author: MEDINA, Circuit Judge:

text:
    Joaquim CONCEICAO, Plaintiff-Appellee, v. NEW JERSEY EXPORT MARINE CARPENTERS, INC., Defendant and Third-Party Plaintiff-Appellee. Cia. De Nav. Mar. NETUMAR, Defendant and Third-Party Plaintiff-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third-Party Defendant-Appellee.
    No. 66, Docket 74-1344.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 14, 1974.
    Decided Dec. 11, 1974.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1680.

      George J. Duffy, Hoboken, N. J. (Baker, Garber, Duffy & Baker, Hoboken, N. J., on the brief), for plaintiff-appellee.
    William F. Larkin, New York City (Larkin, Wrenn & Cumisky, New York City, of counsel to Coppola & D’Onofrio, New York City, on the brief), for defendant and third-party plaintiff-appel-lee.
    Victor S. Cichanowicz, New York City (Ciehanowicz & Callan, New York City, on the brief), for defendant and third-party plaintiff-appellant.
    Albert V. Testa, New York City (Sidney A. Schwartz and Alexander, Ash, Schwartz & Cohen, New York City, on the brief), for third-party defendant-ap-pellee.
    Before MEDINA, FRIENDLY and GURFEIN, Circuit Judges.
   MEDINA, Circuit Judge:

The SS Mosqueiro sailed from Pier 36, East River, New York City on her overseas voyage on November 5, 1970. That morning the task of loading and stowage was nearing completion and the parties to this appeal were performing or failing to perform their respective functions in connection with the removal from a lighter, moored to the offshore or port side of the vessel, of a large quantity of huge steel pipes and stowing them on the forward weather deck of the vessel. In connection with this loading and stowing operation, one of the pipes was dislodged and rolled over the foot of the plaintiff, a longshoreman, causing the injuries on account of which the jury awarded him $42,000 damages.

There is no satisfactory proof in the record of the exact number of pipes actually lifted from the lighter and stowed on the forward deck of the vessel. But, as we shall see, the number of pipes was large. They were 30 to 40 feet long, about 18 inches in diameter and each weighed considerably more than a ton. Speaking in broad terms the functions of the parties to this appeal, in connection with the operation of removing the pipes from the lighter and stowing them on the forward weather deck of the vessel were: (1) it was the obvious duty of the shipowner, Cia. De Nav. Mar. Netumar, to decide where and how the pipes were to be stowed; (2) in connection with the stowage in a place where, during the voyage, heavy seas might be encountered, orders were given on behalf of the shipowner to New Jersey Export Marine Carpenters, Inc. (The Carpenters), to build cribs, crates or wooden pipe beds into which the pipes could be lowered and stowed by the winchmen and the longshoremen, and two of these wooden pipe beds were built; (3) the actual loading and stowing were done by longshoremen such as Conceicao employed by the stevedore, International Terminal Operating Co., Inc. (ITO). These longshoremen in the employ of ITO included the winchmen, the hatch boss and, in this case, 8 longshoremen, including the plaintiff, who were stationed on top of the hatch covers at hatch No. 1 to guide the drafts into place in this pipe bed on the starboard or inshore side of the hatch.

Conceicao sued the shipowner, claiming that the unseaworthiness of the vessel and the negligence of the shipowner were proximate causes of the accident, and The Carpenters, claiming that a breach by The Carpenters of its implied warranty of workmanlike performance was a proximate cause of the accident. Each of these cross-claimed against the other, and they also asserted a claim against ITO as a third-party defendant.

The case was tried to Judge Ward and a jury. In answer to written interrogatories the jury found:

(1) That the vessel was not unseawor-thy but that the shipowner was guilty of negligence that was a proximate cause of the accident, thus establishing plaintiff’s claim against the shipowner, exonerating plaintiff of any contributory negligence and fixing the damages at $42,000.

(2) That The Carpenters had not breached any warranty of workmanlike performance that it owed plaintiff, thus finding no liability on the part of The Carpenters for improperly constructing the pipe bed.

(3) That ITO had breached its warranty of workmanlike performance of the stevedoring operation and that this breach was a proximate cause of the accident, but that the conduct of the shipowner had been such as to prevent the shipowner from recovering indemnity from ITO on the claim against ITO as third-party defendant. In terms of the instructions to the jury this meant that indemnity was denied because the jury found that the shipowner “by some action or inaction * * * prevented, hindered or seriously handicapped ITO in performing its workmanlike job.”

The result of these findings was a judgment in favor of Conceicao and against Netumar for the amount of damages fixed by the jury. The claims and cross-claims against The Carpenters and ITO were dismissed. The trial judge on December 10, 1973 filed an unreported opinion denying the shipowner’s motion to set aside the verdict and for judgment in its favor either dismissing the complaint or granting it indemnity against ITO or in the alternative for a new trial. The shipowner appeals. There is also a protective appeal by Conceicao.

I

How the Accident Happened and the Issues on This Appeal

There was evidence from which the jury was justified in concluding that on the morning of November 5, 1970 there was a lighter on the port or offshore side of the Mosqueiro and on this lighter were the heavy pipes to be loaded and stowed on the vessel. Alongside the port and starboard No.' 1 hatches, which were those nearest to the bow of the vessel, The Carpenters had constructed two wooden pipe beds or cribs. In loading the starboard or inshore crib the pipes were lifted, two at a time, from the lighter, swung across the No. 1 hatches and guided by the longshoremen, who were standing on the closed and battened down hatch covers of the starboard hatch No. 1, to a position just over the pipe crib. Then the two pipes were lowered gently into the crib. As soon as the pipes were in place, a longshoreman at both the bow and stern end of the pipe would step forward from his position on the hatch covers and release the hooks holding the pipes.

There was ample testimony concerning the proper manner of building a pipe crib and concerning the manner of building this particular crib. It was made of new lumber with a number of whalers at the bottom and sturdy uprights about five feet high at intervals of five feet. The whole affair was tightly wedged against the steel coaming.of the hatch on one side and similarly wedged against the rail of the vessel on the other.

The testimony of plaintiff and others was to the effect that the draft of two pipes was gently lowered to a place about the center of the stow of pipes, that he stepped forward to release the hook at his forward end of the pipes when one or more of the uprights broke apart, “the pipes moved” and his foot was crushed. This was the last draft loaded into the starboard crib. The very considerable number of remaining pipes was not placed in any crib but was stowed athwartship over the port and starboard No. 1 hatch covers. Before this draft pipes had been stowed to the top of the uprights and there is some testimony to the effect that pipes had been loaded to a point well above the tops of the uprights. There is expert testimony that this was bad practice. In any event, one or as many as three of the uprights broke apart and, as the pipes in the stow shifted, one of them caught Conceicao’s foot. Only the forward end of the stow shifted, as the after end of the load of pipes rested against the deckhouse on which the winches and the winchmen were located.

We think it too clear for extended discussion that the jury had before it proof to justify a finding that the pipe crib was in every respect properly built by The Carpenters and that the findings that the vessel was seaworthy and that The Carpenters had not breached their implied warranty of workmanlike performance must stand. The pipe crib was fit for the purpose for which it was intended to be used. We also think the evidence justified a finding by the jury that a stevedore with expertise and special competence in the loading and stowage of vessels, including the filling of pipe cribs, should know enough not to overload a pipe bed and cause some of the uprights to break off and dislodge some of the pipes. Findings that ITO had breached its warranty of workmanlike performance and that this breach was a proximate cause of plaintiff’s accident are supported by sufficient evidence.

The substantial questions on the appeal concern the finding of negligence on the part of the shipowner and the additional finding that the shipowner had acted or failed to act in such a manner as to defeat the shipowner’s claim for indemnity against ITO.

II

The Shipowner Was at Fault in Many Respects

The deposition of the shipowner’s Port Captain, Richard A. Piper, was read at the trial. It was his job to lay out the stowage of all outbound cargo and to supervise the loading in conjunction with the Master and Chief Officer of the vessel. What the jury could have found was that, although Piper knew the exact quantity of pipes to be loaded and already had decided that three pipe beds were necessary, two at No. 1 hatch and another at No. 2 hatch, as is clearly shown on the Stowage Plan that was received in evidence as Plaintiff’s Exhibit 4, he did not show the Stowage Plan to William Montella, the foreman of The Carpenters, nor did he tell Montella the quantity of pipes to be loaded. While Piper insisted that he did tell Montella how many pipes were to be loaded and that he ordered three pipe beds, including the one at No. 2 hatch that was to stow 72 pieces of pipe according to the Stowage Plan, these statements were denied by Montella and it was a function of the jury to decide which witness to believe.

It appears from Piper’s deposition that he was not present at the time of the loading and stowage and that he did nothing to supervise the operation. Later, he did appear at the scene of the accident. Assuming, as we must, that Piper had failed to give the necessary information to The Carpenters, we think it was proper for the jury to conclude that it was negligence not to give this information to those who needed it and that it was also negligence not to do something by way of supervision to cure this omission. There is no evidence from Piper or any other witness that he had given any information about the pipes, correct or incorrect, to the stevedore. That the jury could have found that the accident was caused by the overloading of the pipe crib is perfectly plain to us. The testimony that, even if additional pipes are loaded at the top of the pile and in the middle, there are lateral forces at work in the pipe crib, is not disputed. Moreover, this is a simple matter of physics, and the height of the pile of pipes and the breaking of one or more of the uprights support the inference of overloading. The jury did not have to believe Montella’s opinion that one of the drafts had been carelessly handled and hit one of the uprights and split it.

That something went wrong cannot be doubted. The third pipe bed at hatch No. 2 was not built. Before the accident Piper did not even look at the pipe beds that were built and he did not know that the third pipe bed had not been built. A large quantity of pipes were stowed athwartship on top of the hatch covers at hatch No. 1. The loading of pipes in the starboard pipe bed was up to the top of the uprights or higher. And the necessary information for the proper conduct of the loading and stowage operation had not been given to those to whom the information was indispensable if they were to do a proper job. When these pieces of proof are put together, we think there was ample proof to justify a finding that the shipowner had failed to give this particular part of the loading and stowage operation the necessary supervision, and that this failure of supervision was a proximate cause of the accident. This same combination of items of proof in the testimony of the various witnesses we think justifies the finding that the shipowner was not entitled to indemnity from ITO because the shipowner had “by some action or inaction * * * prevented, hindered or seriously handicapped ITO in performing its workmanlike job.”

For some reason, which is not clear to us, the shipowner seems to think that “inaction” by the shipowner could not possibly constitute negligence. We are unaware of any general distinction between “action” and “inaction” in the field of liability for negligence. Everything depends upon the facts and circumstances of the particular case. Here there was evidence from which the jury might find that, because of the misinformation given by Piper to Montella concerning the requisite number and location of the pipe beds to be built and his failure to advise concerning the large number of pipes and the places where they were to be stowed, as appeared in the Stowage Plan, there resulted the confusion and excess of pipes that the jury could have found were a proximate cause of the overloading. In the hurry and bustle of attempting to conclude the stowage in time for the vessel to sail on November 5 th the jury might have found that the shipowner was negligent in ordering too much pipe to be loaded at hatch No. 1 or that the shipowner had ordered too much pipe to be stowed on the weather deck of the vessel in the first place. The jury may well have thought that, had Piper been at the scene at the time the stowage of the pipes commenced, he would have at once known that the directions he thought he had given had been disregarded and that in the endeavor to stow at hatch No. 1 more pipes than the crib would hold there was a probability of overloading the crib.

Ill

The Law

A

One of the most interesting developments of judge-made law in modern times commenced with the decision by the Supreme Court in Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), which treated longshoremen and other shore workers as seamen because the work by these longshoremen and shore workers was said to be the same as was anciently performed by seamen. This made it possible for these longshoremen and shore workers to by-pass the limited recoveries provided by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C., Sections 901ff, and to obtain very much larger recoveries by way of damages fixed by the juries who decided the cases under the Jones Act. In the course of time we faced an infinite variety of cases where there was interplay between the shipowner’s warranty of seaworthiness of the vessel and its appurtenant appliances and equipment, the newly expanded implied contract of workmanlike performance and the long standing doctrine of negligence. It was not very long before the various court decisions had construed the warranty of seaworthiness and the doctrine of negligence in so many different ways as to make it difficult or perhaps impossible for conscientious judges to know how to instruct juries or make decisions in specific cases. That the two rules, unseaworthiness- and negligence, were wholly distinct and separate was finally clarified by the landmark opinion of Mr. Justice Stewart in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

In the course of time this Court decided Grillea v. United States, 232 F.2d 919 (1956), and there ensued a number of decisions both in the Second Circuit and in other circuits that interpreted in various ways situations where a negligent act by the stevedore was held to be or not to be the creation of a condition that made the vessel unseaworthy. On the one hand, it was thought that if the single act was more than simply part of the “continuous course of operation” of the stevedore, unseaworthiness of the vessel might be found, whereas if the defect was solely an isolated instance that arose in the course of the work, it was negligence on the part of the stevedore and not unseaworthiness of the vessel. On the other hand, some cases held that unseaworthiness could not result from operative negligence. Some of the decisions of this Court, and particularly the dissent of our brother Friendly in Skibinski v. Waterman Steamship Corporation, 360 F.2d 539 (1966), indicated the unsatisfactory state of affairs and the conflicts of authority in the various circuits. Fortunately for us, this difference of opinion was set at rest by the Supreme Court in 1971 in Usner v. Lucken-bach Overseas Corporation, et al., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562. Again, the clarifying opinion of the court was written by Mr. Justice Stewart. In that case the longshoremen were stowing cargo from a barge positioned alongside the vessel. The winchman operating the winch and boom at a hatch had lowered the draft, but he did not lower it far enough. One of the longshoremen motioned to the flagman standing on the deck of the ship to direct the winch operator to lower the fall farther. But the winchman lowered the fall too far and too fast and the swing of cargo knocked one of the longshoremen to the deck of the barge and caused his injuries. This is precisely the same as if, in the present case, the winchman, instead of lowering the two drafts of pipes gently into the pipe crib, had dropped them down with a bang and thus dislodged some of the pipes. And this in turn is the equivalent of the single, separate act of overloading in the case before us which caused the breaking of the uprights and a dislodgment of the pipe which rolled upon the plaintiff’s foot. Here we see a perfect illustration of the difference between unseaworthines's and operative negligence.

We can find no such inconsistency between the finding that the vessel was not unseaworthy and the finding that the accident was caused by the shipowner’s negligence, as is claimed by the shipowner on this appeal. The decision in Usner repeats the teaching of Mitchell that there is a “complete divorcement of unseaworthiness liability from concepts of negligence.” The Court stated, 400 U.S. at page 500, 91 S.Ct. at page 518:

What caused the petitioner’s injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew, but the isolated, personal negligent act of the petitioner’s fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions.

In footnote 19 the Supreme Court expressly rejected the interpretation of Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967) that negligence might create “instantaneous unseaworthiness,” an interpretation which the Second Circuit had adopted in Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961 (1967), cert. denied, 390 U.S. 1027, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968).

Although the Supreme Court in Usner spoke to a situation in which neither the shipowner not the crew were involved in the accident, the logic of the opinion applies with equal force to situations in which an isolated act of the shipowner proximately caused the accident. The jury might properly have concluded that the shipowner’s inadequate instructions to The Carpenters created a further duty to supervise the actual loading of the pipes and that the breach of this latter duty as an excessive number of pipes were loaded into the crib was the isolated event which cast liability on the shipowner for negligence.

B

Although the stevedore was negligent, the jury properly found on sufficient evidence that the conduct of the shipowner precluded indemnity because the shipowner “by some action or inaction * * * prevented, hindered or seriously handicapped ITO in performing its workmanlike job.”

It is not simply the complete failure of Piper or any other representative of the shipowner to supervise the loading and stowage at hatch No. 1, it is the prior conduct and statements of Piper, which were “active,” which created the situation which made the supervision especially necessary. Probably the jury found that this was a combination of “action” and “inaction.”

It is historically true that the recovery of indemnity originated in cases where the shipowner was held liable for a breach of the absolute warranty of seaworthiness where the condition of unseaworthiness had been caused by the conduct of the stevedore. DeGioia v. United States Lines Company, 304 F.2d 421 (2d Cir. 1962); Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corporation, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Weyerhaeuser Steamship Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). And the right to indemnity has been extended to a case where there was a finding of negligence on the part of the shipowner. Drago v. A/S Inger, 305 F.2d 139 (2d Cir.), cert. denied sub nom., Daniels & Kennedy, Inc. v. A/S Inger, 371 U.S. 925, 83 S.Ct. 292, 9 L.Ed.2d 232 (1962).

It is clear that theories of “active or passive” or “primary or secondary” negligence are not appropriate in this type of case.

The shipowner was entitled to indemnity “absent conduct on its part sufficient to preclude recovery” and “[t]he evidence bearing on these issues * * * was for jury consideration under appropriate instructions.” Weyer-haeuser Steamship Co. v. Nacirema Operating Co., Inc., 355 U.S. 563, 567, 78 S.Ct. 438, 441, 2 L.Ed.2d 491 (1958). The allowance or disallowance of indemnity in this type of case depends upon a balance or interplay of the doctrines of unseaworthiness, negligence and breach of the implied contract of workmanlike performance that Judge Clark, in the leading case of DeGioia v. United States Lines Company, 304 F.2d 421 (2d Cir. 1962), stated as follows, at p. 426:

The function of the doctrine of unseaworthiness and the corollary doctrine of indemnification is allocation of the losses caused by shipboard injuries to the enterprise, and within the several segments of the enterprise, to the institution or institutions most able to minimize the particular risk involved.

This test was approved and applied by the Supreme Court in Italia Societa v. Oregon Stevedoring Co., Inc., 376 U.S. 315, 324-325, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964).

We think it clear that the party to this case most able to minimize the particular risk involved was the shipowner since, on sufficient evidence, the jury found that there was “action or inaction on the part of the shipowner which prevented, hindered, or seriously handicapped the stevedore in performing a workmanlike job.”

Affirmed.

      . As Conceicao was injured on November 5, 1970, the new provisions of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, 86 Stat. 1251, are not applicable. See Cooper Stevedoring v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Glenn Edward MILLER et al., Defendants-Appellants.
    Nos. 73-1759, 73-1864 and 73-1865.
    United States Court of Appeals, Seventh Circuit.
    Argued April 2, 1974.
    Decided Dec. 18, 1974.

      William L. Gagen, Lebanon, 111., Michael Weininger and Elliot Samuels, Chicago, 111., for defendants-appellants.
    Henry A. Schwarz, U. S. Atty., William C. Evers, III, Asst. U. S. Atty., E. St. Louis, 111., for plaintiff-appellee.

      Before PELL, Circuit Judge, and CAMPBELL and STECKLER, District Judges.

       Senior District Judge William J. Campbell of the Northern District of Illinois and Chief Judge William E. Steckler of the Southern District of Indiana are sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

Defendants Davis, Miller and Jordan were named as co-defendants in Counts I, III and V of a six count indictment charging violations of the Dyer Act and conspiracy to violate the Dyer Act. Counts I and III charged violations of 18 U.S.C. § 2312 and § 2313, respectively, alleging that defendants had transported a certain 1963 Chevrolet in interstate commerce, knowing the vehicle to have been stolen, in violation of § 2312, and alleging that defendants concealed or disposed of the same vehicle in violation of § 2313. Count V charged that defendants, in violation of 18 U.S.C. § 371, conspired to transport the vehicle in interstate commerce.

Counts II, IV and VI charged defendant Miller with similar violations of §§ 2312, 2313 and 371, respectively, the vehicle in question being identified as a Ford Pinto belonging to Thomas Locke.

Defendants were convicted after a jury trial on all six counts. Their appeals have been consolidated for the purposes of briefing, oral argument and decision. The issues raised by Defendants Miller and Davis are identical. In addition to these issues, Jordan asserts that he was denied the effective assistance of counsel because his attorney was appointed only two days prior to trial, and further that he was denied a fair trial by virtue of the district court’s refusal to grant his motion for severance.

We affirm the convictions of Miller and Davis and reverse the conviction of Jordan.

The evidence showed that both vehicles were stolen and transported across state lines. Verlanda Barnes, after being granted immunity by the government, testified as a government witness. Her testimony disclosed that on January 26, 1973, she, Fronie Mae Evans and the appellants left Memphis, Tennessee in the Chevrolet referred to in Counts I, III and V, and that everyone in the car knew the vehicle had been stolen. She stated that the evening prior to their journey, the defendants had agreed to drive the Chevrolet to Illinois for the express purpose of robbing a certain bank.

Barnes, Illinois State Police Officers Schrader and Mitchell, and a tow truck operator by the name of Bielong testified regarding the events that transpired after the Chevrolet arrived in Ashley, Illinois. According to their testimony, the Chevrolet was observed by Officer Schrader as it pulled into the driveway of the Ashley Motel and became stuck in the mud. Shortly thereafter, Bielong and Officer Mitchell arrived at the scene. In the interim, Jordan left the car and walked toward the Ashley Motel.

At this point, Davis pointed a gun at Mitchell, and Miller disarmed the two policemen. Evans, Barnes and Miller then departed the area in Schrader’s police car. Mitchell was placed in the trunk of the other police car, and Schrader and Bielong were ordered by Davis to drive that vehicle west on U.S. Route 460.

Barnes testified that the police car in which she, Evans and Miller were riding slid off the road and into a ditch a few miles outside of Ashley. When Thomas Locke and his wife, driving their Ford Pinto, observed the police car in the ditch, Mr. Locke stopped his car to offer assistance. Miller pointed two guns at Locke and ordered him and his wife to exit their vehicle. Barnes, Evans and Miller then drove off in the Pinto in the direction of St. Louis. According to Barnes, they eventually returned to Memphis, kept the Pinto for a few days and disposed of it after attempting to wipe off their finger prints.

The Pinto was eventually recovered by FBI agents in Memphis, as was certain personal property belonging to Mrs. Locke which had been left in the Pinto at the time it was stolen by Barnes, Evans and Miller.

Officer Schrader testified that after Mitchell had been placed in the trunk of the second police vehicle, Schrader was ordered to drive west on U.S. Route 460. A few miles outside of Ashley, they came upon Schrader’s police car and Mr. and Mrs. Locke, who stated that their car had been stolen at gun point. The second police vehicle was then driven for an additional one and three-fourths hours in an effort to avoid road blocks, and after a high speed chase, Davis was apprehended.

In addition to the foregoing, evidence was introduced over defendants’ objection that Davis had threatened to kill Officers Schrader and Mitchell after disarming them, and that ammunition was found in Barnes’ Memphis apartment after her arrest. Evidence was also introduced that a gun and ammunition were found in the stolen Chevrolet.

On appeal, defendants first contend that since the acts alleged in the indictment as violative of the Dyer Act were identical to those alleged in the conspiracy counts, the conspiracy counts and the substantive counts merged, and it was therefore improper to sentence defendants to consecutive terms in the penitentiary for conspiracy.

A similar contention was rejected by the Supreme Court almost thirty years ago in Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). There, faced with the question of whether the petitioners’ convictions for substantive violations of the Internal Revenue Code merged with a single count in the indictment alleging conspiracy to commit the substantive offenses, the Court stated:

“Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. . . . Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another’s crime. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy, has little vitality in this country. It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. ... A conviction for the conspiracy may be had though the substantive offense was completed.
“Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, 298 F. [911,] at page 913, ‘If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.’ The agreement to do an unlawful act is even then distinct from the doing of the act.” (Citations and footnotes omitted) 328 U.S. 643-644, 66 S.Ct. 1182.

The exceptions noted by the Pinkerton Court are not applicable here. Counts V and VI alleged crimes separate and distinct from those alleged in the substantive counts. “A conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. ... Its distinguishing element is the combination of several persons for an unlawful end. The conspiracy remains none the less a crime because by its success an additional crime has been committed. . . . Consequently, the substantive offense is not merged in the charge of conspiracy, and the parties may be punished for their agreement to commit a crime as well as for the completed crime.” United States v. Bazzell, 187 F.2d 878, 884 (7th Cir. 1951).

Alternatively, the defendants contend that the conspiracy counts cannot stand, asserting that the distinguishing element — the agreement among the defendants to commit the substantive offenses — was not proven. The gist of defendants contention in this regard is that no independent evidence was offered to show the existence of an agreement to violate the Dyer Act, and that the government's evidence was limited to proof of substantive offenses alleged in the indictment.

As the defendants readily concede, the existence of an agreement among co-conspirators need not be established by direct proof thereof. The agreement may, and usually is, proven by circumstantial evidence from which the trier of fact may infer a common design to achieve an unlawful end. United States v. Tyminski, 418 F.2d 1060, 1062 (2nd Cir. 1969); United States v. Varelli, 407 F.2d 735, 741 (7th Cir. 1969). The agreement may be inferred from proof of the relationship and conduct of the parties. United States v. Bucur, 194 F.2d 297, 301 (7th Cir. 1952), as well as from the actions of the parties, even though such actions also constitute commission of the substantive offense. Viewing the evidence in the light most favorable to the appellee, we find there was sufficient evidence that defendants agreed to transport the stolen Chevrolet from Tennessee to Illinois, and that Miller agreed with Barnes and Evans to steal and transport the Pinto from Illinois to Tennessee. Barnes testified that the evening before she, Evans and the defendants left Tennessee, they planned to enter Illinois to rob a bank. She also testified that the occupants of the Chevrolet knew it to be a stolen vehicle. On the basis of Barnes’ testimony, the jury could properly have inferred that the defendants agreed to travel to Illinois in a stolen vehicle for the purpose of carrying out their unlawful scheme.

Likewise, the jury could have inferred the existence of an agreement to steal the Pinto from the circumstances surrounding its acquisition and disposal by Miller, Barnes and Evans. That they knew the car was stolen is beyond dispute. That they shared a common purpose in stealing the vehicle and escaping to Tennessee is equally clear. Their effort to wipe the vehicle clean of fingerprints is also indicative of a common design to dispose of the vehicle in order to prevent its being traced to them. Accordingly, we conclude that sufficient evidence existed to warrant the jury’s finding that the defendants conspired to commit the acts alleged in Counts V and VI.

We turn next to defendants’ contention that the introduction of evidence of other crimes with which defendants were not charged prejudiced their rights to a fair trial. Prior to trial, defendants moved to prohibit the government from introducing evidence of other crimes. The motion was taken under advisement and, during the course of trial, was denied. Thereafter, through the testimony of Barnes and various other witnesses, evidence was admitted that (1) defendants had participated in a plot to rob an Illinois bank; (2) Bielong and Officers Schrader and Mitchell were kidnapped and their lives were threatened; (3) a gun and ammunition were found in the stolen Chevrolet; and (4) ammunition was found in the apartment occupied by Barnes and Evans after their return to Tennessee.

We start with the general rule that it is improper to introduce evidence of criminal acts which are not charged in the indictment. United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969) and cases cited at 419 F.2d 1022; United States v. Reid, 410 F.2d 1223 (7th Cir. 1969). To this general rule, however, there are several exceptions, one of which is that “evidence of other crimes may be presented when ‘they are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged.’ United States v. Wall, 225 F.2d 905, 907 (7th Cir. 1955).” United States v. Turner, 423 F.2d 481 (7th Cir. 1970). See also, United States v. Caldarazzo, 444 F.2d 1046 (7th Cir. 1971).

We have already noted that proof of a conspiracy to transport the stolen Chevrolet into Illinois was supported by evidence showing the purpose of the journey from Tennessee to Illinois, i. e., to rob an Illinois bank. From this fact, for example, the jury could have inferred that defendants agreed to make the journey in a stolen vehicle to prevent their detection should the car be identified by witnesses to the planned robbery. Since this evidence aided in proving one of the elements of Count V (i. e., the existence of an agreement among the defendants to commit an unlawful act) evidence of the planned bank robbery was admissible.

Similarly, evidence that the police officers were disarmed by Davis and Miller, and that Miller thereafter departed in a stolen police car, formed necessary links in the chain of events explaining the circumstances which led to Miller’s theft of the Pinto, and accordingly, such evidence was also properly admitted as to defendants Davis and Miller.

However, it was error to allow testimony relating to the kidnapping of Bie-long and the police officers and of threats which were allegedly made upon their lives. And it was totally improper to admit evidence that a gun and ammunition were later found in the Chevrolet and that ammunition was found in Barnes’ apartment.

The government argues that evidence relating to the gun and ammunition was probative to show that “appellants had means of carrying out the overall conspiracy”. The conspiracy charged, however, was not conspiracy to commit bank robbery, but conspiracy to violate the Dyer Act. While evidence of the bank robbery plan was admissible under the exception previously discussed to show the defendants’ agreement to enter Illinois in a stolen vehicle, it stretches the exception beyond permissible limits to allow additional evidence of criminal conduct, unrelated to the crimes charged in the indictment, under the guise of proving other uncharged criminal activity which itself would be inadmissible, save for the fact that it tends logically to prove an element of a crime charged in the indictment.

Evidence that the police officers and the tow truck driver were kidnapped and that Davis threatened their lives was also improperly admitted. The other defendants did not participate in this criminal conduct and Davis was charged only with Dyer Act and conspiracy violations concerning the Chevrolet, which had been stolen, transported and abandoned prior to the kidnapping and the threats.

The government argues that this evidence was admissible to prove knowledge that the car was stolen, that the evidence assisted in establishing identity, and that the kidnapping and threats were so blended with the crime charged that proof of one incidentally proves the other. United States v. Iacullo, 226 F.2d 788, 793 (7th Cir. 1955).

With respect to the latter contention, we fail to see how proof of a crime committed after the completion of the crime charged can be said to incidentally prove that offense, particularly when the crimes are not of such a similar nature as to give rise to the common scheme or purpose exception to the rule barring admissibility of such evidence. And, while the evidence may have had some probative value in establishing Davis’ identity, we cannot perceive that its value in this regard outweighed the prejudicial nature of the evidence, particularly since it was in no way useful in establishing the identity of the other defendants who had departed the scene prior to the kidnapping.

Finally, such evidence would not be admissible to establish criminal intent or knowledge unless and until the defendants affirmatively contested their intent and knowledge that the Chevrolet was stolen. In the instant case, defendants did not testify or present any evidence in their behalf. Since intent is always an issue, it would emasculate the rule to hold that evidence of other crimes may always be admitted to show criminal intent. As this Court stated in United States v. Fierson, supra:

“However, to justify admission into evidence of an accused’s prior criminal acts to establish willfulness and intent, it is necessary that willfulness and intent be more than merely formal issues in the sense that the defendant is entitled to an instruction thereon. See United States v. Magee, supra [261 F.2d 609]. When, as in this case, the government has ample evidence to take the case to the trier of fact for its deliberation, a plea of not guilty cannot, by itself, be construed as raising such a keen dispute on the issue of willfulness and intent so as to justify admission of this type of evidence.” 419 F.2d 1020, 1023.

Having determined that certain of the evidence of other crimes was improperly admitted, we must consider whether under the circumstances of this particular case a new trial is warranted. In short, we must determine whether the facts of this case warrant a finding by this court that the error committed was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Ordinarily, errors of the nature discussed herein would require reversal, but in the instant case, the evidence against Miller and Davis is so overwhelming that we believe it can be said with confidence and beyond a reasonable doubt that the result would have been the same had defendants’ objections to this evidence been sustained. See United States v. Greer, 467 F.2d 1064, 1073 (7th Cir. 1972).

The admissible evidence included testimony by the owner of each automobile establishing that the vehicles had been stolen prior to the time that they were alleged to have been in the possession of the defendants. The Chevrolet was stolen from Memphis, Tennessee and abandoned in Ashley, Illinois. The Pinto was stolen near Ashley and was later found in Memphis. An FBI fingerprint examiner testified that Davis’ fingerprints were found on the Chevrolet. A postcard belonging to Verlanda Barnes was found in the Chevrolet. Barnes testified to the entire chain of events, identifying the defendants as occupants of the Chevrolet, identifying Davis as an occupant of the Pinto, and stating that each of the defendants' knew the Chevrolet was stolen at the time it was transported from Tennessee to Illinois. Officer Schrader testified that Davis and Miller were in the Chevrolet when the car was stopped in front of the Ashley Motel, and Schrader, Officer Mitchell and Bie-long each testified that Davis pointed a gun at Mitchell while Miller disarmed both officers.

Testimony also showed that Davis drove from Ashley, Illinois in a police car which was later found in a ditch outside Ashley, Illinois. Mr. and Mrs. Locke, owners of the Pinto, stated that the three occupants of the abandoned police car had ordered them from their car and had departed the area in the Pinto.

In addition, an FBI agent testified that he found personal property, identified by Mrs. Locke as belonging to her, outside the apartment occupied by Barnes and Evans in Memphis. Inside the apartment, he found an identification card and a medicine bottle, each bearing Miller’s name.

No evidence was presented by any of the defendants. In view of the overwhelming evidence of guilt against Miller and Davis, we must conclude beyond a reasonable doubt that the verdicts of guilty would have been returned even if the erroneously admitted evidence of other crimes had not been introduced. Accordingly, the convie1 ions of Miller and Davis are affirmed.

In view of one of the additional contentions asserted by defendant Jordan, we do not reach the issue of whether the erroneous admission of other crimes evidence was harmless error as to him. Jordan argues that he was denied the effective assistance of counsel because his attorney was appointed only a short time prior to the beginning of trial. The record indicates that, at a pre-trial conference held on the day prior to trial, Jordan requested a continuance on the ground that his counsel had not had sufficient time to prepare for trial and had not had an opportunity to discuss the case with him in any great detail. This motion was denied, and in our view, its denial constituted reversible error.

Jordan’s counsel was appointed only two days prior to trial. The record does not indicate that the delay in the appointment of Jordan’s counsel was in any way attributable to the defendant or to his attorney. The evidence against Jordan involved a number of items not present in the cases against Davis and Miller, including evidence related to an allegedly false statement given by Jordan to authorities in Ashley, Illinois and the identification of Jordan by government witness Charlotte Quinzi, an employee of the Ashley Motel. In addition, Jordan was incarcerated during the period prior to trial, and was therefore unable to assist in the investigation of charges against him.

The government suggests that Jordan’s attorney knew of his upcoming appointment sometime prior to the actual date on which he was assigned to the case. From this, the government contends that Jordan was not “unavailable” simply because he was incarcerated, since his prospective attorney could have interviewed him at his place of incarceration. The government’s contention in this regard is totally without merit. First of all, the record does not disclose whether or not Jordan’s attorney knew of his upcoming appointment prior to the actual date thereof. Secondly, an attorney who is expecting to be appointed counsel in a particular case is simply not required to act as counsel until the date of his appointment. He should safely be able to assume that, upon being appointed, he will be given sufficient time to prepare an adequate defense for his client. Thirdly,'Jordan was incarcerated in the State of Tennessee. The government would have us hold that an attorney, who has not yet been appointed counsel, should travel to another state to interview an inmate who is not yet his client. Predictably, the government offers no authority in support of this novel proposition.

In United States v. Knight, 443 F.2d 174 (1971), the Sixth Circuit held the failure to grant a continuance under circumstances similar to those before us to constitute an abuse of the district judge’s discretion, stating that:

“We hold that prejudice is inherent under the facts and circumstances of the present case. The newly employed attorney for appellants, no matter how competent and experienced, could not be expected to prepare adequately during a thirty minute recess for a trial which would extend over a period of two days. While fully cognizant of the crowded condition of the dockets and the heavy workload carried by the experienced and able District Judge who tried the present case, we are compelled to the conclusion that failure to grant a continuance to allow counsel at least some time to prepare for the trial constituted an abuse of discretion”. 443 F.2d 178.

In the present cáse, the motion for continuance was presented one day after counsel’s appointment and one day prior to trial. We fail to see how counsel could have been expected to seek discovery, prepare jury instructions, interview prospective witnesses, research law, prepare his opening statement and summation, interview his client and perform the numerous other tasks and duties necessary to insure adequate representation by counsel. As Justice Black stated in Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940):

“But the denial of opportunity for appointed counsel, to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal' appointment.”

Although the granting or denial of a motion for continuance is a matter within the sound discretion of the district court, and is normally not grounds for reversal on appeal, Avery v. Alabama, supra, we must conclude that in the instant case the district judge, for the foregoing reasons, abused his discretion in denying the motion for a continu-anee. Accordingly, Jordan’s conviction is reversed.

Jordan also asserts that he was denied a fair trial by the refusal of the trial judge to grant his motion for a severance after the trial judge denied a defense motion to prohibit the government from introducing evidence of other crimes. Since the convictions of Davis and Miller are affirmed, Jordan presumably will be the sole defendant in any new trial which is held upon remand, and accordingly, we do not reach the issue of whether Jordan’s motion for a severance should have been granted.

On the basis of the foregoing, we affirm the judgments of conviction with respect to Miller and Davis, and reverse the conviction of defendant Jordan.

Nos. 74 — 1864 and 74 — 1865, affirmed.

No. 74 — 1759, reversed.

      . Nor can we consider the error harmless.' As this Court recently noted “[t]he harmless-error doctrine applies with diminished rigor when the right to counsel is at stake United States v. Robinson, 502 F.2d 894 (7th Cir. 1974). See Mr. Justice Stewart’s concurring opinion in Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).


author: ROSS, Circuit Judge. LAY, Circuit Judge

text:
    UNITED STATES of America, Appellant, v. Jackie WHITE, Appellee.
    No. 74-1283.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Dec. 9, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 11, 1975.

      Donald F. Parr, Asst. U. S. Atty., Minneapolis, Minn., for appellant.
    Rodney J. Edwards, Duluth, Minn., for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   ROSS, Circuit Judge.

Jackie White, a member of the Red Lake Band of Chippewa Indians and resident of the Red Lake Reservation, was observed shooting at a bald eagle within the confines of the reservation. He was thereupon charged with the unlawful taking of a bald eagle in violation of 16 U.S.C. § 668(a). White moved for dismissal of the Information on the grounds that 16 U.S.C. § 668 was inapplicable to tribal Indians on Indian reservations exercising traditionally guaranteed tribal hunting rights. Based upon the congressional silence which underlies the statute’s enactment and upon United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941), the trial court granted the motion to dismiss. Under the provisions of 18 U.S.C. § 3731, the government appeals the dismissal. We affirm.

In the district court the government opposed the dismissal of the Information on the basis that 18 U.S.C. § 1152 established the requirement that an Act of Congress is applicable to Indians unless expressly provided otherwise. Before this Court, the government has taken the position that 16 U.S.C. § 668 expressly deals with Indians and thus is plainly and unmistakenly applicable to Indians on their native reservations in the exercise of their right to hunt.

18 U.S.C. § 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.

A review of the history of these provisions reveals that the statute is limited to the application of federal enclave law to Indian country. In Ex parte Gon-shay-ee, 130 U.S. 343, 352, 9 S.Ct. 542, 545, 32 L.Ed. 973 (1889), the Supreme Court noted:

“[W]ithin the exclusive jurisdiction of the United States,” [as used in the precursor statute to § 1152] is well understood as applying to the crimes which are committed within the premises, grounds, forts, arsenals, navy-yards, and other places within the boundaries of a State . . . over which the Federal government has exclusive jurisdiction.

Again, In re Wilson, 140 U.S. 575, 578, 11 S.Ct. 870, 871, 35 L.Ed. 513 (1891), the Court said:

The words “sole and exclusive,” in [the precursor statute to § 1152] are only used in the description of the laws which are extended to [Indian country].

Those cases impart that 18 U.S.C. § 1152 is not a predicate for general federal criminal jurisdiction in Indian country. Rather the scope of section 1152 is limited to the applicability or nonapplicability of federal enclave laws, those laws passed by the federal government in the exercise of its police powers over federal property and now defined in the United States Criminal Code in terms of “special maritime and territorial jurisdiction of the United States,” 18 U.S.C. § 7. See Stone v. United States, 506 F.2d 561 (8th Cir., 1974); Walks On Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967). 18 U.S.C. § 1152, then, is not germane to this controversy.

The government’s second argument is equally nonpersuasive. In general, there is no question that “Congress has full power to legislate concerning the tribal property of the Indians • • Tiger v. Western Investment Co., 221 U.S. 286, 311-312, 31 S.Ct. 578, 585, 55 L.Ed. 738 (1911). See also FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). However, areas traditionally left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests.

This tradition is embraced in. the Menominee doctrine which, simply stated, is: “While the power to abrogate [treaty recognized hunting] rights exists ‘the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.’ ” Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968). This doctrine governs the disposition of this case and is based upon well-established rules of construction. “Plenary authority over the tribal relations of the Indians ha[d] been exercised by Congress from the beginning .... Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf.” Lone Wolf v. Hitchcock, 187 U.S. 553, 565-566, 23 S.Ct. 216, 221, 47 L.Ed. 299 (1903). Treaty rights could be abrogated at the will of Congress. Choate v. Trapp, 224 U.S. 665, 671, 32 S.Ct. 565, 56 L.Ed. 941 (1912). An Act of Congress may supersede a treaty. Thomas v. Gay, 169 U.S. 264, 271, 18 S.Ct. 340, 42 L.Ed. 740 (1898); The Cherokee Tobacco, 78 U.S. 616, 621, 11 Wall. 616, 20 L.Ed. 227 (1870). Generally, in the case of a conflict between an Act of Congress and a treaty, the one last in date must prevail. Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994 (1904). However, a treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed. Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 77 L.Ed. 641 (1933). Thus the later Act should be harmonized with the letter and spirit of the treaty so far as that reasonably can be done, since the intention to alter, and, pro tanto, abrogate, the treaty is not to be lightly attributed to Congress. United States v. Payne, 264 U.S. 446, 448, 44 S.Ct. 352, 68 L.Ed. 782 (1924). The policy was best expressed in Lone Wolf v. Hitchcock, supra, 187 U.S. at 566, 23 S.Ct. at 221, where the Court said:

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.

Upon a review of the tribal history of the Red Lake Band of Chippewa Indians, it is clear that a tract of land was “reserved” in a treaty for their occupation, Chippewa Indians v. United States, 301 U.S. 358, 373, 57 S.Ct. 826, 81 L.Ed. 1156 (1937); that the occupied lands were thereafter regarded by the United States as constituting the ■ Red Lake Reservation, id., United States v. Holt State Bank, 270 U.S. 49, 58, 46 S.Ct. 197, 70 L.Ed. 465 (1926), Minnesota v. Hitchcock, 185 U.S. 373, 389-390, 22 S.Ct. 650, 46 L.Ed. 954 (1902); and that the Red Lake bands were recognized as the sole owners by right of original Indian occupancy. That manner of occupation [“as Indian lands”] in Menominee Tribe of Indians v. United States, supra, 391 U.S. at 406, 88 S.Ct. 1705, was sufficiently definite to create a treaty right to hunt and fish. With specific reference to the Red Lake Band, the leading source in this area cites:

“An examination of the various treaties between the United States and the Chippewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties (see Article 5, Treaty of July 20, 1837, 7 Stat. 536; Article 2, Treaty of October 4, 1842, 7 Stat. 591; and Article 11, Treaty of September 30, 1854, 10 Stat. 1109), no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was ‘not much less necessary to the existence of the Indians than the atmosphere they breathed’ remained in them unless granted away.” United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089.

Cohen, Federal Indian Law, 496 — 497 (2d ed. 1958) (citing Op. Acting Sol. M 28107, June 30, 1936). Based upon Menominee, Chippewa, Hitchcock, and Winans, we reach the inescapable conclusion that the Red Lake Band of Chippewa Indians enjoy a right to hunt on the Red Lake Reservation and that this right has been implicitly recognized in treaties negotiated by that band and the United States. To affect those rights, then, by 16 U.S.C. § 668, it was incumbent upon Congress to expressly abrogate or modify the spirit of the relationship between the United States and Red Lake Chippewa Indians on their native reservation. We do not believe it has done so.

16 U.S.C.A. § 668(a) provides:

Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in sections 668 to 668d of this title, shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to sections 668 to 668d of this title, shall be fined not more than $5,000 or imprisoned not more than one year or both: .

The only reference in the Act which could be said to specifically make the Act applicable to the defendant in this case is in a subsequent section:

Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes, or that it is necessary to permit the taking of such eagles for the protection of wildlife or of agricultural or other interests in any particular locality, may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe:

16 U.S.C. § 668a (emphasis added). This latter section was incorporated into the Act with the 1962 revisions to extend protection to golden eagles. Act of Oct. 24, 1962, 76 Stat. 1246. There is no discussion in the legislative history of that amendment about the intended effect of the amendment on reservation Indian hunting rights. Only one mention of Indians was incorporated into the congressional debates on the 1962 amendment: a letter from the Assistant Secretary of the Interior, dated February 5, 1962, discusses the veneration of eagles by Indians. 108 Cong.Rec. 22272 (1962). Contemporaneous with the recommendation to Congress, however, the Department of the Interior, espoused the position that:

[A] treaty Indian is not subject to the Migratory Bird Treaty Act while on his own Indian reservation. The same is true, by analogy, of the Bald Eagle Act. While they remain on their reserved land, your Bureau is without authority to prevent Indians from taking and possessing protected migratory birds.

Memorandum from the Office of the Solicitor, U. S. Department of the Interior, Washington, D. C., to the Director of the Bureau of Sport Fisheries and Wildlife, dated April 26, 1962.

The exception in 16 U.S.C. § 668a (incorporated in the statute in 1962), is not limited to the taking of eagles by Indians or to the taking of eagles on Indian reservations. The exception relied upon by the government to show an intent by Congress to include Indians hunting on reservations within the purview of 16 U.S.C. § 668 is that part allowing the Secretary of Interior to permit the taking of eagles “for the religious purposes of Indian tribes, . . . .” Theoretically non-Indians could be thus permitted by the Secretary to take the eagles, on or off a reservation, as long as it was for the “religious purposes of Indian tribes.” It is difficult to understand, then, how this exception could be interpreted to show an express intent of Congress to abrogate treaty rights of Indians to hunt on their own reservation.

The congressional silence in the enactment of the amendment and the position of the Department of the Interior confirm that Congress did not intend 16 U.S.C. § 668 or 16 U.S.C. § 668a “as a backhanded way of abrogating the hunting . . . rights of these Indians.” Menominee Tribe of Indians v. United States, supra, 391 U.S. at 412, 88 S.Ct. at 1711. This conclusion accords with the result reached in United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941) where the district court held that a treaty Indian was not subject to the Migratory Bird Treaty Act while on his reservation. While we do not question that Congress has the authority to modify reservation hunting rights, Lone Wolf v. Hitchcock, supra, we do not believe that the language or history of 16 U.S.C. § 668 accomplishes that purpose here. It must be remembered that 16 U.S.C. § 668(a) is a penal statute, that Jackie White was charged with its violation and by his trial was exposed to possible fine and loss of liberty. The specificity which we require of our criminal statutes is wholly lacking here as applied to an Indian on an Indian reservation.

For the reasons hereinbefore set forth, we affirm the decision of the district court.

LAY, Circuit Judge

(dissenting).

I respectfully dissent.

Under our Constitution, a treaty has the same status as an Act of Congress and that body may, by the enactment of a subsequent law, abrogate or modify a prior treaty. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903); Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 780 (1884). A later statute must be harmonized with existing treaties to the extent possible and “the intention to abrogate or modify a treaty is not to be lightly imputed to Congress,” Menominee Tribe v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968), but this does not mean that intention may be ignored when it is apparent from both the subject matter and wording of the statute. Thomas v. Gay, 169 U.S. 264, 18 S.Ct. 340, 42 L.Ed. 740 (1898); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 20 L.Ed. 227 (1870). The absence of express words of abrogation is not decisive. It has long been the rule that a subsequent inconsistent law which cannot be reconciled with a prior treaty is deemed to abrogate the treaty to the extent of the inconsistency without specific words of abrogation. See Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); Whitney v. Robertson, 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386 (1888); The Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 780 (1884); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 20 L.Ed. 227 (1878); Navajo Tribe v. NLRB, 109 U.S.App.D.C. 378, 288 F.2d 162 (1961); Seneca Nation of Indians v. Brucker, 104 U.S.App.D.C. 315, 262 F.2d 27 (1958); Ex parte Green, 123 F.2d 862 (2d Cir. 1941).

In Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), the principle case on which the majority relies, the question was whether the Termination Act, 25 U.S.C. §§ 891 — 902, abrogated the hunting and fishing rights traditionally enjoyed by the Menominee Tribe in Wisconsin. In deciding that it did not, the'court did not rely solely on the absence of specific reference to hunting and fishing rights in the legislative history. Rather, it focused on the wording of the act and its stated purpose. It found the act was only intended to “provide for the ‘orderly termination of Federal supervision over the property and members’ ” of the tribe and that it contained absolutely no mention of hunting or fishing rights. It was on the basis of all three factors, legislative history, statutory wording and stated purpose, that the court concluded there was no intention to abrogate the Menominees’ treaty rights.

The majority here, however, limits their analysis of § 668 to the fact that there is no express reference, either within § 668 or its legislative history, to modification of the defendant’s treaty right to hunt eagles. Overlooked is the broad wording and the pervasive purpose which the act is intended to fulfill — the protection of the bald and golden eagles.

Both the House and the Senate Report explained the purpose of the original § 668 by quoting from a letter from the Acting Secretary of Agriculture, dated March 3, 1939, which reads:

It is apparent to this Department from its long observations with respect to the wildlife of this country that there are those in any community in which an eagle may appear who are immediately seized with a determination to kill it for no other reason than that it is an eagle and a bird of large proportions. It is equally apparent that if the destruction of the eagle and its eggs continues as in the past this bird will wholly disappear from much the larger part of its former range and eventually will become extinct.
From an esthetic point of view there can be no question as to the desirability of protecting the eagle. Its status as the emblem of the sovereignty of the United States settles that; the bird should be a ward of the National Government. Real lovers of nature, of which there are millions in this country now, count it a red-letter day when they see an eagle, and they are united in support of legislation such as is proposed in this bill. They would regret beyond expression to see the now evident process of extinction of this bird continue and fervently hope that it can be checked for all time by the Congress of the United States.

H.R.Rep.No.2104, 76th Cong., 3d Sess. 1 (1940).

In 1962 the statute was amended to extend the same protection to the golden eagle and to allow the taking of birds of either species “for the religious purposes of Indian tribes” upon compliance with specified procedures.

The joint resolution of Congress, affixed as a preamble to that amendment, is significant. It reads:

Joint Resolution to provide protection for the golden eagle.
WHEREAS the population of the golden eagle has declined at such an alarming rate that it is now threatened with extinction; and
WHEREAS the golden eagle should be preserved because of its value to agriculture in the control of rodents; and
WHEREAS protection of the golden eagle will afford greater protection for the bald eagle, the national symbol of the United States of America, because the bald eagle is often killed by persons mistaking it for the golden eagle: Now, therefore, be it

1962 U.S.Code Cong. & Admin.News, p. 1453.

In 1972 Congress, again aroused by the useless destruction and possible extinction of these great birds, amended the act to increase the penalty against and to lessen the degree of knowledge required to convict violators. Again, the purpose of the enactment can be found in a letter from one of its many proponents. After the act passed the House of Representatives, Nathanial P. Reed, Assistant Secretary of the Interior, wrote Senator Magnuson, Chairman of the Committee on Commerce:

There exist but 10 — 20,000 golden eagles in North America, and 20-30,000 northern bald eagles. The prompt enactment of H.R. 12186 will help to protect these majestic birds, aptly described by the Congress in 1940 as “a symbol of the American ideals of freedom.”

1972 U.S.Code Cong. & Admin.News, pp. 4292-4293.

The 1972 amendment also provided for the forfeiture of vehicles, planes, etc., used in violating the act, and incorporated the specific language of Section 5 of the Migratory Bird Treaty Act, as amended, previously incorporated only by reference, which allows an employee of the Department of the Interior to enforce the provisions of the act by arresting “any person” violating the act.

In view of the continuing concern over the possible extinction of these species of eagles manifested by Congress, both in the original Act and its several amendments, it is unrealistic to urge now that Congress did not intend, within the all-encompassing words of prohibition, to include Indians such as the defendant who enjoy a general treaty right to hunt on their reservations. It is difficult to understand how the language Congress used could be given limited application. It is difficult to perceive how Congress could be more explicit when the prohibitions now extend to “whoever; within the United States or any place subject to its jurisdiction . . . ” These words are hardly ambiguous or equivocal. Viewing the avowed purpose of the legislation, they leave no room for construction or interpretation. Cf. United States v. Laudani, 320 U.S. 543, 64 S.Ct. 315, 88 L.Ed. 300 (1944) (“whoever” defined in terms of the purpose of the Kickback Act).

Unlike revenue laws (cf. Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883 (1956)) which generally contain numerous exceptions premised upon the varying goals of the legislatures which passed them, a conservation statute will achieve its purpose only if it applies to everyone. The Supreme Court recognized this fact in discussing a state’s regulation of off-reservation fishing rights of Indians acquired under a treaty in Kennedy v. Becker, 241 U.S. 556, 36 S.Ct. 705, 60 L.Ed. 1166 (1916):

It is said that the state would regulate the whites and that the Indian tribe would regulate its members, but if neither could exercise authority with respect to the other at the locus in quo, either would be free to destroy the subject of the power. Such a duality of sovereignty, instead of maintaining in each the essential power of preservation would in fact deny it to both.

Id. at 563, 36 S.Ct. at 707.

See also Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968); Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942).

Congress obviously recognized the dire need for legislation and realized that conservation can be accomplished only by the enactment of a law which applies to all persons, prior treaties notwithstanding. I would reverse the district court’s dismissal and remand the case for trial.

      . This tradition has been explained in various Supreme Court opinions: “In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves.” Organized Village of Kake v. Egan, 369 U.S. 60, 71, 82 S.Ct. 562, 569, 7 L.Ed.2d 573 (1962). In the opinions of the early cases the Indians “are spoken of as ‘wards of the nation,’ ‘pupils,’ as local dependent communities. In this spirit the United States . . . conducted its relations to them from its organization to [the 1880’s].” United States v. Kagama, 118 U.S. 375, 382, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886). As the United States spread westward, “it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact the United States began to consider the Indians less as foreign nations and more as a part of our country.” Organized Village of Kake v. Egan, supra, 369 U.S. at 72, 82 S.Ct. at 569. However, the United States always “recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages.” United States v. Kagama, supra, 118 U.S. at 381, 6 S.Ct. at 1112.
      In 1871, the power to make treaties with the Indian tribes was abolished, 16 Stat. 544, 566, 25 U.S.C. § 71. In 1887 Congress passed the General Allotment Act, 24 Stat. 388, as amended, 25 U.S.C. §§ 331-358, authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. Organized Village of Kake v. Egan, supra, 369 U.S. at 72, 82 S.Ct. 562. However, the “policy of assimilation was reversed abruptly in 1934.” Id. at 73, 82 S.Ct. at 569. The Reorganization Act of 1934 “reflected a new policy of the Federal Government and tribes were encouraged to revitalize their self-government . . .” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973).
      The Court has recently reaffirmed the policy favoring tribal self-government. In McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172-173, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973), the Court stated:
      The Indian sovereignty doctrine is relevant, then, . . . because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our Government. . . . But it is nonetheless still true, as it was in the last century, that “. . . They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations ... as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union

        Id. (citations omitted).

      . In FPC v. Tuscarora Indian Nation, supra, 362 U.S. at 123, 80 S.Ct. at 557, the Court was careful to note that the language of the congressional enactments specifically dealt with Indian property and that the “lands in question [were] not subject to any treaty between the United States and the Tuscaroras.” In Squire v. Capoeman, 351 U.S. 1, 6, 76 S.Ct. 611, 100 L.Ed. 883 (1956), treaty provisions operated to relieve Indians of tax liability where no specific abrogation of treaty rights were expressed in the tax statute, despite the general disfavor of unexpressed exemptions from tax burdens. In Department of Game of Washington v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) [Puyallup II], the Court permitted state regulation of the manner of exercising a nonexclusive treaty right which had not been abrogated by Congress only after previously holding- that the treaty was silent on that issue, Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392, 398, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) [Puyallup I], and that the treaty guaranteed rights,' themselves, could not be qualified or conditioned, id. at 399, 88 S.Ct. 1725.

      . This history is recounted in Chippewa Indians v. United States, 301 U.S. 358, 57 S.Ct. 826, 81 L.Ed. 1156 (1937), and can be summarized as follows: About the beginning of the last century the Chippewa Indians constituted one of the larger Indian tribes in the northerly part of the United States. In the early treaties they were dealt with as a single tribe. In later treaties they were regarded as divided into distinct bands, of which twelve such bands became recognized occupants and holders of twelve separate reservations in Minnesota. One of the bands in Minnesota was the Red Lake Band which, along with the Pembi-na Band, had been the exclusive occupants of the Red Lake geographical areas.
      By treaty of Octobér 2, 1863, 13 Stat. 667, the United States negotiated an agreement with the Red Lake and Pembina Bands whereby these bands ceded to the United States a described part of the lands then “owned and claimed by them.” In Article 6 of the treaty the lands not ceded were called “the reservation,” and thereafter were regarded by the United States and the Indians as constituting the Red Lake Reservation. Id. at 373, 57 S.Ct. at 832.

      . In Minnesota v. Hitchcock, supra, 185 U.S. at 389-390, 22 S.Ct. at 657 the Supreme Court said:
      While there was no formal action in respect to the remaining tract, the effect was to leave the Indians in a distinct tract reserved for their occupation, and in the same act this tract was spoken of as a reservation. Now, in order to create a reservation it is not necessary that there should be a formal cession or a formal act setting apart a particular tract. It is enough that from what has been done there results a certain defined tract appropriated to certain purposes. Here the Indian occupation was confined by the treaty to a certain specified tract. That became, in effect, an Indian reservation.

        See also Spalding v. Chandler, 160 U.S. 394, 403-404, 16 S.Ct. 360, 40 L.Ed. 469 (1896). Similarly in United States v. Holt State Bank, supra, 270 U.S. at 58, 46 S.Ct. at 200, the Court said, “The effect of what was done [by the 1863 treaty] was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory .. . .”

      . By an Act of Congress, Act of January 14, 1889, 25 Stat. 642, Congress proposed a plan for allotment of the various Chippewa reservations. The Act created a commission to negotiate with the various bands. In instructions issued to the Commission by the Commissioner of Indian Affairs, it was said: None but the Red Lake and Pembina bands have ever claimed an interest in said [Red Lake] reservation, and said bands have always been recognized as the sole owners by right of original Indian occupancy. The minutes of the negotiations between the Commission and the Indians of the Red Lake Reservation under the Act, demonstrate that the Commission assured these Indians that the land which would ultimately belong to them and their children would be reserved for them and their descendants for all purposes and that no other Indians would have any right therein. Chippewa Indians v. United States, supra, 301 U.S. at 366-367, 57 S.Ct. 826.
      Chippewa Indians v. United States, supra, was subsequently cited by the Supreme Court as an example of congressional recognition of the Indian right of permanent occupancy, evidenced by “the definite intention to accord legal rights, not merely permissive occupation.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 277-279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955).

      . The holding in United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941), to the effect that treaty provisions can preclude amendment by an Act of Congress is clearly in error. See Anderson v. Gladden, 293 F.2d 463 (9th Cir. 1961).

      . The preamble to the original act stated:
      Whereas the Continental Congress in 1782 adopted the bald eagle as the national symbol; and
      Whereas the bald eagle thus became the symbolic representation of a new nation under a new government in a new world; and
      Whereas by that Act of Congress and by tradition and custom during the life of this Nation, the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom; and
      Whereas the bald eagle is now threatened with extinction: Therefore
      Be it enacted * * *, etc.
      June 8, 1940, c. 278, § 1, 54 Stat. 250.

      . The terms of the 1962 amendment exempting eagles taken for religious purposes of Indians cannot of course be used to change the original meaning of § 668. The amendment is, nevertheless, at least under the majority’s approach, relevant to our consideration. Assuming the original statute is ambiguous, as the majority maintains (a premise upon which we are in disagreement), a subsequent amendment can be useful in resolving ambiguity in statutory construction. See State Highway Commission v. Volpe, 479 F.2d 1099, 1116 (8th Cir. 1973); 2 A. Sutherland, Statutory Construction § 482(d) (3d ed. 1945). Thus, the recognition by Congress in 1962 that Indians should be permitted to take eagles for religious purposes is strong indication that Congress originally meant what it said and that the term “whoever” included all persons who take the eagle from its natural habitat, whether by treaty rights or otherwise.

      . While it may once have been the law that general statutes did not apply to Indians, it is now well recognized that general laws, which by their terms apply to all, apply to Indians, at least in their property interests. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 115-116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). Fishing and hunting rights are property rights. Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). Thus, the wording of the statute strongly indicates a congressional intent that it apply to everyone. Cf. Head v. Hunter, 141 F.2d 449 (10th Cir. 1944).
      * * * There is nothing in the legislation to indicate, or from which it can be inferred that the jurisdiction of the United States was restricted in respect to crimes which are generally applicable throughout the United States to all persons. We are cited to no Act, and find none, indicating an intention to except this appellant or his tribe from the scope of the Act creating and defining the offense. Appellant is charged with an offense against the laws of the United States which is generally applicable to all persons wherever committed

        Id. at 451.
      And see more recently our approval of this language in Stone v. United States, 506 F.2d 561 (8th Cir. 1974).