constitutional protection is intended to forestall such unfairness and to give a defendant the right to one final disposition of any pending charge.

The government argues that this use of one charge in two different proceedings is comparable to the accepted practice of considering prior convictions at the time of sentencing. It is, of course, well settled that such consideration is not the equivalent of multiple punishment for the earlier offense, but rather is a permissible method of determining the degree of punishment that should be imposed for the later offense. The analogy is imperfect, however, because the cases rejecting the double punishment argument have involved sentences based, in part, upon prior convictions, not as in this case, a sentence based in part upon a pending charge.

A somewhat closer, though also imperfect, analogy is provided by the Wisconsin read-in practice and by English cases considering the effect of a sentence predicated, in part, upon an uncharged offense. The English courts have held that the plea of autrefois convict is unavailable to a defendant simply because the subject matter of a charge was considered by the sentencing judge in another proceeding. Nevertheless, the prevailing practice in England is not to prosecute for an uncharged offense upon which a sentencing judge has relied.

“Sentence is passed on the count or counts on which there has been a conviction and no matter how many offenses are taken into consideration, the sentence cannot exceed that proscribed by law for the offense charged in the indictment and on which there has been a conviction. There is no conviction on the outstanding cases, nor is there any separate sentence on them.” 2 All E.R. at 536.

The English practice is comparable to Wisconsin’s “read-in” procedure. In Wisconsin the prosecutor and the accused may make an enforceable agreement pursuant to which the sentencing judge may take uncharged offenses into account on condition that prosecution of those uncharged offenses be waived. We assume that there is no reason why such a practice might not be followed in the federal courts.

In this case, the terms of the agreement between the prosecutor and appellant which led to the entry of the guilty plea in Case No. 1091 are not before us. Appellant does not claim, however, that the government expressly agreed to dismiss this case either in exchange for the plea in No. 1091 or in exchange for waiving any objection that appellant might have raised to the consideration of this charge by the sentene-ing judge in No. 1091. Accordingly, even if this prosecution might have been barred by an agreement made in connection with the disposition of the other charge, this record does not support an argument predicated upon an analogy to the Wisconsin practice.

Necessarily, therefore, appellant must contend that when the sentencing judge in No. 1091 gave consideration to the charge in this case — and to the factual basis for the charge — he committed an error of such magnitude that it should be remedied by barring this prosecution. We assume that there are situations in which a defendant might validly object to consideration of unproved charges as a basis for sentencing. Nevertheless, it is clear that there is no flat prohibition against such consideration. We therefore need not decide whether Judge McMillen would have erred if, in the face of an objection by appellant, he had considered the facts underlying a charge pending against her; for clearly she made no such objection. Without such an objection, the judge was entitled to consider as much information concerning appellant’s background as he could. Nor need we decide whether such an error might bar a second prosecution or would only be subject to correction on direct appeal. In this case we need only hold that, since no such objection was made, it was not fundamentally unfair for the government to proceed with the second charge.

We therefore conclude that the record does not support a claim that error was committed either in this case or at the time of sentencing in No. 1091. Accordingly, notwithstanding our concern that the practice of relying upon pending charges as a basis for the sentence determination contains a potential for unfairness, the judgment is

Affirmed.

      . See Martinkoski v. State, 51 Wis.2d 237, 186 N.W.2d 302, 308 (1971); Austin v. State, 49 Wis.2d 727, 183 N.W.2d 56 (1971); Embry v. State, 46 Wis.2d 151, 174 N.W.2d 521, 524-525 (1970).

      . See, e. g., McNeal v. Hollowell, 481 F.2d 1145, 1149 (5th Cir. 1973).

      . The present jeopardy aspect of the en banc opinion in United States v. Ponto, 454 F.2d 657 (7th Cir. 1971), would not justify tire conclusion that consideration by a judge imposing sentence in a separate case of the factual basis for a charge pending before another judge placed the defendant in jeopardy.

      . If a person lias been convicted of a crime, and sentenced for it, jeopardy has clearly attached, so as to bar not only a second prosecution but also a second punishment for the same offense. Ex parte Lange, 85 U.S. (18 Wall) 163, 168, 21 L.Ed. 872; North Carolina v. Pearce, 395 U.S. 711, 718-719, 89 S. Ct. 2072, 23 L.Ed.2d 656. Nevertheless, this rule has never been thought to bar a sentencing judge’s reliance upon previous convictions. If a sentencing judge may rely upon a previous offense to which jeopardy has unquestionably attached and for which punishment has been exacted, it would be anomalous to hold that his consideration of a charge to which jeopardy had not otherwise attached could cause it to do so. See n. 7, infra, and accompanying text.

      . Since the two indictments charged separate conspiracies, separate trials would ordinarily result unless the trial court ordered consolidation. The question whether consolidation should he ordered pursuant to Rule 13, Fed. R.Crim.P., is a question addressed to the sound discretion of the trial court. Davis v. United States, 148 F.2d 203, 204 (5th Cir. 1945). In view of the difference in parties and in the factual basis for the charges in the two indictments against appellant, Judge Parsons did not abuse his discretion in refusing to enter such an order when requested to dft so in this litigation. The difference between the two cases was accentuated when the conspiracy charge originally asserted in No. 456 was replaced by the substantive charge in No. 1091; the charge in 1091 is not encompassed within the conspiracy allegations made in this case.

      . In this case there is no suggestion that the prosecutor acted vindictively in proceeding with the second charge in order to discourage appellant from exercising any constitutional right. Cf. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

      . Indeed, “modern concepts of individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.” Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337. Previous criminal activity, which is not logically relevant to a trial, is surely among that information relevant to sentencing. “The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. ... [FJew things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand.” United States v. Doyle, 348 F.2d 715, 721 (2d Cir. 1965) (Friendly, X). See United States v. Trigg, 392 F.2d 860, 864 (7th Cir. 1968).

      . In the Approved Draft, 1970, of Standards Relating to Probation, the American Bar Association Advisory Committee on Sentencing and Review recommended that the pre-sentence report should include “(B) a full description of any prior criminal record of the offender.” At 34. The Advisory Committee carefully limits this recommendation to charges “which have resulted in a conviction.” At page 37 of its commentary about the content of presentence reports, the Committee stated:
      “A word should also be added in explanation of what is meant by ‘prior criminal record’ in subsection (ii) (B). By this the Advisory Committee' means to include only those charges which have resulted in a conviction. Arrests, juvenile dispositions short of an adjudication, and the like, can be extremely misleading and damaging if presented to the court as part of a section of the report which deals with past convictions. If such items should be included at all — and the Advisory Committee would not provide for their inclusion — at the very least a detailed effort should be undertaken to assure that the reader of the report cannot possibly mistake an arrest for a conviction.”

      . The English Court of Criminal Appeal in R. v. Nicholson, [1947] 2 All E.R. 535, doubted the result in R. v. McMinn in which a judge at the Northamptonshire Assizes had applied the doctrine of autrefois convict on facts similar to those before us. Singleton, X, delivering the judgment of the court, said:

      . A note in the Law Quarterly Review, appearing before R. v. Nicholson, but also questioning the result in R. v. McMinn, see note 9, supra, pointed out that unfairness was not likely to result simply because the technical plea of autrefois convict was unavailable :
      “The suggestion may be made that it would be unjust that a prisoner should be in danger of further punishment for an offence which he has previously admitted, and the admission of which may have led to a heavier punishment than he would have received if he had not asked for the offence to be taken into consideration. It may also be suggested that, it would be inexpedient, since the knowledge of liability to further proceedings might make prisoners less ready to take advantage of the practice of admitting other offences; with the result that the Grown would be put to the trouble and expense of further trials, while the prisoner himself would lose the advantage of starting with a clean sheet after he had served the one, inclusive, sentence.
      “To these practical arguments of injustice and inexpediency there are at least two practical answers. First there would not in fact be further trials for offences already taken into consideration, except in cases such as R. v. McMinn, where the further trial was desirable in the interests of justice. Those who are charged with instituting prosecutions have a discretion which they are under a duty to exercise properly and fairly. There »is rib reason to suppose that they will exercise that discretion .so as to lead to injustice. Secondly, if the prisoner were to be tried for any reason for an offence which had previously been taken into consideration, the fact would unquestionably be brought to the notice of the Court; and the Court would, no doubt, take that fact into consideration. . . . On the whole, there seems to be no reason to fear that if R. v. McMinn should he held not to be good law, any injustice would result or any diminution fake place in the number of cases in which the Criminal Courts are asked to take other offences into consideration.”
      J. Megaw, Note, Autrefois Convict, 62 Law Q.Rev. 330, 333.
      This comment supports the statement made by Chief Justice Hallows in Austin v. State, supra n. 1, 183 N.W.2d at 59, that the English practice is not to prosecute in cases like R. v. Nicholson, roughly analogous to those treated under the Wisconsin read-in procedure.

      . See note 1, supra.

      . The Wisconsin practice is not unlike Model Penal Code, § 7.05(4) :
      (4) When the defendant has asked that other crimes admitted in open court be taken into account when he is sentenced and the Court has not rejected such request, the sentence shall bar the prosecution or conviction of the defendant in this State for any such admitted crime.

      . More complete disclosure will be necessary in the future. See Moody v. United States, 497 F.2d 359 (7th Cir. 1974).

      . Cf. Santobello v. New York, 404 U.S. 257, 262-263, 92 S.Ct. 495, 30 L.Ed.2d 427.

      . For example, a defendant might have a valid objection to the consideration by a sentencing judge of a charge pending in another court on the ground that defendant is entitled to a presumption of innocence of that charge unless the facts are examined and that a fair examination of the facts may prejudice his defense to the pending charge. No such objection was made to the procedure followed in Case No. 1091.

      . Indeed, in the Organized Crime Control Act of 1970, Congress expressly provided:
      “§ 3577. Use of information for sentencing
      “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”
      84 Stat. 951, 18 U.S.C. § 3577.
      This section was enacted to authorize district judges to rely upon the kind of information considered by the sentencing judge in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337. See H.R.Rep.No. 91-1549, 91st Cong., 2d Sess., 2 U.S.Code Cong. & Admin.News, pp. 4007, 4040 (1970). In that case the judge had relied upon alleged criminal activity for which the defendants had not been prosecuted. In United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972), the Court of Appeals upheld reliance upon charges of which the defendant had been acquitted, saying that “Acquittal does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendant.” If a sentencing judge does not know that a prior conviction was obtained unconstitutionally, it is error for him to rely on such a conviction, United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 — but if he is fully informed, presumably even the Tucker holding would not preclude reliance on the underlying facts. See also United States v. Atkins, 480 F.2d 1223, 1224 (9th Cir. 1973). Two circuits have disagreed on the question whether evidence obtained unconstitutionally may be relied upon. Compare Verdugo v. United States, 402 F.2d 599, 610-612 (9th Cir. 1968), holding such reliance unacceptable, with United States v. Schipani, 435 F.2d 26 (2d Cir. 1970).

      . As appellant candidly states in her brief, “In reality, the Defendants liad one of two alternatives in the situation presented at the sentencing by Judge McMillen. They could liave denied by evidence, their commission of the No. 456 Ramsey narcotics acquisition offense, and the recitation thereof to Judge McMillen by the Assistant United States Attorney and the presentence and probation report, and thereby possibly precluded Judge McMillen’s reliance thereon in determining sentence for the 457 and 1091 offenses. On the other hand, they could have non-eontest-ed and admitted their commission of the 456 offense and thereby. allow Judge McMillen to consider. and rely thereon in imposing sentence in the aforesaid cases before him. The latter alternative was followed.” Brief for appellant at 15-16. In deciding to follow the latter alternative, it is not unlikely that appellant and her counsel were hopeful that the sentence which Judge McMillen would impose would lead the government to decide to dismiss this case. It is possible that the government’s decision to proceed with this prosecution was predicated upon the fact that the sentence imposed by Judge Mc-Millen was less severe than either party anticipated.

      . See n. 16, supra.


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    Dewey J. HASSLER, Plaintiff-Appellant, v. Casper WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 73-1754.
    United States Court of Appeals, Seventh Circuit.
    'Argued Feb. 15, 1974.
    Decided Sept. 5, 1974.

      John A. Burgess, South Bend, Ind., for plaintiff-appellant. '
    Kathryn H. Baldwin and Stanton R. Koppel, Attys., U. S. Dept, of Justice, Washington, D.C., John R. Wilks, U. S. Atty., Fort Wayne, Ind., for defendant-appellee.
    Before PELL, STEVENS, and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

On July 18, 1969, plaintiff Dewey Hassler applied to the Social Security Administration for a period of disability and disability benefits. The Secretary of the Department of Health, Education and Welfare denied the application. Hassler commenced an action in the district court under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for review of the final decision of the Secretary. The district court denied the plaintiff’s motion for judgment on the pleadings and sustained the Secretary’s motion for summary judgmént. Judgment was entered accordingly and this appeal followed. The sole question on appeal is whether there was substantial evidence to support the Secretary’s determination.

I

At the time of his application, Hassler was 46 years old, married, and had a high school education. Until he ceased being employed in June 1969, the claimant had worked for over 23 years at the McCord Corporation. His most recent jobs there had been as a watchman and as a radiator inspector, tasks which Hassler described as requiring walking but no lifting. Hassler receives $182 a month as a pension from his former employer and $50 a month in proceeds from a G.I. insurance policy.

In his application, Hassler listed a number of physical impairments [“hearing, heart, lung (chronic pneumothor-ax)”] as the cause of his inability to work. The claimant submitted in support of his application the report of his treating physician, Dr. James Coursey, a general practitioner. In his report, Dr. Coursey, after reviewing Hassler’s physical problems, stated as part of his diagnosis :

“Psycho-social adjustment problem— severe; particularly with regard to steady employment at factory work.”

At the request of the Disability Determination Section, Hassler was also examined by Dr. Howard Engel, an internist. On the basis of his examination of the claimant, Dr. Engel concluded: “I can see absolutely no reason why this man cannot be hired to do sedentary-type work.” Dr. Engel immediately added, however, that “[t]here is a tremendous amount of psychological overlay in this situation and I am afraid that it will be difficult for this man to take any type of work.”

The agency denied Hassler’s application for benefits. Hassler then requested and was granted a hearing before an-examiner.

At this hearing, Hassler represented himself and continued to rely only upon his physical impairments as the basis for disability benefits. After reviewing the evidence, the hearing examiner denied the disability benefits on the ground that Hassler did not have an impairment, or a combination of impairments, so severe as to preclude any substantial gainful activity, including the work in which the claimant had experience.

When Hassler asked for review of the hearing examiner’s decision, the Appeals Council requested a psychiatric examination of Hassler. All three consultants seeing him found Hassler to have psychological problems. Dr. Kooiker, a Dip-lómate of the American Board of Psychiatry and Neurology, who had received the reports of the psychiatric social worker and the clinical psychologist, gave the most specific diagnosis:

“DIAGNOSIS No. 1: Hypochon-driacal neurosis. This examiner considers that for practical purposes an equivalent diagnosis would be conversion reaction. AMA impairment rating — Class 2F, impairment rating 10%.
a) Stress: In the opinion of this examiner, the basic problem is long frustrated dependency needs, some of which may have been mobilized by repeated clear-cut episodes of spontaneous pneumothorax.
b) Predisposition: See Diagnosis No. 2.
DIAGNOSIS No 2: Passive Aggressive personality. AMA impairment rating 5%.
* * * * * * PROGNOSIS: In the opinion of this examiner, the patient is comfortably able to rationalize his dysfunction on the basis of various somatic symptoms. In addition to this, he is able to at least partially achieve some of his dependency needs by acquiring a disability rating from his company. Consequently, the prognosis for return to significant gainful activity is considered to be nil.”'

After reviewing all of the evidence, including the psychiatric reports, the Appeals Council affirmed the decision of the hearing examiner which affirmance became the final decision of the Secretary. With respect to the psychiatric evidence, the Council stated: “[T]he claimant’s functional capabilities because of a nervous impairment are evaluated at only 15 percent disabling.”

Hassler then filed this action for review of the Secretary’s decision. Has-sler was represented in the district court by counsel, who argued that Hassler’s impairments were largely mental, not physical.

The district court granted the Secretary’s motion for summary judgment on the ground that the Secretary’s decision was supported by substantial evidence. In particular, the district court interpreted Dr. Kooiker’s final prognosis “as a statement that the plaintiff does not intend to work and is totally unwilling to recognize why. Clearly, Dr. Kooiker’s determination that plaintiff had only a fifteen percent (15%) mental impairment constituted more than substantial evidence that the plaintiff did not have a mental impairment within the meaning of the Social Security Act.”

On appeal Hassler’s counsel again stresses that Hassler’s impairment is primarily mental rather than physical. This mental condition, it is argued, prevents Hassler from performing any type of work. In particular, counsel for Has-sler directs our attention to Dr. Kooiker’s finding that Hassler is suffering from hypochondriacal neurosis. (Dr. Kooiker noted that, for practical purposes, an equivalent diagnosis would be conversion reaction.)

Such a condition is characterized by emotional distress and anxiety. The patient unconsciously produces physical symptoms to meet his psychological problem. “[T]he symptoms protect him from having to face the traumatic situation.” J. Coleman, Abnormal Psychology 208 (3d ed. 1964). Since the physical symptoms are unconsciously produced, the patient himself sees no relation between his symptoms and the stress situation. This lack of intent to deceive distinguishes the conversion reaction from malingering, where the symptoms are consciously produced with intent to deceive. Coleman, supra at 204-210; T. Harrison, Principles of Internal Medicine 1878-79 (7th ed. 1974).

II

In order to qualify for disability benefits under the Act, a claimant must show, first, that he is suffering from a medically determinable physical or mental impairment, and, second, that, due to this impairment, he is unable “to engage in any substantial gainful activity.” Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Pierce v. Gardner, 388 F.2d 846, 847-848 (7th Cir. 1967), cert. denied, 390 U.S. 928, 88 S.Ct. 865, 19 L.Ed.2d 992 (1968).

Insofar as physical impairment is conceimed, upon which Hassler relied when he commenced the long trail seeking disability benefits, we would have no trouble in determining that there was substantial evidence supporting a decision that there was not a disqualifying physical impairment despite the fact that there was indeed evidence of physical impairment.

The fracture of a limb is a matter of easy demonstration. The fracture of that delicate but complex conglomerate of elusive and variable components termed the human mind is not so easily demonstrable even though the resultant disability may be every bit as devastating as the physical trauma in its impact. While much distance has yet to be trav-elled, there has been an emergence from the darkness of thinking that it is only the gibbering idiot who cannot control the exercise of his will by simply putting his mind to it. Unfortunately there is still much blurring of the boundaries between those who have lost control and those who could but choose not to control, confusion between medical hysteria and hysterical actions, and failure to differentiate between hypochondriacal neurosis and malingering with hypo-chondriacal manifestations. It is primarily to the psychiatrist or psychoanalyst to whom we must turn, and indeed where the reliance was placed in the present case by the Secretary, for the “medically acceptable clinical and laboratory diagnostic techniques.”

In the present ease, the Secretary concedes that Hassler has a mental impairment which affects his ability to engage in substantial gainful activity. (The Secretary specifically stated in oral argument that the agency does not regard Hassler as a malingerer.) The sole issue is whether Hassler’s mental impairments are so severe as to make him “disabled” within the meaning of the Act.

In finding that Hassler was not disabled, the Secretary, as we have stated, relied on the psychiatric report submitted by Dr. Kooiker. Dr. Kooiker, the Secretary noted, had stated the “impairment ratings” for Hassler’s mental conditions to be 10% (for the hypochon-driacal neurosis) and 5% (for the passive aggressive personality). Such a low impairment rating, totalling 15% at best, could never, the Secretary concluded, be sufficient to render a claimant incapable of engaging in any substantial gainful activity. We reject, for two reasons, the Secretary’s interpretation of Dr. Kooiker’s report.

First, the Secretary’s interpretation erroneously equates the degree of mental impairment with the degree of functional disability. The Appeals Council, thus, stated in its decision that “the claimant’s functional capabilities because of a nervous impairment are evaluated at only 15 percent disabling.” (Emphasis added.) This interpretation of Dr. Kooiker’s findings is clearly erroneous: the psychiatrist reported the impairment rating — not the disability rating — to be 15%. There is nothing in the record to support the Secretary’s assumption that the degree of mental impairment, as measured by the particular AMA scale utilized by Dr. Kooiker, corresponds on a one-to-one basis with the degree of functional disability.

Second, and more important, the Secretary’s interpretation of Dr. Kooiker’s report precludes a consistent reading of the entire psychiatric evaluation. The view that Hassler’s mental impairments are only 15% disabling simply cannot be reconciled with Dr. Kooiker’s final conclusion that “the prognosis for return to significant gainful activity is considered to be nil.”

It is possible, however, to harmonize the various statements in Dr. Kooiker’s report. After diagnosing Hassler’s mental impairment as being, in part, hypo-chondriacal neurosis, Dr. Kooiker added (under the subheading “Stress”): “[T]he basic problem is long frustrated dependency needs.” In his prognosis, the psychiatrist noted that “the patient is comfortably able to rationalize his dysfunction on the basis of various somatic symptoms.” In addition, Has-sler’s dependency needs, Dr. Kooiker found, have been satisfied to some extent by the claimant’s acquisition of a disability rating from his company. Dr. Kooiker then, as we have noted, presented his conclusion that “the prognosis for return to significant gainful activity is considered to be nil.” A careful reading of these statements indicates that Dr. Kooiker found that Hassler’s mental impairments (hypochondriacal neurosis and passive aggressive personality) are enhanced by rationalizations and by an official, “outside” corroboration (through the company disability rating) of the patient’s own view of himself as physically sick. The result is a total inability to engage in significant gainful activity.

The Secretary may consider expert medical opinion regarding the claimant’s ability to engage in any substantial gainful activity although such evidence, in itself, is not binding upon the Secretary. Colwell v. Gardner, 386 F.2d 56, 72 (6th Cir. 1967); Teeter v. Flemming, 270 F.2d 871, 874 (7th Cir. 1959). Moreover, where two of more experts disagree in their opinions of the claimant’s disability, it is normally for the Secretary, and not the courts, to resolve these conflicts. Cyrus v. Celebrezze, 341 F.2d 192, 195 (4th Cir. 1965).

However, the Secretary may not arbitrarily choose to ignore uncontroverted medical testimony. Colwell v. Gardner, supra, 386 F.2d at 72. Nor may he rely on one expert “to the disregard of overwhelming evidence to the contrary.” Cyrus v. Celebrezze, supra, 341 F.2d at 195.

Likewise, the Secretary may not rely on a portion of an expert’s report where a fair reading of the entire report indicates that the expert reached a conclusion contrary to that asserted by the Secretary.

In considering the present appeal we do not have a question of weighing conflicting expert opinions, which would be the province of the administrative agency. Here we know the expert upon whom reliance was placed. However, that expert’s opinion, when read in its entirety, indicates that Hassler. is disabled within the meaning of the Act. The Secretary’s contrary conclusion was based upon a misinterpretation of the report upon which he relied.

We cannot agree with the district court’s interpretation of Dr. Kooiker’s prognosis as being a statement that plaintiff “does not intend to work and is totally unwilling to recognize why.” The very essence of the report, culminating in the prognosis, is that Hassler’s mental condition precluded his recognizing why he was abstaining from work. Any other interpretation must be predicated upon a malingering basis which has been excluded as a factor.

That Hassler cannot return to gainful activity may well be partially attributable to the state of the civilization in which we live. We must look, however, at the case in that context and not in that of a primitive society.

Since there was no substantial evidence to counter Dr. Kooiker’s prognosis of total disability, the Secretary’s deci.sion cannot stand. Teeter v. Flemming, supra, 270 F.2d at 874.

The judgment is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

      . 42 U.S.C. § 405(g) provides, in pertinent part: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .”

      . Gordon Reinsolireiber, a psychiatric social worker, stated:
      “The degree of impairment of the patient’s ability to relate to other people appears to be moderate. The degree of restriction of daily activities appears to be moderately severe. The degree of deterioration of personal habits appears to be none. The degree of constriction of interests of claimant appears to be moderately severe.”
      Edward Strain, a clinical psychologist, reported :
      “This is a hostile paranoid personality. This is a man who j>erceives the outside world as a threatening, over powering place and he is very paranoid about it.
      “The patient, in addition, has some mild sadistic impulsives, suggesting that many of his emotional relationships are colored by a tendency on his part to hurt other people emotionally.
      “Depression is moderate in intensity, a chronic disturbance in mood.
      “The man does not appear psychotic at this time. His paranoid posture toward reality is stable and constant and seems to have been with him for a long time. The mild to moderate depression is also stable and chronic.”

      . “Conversion” has been defined as “[a] freudian term for the process by which emotions become transformed into physical (motor or sensory) manifestations.” Dorland’s Illustrated Medical Dictionary (24tli ed. 1965).

      . “[A] ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

      . “The term ‘disability’ means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).

      . The reports of the other physicians and consultants were mentioned as background in the decision of the Appeals Council but do not appear to have figured in the final assessment of Hassler’s mental condition. Dr. Engel was misquoted in the decision as recognizing “that tlie claimant might have a psychological overlay.” I)r. Engel actually reported, as noted hereinbefore, that “[tlhere is a tremendous amount of psychological overlay.”

      . IVe are not unmindful of a general reluctance on the part of physicians to evaluate either physical or mental disabilities in percentage terms. The inherent difficulty of so doing is illustrated in the i>resent case. Two inches sliced off the top of a six foot person’s beat! would be percentagewise less than 3% of the person as a whole but would no doubt be fatal in its consequences to that person. It is for that reason that we place primary reliance not on an estimated percentage of impairment but on the culmination of the evaluation of disability as it is contained in the prognosis. The Secretary’s decision ignores this crucial, and in our opinion, controlling portion of Dr. Kooiker’s report.

      . On this appeal, the Secretary stated in his brief in referring to the possibility of a conflict between Dr. Ooursey’s statement and Dr. Kooiker’s diagnosis, that “the Secretary was amply justified in resolving that conflict by relying upon the diagnosis of the psychiatric specialist, which was based upon his own thorough examination and tests, and upon the reports of examinations by two specialists in psychology.”

      . Dr. Kooiker also noted that psychiatric treatment would be useless in Hassler’s case:
      “The patient does not see himself as having personality or emotional problems of any sort. Consequently, the offer of psychiatric help and support would be largely an empty gesture to which the patient would undoubtedly be unreceptive.”

      . Hassler also argued, on appeal, that the Secretary, having found Hassler to be moderately disabled, failed to describe sufficiently the jobs which the claimant could perform. Since we find that the evidence indicates that Hassler was wholly disabled, we need not reach this second issue.


author: CRAVEN, Circuit Judge:

text:
    ELLICOTT MACHINE CORPORATION, Appellee, v. MODERN WELDING COMPANY, INCORPORATED, Appellant.
    No. 74-1805.
    United States Court of Appeals, Fourth Circuit.
    Argued July 23, 1974.
    Decided Aug. 12, 1974.

      David F. Albright, Baltimore, Md. (J. Snowden Stanley, Jr., and Semmes, Bowen & Semmes, Baltimore, Md., on brief) for appellant.
    J. Frederick Motz, Baltimore, Md. (Francis D. Murnaghan, Jr., Baltimore, Md., on brief) for appellee.
    Before CRAVEN, BUTZNER and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

A contract dispute between Modern Welding Co., Inc. (Modern), a Kentucky corporation, and Ellicott Machine Corp. (Ellicott), a Maryland corporation, led to the filing of the complaint in this case by Ellicott in the United States District Court for the District of Maryland. The complaint, filed on September 7, 1973, asserted in personam, jurisdiction under the Maryland long-arm statute. Subsequently on September 13, 1973, Modern filed a complaint in the circuit court of Daviess County, Kentucky, based in large part on the same transactions about which Ellicott complained in the instant case.

On October 4, 1973, Ellicott removed Modern’s suit to the United States District Court for the Western District of Kentucky. Ellicott’s motion to quash service of process or, alternatively, to transfer to the District of Maryland was denied by Chief Judge Gordon on November 12, 1973. Ellicott filed its answer in the Kentucky case on November 27. An order of Chief Judge Gordon on January 4, 1974, set the case for pretrial conference in June 1974 and for trial in September 1974.

On November 20 Modern moved in the Maryland ease to dismiss the complaint, quash service of process, or transfer the ease to the Western District of Kentucky. Ellicott responded on November 30 by a motion to enjoin Modern from further prosecuting the Kentucky action. Judge Miller denied Modern’s motions to dismiss and to quash on December 5, 1973, deferring to act on the remaining two motions until further briefs were received from the parties.

In an opinion and order of April 23, 1974, Judge Miller denied Modern’s motion to transfer while granting Ellicott’s requested injunction. A trial date of October 15, 1974, was set. Subsequent motions by Modern to alter, amend, or reconsider and to suspend injunction pending appeal under Fed.R.Civ.P. 62(c) were denied and this appeal followed. We reverse.

We are not unsympathetic with Judge Miller’s viewpoint, supported by many cases, that the plaintiff (Ellicott) is ordinarily entitled to choose its forum, and that, other factors with respect

to change of venue being equal, the case ought to be tried in the district court in which it was first filed. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Indeed, from our review of the asserted jurisdictional facts we are inclined to think that Chief Judge Gordon should have granted Ellicott’s motion to transfer the Kentucky case to Maryland in order to honor the principle that a plaintiff may ordinarily select his forum unless there are factors of convenience sufficiently important to the parties and the court to occasion denying him that choice.

Although we appreciate Ellicott’s insistence that it ought not be denied its right to choose to litigate the matters in dispute in the District of Maryland, we think another, more important principle dictates denial of relief to Ellicott. Ellicott asked the district judge in Kentucky to exercise his discretion in granting or denying a motion for change of venue under 28 U.S.C. § 1404(a). It is well settled that the decision of a district judge on a motion for change of venue under section 1404(a) is not appealable as a final judgment. The reason for the rule is a growing recognition that “it will be highly unfortunate if the result of an attempted procedural improvement is to subject parties to two law suits: first, prolonged litigation to determine the place where a case is to be tried; and, second, the merits of the alleged cause of action itself.” All States Freight v. Modarelli, 196 F.2d 1010, 1011-1012 (3d Cir. 1952).

What Ellicott has effectively done is appeal from one district judge to another. Worse, because relief was obtained by injunction, an otherwise unappealable decision on venue has now been brought up on appeal. In ruling against Modern’s motion for transfer to the Western District of Kentucky, Judge Miller in effect reassessed the convenience factors which had already been considered, albeit impliedly, by Judge Gordon in his November 12 order denying Ellicott’s motion to transfer to Maryland. The first-to-file principle replied upon by Judge Miller is a rule of sound judicial administration, but it must yield in the face of the historic policy of the federal courts, expressed in 28 U.S.C. § 1291, that appeal will lie only from “final decisions of the district courts” and then only in the courts of appeal.

Viewed in terms of comity and judicial economy, the same result obtains. We fully agree with the assessment of Chief Judge Lumbard in his dissenting and concurring opinion in National Equipment Rental, Ltd. v. Fowler, 287 F.2d 43 (2d Cir. 1961), a case remarkably similar on its facts to the situation now before us. National and Fowler were also involved in a contract dispute. National filed suit first in the Eastern District of New York. Fowler answered and notice of a pretrial conference was sent to all the parties. At this point Fowler filed a complaint, based upon the same contract, in the Northern District of Alabama. After denial of National’s motion to quash, it moved the Alabama court to stay the action and transfer the case to New York. The motions were denied and the Alabama case was set for pre-trial conference. At this point, National returned to the New York court where the first action had been filed and sought to enjoin the Alabama case from proceeding further and to have that case transferred to the Eastern District of New York. Upon this scenario of procedural maneuvering, Chief Judge Lumbard commented:

The technical rules controlling the application of the doctrine of res judica-ta may indeed prevent it from applying here since the Alabama order was merely interlocutory, but the principles supporting the rule are surely applicable to the decision made in this case by the district court in Alabama. National chose to present to the Alabama court its contention that the entire action be concluded in the Eastern District of New York. It then had the opportunity to urge that court to stay its own proceeding because of the priority-of-action rule and other considerations. There is no basis in the record for presuming that the court in Alabama did not weigh all these elements in passing on the motions, which called for an exercise of the court’s discretion. Nor is there any showing made in this court or below that such discretion was abused, even assuming arguendo that it would be proper for this court to consider such a claim. What the majority affirms, therefore, is a procedure which grants the plaintiff two federal forums in which to present the very same contentions addressed to the court’s discretion. If he prevails in either of the two, he is given the relief he desires.

287 F.2d at 48. Neither do we perceive, on the basis of the record before us, any basis for presuming that the Kentucky court failed to consider properly the elements of convenience inherent in the disposition of a transfer motion, including the first-to-file principle. Even if we did, we have no power to effect a remedy. That power lies with the United States Court of Appeals for the Sixth Circuit, either through mandamus or upon appeal from a final judgment. El-licott voluntarily chose to present its claim of statutory forum non conveniens to the Kentucky court. For reasons of the non-appealability of interlocutory orders, respect for the judgment of coordinate federal courts, and the preservation of judicial resources, as well as those of the party who would otherwise be “forced to rebut the same arguments in two proceedings before different courts,” 287 F.2d at 48, a party seeking the exercise of a district court’s discretion is ordinarily bound by that court’s determination. See generally Hoffman v. Blaski, 363 U.S. 335, 347-350, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960) (Frankfurter, J., dissenting).

The judgment of the district court enjoining Modern from prosecuting its case in the United States District Court for the Western District of Kentucky is reversed and the injunction dissolved. The District Court of Maryland shall suspend all proceedings pending trial of the case in Kentucky. If all matters in dispute are resolved by that trial, as appears likely, then the case in the District of Maryland should be dismissed.

Reversed.

      . Jurisdiction of the present appeal is afforded under 28 U.S.C. § 1292(a)(1). See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1201-1202 (2d Cir. 1970).

      . The “first-to-file” principle was concisely stated by Chief Judge Lumbard of the Second Circuit in Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 423 (1965), cert. dismissed, 384 U.S. 948, 86 S.Ct. 1475, 16 L.Ed.2d 546 (1966):
      El] t has long been held in this circuit that, as a principle of sound judicial administration, the first suit should have priority, “absent the showing of balance of convenience in favor of the second action.” Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872, 873 (2d Cir. 1951).

        Accord, Martin v. Graybar Elec. Co., 266 F.2d 202 (7th Cir. 1959); Crosley Corp. v. Hazeltine Corp., 122 F.2d 925 (3d Cir.), cert. denied, 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211 (1941).

      . Chief Judge Gordon’s order of November 12, 1973, denying Ellicott’s motions to quash or, alternatively, for change of venue, does not reveal whether the first-to-file principle was considered and rejected in favor of plaintiff’s (Modern’s) showing that, the balance of convenience weighed in its favor. The motion was denied without comment.

      . Clinton Foods, Inc. v. United States, 188 F.2d 289 (4th Cir.), cert. denied, 342 U.S. 825, 72 S.Ct. 45, 96 L.Ed. 624 (1951); Jiffy Lubricator Co. v. Stewart-Warner Corp., 177 F.2d 360. (4th Cir.), cert. denied, 338 U.S. 947, 70 S.Ct. 484, 94 L.Ed. 584 (1950).
      At least one circuit has recognized the availability of the Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b) as a means of reviewing a transfer motion under section 1404(a). Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53 (5th Cir. 1963). But cf. A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439 (2d Cir. 1966); Standard v. Stoll Packing Corp., 315 F.2d 626 (3d Cir. 1963); Bufalino v. Kennedy, 273 F.2d 71 (6th Cir. 1959) (holding that 1292(b) is not available to review a district judge’s disposition under 1404(a)). In any case, Ellicott failed to seek certification from the district judge in the Kentucky case.
      A more accepted, but still extraordinary, vehicle for review of a section 1404(a) transfer disposition is under the All Writs Statute. Both this court and the Sixth Circuit have recognized the availability of mandamus to review á clear abuse of discretion by a district judge in ordering or denying transfer under section 1404(a). Morehead v. Barksdale, 263 F.2d 117 (4th Cir. 1959); Lemon v. Druffel, 253 F.2d 680 (6th Cir.), cert. denied, 358 U.S. 821, 79 S.Ct. 34, 3 L.Ed.2d 62 (1958). But Ellicott did not seek such a writ from the Sixth Circuit.

      . See also the viewpoint expressed by Judge Friendly in his concurring opinion in A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439, 445-448 (2d Cir. 1966), an approach .accepted by the American Law Institute in its proposal to declare statutorily •that “the exercise of discretion by the district court on such a motion is not reviewable on appeal or otherwise.” ALI Study, §§ 1.805(a), 1306(2), 1315(a), 1327(a). Whether this approach is inconsistent with prior case law in this circuit. Compare Clayton v. Warlick, 232 F.2d 699, 702-706 (4th Cir. 1956), with Morehead v. Barksdale, 263 F. 2d 117, 118-119 (1959) and General Tire and Rubber Co. v. Watkins, 326 F.2d 926, 929 (4th Cir.) cert. denied, 377 U.S. 909, 84 S.Ct. 1160, 12 L.Ed.2d 179 (1964), we need not presently decide.


author: TALBOT SMITH, Senior District Judge.

text:
    UNITED STATES of America, Appellee, v. George Martin GOLAY, Appellant.
    No. 74-1028.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 14, 1974.
    Decided Aug. 27, 1974.

      James B. Herd, St. Louis, Mo., for appellant.
    ( William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before JOHNSEN and VAN OOSTERHOUT, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The case before us arises out of an extortion. On April 30, 1973, the home of a St. Louis banker was broken into, his wife bound and gagged, and photographs of her, in her trussed-up condition, sent to her husband with a demand for $50,000. The money was paid. Later, in Casper, Wyoming, acting under a search warrant for stolen diamonds, the police discovered in the room of defendant George Martin Golay a large sum of money, still in St. Louis bank wrappers, a gun, a Polaroid camera, and other articles. Golay was charged with being the perpetrator of the extortion scheme and was convicted by a jury of violations of 18 U.S.C. § 1951 (interference with commerce by threats or violence) and 18 U.S.C. § 2113(b) and (d) (bank robbery). This appeal challenges the denial of a motion to suppress and the use of defendant’s oral and written confessions. We affirm.

Subsequent to the extortion, in Cas-per, Wyoming, one Renee Laird reported to the police that her room at the Townsend Hotel had been broken into and that diamonds had been taken therefrom. It also appeared (from the affidavit for the search warrant here involved) that one Jim Kerns, also a resident of the Townsend Hotel, had stated to police that on August 4, at or about midnight, he had observed defendant Go-lay enter the Laird apartment through a • window. When Golay left he told Kerns that he had just picked up some diamonds, which they then viewed in Go-lay’s room. A “big diamond” was given to Kerns at this time and was, in fact, worn by him while talking to affiant, Officer Dovala.

A warrant was obtained to search for approximately eight diamonds set in white platinum gold. They were never found. But in the course of the search the officers found and seized an attache case containing nine thousand dollars in cash arranged in bundles with wrappers marked with the stamp of the First National Bank of St. Louis, a- pistol, and a quantity of suspected marijuana. With the exception of the marijuana, all these items were admitted at defendant’s trial.

It is urged to us that “[t]he warrant made no mention of cash, weapons or any of the other items seized during the search of appellant’s room,” and that under the holding in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) the seizures were invalid since, under Marrón, it is argued, “Nothing is left to the discretion of the officer executing the warrant.” It is pointed out, moreover, that none of the articles was contraband and that none was known at the time of the seizure to be connected with any offense.

The facts before us take us once again into the gray areas of search and seizure. First of all, the mere fact that the items seized were not described in the warrant does not justify their suppression. This Court has repeatedly held that an item discovered in a search authorized by a warrant but not described therein may be seized if it is evidence “of another crime being committed in [the searching officer’s} presence,” or is “reasonably related to the crime for which the warrant issued.”

The failure to name the seized articles in the warrant does, however, cast upon the Government the burden to show that the warrantless seizure was justified by a “specifically established and well-delineated” exception to the Fourth Amendment’s general requirement of a warrant. One such exception, the “plain view” doctrine, is clearly applicable here. There is no suggestion that the intrusion into the briefcase was beyond the scope of the search for diamonds authorized by the warrant. The seized articles thus fell into “plain view of an officer who [had] a right to be in a position to have that view.” Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L.Ed.2d 1067 (1968). As stated by Mr. Justice Stewart, writing for a plurality in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971):

An example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L.Ed. 877; Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; Stanley v. Georgia, 394 U.S. 557, 571, 89 S.Ct. 1243, 1251, 22 L.Ed.2d 542 (Stewart, J., concurring in result). * * *
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused— and permits the warrantless seizure. * * * * -X- -X- * * *
* * * In each case, this initial intrusion is justified by a warrant or by an exception * * *. And, given the initial intrusion, the seizure of an object in plain view * * * does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it.

403 U.S. at 465-468, 91 S.Ct. at 2037-2039.

The defendant urges, however, that the seizure was illegal because the items seized were not contraband or evidence of a crime committed in the officers’ presence. It is true that the record before us does not so establish. But defendant is in error in suggesting that the legality of seizure under the plain view exception is so limited. The defendant had been identified by one sharing in the proceeds of the burglary as the perpetrator thereof. The police had been informed of the property stolen. The search was authorized after judicial consideration. In the execution thereof large sums of money still in the bank wrappers and a gun were discovered. It is conceivable that the monies were the proceeds of honest toil and the gun employed for target practice only. But the circumstances presented, as we put it in United States v. Jones, 452 F.2d 884, 888 (8th Cir. 1971), would have “reasonably alerted the police officers to the fact that [the defendant] may have been involved in some other illegal activity,” the fruits of which were before them. There was thus probable cause to establish that “nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior.”

The matter was succinctly phrased by Chief Judge Murrah, writing for the Tenth Circuit in Seymour v. United States, 369 F.2d 825, 826-827 (10th Cir. 1966) in the following terms:

We know,.of course, that the précise language of the Fourth Amendment requiring the search warrant to particularly describe “things to be seized’* forbids “the seizure of one thing under a warrant describing another”— “nothing is to be left to the discretion of the officers executing the warrant.” Marron v. United States, 275 U.S. 192 [48 S.Ct. 74, 72 L.Ed. 231]; Stanford v. State of Texas, 379 U.S. 476 [85 S.Ct. 506, 13 L.Ed.2d 431]; Harris v. United States, 10 Cir., 151 F.2d 837, 169 A.L.R. 1413, affmd. 331 U.S. 145 [67 S.Ct. 1098, 91 L.Ed. 1399]. The constitutional mandate is implemented in Rule 41(e), F.R.Crim. P. But, notwithstanding the specificity of the constitutional prohibition, the courts have apparently recognized a narrow exception dictated by the practicalities of a particular situation as where in the course of a lawful search pursuant to a lawful arrest or the execution of a valid search warrant the officer uncovers evidence of another crime. In these circumstances the officer is not required to close his eyes to the realities of the situation. He may sieze the fruits or the instruments of the crime or even that which is presumptively contraband.

Whether analyzed in terms of reasonableness or probable cause, the conclusion must be that the officers had a duty to seize and take into protective custody the articles so revealed. In this situation the seizure of the items in plain view intruded only upon defendant’s possessory interest in the articles. His protected privacy had already been justifiably invaded. What we weigh here is the need for seizure against the invasion which the seizure entails. So weighed we find the seizure reasonable under the Fourth Amendment.

The defendant contends also that the affidavit upon which the warrant was issued was insufficient to support a finding of probable cause under the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in that it recites no “circumstances justifying the magistrate to conclude that the informant [Kerns] was credible.”

In the affidavit before us the affiant, a police officer, swore that in investigating the burglary, he had interviewed one Jim Kerns who admitted that a diamond ring he wore during the interview was part of the loot. Kerns further told the officer that he had seen Golay commit the burglary and had obtained the ring from Golay in Golay’s room where he saw a number of other diamond rings, and that he had agreed to sell the diamond he received and divide the proceeds with the defendant.

As we stated in United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, Tocco v. United States, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972):

In this case, the credibility and reliability of the informant was adequately established by the disclosure in the affidavit that the informant was an admitted participant in the crime and therefore an eyewitness to most of the acts constituting the crime as described in the affidavit.

449 F.2d at 293. See United States v. Harris, 403 U.S. 573, 583-584, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (Burger, C. J., plurality opinion); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). Here, although Kerns was not a participant in the alleged burglary, he claimed to be an eyewitness, and his statement constituted an admission against penal interest. See United States v. Harris, supra; United States v. Marihart, 472 F.2d 809, 814 (8th Cir. 1972) (en bane). Upon the facts presented there was ample basis for the magistrate to determine that Kerns “was ‘credible’ or his information ‘reliable’ ” under the test of Aguilar, supra, 378 U.S. at 114, 84 S.Ct. at 1514. Probable cause existed for the issuance of the warrant.

The defendant’s signed confession was admitted over his objection at trial. On appeal he argues that the circumstances of his interrogaron bring the case within the proscription of Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that once a suspect in custody “states that he wants an attorney, the interrogation must cease,” and any statement adduced from subsequent questioning is inadmissible. It is also urged that the confession was induced by a false promise that he would receive favored treatment.

A pretrial hearing on defendant’s motion to suppress was held at which both the defendant and his interrogators, two F.B.I. agents, testified. It was undisputed that before defendant was interrogated he was given the Miranda warnings and signed the F.B.I.’s standard waiver form. It was shown that defendant on separate occasions prior to the interrogation had consulted personally with two lawyers, Mr. Middaugh and Mr. McCarty, who both advised him to keep silent. Defendant also was permitted to place a call to attorney Middaugh shortly before he signed the written statement. The testimony conflicts, however, on the questions of whether, during his initial interrogation and before making any incriminating statements, the agents repeatedly refused defendant’s requests to see a lawyer and whether they held out false promises of favored treatment to induce his confession.

The trial court resolved these conflicts in favor of the Government. Ruling from the bench, the court stated:

I think the evidence is clear that this man was fully advised, of all his rights at every stage in this proceeding. He had every opportunity and did consult with two lawyers * * * one on three occasions and one on another occasion, and there’s no evidence that there was any force or coercion of any kind, and the statements were freely and voluntarily given, and they are admissible.

We have examined the record with care and find the evidence fully supports this conclusion. There was no error in admitting defendant’s confession.

We have fully considered defendant’s remaining claims and find that no prejudicial error was committed with respect to the admission of evidence or the jury instructions. The judgment is affirmed.

      . Pursuant to a written consent to search, signed by defendant Golay and witnessed by Special Agents of the F.B.I. Comeaux and Hooper, defendant’s room was again searched on August 21, 1973, at which time a Polaroid camera and articles of a personal nature were removed.

      . We do not read Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) as dictating otherwise. There, items were seized which were not described in the warrant. The Court rejected the contention that the seizure was justified “as an incident to the execution of the search warrant” because:
      The requirement [of the Fourth Amendment] that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing wider a warrant describing another. [Emphasis supplied.]
      275 U.S. at 194, 196, 48 S.Ct. at 75, 76. But the Court went on to hold that the circumstances presented sufficient justification for a warrantless search, and the seizure was upheld as incident to a lawful arrest. 275 U.S. at 198-199, 48 S.Ct. 74.

      . United States v. Carwell, 491 F.2d 1334, 1336 (8th Cir. 1974) (gun in possession of known felon); Aron v. United States, 382 F.2d 965 (8th Cir. 1967) (postage stamps known to have been stolen).

      . Taylor v. Minnesota, 466 F.2d 1119, 1121 (8th Cir. 1972), cert. denied, 410 U.S. 956, 93 S.Ct. 1425, 35 L.Ed.2d 689 (1973); see United States v. Smith, 462 F.2d 456 (8th Cir. 1972); United States v. Bridges, 419 F.2d 963 (8th Cir. 1969).

      . Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . Coolidge did not involve the seizure of items not described in a search warrant. However, the lower courts have found Mr. Justice Stewart’s dictum persuasive on this point. United States v. Maude, 156 U.S.App. D.C. 378, 481 F.2d 1062 (1973); United States v. Henkel, 451 F.2d 777 (3rd Cir. 1971), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 104 (1972). Compare United States v. Pacelli, 470 F.2d 67 (2nd Cir. 1972), cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973), with United States v. Dzialak, 441 F.2d 212 (2nd Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971) and United States ex rel. Nickens v. LaVallee, 391 F.2d 123 (2nd Cir. 1968). For pre-Coolidge use of tlie plain view theory see Anglin v. Director, Patuxent Institution, 439 F.2d 1342 (4th Cir.), cert. denied, 404 U.S. 956, 92 S.Ct. 302, 30 L.Ed.2d 262 (1971), Seymour v. United States, 369 F.2d 825 (10th Cir. 1966), cert. denied, 386 U.S. 987, 87 S.Ct. 1297, 18 L.Ed.2d 239 (1967).

      . Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967).

      . Coolidge v. New Hampshire, 403 U.S. 443, 515, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (White, J., concurring and dissenting); cf. Warden v. Hayden, 387 U.S. 294, 304-307, 87 S.Ct, 1642, 18 L.Ed.2d 782 (1967).

      . See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . We reject defendant’s further contention that the information in the affidavit was too stale to support a finding of probable cause that the diamonds were in Golay’s hotel room. The warrant was issued August 20 on information that the diamonds were seen in Golay’s room August 4. It does not appear that this issue was raised in the court below. In any event, under all the circumstances, Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), we do not think the delay vitiates the presence of probable cause. See United States v. Harris, 403 U.S. 573, 579 n. *, 589, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).


author: FIELD, Circuit Judge: ADAMS, Circuit Judge

text:
    CELANESE CORPORATION and Fiber Industries, Inc., Appellants, v. The DUPLAN CORPORATION et al., Appellees. CELANESE CORPORATION and Fiber Industries, Inc., Appellants, v. LEESONA CORPORATION et al., Appellees. In the matter of Subpoenas for Testimony of ATELIERS ROANNAIS de CONSTRUCTIONS TEXTILES and ARCT, Inc.
    Nos. 73-1930, 73-2450.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1974.
    Decided Aug. 15, 1974.
    Adams, Circuit Judge, dissented and filed opinion.

      Mary Helen Sears, Washington, D. C. (Edward S. Irons, Washington, D. C., on brief), for appellants in Nos. 73-1930 and 73-2450.
    James N. Buckner, New York City, and Arthur 0. Cooke, Greensboro, N. C. (Granville M. Brumbaugh, Brumbaugh, Graves, Donohue & Raymond, New York City, and Cooke & Cooke, Greensboro, N. C., on brief), for appellees, Ateliers Roannais de Constructions Textiles and Arct, Inc., in Nos. 73-1930 and 73-2450.
    Butler, Means, Evins & Browne, Spar-tanburg, S. C., and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on brief, for appellees, Deering Milliken Research Corp., and others in Nos. 73-1930 and 73-2450.
    Before ADAMS, FIELD and WIDENER, Circuit Judges.

       United States Circuit Judge for the Third Circuit, sitting by designation.

   FIELD, Circuit Judge:

These consolidated appeals involve the efforts by counsel for Celanese Corporation and Fiber Industries, Inc., (hereinafter referred to as “petitioner”) to take the oral deposition of Henri Crouzet for use in a patent suit presently pending in the Southern District of Florida. Crouzet, a citizen and resident of France, is president of Ateliers Roannis de Constructions Textiles (hereinafter referred to as “ARCT-France”) and ARCT, Inc., both of which companies' are parties in a complex patent and antitrust suit pending in the District of South Carolina. Neither of the petitioners is a party to the South Carolina action and neither ARCT-France, ARCT, Inc., nor Crouzet is a pa'rty to the Florida litigation.

The background of the South Carolina appeal may be briefly stated as follows: Upon learning that Crouzet would be in South Carolina for the taking of his deposition in that litigation, counsel for petitioners noticed his deposition in the Florida litigation for the purpose of obtaining a subpoena from the Clerk of the District Court of South Carolina pursuant to Rule 45(d), Fed.R.Civ.P. They were advised, however, that the court had directed the Clerk not to issue subpoenas directed to any French witnesses during the time they were present in South Carolina for depositions incident to the South Carolina litigation. Eventually, a formal motion for a subpoena was filed by the petitioners and after a hearing thereon the court entered an order to the effect that during Crouzet’s presence in the United States for the purpose of giving testimony in the South Carolina litigation he should be immune from service of subpoena or other process in the litigation pending in the Southern District of Florida. The petitioners appeal from this order.

We think the district judge acted appropriately in immunizing Crouzet from the service of the subpoena during the time he was present in the District of South Carolina for the purpose of giving his deposition in the litigation pending in that district. This action of the court was consonant with the general rule that witnesses and parties attending a judicial proceeding outside the territorial jurisdiction of their residence are immune or exempt from service of civil process in another suit while in attendance at court in that jurisdiction. Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192 (1916); Moylan v. AMF Overseas Corporation, 354 F.2d 825 (9 Cir. 1965); Shapiro & Son Curtain Corp. v. Glass, 348 F.2d 460 (2 Cir. 1965).

In Stewart v. Ramsay, supra, the nature of the privilege was stated in the following terms:

“The true rule, well founded in reason and sustained by the greater weight of authority, is that suitors, as well as witnesses, coming from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going.”

242 U.S. at 129, 37 S.Ct. at 45.

Quoting from Parker v. Hotchkiss, 18 Fed.Cas. No. 10,739, p. 1137, 1 Wall.Jr. 269, (C.C.E.D.Pa.1849), the Court went on to say:

“ ‘The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.’ ”

Id., at 130, 37 S.Ct. at 46.

The present case falls within the classic rationale of Stewart since, aside fi’om the fact that the intrusion of the petitioners upon the complex proceedings in South Carolina would have been most disruptive, it appears that Crouzet was in ill health and was exceedingly reluctant to make the trip from France to the United States for the purpose of giving his deposition. Accordingly, the action of the district judge in No. 73-1930 is affirmed.

Coincidentally with the proceedings in South Carolina the petitioners attempted to subject Crouzet to a subpoena issued out of the Middle District of North Carolina through the service of subpoenas directed to ARCT-France and ARCT, Inc., the latter being a North Carolina corporation with its principal office and place of business in Guilford County, North Carolina. The subpoenas were served upon a vice-president of ARCT, Inc., but in each instance was directed to the corporations “through Henri Crouzet, its President”. The district court did not pass upon the serious question of whether Crouzet as an individual could properly be subpoenaed through service upon the corporations neither of which was a party to the Florida litigation, but acting under Rule 26(c), Fed. R.Civ.P., entered an order quashing the subpoenas. The order expressly provided, however, that it was without prejudice to the rights of the plaintiffs to again apply for the issuance of such subpoenas upon a showing “that the use of letters rogatory (28 USC 1781; Federal Rules of Civil Procedure 28(b)) or stipulations allowing the use of the South Carolina depositions in the Florida litigation, will not produce the information needed by the plaintiffs, or some other reasonable method will not suffice to gain needed evidence from Henri Crouzet.” The court also left open the question of the authority or jurisdiction to issue subpoenas for Crouzet in such fashion in the Middle District of North Carolina.

Our review of the record persuades us that under the circumstances of this case there was no abuse of discretion by the district judge in entering this protective order and quashing the subpoenas. Cf., Hyam v. American Export Lines, 213 F.2d 221 (2 Cir. 1954). See Tiedman v. American Pigment Corporation, 253 F.2d 803 (4 Cir. 1958). Accordingly, the order of the district court in No. 73-2450 is also affirmed.

Affirmed in 73-1930.

Affirmed in 73-2450.

ADAMS, Circuit Judge

(dissenting):

On these appeals, the majority, in affirming the order of the District Court of South Carolina and the order of the District Court for the Middle District of North Carolina, has decided intricate questions relating to the operation of the discovery provisions of the Federal Rules of Civil Procedure in the context of multidistrict litigation. However, the posture of this case does not, in my judgment, permit consideration of the merits of these appeals. Rather, deference to the admonition that we are to decide only justiciable controversies leads me to the conclusion that these cases should be regarded as moot.

Celanese Corporation and Fiber Industries, Inc. (hereinafter Celanese) are plaintiffs in an action against Leesona and other patentees, in the District Court for the Southern District of Florida. Celanese seeks to depose for the purposes of the Florida litigation Henri Crouzet, the principal executive of Ateliers Roannais de Constructions Textiles (ARCT-France) and ARCT, Inc., a North Carolina subsidiary of ARCT-France. Neither Crouzet nor the ARCT corporations are parties to the Florida suit. The ARCT companies, however, are defendants in a related suit in the South Carolina district court. Celanese, aware that Crouzet, a French citizen, was scheduled to come to South Carolina in July, 1973, filed a motion for a subpoena in the South Carolina district court to compel Crouzet to appear for a deposition with respect to the Florida litigation once Crouzet had completed his duties with respect to the South Carolina suit.

On July 13, 1973, the South Carolina district court ordered that Henri Crouz-et was to be immune from any subpoena or other process “while he is within the jurisdiction of this Court to attend proceedings in this Court for the purpose of giving testimony in [the South Carolina] action. . . . ” This order, as the relevant memoranda and argument confirm, was designed to protect Crouzet for the limited period he was to be in South Carolina to offer testimony during the course of a deposition concerning the litigation taking place in the South Carolina district court. The deposition in the South Carolina suit has now been completed and Crouzet has long since returned to France, thus rendering any decision with respect to the propriety of the July 13, 1973 order of the South Carolina district court, for all practical purposes in terms of this case, academic. I would, therefore, vacate the July 13th order and remand with a direction that the South Carolina district court dismiss appellants’ motion for a subpoena as moot.

Apprised that efforts to secure Crouz-et’s testimony through the South Carolina district court had failed, Celanese caused subpoenas to be issued by the Clerk of the North Carolina district court. The ARCT companies and Crouz-et moved in the North Carolina district 9 court to quash these subpoenas, and requested an appropriate protective order. The North Carolina district court entered an order requiring Celanese to make extensive efforts other than by way of depositions to secure information allegedly possessed by Crouzet, before taking Crouzet’s deposition. Such relief does not appear, on its face, to be moot. There is some suggestion in the memorandum issued by the North Carolina district court that it was Celanese’s intention that Crouzet’s testimony be secured pursuant to the subpoenas while Crouzet was present in South Carolina to participate in the litigation pending before the district court' there. Nevertheless, the order of the North Carolina district court requiring ■ Celanese to make discovery efforts, other than by depositions, indicates that Celanese will be unable to obtain Crouzet’s deposition at any time unless Celanese completes the preliminary steps required by the North Carolina order, and the results produced by such preliminary steps are determined to be inadequate. The North Carolina district court’s order, therefore, would seem, at first blush, to have continuing effect despite Crouzet’s return to France.

However, at oral argument, counsel for the ARCT companies and Crouzet agreed that Crouzet’s deposition may be taken in France, and counsel for Cela-nese expressed willingness to conduct the necessary proceedings in France. Counsel for the ARCT companies and Crouzet did suggest that certain guidelines should be imposed, presumably in light of Crouzet’s health and the extensive testimony he has already given in the other companion cases. In view of the statements by counsel indicating that there exist no major impediments to the taking of Crouzet’s deposition in France, the dispute among* the parties concerning the conditional refusal by the North Carolina district court to permit a deposition would seem at an end, and hence our authority to rule on the merits of the order of the North Carolina district court appears dissipated. Accordingly, the proper course would be, in my judgment, to vacate that order and to remand with a direction that the North Carolina district court dismiss the motion of the ARCT companies and Crou-zet to quash the subpoenas issuing out of the North Carolina district court and for a protective order. The ARCT companies and Crouzet, of course, may still desire to petition the North Carolina district court for another protective order to establish guidelines for the taking of Crouzet’s deposition in France. Keeping in mind the already protracted nature of this litigation, it would seem that further proceedings • relating to Crouzet’s deposition should be conducted expeditiously.

For the foregoing reasons, I respectfully dissent from the majority’s disposition of these appeals on the merits.

      . See AA’right, Federal Courts 35-36 (2d ed. 1970).

      . ARCT-France is a manufacturer of false twist texturing machinery competitive with that of Leesona. In the United States, ARCT-US acts as the sales, repair and servicing agent for the machinery manufactured by ARCT-France.

      . Illness delayed Crouzet’s trip to South Carolina until, it seems, August.

      . See United States v. Munsingwear, 340 U. S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950).