author: ALFRED T. GOODWIN, Circuit Judge:

text:
    Margie J. THRELKELD, Appellee, v. Stanley V. TUCKER, Appellant (two cases).
    Nos. 72-1472, 72-1646.
    United States Court of Appeals, Ninth Circuit.
    May 3, 1974.
    Rehearing Denied June 27, 1974.

      Stanley V. Tucker, pro se.
    Robert R. Anderson, of Anderson & Anderson, Santa Paula, Cal., for appellee.
    Before DUNIWAY, KILKENNY and GOODWIN, Circuit Judges.
   OPINION

ALFRED T. GOODWIN, Circuit Judge:

Margie Threlkeld, formerly Margie Tucker, brought this diversity action upon a judgment for damages rendered by the California Superior Court against Stanley Tucker, a resident of Connecticut, in a state case, Tucker v. Tucker (Threlkeld). The United States District Court granted Threlkeld summary judgment, and Tucker, has filed these appeals, contending, inter alia, that the district court lacked personal jurisdiction in an action upon a California judgment against a nonresident who had no contacts with California after suffering tEé~state iudgméñtT

The state-court judgment was entered upon Threlkeld’s counterclaims for malicious prosecution in one of the numerous actions brought by Tucker against Threlkeld in the California state courts. The bringing of six of these actions by Tucker was found to be a species of malicious prosecution for which damages, were assessed..

California’s long-arm statute, section 410.10 of the Code of Civil Procedure, states that:

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

The jurisdiction of the California courts is therefore coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United .States Supreme Court.

Tucker moved to California in 1956 and remained there until 1961, when he moved to Connecticut. After leaving California, however, Tucker maintained an active interest in California. He visited the state several times a year, and filed more than 30 actions or proceed-, ings in the California courts. Between 1965 and 1967 Tucker filed several actions against Threlkeld in the California state courts.

In 1968, Threlkeld, tiring of the aetivities of Tier litigious former husband, counterclaimed, in - one of Tucker’s actions, for malicious prosecution. Tjucker did not defend, and the judgment which ü~íhe Fatojwct_xrf^tHIs"icSse was entered, of 1970. Fourteen months later, having received nothing in payment of the judgment, Threlkeld filed this action in federal court.

Since 1969, Tucker has not been physically present in California. When Threlkeld filed this action, she caused Tucker to be served with process in conformity with ^ California’s out-of-state-serviee procedure. Tucker has neither appeared nor voluntarily submitted to the jurisdiction of the court. The questign therefore is whether Tucker’s activities in - California were sufficient to furnish a ju-, rjsdictional basis for this action under the “minimum contacts” doctrine of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

In Tucker v. Tucker (Threlkeld), the state court had jurisdiction . over Tucker because, having instituted the action, he had submitted himself to the court’s jurisdiction not only as to his own cause of action but also as to any counterclaim filed against him. Witkin, 1 Cal.Proc.2d, Jurisdiction, § 98. See also Adam v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649 (1938); United States of Mexico v. Rask, 118 Cal.App. 21, 4 P.2d 981 (1931). Moreover, because his deliberate and repeated utilization of the California courts amounted to‘ “purposefully [availing himself] of "the privilege of conducting activities within the forum State,” .Tucker became subject to|future_|ong-arm jurisdiction un the courts of California in an action arising out of such conduct. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). These same contacts would satisfy personal" jurisdiction if such a case were brought in -federal court, for Federal Rules of Civil Procedure 4(e) and 4(d)(7) instruct the fedmjr’courts to utilize the ípng-arm , st^tute^of .the. state within which the federal district court is located.

It is argued, however, that the present-action is not one arising directly from Tucker’s " liability-producing conduct. in California (repeated litigation), but-rather js, one arising out of a California , judgment. Superficially, this action is indistinguishable from any other action by a creditor whose claim has been reduced to judgment. It can be argued, then, that because this Action is not an action for malicious prosecution, but /merely, an action upon a judgment, Tncker’s. original contacts Caljfornia. while sufficignt to support the iudgment, are insufficient to^support jimsdiction in an action upon that judgment.

Inasmuch as the federal courts are not appendages’of the state courts, a„ federal court cannot enforce a state-court judgment without first independently establishing its own jurisdiction oyer the" subject matter and parties. See United States v. Potter, 19 F.R.D. 89 (S.D.N.Y.1956); United States v. Fairbank Realty Corp., 50 F.Supp. 373 (E.D.N.Y.1943), aff’d on other grounds, 142 F.2d 151 (2d Cir. 1944). Here di: versity. jurisdiction provides the basiss for subject-matter jurisdiction, while the Tjucker-initiated state lawsuit (resulting, ,in, the. judgment sued upon in this aer /ion), viewed in the context of the other California contacts discussed throughout this opinion, provides the basis for per- , sonal jurisdiction. We emphasize that this action is not an attempt to use a federal court or federal process to enforce a state judgment, nor is it a routine action by a creditor seeking to use a federal court to obtain a judgment upon the creditor’s local judgment against a non-resident defendant. The claim here sue¿jrpon_is.-Qnly-one .step removed from a diversity action upon a tort committed by the_ nonresident, defendant in California, and it is closely. relatedto an elaborate course of forum-related activities carried on by the defendant.

When the “minimum contacts” doctrine is the sole Jbasjs for jurisdiction, the claim sued upon must arise out, of or be. connected, with the defendant’s forum-related activities. Buckeye Boiler Co. v. Superior Court of Los Angeles County, 71 Cal.2d 893, 80 Cal.Rptr. 113, 118, 458 P.2d 57, 62 (1969). The^claim (judgment) here sued upon was connected^ with and arose out of Tucker’s repeated"‘vexation of"h!s former wife in the courts of California,.

Where, as here, the action upon the judgment is brought withiiTa reasonable time after the judgment was'entered (in this case, fourteen months) "and where the conduct underlying ‘"the™ judgment clearly evidenced a pattern jf ' continued, deliberate contact with Calb_ fornia, there is nothing unreasonable or contrary to “traditional notions of fair" play and substantial justice” (International Shoe Co. v. Washington, 326 U.S. at 316) in subjecting the nonresident to the — jurisdiction -of a federal district ’ court in California. Cf. Marra v. Shea, 321 F.Supp. 1140 (N.D.Cal.1971).

It is worth emphasizing the limits of our holding in this case. We do not hold that a valid state-court judgment by itself is sufficient basis for out-of-state service-upon a nonresident, defendant any time an action is brought upon that judgment in a federal court sitting in the state in-which the judgment was'entered. There must be a history of relevant contacts between the nonresident defendant and the state, The contacts must be related/to theJ state-court judgment, and must notjhave, been weakened by the passage of time. For "example, in this casVwe" have relleci primarily upon the fact that the defendant himself commenced the very action in which the judgment now sued upon was rendered. Further, that litigation was but part of a Tucker-initiated pattern of conscious and intentional utilization of the courts of the forum state. On these facts, there is no occasion to guard against the overreaching of a for< eign debtor by a local creditor.

Tucker’s other claims are either frivolous or barred by collateral estoppel. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947).

The judgment of the district court is affirmed.

      . Tucker, in his brief, identifies respondent as the sister of his former wife, while Threlkeld, in an affidavit, identifies herself as the former wife of Tucker. Though interesting, the question of Threlkeld’s identity does not bear upon the outcome of this case.

      . Although time has not permitted the growth of precedent under section 410.10 of the California Code of Civil Procedure, older California authority and recent Court of Appeal cases indicate that the “minimum contacts” test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), (modified by Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)) defines the boundaries of personal jurisdiction under § 410.10. See, e. g., Owens v. Superior Court of Los Angeles County, 52 Cal.2d 822, 345 P.2d 921 (1959); Buckeye Boiler Co. v. Superior Court of Los Angeles County, 71 Cal.2d 893, 80 Cal.Rptr. 113, 458 P.2d 57 (1969); Martin v. Detroit Lions, Inc., 32 Cal.App.3d 472, 108 Cal.Rptr. 23 (1973); Arnesen v. Raymond Lee Organization, Inc., 31 Cal.App.3d 991, 107 Cal.Rptr. 744 (1973).


source: Caselaw Access Project

author: HASTINGS, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Milton PENICK, Defendant-Appellant.
    No. 73-1608.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 7, 1974.
    Decided May 8, 1974.

      Ronald R. Marich, Federal Defender Program, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Royal B. Martin, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.
   HASTINGS, Senior Circuit Judge.

Milton Penick was charged in a five count indictment on August 24, 1972. Each count alleged that he violated Title 21, U.S.C. § 841(a)(1) by distributing and possessing a Schedule I controlled substance as charged in Counts I, II, III and IV, and a Schedule’ III controlled substance as charged in Count V.

Count I involved approximately 3.25 grams of heroin; Count II, 6.9 grams of marijuana; Count III, 4.6 grams of heroin ; and Count IV, 1.5 grams of heroin. Count V involved approximately 1.6 grams of diethylpropion. Count V was subsequently dismissed on February 26, 1973, upon discovery that diethylpropion was not a Schedule III controlled substance. Count V will not be considered further.

Defendant was well represented at all times in the trial court and on this appeal by court appointed attorneys from the Federal Defender Program in the Northern District of Illinois.

After a proper waiver of trial by jury, defendant was tried to the court. A verdict of guilty on Counts I, II, III and IV was returned April 9, 1973. Subsequently, on June 13, 1973, the trial court reversed its finding as to Count I and found defendant not guilty on this count. Judgment was entered on the verdict.

On June 19, 1973, defendant was sentenced to the custody of the Attorney General for a period of 3 years on Count II, and 6 years on each of Counts III and IV, the sentences to run concurrently with each other, and 3 years mandatory parole to run successively. Defendant appeals from the judgment of conviction and sentence. We affirm.

Defendant basically raises three issues for review on this appeal, viz.: (1) whether the trial court (Judge McMillen) considered matters not of record in the trial; (2) whether the trial court correctly limited the cross-examination of the government informant, Ernest Lee, and Stephen Bushendorf, a special agent of the Bureau of Narcotics and Dangerous Drugs (BNDD) ; and (3) whether the trial court correctly denied defendant’s request for Criminal Justice Act funds for a polygraph examination of defendant with respect to Counts II, III and IV.

Briefly, the Government introduced the testimony of BNDD Special Agents Thomas N. Lee, Stephen Bushendorf and Kenneth A. Adams; BNDD chemists' Mark D. Cunningham and Terry Gas-ton; and government informant Ernest Lee, together with certain group exhibits, to make its ease in chief. Defendant called a Chicago police officer, a federal probation officer and an investigator for the Better Government Association (who had taken photographs); also Peter Demos and Jan Marie Pasternack, both narcotics users and close associates of Ernest Lee; Anthony James Valentino, a security employee of a detective agency; Lisha Penick, wife of defendant, and defendant himself.

We have made a careful examination of the transcript of the evidence in this case, as well as the record of the trial below. The Government’s principal witnesses were its paid informant, Ernest Lee, and BNDD Agent Bushendorf, supported by other surveillant agents. The credibility of informant Lee was a key issue throughout. This was a trial to the court, without the intervention of a jury. Defendant and his wife each categorically denied that defendant ever sold or possessed hereoin or marijuana as testified to by Lee. It is in this posture of the case that we review the issues raised on appeal.

I.

Defendant contends he was denied his Fifth Amendment right to due process of law in two respects. He first charges that the trial judge failed to inform him prior to his waiver of jury trial that such judge had a predisposition toward believing the Government’s informant. As a result of this failure, defendant says he was precluded from executing an effective jury waiver. Finally, defendant claims that with such information he certainly would not have waived trial by jury.

It appears that Judge McMillen had presided in a prior jury trial, United States v. Coduto, 71-CR-1025, in which defendant Coduto was involved in narcotics charges. There, as, here, the Government’s key witness was the same paid informant, Ernest Lee. After Lee’s testimony a number of the defendants changed their not guilty pleas to pleas of guilty. The trial judge, of course, accepted these pleas, apparently including Coduto’s.

In considering the guilt or innocence of defendant Penick in the instant ease, defendant cites the following statement by the court:

He [Letj is an oft-convicted felon of bad reputation who uses narcotic drugs and is supported financially by the government. Only for lack of a better alternative should such an informant be used, yet in previous litigation, his testimony has sustained attacks similar to those leveled by the defendant’s attorney, and his victims have pleaded guilty.

However, what defendant fails to cite is the language by the court immediately following the above:

He [Lee] testified clearly and convincingly in the case at bar, his composure shaken on cross-examination only to the extent that he became petulant and uncooperative with defendant’s attorney. At this juncture, because the surveillance undertaken by the government’s agents controlled his activities and because defendant has offered only a general denial, we accept the testimony of the informant as true and find the defendant guilty beyond a reasonable doubt under Count I.

Further, the record shows that at the beginning of the trial, defendant’s trial counsel, Mr. Beeler, unexpectedly announced to the court that during the noon hour defendant had executed a waiver of trial by jury. The court then meticulously examined defendant in open court about his understanding of the waiver, and also interrogated his counsel and that of the Government. It was made known that Ernest Lee would be a government witness, as a confidential informant for the BNDD. The trial judge at one point said he did not “want to be in a position of deciding something on which I had any information given to me out of the presence of the defendant.” The judge added that he could not think of anything, other than the motions that had been filed. Counsel did not disagree.

The record further shows that in denying defendant’s post-trial motion relating to the same comment, the judge said: “The court did not consider any evidence brought out at the previous trial where the informant testified concerning defendants and transactions unrelated to the defendant’s case.”

In sum, the defendant was made fully aware of his right to trial by jury at the time he executed his waiver; his own counsel approved the waiver and tendered it to the court; the Government consented to the waiver; the defendant was personally interrogated in open court by the trial judge concerning his desire to waive a trial by jury; and the waiver was executed knowingly, intelligently and with full knowledge of the consequences. Adams v. United States ex rel. McCann, 317 U.S. 269, 272, 275-278, 63 S.Ct. 236, 87 L.Ed. 268 (1942). See generally, Estrada v. United States, 7 Cir., 457 F.2d 255, 256-257, cert. denied, 409 U.S. 858, 93 S.Ct. 143, 34 L.Ed.2d 104 (1972); Rule 23(a), Fed.R. Crim.P., 18 U.S.C.

Defendant bases a further denial of due process on the theory that the trial judge, in appraising the credibility of informant Lee and in determining defendant’s guilt or innocence, improperly relied upon matters outside the record. We think the record belies this assertion.

In addition to the matters set forth in considering the jury waiver issue, the Government aptly points out that in a bench trial the court is deemed to have considered only admissible and relevant material, at least absent a showing of substantive prejudice. United States v. Fox, 7 Cir., 437 F.2d 733, 734, cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971); United States v. Krol, 7 Cir., 374 F.2d 776, 779, cert. denied, 389 U.S. 835, 88 S.Ct. 46, 19 L.Ed.2d 97 (1967); United States v. Oliver, 7 Cir., 363 F.2d 15, 19, cert. denied, 385 U.S. 904, 87 S.Ct. 216, 17 L.Ed.2d 135 (1966). This presumption and the positive assertion by the trial judge, above quoted, that he did not consider any evidence brought out in a previous trial where informant Lee testified, dispel any doubt that Judge Mc-Millen based his findings on credibility or defendant’s guilt or innocence on such extraneous matter. Clearly, there is no showing of prejudice. Cf. United States v. McCarthy, 6 Cir., 470 F.2d 222, 224 (1972).

II.

Defendant complains that his Sixth Amendment right to confrontation of witnesses was denied him because the trial court refused him the right of cross-examination of informant Lee and BNDD Agent Bushendorf, each in one particular.

After Agent Bushendorf, in cross-examination, testified that he lived in the Chicago area, the trial court sustained a government objection to the succeeding question: “At what address do you live ? ” Defendant insisted this information was necessary “to determine a background of this witness.” Counsel was granted leave to examine the witness fully concerning his background, and did so. The witness had been a federal agent for seven years and this was fully explored. The witness testified he had lived at his present address in the Chicago area for approximately three years. Defense counsel was able to place the witness in his proper setting. The Government was on sound ground in expressing a reasonable fear for the physical safety of the witness and that of his family. This exception to the general rule permitting a defendant to cross-examine a government witness concerning his address is well settled. United States v. Daddano, 7 Cir., 432 F.2d 1119, 1128 (1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971) . See also United States v. Crovedi, 7 Cir., 467 F.2d 1032, 1034-1035 (1972) , cert. denied, 410 U.S. 982, 990, 93 S.Ct. 1510, 36 L.Ed.2d 178, 189 (1973); United States v. Alston, 5 Cir., 460 F.2d 48, 50-54 (citing at p. 52 numerous holdings in accord by the Seventh Circuit), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). We hold, therefore, that the trial court did not abuse its discretion in thus limiting the cross-examination of Agent Bushendorf in this one particular. Further, in any event, in view of the wide latitude accorded generally in cross-examination of this witness, we find no resulting prejudice to defendant.

Defendant complains of a similar limitation in the cross-examination of the informant, Ernest Lee, when the trial judge sustained the Government’s objection to the question: “Where do you live now, Mr. Lee?” However, in this instance the court merely requested defendant to lay a proper foundation, and then stated: “If [Lee] has only lived at his present location for a brief time, which apparently he has, I can’t see how it would be relevant.” Defendant abandoned this line of questioning and never accepted the suggestion of the court. Without further elaboration, the record indicates in many respects that defendant knew of Lee’s address during the period of time he purchased heroin from defendant. The record is replete with evidence touching almost every phase of Lee’s background and we find that the witness was placed in his proper setting and environment.

We readily agree with the statements and holding of our court in the recent case of United States v. Ott, 7 Cir., 489 F.2d 872 (1973), and fully subscribe thereto. However, that case is readily distinguishable from the case at bar on its facts. Here, Lee was known to defendant, and testified fully concerning his present employment and his employment history extending back to 1965. His counsel was invited by the court to lay a proper foundation for asking the witness his current address. He failed to do so. That defendant was aware of Lee’s personality and background is evidenced by his motion to have Lee examined by a psychiatrist before Lee testified.

We find no abuse of discretion or prejudicial error in the court’s restriction of the cross-examination of informant Lee in the single particular set out.

III.

Finally, defendant asserts that his constitutional right to due process was violated when the trial court refused to authorize funds for an expert polygraph examination of the defendant and for obtaining expert testimony to establish the reliability of such evidence.

The trial court did authorize funds for a polygraph examination of defendant with respect to Count I of the indictment for the purpose of allowing defendant’s attorney to engage in an “experiment.” The court further authorized funds for the testimony of John E. Reid, the polygraph operator, who testified in open court. On the basis of Mr. Reid’s testimony, the trial court found defendant not guilty on Count I. The trial court had previously stated that Count I involved “a more loosely controlled transaction with the informant on January 11, 1972.” He further stated that “if the defendant can raise a reasonable doubt by subjecting himself to a polygraph test on this transaction, we will reconsider our findings of guilt on Count I.” The results speak for themselves. Otherwise, the court denied any further polygraph tests.

Our court apparently first considered the exclusion of the results of polygraph tests in United States v. Chastain, 7 Cir., 435- F.2d 686, 687 (1970). In a per curiam opinion, we first held that defendant had not laid a proper foundation for the proffered testimony and finally that “[i]n any event, it is clearly within the discretion of the trial judge to exclude such evidence,” citing, e. g., United States v. Tremont, 6 Cir., 351 F.2d 144, 146 (1965), cert. denied, 383 U.S. 944, 86 S.Ct. 1198, 16 L.Ed.2d 207 (1966).

Indeed, Tremont, together with a number of other cases hereinafter referred to, is authority for the proposition that federal courts have consistently denied admission in evidence of the results of a lie detector test. The Sixth Circuit there announced that it was not disposed to re-examine the traditional rule and “upset the longstanding judicial distrust of such evidence.” Id.

In United States v. Frogge, 5 Cir., 476 F.2d 969, 970, cert. denied, 414 U.S. 849, 94 S.Ct. 138, 38 L.Ed.2d 97 (1973), the court said: “We are similarly unconvinced by the argument that the trial court erred when it refused to authorize the polygraph examinations requested by the appellants.” After noting-a trend in California towards loosening the restrictions on polygraph evidence, the court continued: “the rule is well established in federal criminal cases that the results of lie detector tests are inadmissible. [Citing cases.]” In accord, United States v. Salazar-Gaeta, 9 Cir., 447 F.2d 468, 469 (1971); McCroskey v. United States, 8 Cir., 339 F.2d 895, 897 (1965); Marks v. United States, 10 Cir., 260 F.2d 377, 382 (1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 (1959); Tyler v. United States, 90 U.S. App.D.C. 2, 193 F.2d 24, 31 (1951), cert. denied, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326 (1952).

It is apparent from the record that Judge McMillen was disposed to grant the polygraph examination of defendant with respect to Count I, on an experimental basis, only because the circumstances surrounding the first sale had not been subject to the scrutiny and control of the federal narcotics agents, as the Government aptly observes. The contrary was the case concerning the sales in Counts II, III and IV. Further, the transfer of the heroin in Count IV took place in the presence of Agent Bushendorf. Hence, as observed in Chastain, supra, if the exclusion of such evidence lies “clearly within the discretion of the trial judge,” it necessarily follows that the trial court did not abuse its discretion in refusing to authorize the requested funds.

Defendant has challenged only the refusal to authorize the requested funds under'the Criminal Justice Act of 1964, as amended, 18 U.S.C. § 3006A. He has not claimed that the results of a polygraph examination should have been admitted into evidence. If such evidence is deemed inadmissible, then the refusal of funds for such an examination would have been proper. If, however, special circumstances would appear to justify the use of the results of a polygraph examination, then, under the Act, supra, any such authorization would lie within the sound discretion of the district court. We find no abuse of such discretion in this case.

In light of the foregoing, the judgment of conviction and sentence appealed from is affirmed.

Affirmed.

      . § 841. Prohibited acts A — Unlawful acts (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; * * *.


author: CUMMINGS, Circuit Judge.

text:
    Gladys RODRIGUEZ et al., Plaintiffs-Appellees, Mrs. Loretta Smith et al., Plaintiffs-Intervenors-Appellees, v. Harold O. SWANK et al., Defendants-Appellants.
    Nos. 73-1252, 73-1253.
    United States Court of Appeals, Seventh Circuit.
    Heard Nov. 30, 1973.
    Decided May 9, 1974.

      Bonny Sutker Barezky, Asst. Atty. Gen., Paul P. Biebel, Jr., Bernard Carey, State’s Atty., Robert E. Lehrer, Legal Assistance, Chicago, 111., for defendants-appellants.
    Sheldon H. Roodman, Robert E. Lehrer, Legal Assistance Foundation of Chicago, Chicago, 111., for appellees.
    Before CLARK, Associate Justice, Retired, and CUMMINGS and PELL, Circuit Judges.

      . Associate Justice Tom O. Clark of the United States Supreme Court, Retired, is sitting by designation. rect. See Rodriguez v. Swank, 318 F.Supp. 289 (N.D.Ill.1970), affirmed, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677.

   CUMMINGS, Circuit Judge.

In October 1970, the district court ordered the Illinois Department of Public Aid to process all applications for assistance under the Aid to Families with Dependent Children Program (“AFDC”) within 30 days from the time they are filed. A supplemental order was entered in February 1972 to enforce compliance with the earlier order. Because incomplete compliance persisted with respect to the 1970 order, plaintiffs moved in October 1972 for further remedies, suggesting two possible solutions. The first was a “presumptive eligibility” concept whereby any applicant who had an unprocessed AFDC application on file for 30 days would be presumed eligible and immediately mailed an assistance check, as in Class v. White, (D.Conn. Civ. No. 14704, 1972). The other alternative suggested was adopted by the district court to enforce compliance with its 1970 order. Thus on November 9, 1972, the-court directed that after February 1, 1973:

“any AFDC application pending more than thirty days, through no fault of the applicant, and subsequently acted upon favorably, will entitle the applicant to $100, compensatory damages in addition to the regular benefits received.” (emphasis in original)

The court’s opinion described this sanction as a “supplementary remedy.” In colloquy with counsel, the judge explained :

“The purpose, and the only purpose, that I have in mind, is to insure- — It’s another incentive insofar as the Department is concerned to apply. I mean, to process all applications as they are required to do within the 30 days, that’s the only purpose of it.”

Consequently, he gave the defendants three months to being complying with the court decree or begin paying $100 to every AFDC applicant whose rights were violated. He refused to order the presumptive eligibility remedy also suggested by plaintiffs. We affirm.

Because of related issues involved in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, we entered a hold order postponing a decision herein until after the Supreme Court rendered its decision in that case. On March 25, 1974, the Supreme Court decided Jordan and held that the Eleventh Amendment precluded the award of retroactive benefits to persons eligible for aid to the Aged, Blind and Disabled.

The Jordan opinion carefully confined its holding to retroactive benefits to be paid by Illinois state officials. The Supreme Court noted that sovereign immunity “is no bar to that part of the District Court’s judgment that prospectively enjoined petitioner’s predecessors from failing to process applications within the time limits established by the federal regulations.” 42 LW 4423 [94 S.Ct. 1356]. Justice Rehnquist pointed out that Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, justified the relief awarded by the district court in the prospective portion of its order in Jordan. He added that a suit is not barred merely because it has a prospective impact on the state treasury:

“The injunction issues in Ex parte Young was not totally without effect on the State’s revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365 [91 S.Ct. 1848, 29 L.Ed.2d 534] (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254 [90 S.Ct. 1011, 25 L.Ed.2d 287] (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing.” 42 LW 4424 [94 S.Ct. 1357].)

The injunction approved in Jordan ordered compliance with the federal regulations. It therefore corresponds to the 1970 injunction in this case. The order before us is a civil contempt order designed to bring about compliance with the 1970 injunction. Under certain circumstances of non-compliance, this order might have a greater fiscal impact than the 1970 injunction alone. But that does not render this order invalid. Jordan indicated that the Eleventh Amendment would not bar the payment of state funds “as a necessary consequence of compliance in the future with a substantive federal question determination.” 42 LW 4424 [94 S.Ct. 1358], But it did not stop there. The opinion went on to imply that payment of state funds could be ordered as “a form of compensation to those whose applications were processed on a slower time schedule” when state officials were under a “court-imposed obligation to conform to a different standard.” 42 LW 4424 [94 S.Ct. 1358]. Such compensation is one of the effects of the order under review.

The power to order compliance with federal regulations would be meaningless if the injunction were unenforceable. It should not be forgotten that Ex parte Young denied a habeas corpus petition brought by the Attorney General of Minnesota, who had been fined and committed to the custody of the federal Marshal for contempt of a federal injunction. 209 U.S. at 126, 168. The Eleventh - Amendment does not limit a federal court of equity to one inflexible remedy. Neither does the Social Security Act. The argument that forfeiture of federal funds is the exclusive remedy in cases such as this was rejected in Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 25 L.Ed.2d 442. The district court here reasonably concluded that “complete forfeiture of federal funds would be too harsh a remedy to impose upon the state * * Of course, if defendants prefer that remedy, they may at any time voluntarily forfeit federal funds and relieve themselves of any obligation to comply with federal regulations.

The remedy adopted here was well within the district court’s discretion. “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” United States v. Mine Workers, 330 U.S. 258, 303-304, 67 S.Ct. 677, 701, 91 L.Ed. 884. The order here serves both purposes, but primarily the coercive one. Money payments contingent on non-compliance are a traditional means of enforcing injunctions. See 330 U.S. 305.

Here the court dealt patiently with defendants for more than two years, attempting unsuccessfully to gain compliance with its injunction. When the court finally entered the supplementary order which is the subject of this appeal, it gave defendants three additional months of grace. Only in the continued absence of compliance was $100 to be awarded to those whose applications were not timely processed. Accordingly, the fiscal consequence to the state treasury was the necessary result of attempts to gain compliance with a decree which by its terms was prospective in nature. “Such an ancillary effect on the state treasury is a permissible and often inevitable consequence of the principle announced in Ex parte Young, supra.42 LW 4424 [94 S.Ct. 1358],

Defendants’ remaining contentions are unpersuasive. Exhaustion of state remedies is irrelevant to a proceeding to enforce a federal injunction. The amendment of the regulations during the pendency of this appeal to allow 45 days for processing applications is similarly irrelevant. It is a matter to be taken up with the district court on a motion to modify the injunction, perhaps retroactively to the date of the amendment. Defendants were not denied due process in the oral argument in the district court; if there were any error, it was cured in proceedings on defendants’ subsequent motion to vacate.

For the reasons given by the district court, we agree that it properly refused to adopt the remedy of presumptive eligibility, as urged by plaintiffs in their cross-appeal. The cross-appeal also seeks an advisory opinion as to whether presumptive eligibility would have been a permissible alternative remedy if the remedy actually given had been denied. We decline to render such an opinion. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.

The order is affirmed.

      . This was the time period then provided by regulation, and this order was clearly cor-


author: FAIRCHILD, Circuit Judge. SPRECHER, Circuit Judge

text:
    T. A. MOYNAHAN PROPERTIES, INC., Plaintiff-Appellee, v. LANCASTER VILLAGE COOPERATIVE, INC., Defendant, v. George W. ROMNEY, Secretary of U. S. Dept. of Housing and Urban Development, Defendant-Appellant.
    No. 73-1004.
    United States Court of Appeals, Seventh Circuit.
    Argued June 5, 1973.
    Decided May 21, 1974.

      Stanley B. Miller, U. S. Atty., Indianapolis, Ind., Morton Hollander, Chief, Appellate Section, Jean A. Staudt, Atty., U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
    John I. Bradshaw, Jr., Indianapolis, Ind., for plaintiff-appellee.
    Before FAIRCHILD and SPRECHER, Circuit Judges, and CAMPBELL, District Judge.

       Senior District Judge William J. CampbeE, Northern District of IEinois, is sitting by designation.

   FAIRCHILD, Circuit Judge.

The judgment appealed from declared a nullity the termination by defendant Secretary of Housing and Urban Development (HUD) of a management contract between plaintiff Moynahan and defendant Lancaster, and enjoined HUD from terminating that contract or any similar one held by plaintiff without “first establishing and following appropriate standards meeting due process requirements.”

Lancaster operates a cooperative housing project for lower income families. The mortgage on its property is insured by HUD. On November 9, 1970, Lancaster and Moynahan signed an agreement on an FHA “model form” under which Moynahan was appointed managing agent for Lancaster, to render services in return for fees. The mortgagee and FHA (HUD’s predecessor) endorsed their consents the same date. The agreement was to be in effect for three years, unless cancelled pursuant to its terms. One of the provisions for cancellation (Eighth (d)) permitted FHA or the mortgagee to cancel the agreement on 30 days’ written notice, “with or without cause.” Moynahan has other similar agency agreements.

On April 26, 1972, a representative of HUD wrote to Moynahan, notifying him that the agreement was terminated as of May 31, 1972, and stating that Lancaster had requested HUD to exercise the right of termination. On May 3, Moynahan wrote to HUD stating it would like to “appeal,” wanted to express its position verbally, and requested an explanation for the termination.

On May 25, HUD wrote Moynahan referring to a visit at the HUD office, during the interim, but saying that HUD had no alternative but to terminate, and adding, “We wish to inform you that this action does not reflect adversely on your firm.”

On June 29, 1972, Moynahan brought action in state court against Lancaster and HUD. The court restrained the cancellation and the action was removed by HUD to the federal district court. After a hearing, originally contemplating decision on whether to issue a preliminary injunction, the district court concluded it should decide the merits. The court decided that Moynahan’s interest in performing the contract throughout the three years was an interest in property; that the circumstances of the cancellation rendered HUD’s action arbitrary and capricious; and that due process requires notice and an opportunity to be heard if HUD wished to establish that it had a reasonable ground for cancellation. The district court declared the cancellation of the Lancaster contract a nullity and enjoined termination of Moynahan’s other contracts, as well, “without first establishing and following appropriate standards meeting due process requirements.” The principal facts developed at the hearing, largely without dispute, are as follows:

On March 27, 1972, the Lancaster Board adopted a resolution that in view of Moynahan’s failure to agree to an amendment to the contract desired by the Board, the Board should formally withdraw from the agreement. On March 29, attorneys for Lancaster wrote to Moynahan purporting to give notice of termination. On March 31, the attorneys for Lancaster wrote Mr. Dodd, a representative of HUD, referring to the “apparent hostility” between Lancaster and Moynahan, with which they said Dodd was familiar, and asking Dodd to aid Lancaster in terminating the contract.

On April 26, a representative of HUD wrote to Moynahan that the Lancaster Board had requested HUD to exercise its right to terminate the agreement, and terminating it as of May 31, 1972. On May 3, Moynahan wrote HUD stating it would like to appeal, would like to express its position verbally, and would like an explanation of reasons for the cancellation. Evidently a representative of Moynahan visited the HUD office, and on May 25, a representative of HUD wrote Moynahan as already described, reaffirming the decision.

■ The parties stipulated, as follows:

“Over the period of several months in late 1971 and early 1972 a series of disputes arose between Lancaster Village Cooperative, Inc. and T. A. Moynahan Properties, Inc. which those parties were unable to resolve to their mutual satisfaction. Lancaster Village requested cancellation of the Management Agreement pursuant to paragraph Eight (b). [Termination by mutual consent.] The request was denied by T. A. Moynahan Properties. Lancaster Village Cooperative, Inc. then brought the matter to the attention of HUD.”

Mr. Dodd testified that he was personally aware of the disputes referred to, that he had discussed them with representatives of Lancaster and of Moynahan, and that after the letters from the attorney for Lancaster, dated March 29 and 31, “I reviewed the project file, and, without attempting to assess fault, I concluded that these differences were not likely to be resolved.” Asked why he didn’t attempt to assess fault, he replied,

“Fault is not the question. It is a question of whether we think the co-op and its agent can work together effectively in the future. If it appears that they can’t, then we terminate.”

There was no testimony on either side illuminating the character or the nature of the amendment to the agreement requested by Lancaster, or of the disputes, and no testimony contradicting Mr. Dodd.

1. Substantive due process

The agreement permitted HUD, a government agency (as well as the mortgagee, who apparently was nongovernmental), to cancel “with or without cause.” At least the government agency was limited to the extent that its choice could not be completely whimsical. Government could not act under the cancellation provision if motivated only by disapproval of the contractor’s religion or politics. See Cafeteria Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The cancellation could be challenged for fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. United States v. Wunderlich, 342 U.S. 98, 99, 72 S.Ct. 154, 96 L.Ed. 113 (1951). It could be challenged by demonstrating that there was no rational basis for the decision. Scanwell Laboratories, Inc. v. Shafer, 424 F.2d 859, 869 (1970); M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1301 (1971). Cf. Jeffries v. Turkey Run Consolidated District, 492 F.2d 1, 3 (7th Cir., 1974).

We conclude that there is a substantive due process standard for valid action under the cancellation provision, but we think it was fulfilled in this case. The government has both a financial interest, in a proprietary sense, and a governmental interest, in terms of the public welfare, in successful operation of the housing project. Prima facie, at least, the reason given by Mr. Dodd, to the effect that it is good policy for the government to cancel an agency agreement where there are disputes between agent and owner not likely to be resolved, and, as a result, a probability that these parties can not work together effectively, is rational in view of the government’s interests in successful operation, and not arbitrary or capricious.

The district court emphasized the fact that some part of the dispute arose from Lancaster’s desire for an amendment to the agreement, and the fact that Moynahan was not bound to agree. In the face of the stipulation of the parties to the existence of disputes over several months, and the lack of any evidence as to their nature, we think the district court was in error in the view it took of the nature of the difference between the parties.

2. Procedural due process

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1971), the Supreme Court held that when a claim to procedural due process is asserted, the court must first identify the nature of the interest allegedly infringed. “We must look to see if the interest is within the Fourteenth Amendment’s protection [in this case the Fifth Amendment’s protection] of liberty and property.” Roth, p. 571.

In Roth at page 577, the Court said,
“Certain attributes of ‘property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ■ — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”

The agreement before us provided for benefits for both parties, and ran for a fixed term. Neither party could terminate the agreement without the consent of the other, except on the occurrence of one of several specified events not present here, and almost wholly outside the control of any of the people concerned. The government argues that Moynahan’s agreement to cancellation by HUD “with or without cause” was a voluntary waiver of hearing. For present purposes, the argument really amounts to saying that the presence of the provision prevented Moynahan’s interest in the continuation of the agreement from being a property interest.

We think the argument is unsound, and that Moynahan had a property interest in an agreement which was of benefit to it and which had a fixed term even though subject to the contingency of cancellation by a third party. This is particularly true since, as concluded in part 1, above, the government’s option to cancel is limited to something less than a completely whimsical choice. The situation considered in Adams v. Walker, 492 F.2d 1003 (7th Cir., 1974), where this court decided that an Illinois public officer did not have a property right in his office, differs in many particulars from the one before us now. In Adams the governor’s power of removal, which in some degree corresponds to the right to cancel in this case, was deemed, as a result of applicable state law, to be wholly unreviewable.

The next question to arise is the nature and type of notice and hearing required to afford due process. Notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective are required. Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). “The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). Bearing in mind the nature of Moynahan’s interest, and that, because of the broad discretion given to HUD, Moynahan’s right is, essentially, to be protected from arbitrary action without ■ a rational basis, we conclude that the minimum requirements are a written statement of the reasons for the proposed action and an opportunity to present material, at least in writing, challenging the accuracy of supposed facts relied on and the rationality of the reasons stated. Since the facts have been stipulated here, we need not describe the minimum in terms of procedure to which Moynahan would have been entitled if the facts were disputed.

In this case the written notice, citing only a request by Lancaster for the termination, was an inadequate statement that the reason for cancellation consisted of the disputes, not likely to be resolved, which were deemed to impair the effectiveness of the project. A meeting did occur, however, between representatives of Moynahan and HUD, and there has been no showing that this meeting was inadequate either because Moynahan was not sufficiently aware of the reason motivating HUD to cancel or because Moynahan was frustrated in making its response. The parties have stipulated, as already stated, that the disputes did exist over a period of months.

Moynahan had an opportunity at the hearing in district court to present evidence, if it had any, rebutting either the factual basis or the genuineness of the reason then given for cancellation or the adequacy of the opportunity it had to present its position. Under all the circumstances, we deem the deficiencies in the notice of cancellation to have been adequately cured.

The district court, as already noted, seemed to limit the basis for HUD’s decision to cancel to an attempt to force Moynahan to agree to some pror posal by Lancaster, not described in the record. In discussing the point, the court used the term “unconscionable.” Noting that reference, Moynahan argues that the cancellation provision in the agreement is itself unconscionable. Doubtless those, like Moynahan, desiring to be agents for cooperative housing projects with federally insured mortgages enjoy little bargaining power with respect to the cancellation provision. We are not persuaded, however, that that fact renders the provision unconscionable and that we should therefore hold the provision ineffective.

Insofar as the judgment appealed from declared the cancellation of the agreement of November 9, 1970 a nullity, it is reversed; insofar as it enjoined HUD from terminating similar agreements without following due process requirements, as interpreted in this opinion, it is affirmed. Each party shall bear his own costs on appeal.

SPRECHER, Circuit Judge

(dissenting).

I respectfully dissent. I find no authority for crippling the power of the government to exercise a range of discretion consonant with contractual rights freely bargained with private contractors.


author: NOLAND, District Judge.

text:
    Marc Aurele JEANTY and Maxence Jeanty, Plaintiffs-Appellants, v. McKEY & POAGUE, INC., et al., Defendants-Appellees.
    No. 73-1634.
    United States Court of Appeals, Seventh Circuit.
    Argued April 9, 1974.
    Decided May 23, 1974.

      Douglas C. Nohlgren, Robert G. Schwemm, Chicago, 111., for plaintiffs-appellants.
    Raymond H. Groble, Jr., Joseph H. Taylor, Sr., Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and NOLAND, District Judge.

       District Judge James E. Noland of the Southern District of Indiana is sitting by designation.

   NOLAND, District Judge.

This action under Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.) arises from plaintiffs’ assertions that the defendants refused to rent an apartment to them on the basis of their race. After trial the District Court dismissed the complaint as to defendants McKey and Poague, Inc., and its employees, defendants George M. Hiles and H. M. Migely. The Court entered judgment against defendant Presbítero & Sons, Inc., awarding $701.64 in damages, costs and attorneys’ fees.

Plaintiffs contend that the Trial Court erred in dismissing the defendant rental management company and its employees and in awarding inadequate damages and attorneys’ fees.

With respect to the plaintiffs’ first contention, the Trial Court found that the plaintiffs made application to lease the premises in question and were refused on the ground that the defendant owner would no longer rent to single men. The Court found further that the reason given was a subterfuge and concluded that the refusal to rent to the plaintiffs was racially discriminatory. On the basis of these findings the dismissal of the complaint as to McKey & Poague and its employees, Presbitero’s exclusive rental agents, cannot be sustained. Though the management agreement between McKey and Poague and Presbítero states that “Leases and tenants shall be approved by the owner,” the evidence disclosed that, whoever decided not to rent to the plaintiffs, the discriminatory acts alleged were performed by McKey & Poague’s employees. It is well established that agents will be liable for their own unlawful conduct, even where their actions were at the behest of the principal. Sanborn v. Wagner, 354 F.Supp. 291, 295. (D.Md.1973); Young v. AAA Realty Co. of Greensboro, Inc., 350 F.Supp. 1382, 1387 (M. D.N.Car.1972); Williamson v. Hampton Management Company, 339 F.Supp. 1146, 1149 (N.D.Ill.1972).

Plaintiffs next contend that the Trial Court erred in limiting its award of compensatory damages to $100.00, representing plaintiffs’ out-of-pocket expenses. It appears from the District Court’s opinion that the Court considered only out-of-pocket costs in determining the amount of compensatory damages to be awarded. However, recovery may also be had for emotional distress and humiliation, Steele v. Title Realty Company, 478 F.2d 380, 384 (10th Cir. 1973); Smith v. Sol D. Adler Realty Company, 436 F.2d 344, 351 (7th Cir. 1970) and the Court therefore should have considered this element in arriving at the damage award figure.

The plaintiffs next contend that the Trial Court erred in refusing to award punitive damages. In making this determination the Court appears to have considered solely the personality of plaintiff Marc Aurele Jeanty as it appeared to the Trial Judge during that plaintiff’s testimony. Upon remand, the appropriate consideration in deciding the issue of punitive damages is the motive and attitude of the defendants in refusing the apartment in question to the plaintiffs. Thus, while punitive damages are not to be allowed for every Title VIII violation, in each case the Court should consider whether or not the defendants acted wantonly and wilfully, Wright v. Kaine Realty, 352 F.Supp. 222, 223 (N.D.Ill.1972) or were motivated in their actions by ill will, malice, or a desire to injure the plaintiffs. Steele v. Title Realty Company, supra at 384.

Finally, plaintiffs assert that the Trial Court erred in limiting attorneys’ fees awarded to $400. In view of the substantial time expenditure involved by plaintiffs’ highly qualified counsel in bringing this action and the several hearings involved, we feel that the question of attorneys’ fees should be reconsidered.

Plaintiffs have also requested in their brief that they be awarded attorney fees for the appeal. The court has the authority under 42 U.S.C. § 3612(c) to award attorney fees when the plaintiff, as here, is financially unable to assume them. Steele v. Title Realty Company, 478 F.2d at 385. The general policy behind the award of attorney fees was set forth by the Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Although that case was under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a), the language is equally applicable to a Title VIII action:

When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law.
******
If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II, 390 U.S. at 401-02, 88 S. Ct. 966.

We accordingly award attorney fees for this appeal to the plaintiff in the sum of $1,000.

The judgment appealed from is therefore reversed and the cause remanded under terms of Circuit Rule 23 for further proceedings consistent with this order. Defendants are to bear the costs and attorney fees of this appeal except for the cost of the appendix which shall be borne by the plaintiffs.

Reversed and remanded.

      . The defendant did not oppose this request.


author: LAY, Circuit Judge.

text:
    ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Appellee, v. F. S. NEELY, d/b/a F. S. Neely Company, Appellant, v. Gene McKOWN. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Appellee, v. ARKO BRIQS, INC. and F. S. Neely, Individually, Appellants.
    No. 73-1761.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13, 1974.
    Decided May 22, 1974.

      Don A. Smith, Fort Smith, Ark., for appellants.
    Charles Wayne Harris, Fort Smith, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

This appeal involves consolidated suits arising under 49 U.S.C. § 6(7). Demur-rage charges were sought by the St. Louis-San Francisco Railway Company (hereinafter Frisco) against F. S. Neely, d/h/a F. S. Neely Company, and against Arko Briqs, Inc. The district court entered findings and judgment for the railway company and the defendants appealed. We affirm the judgment against Arko Briqs, Inc., in the sum of $204.05; we vacate the judgment against F. S. Neely Company and remand to the district court for further findings.

In the suit against Arko Briqs, Frisco sought demurrage charges on two separate railroad cars. The judgment includes a $10.00 charge on a loaded grain car arising from Arko’s failure to timely release the Bill of Lading on Car No. NP 44145. On Car No. CNW 8294, the railroad filed a detention charge of $44.05 for Arko’s failure to surrender the Bill of Lading within 24 hours and a demurrage charge of $150.00 for Arko’s failure to notify the railroad that the car was unloaded and could be picked up. Although the evidence is conflicting on the validity of these charges, we cannot say from the record that the findings of the district court are clearly erroneous.

In the case against F. S. Neely Company, the Frisco contended that five empty coal hopper cars were ordered by Neely and delivered to him on December 23, 1970, and remained empty until December 30, 1970, thus incurring demur-rage charges of $500.00.

Neely asserts two defenses: (1) that the proof varied from the pleading, and (2) that the railroad did not prove tariff charges beyond $250.00.

We need discuss only the second contention. The base tariff relied upon by the railroad in the district court was Rule No. 6 Circled (18), Section A. Application of this tariff would result in demurrage charges of $50.00 per day per car. There is no disagreement by defendant over the applicability of this tariff. The dispute arises over Revised Car Service Order No. 1050. This order increased the demurrage charges to $100.00 per day. However, the order states on its face that it expires on December 1, 1970, unless extended by the Interstate Commerce Commission. At the trial, documentary proof of the extension was not made. The testimony by Frisco’s agent was that the amendment was lost, but that he had seen the document and knew that the ICC had extended the order to cover the period of time involved in the present demurrage charges. No attempt to verify the extension order through the ICC was made. Upon objection, the trial court stated that he would credit the testimony of the railroad agent unless the defendant could prove that the order was not in effect. We hold that the agent’s proof was not the best evidence of the extension and the defendant’s objection should have been sustained. Although authentication of the tariff had been waived, proof of the order itself had not been waived. The wording and dates of the order could materially affect its applicability.

Title 49 U.S.C. § 6(7) requires the railroad to collect the full amount of the applicable tariff. See Chicago, Burlington & Quincy R. R. Co. v. Ready Mixed Concrete Co., 487 F.2d 1263 (8th Cir. 1973). As we observed in Norfolk & Western Ry. Co. v. Permaneer Incorporated, 455 F.2d 76 (8th Cir. 1972):

“Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay.” Kansas City Southern R. R. v. Carl, 227 U.S. 639, 653, 33 S.Ct. 391, 395, 57 L.Ed. 683 (1913). It is clear that no “act or omission of the carrier” can “estop or preclude it from enforcing payment of the full amount by a person liable therefor.” Louisville & N. R. R. v. Central Iron & Coal Co., 265 U.S. 59, 65, 44 S.Ct. 441, 442, 68 L.Ed. 900 (1924). “[Ejquitable considerations may not serve .to justify failure of carrier to collect, or retention by the shipper of, any part of lawful tariff charges.” Baldwin v. Scott County Milling Co., 307 U.S. 478, 485, 59 S.Ct. 943, 948, 83 L.Ed. 1409 (1939).

Id. at 77 n. 2.

The base tariff was offered in evidence. The railroad now asserts on appeal that Rule No. 6 Circled (19), Section A, is applicable rather than Circled (18), Section A, and that the charges should be $510.00 rather than $500.00. This claim was not made in the district court, nor was the demurrage bill sent to Neely by the railroad based on this provision. Presumably, the alleged extension of Revised Car Service Order No. 1050, if lawfully invoked, would increase the charge under either tariff provision. The state of the record leaves this court in doubt as to the tariff provision applicable and the proper charge that is due and owing under it.

We deem it in the interest of justice that the judgment against F. S. Neely Company be vacated and the case remanded. The district court shall make an initial determination, receiving evidence, if necessary, as to whether Circled (18) or Circled (19) of the Rule is applicable to the charges involved; the court may further receive competent proof as to whether Revised Car Service Order No. 1050 had been properly extended. Upon determination of the applicable tariff and the proper charge, the district court shall enter a new judgment for charges against the shipper. The district court’s determination will of course be again reviewable, if deemed necessary by the parties.

      . The variance claim we deem frivolous. At trial Neely attempted to limit proof to only one ear since an exhibit attached to the complaint referred only to the demurrage charge on one car. The complaint itself alleged “cars” and Neely’s answer admitted ordering and securing five cars. Neely’s testimony reflects the facts. Federal pleading is notice pleading and evidence is not required to be pled.

      . At oral argument counsel indicated that a pretrial had been conducted in this proceeding. We think the district court should utilize the pretrial procedure to at least require the parties in cases such as this to exchange prior to trial the respective tariffs and orders relied upon, and reach agreement on proof of foundation and authentication. The parties may always dispute the proper construction of the tariffs. Cf. Tri-State Motor Transit Co. v. United States, 490 F.2d 996 (8th Cir. 1974). But foundational disputes should no longer intrude into the orderly progress of a trial.


author: WINTER, Circuit Judge: HERBERT F. MURRAY, District

text:
    UNITED STATES of America, Appellee, v. James A. WATSON, Appellant.
    No. 72-1452.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1973.
    Decided Aug. 20, 1973.
    Stefan C. Long, Alexandria, Va. (Court-appointed) for appellant.
    Joseph A. Fisher, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and MURRAY, District Judge.
   WINTER, Circuit Judge:

Defendant was convicted of first degree murder and sentenced to life imprisonment. 18 U.S.C.A. § 1111 (1969). He appeals because he requested, but was denied, the assignment of two attorneys to represent him. 18 U.S.C.A. § 3005 (1969). For this omission, we are obliged to reverse and grant a new trial.

I.

The command of 18 U.S.C.A. § 3005 (1969) is unequivocal. It states:

Whoever is indicted for capital crime shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried . . . shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire . . . -

The indictment charging defendant was returned January 11, 1972. Shortly thereafter, a single attorney was appointed to represent him and he was arraigned and pleaded not guilty on January 17, 1972. The trial was set for March 27, 1972.

On February 4, 1972, defendant’s court-appointed counsel moved for the appointment of co-counsel. He failed to refer to 18 U.S.C.A. § 3005, but assigned as a reason in support of the motion the need for assistance to interview a large number of witnesses before the rapidly approaching trial date. The motion was denied, although then, and again later, when counsel sought a continuance to complete trial preparations, the district court ordered the government to furnish information and to make available witnesses to lessen defense counsel’s burdens of preparation. The trial was held March 27, 1972, and, upon the verdict of guilty of first degree murder without capital punishment, the district court sentenced defendant to life imprisonment.

II.

The statute under which defendant was convicted, 18 U.S.C.A. § 1111 (1969), provides that whoever is found guilty “shall suffer death unless the jury qualifies its verdict by adding thereto ‘without capital punishment’, in which event he shall be sentenced to imprisonment for life . . ..” As its first argument for affirmance of defendant’s conviction despite the district court’s failure to comply with § 3005, the government contends that as a result of the Supreme Court’s ruling in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), defendant was not accused of a “capital crime” within the meaning of 18 U.S.C.A. § 3005 (1969). Furman held that, with respect to two Georgia cases and one Texas case, “the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” 408 U.S. at 239-240. Since the penalty provision of § 1111 is indistinguishable from those challenged in Furman, it is clear that, had the death penalty been imposed on defendant, such a sentence would have been void. From this circumstance the government concludes that defendant was not charged with a “capital crime” at the time his attorney requested additional counsel thereby rendering § 3005 inapplicable to such a request. Aside from the question of whether Furman is retroactive in the context that the government asserts, we are not persuaded.

In addition to 18 U.S.C.A. § 3005, a considerable number of statutes of the United States and the Federal Rules of Criminal Procedure, as well as many of their state counterparts, are predicated in their operative effect upon the concept of capital crime. Who may admit to bail, 18 U.S.C.A. § 3141 (1969), who may be admitted to bail, 18 U.S.C.A. §§ 3146, 3148 (1969 Ed. and 1973 Cum. Supp.), limitations on prosecution, 18 U.S.C.A. § 3281 (1969), the defendant’s scope of discovery in criminal cases, 18 U.S.C.A. § 3432 (1969), his right to peremptory challenges of prospective jurors, Rule 24(b), F.R.Cr.P., and a convicted defendant’s right to probation or suspension of sentence, 18 U.S.C.A. § 3651 (1969), all depend upon whether a defendant is charged with a capital offense, a crime punishable by death.

In the case law since Furman, no finely developed reasoning has emerged as to whether Furman has effected a wholesale repeal of these provisions and their state counterparts. The case most nearly in point is State v. Holmes, 263 La. 685, 269 So.2d 207 (1972), which held that Furman does not destroy the concept of a “capital offense.” It held that, despite the abolition of the death penalty, the state must continue to apply its statutory and constitutional laws requiring unanimous juries and jury sequestration to crimes formerly punishable by death. The court reasoned that Furman cannot be assumed to have affected statutes other than those dealing with imposition of the death penalty, and concluded that it should leave the task of harmonizing ancillary statutes to the state legislature.

The cases on the application of Fur-man to state constitutional and statutory provisions forbidding bail in certain capital cases are split. Those holding that despite Furman, bail is not available, reason that the classification is based not on the potential punishment but on the gravity of the offense. People v. Anderson, 6 Cal.3d 628, 657 n. 45, 100 Cal.Rptr. 152, 171-172 n. 45, 493 P.2d 880, 889-890 n. 45 (1972); People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo.Sup.Ct.1972) (Per Curiam); State v. Flood, 263 La. 700, 269 So.2d 212 (1972). Those eases holding that after Furman bail must be available, reject the ’ logic that the nature of the crime remains the same and that exposure to a life sentence justifies denying bail. State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); See Commonwealth v. Hollowell, 11 Cr.L. 2070 (Phi-la.Ct. of Common Pleas, March 14, 1972) (bail available pending retrial where sentence on now reversed conviction was life, not death). It should be noted, however, that the bail cases differ from provision for a second attorney, because the bail classification relates primarily to the nature of the offense as it affects society, and not to the nature of the risks or complexities facing the defendant at trial.

We start from the premise that Furman did no more than hold that imposition of the death penalty under statutes, which created a range of possible sanctions, including execution, was unconstitutional in an historical context of extremely rare and apparently arbitrary resort to that penalty. From the plurality of opinions which were filed in Fur-man, we cannot be certain that Furman forecloses all statutory schemes for imposition of capital punishment. It appears, however, that Furman neither repealed statutes, such as § 1111, which contain death penalty provisions that probably cannot be constitutionally applied, nor did it repeal statutes such as § 3005 which depend for their operation on the defendant being charged with a “capital crime.” In a very literal sense, the offense defined in § 1111 is still a “capital crime;” the statute still authorizes the imposition of the death penalty and Congress has not repealed it. Nor has Congress amended any of the statutes creating special procedural rules in capital cases in response to the Furman decision. We are urged by the government to fill in a gap created by Congressional inaction on the basis of our belief that the death penalty may no longer be constitutionally imposed on defendant. Courts are very naturally hesitant about drawing solely upon their own authority to repeal pro tanto Congressional enactments. However, exceptional circumstances would justify a court in removing from the literal scope of a statute a case to which the application of such statute could not conceivably serve any of the purposes that motivated Congress to enact it. See Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). Were we convinced that defendant’s exposure to the risk of imposition of the death penalty was the sole reason for the two-attorney requirement in § 3005, we would be inclined to agree with the government. However, we believe that there is a significant chance that other considerations also underlay the two-attorney requirement.

The legislative history of the Act of April 30, 1790, and its successive amendments to the present 18 U.S.C.A. § 3005, is relatively unrevealing. Of course, when it was enacted, treason, willful murder, piracy and forgery or counterfeiting of a public security of the United States were all punishable by death alone. It can, of course, be inferred, from the fact that the only punishment was death, that the inevitability of death as punishment in the event of conviction was the sole reason why Congress directed that one accused of a capital offense should be entitled to two lawyers if he requested them. On the other hand, the class of cases in which Congress retained the death penalty has diminished over the years. Presently, only such serious crimes as treason, 18 U.S.C.A. § 2381 (1969), first degree murder, certain types of kidnapping, 18 U.S.C.A. §§ 1201, 1751 (1969 Ed.1973 Cum.Supp.), certain types of bank robbery, 18 U.S.C.A. § 2113(e) (1969), and homicide resulting from certain postal infractions, 18 U.S.C.A. § 1716 (1969), purportedly carry a possible death penalty, although for none has Congress provided that death is the sole penalty. Not every capital crime is a complex one and not every capital crime arises from a complex set of facts which would require extensive investigation and trial preparation by defense counsel. Yet it seems to us that it is more likely than not that an alleged offense of the type for which Congress has purportedly continued the death penalty will be a complex and difficult case to prepare and try. The kinds of crimes made punishable by death are usually such as to generate revulsion in the trier of fact and, as a result, a high degree of prejudice if the trial is not conducted strictly in accord with recognized procedures, including the rules of evidence and burden of proof. It is not unlikely that Congress may have also sought to buttress the defense with two attorneys to provide greater assurance that a defendant’s rights would be fully observed. As a consequence, we are unable to say, absent a clear legislative expression, that the possibility of imposition of the death penalty was the sole reason why Congress gave an accused the right to two attorneys. It follows that we cannot say that Furman effects a judicial repeal of § 3005.

We have no doubt that Furman raises pointed legislative questions of whether § 3005 should not be repealed or whether the various provisions of Title 18 which purport to authorize the imposition of the death penalty should be amended in an effort to harmonize them or to validate them under Furman, or even under United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). But we conceive these to be legislative questions and not judicial ones, especially when a holding by us that Furman has effected a repeal of § 3005, of necessity, would probably create serious doubt as to whether the various other provisions of Title 18 and the Federal Rules of Criminal Procedure, to which we have referred, have also been repealed. The question of whether these statutes and the rule should now be repealed merits the prompt consideration of Congress and the Rules Committee, but we regard our role as one of proceeding with caution unless and until it unmistakably and clearly appears that Furman has had this effect. This, we fail to find.

We therefore hold that, notwithstanding Furman, defendant had an absolute statutory right to two attorneys under § 3005.

III.

Having concluded that defendant was denied a right that he possessed and sought to exercise to have two attorneys under § 3005, we turn to the government’s argument that nonetheless defendant’s conviction should not be disturbed because he was not prejudiced by denial of the right. The government contends that defendant’s single attorney presented a perfectly adequate defense, that there was nothing another attorney could have done, and that the major problem confronting the single lawyer, the number of potential witnesses, was met or at least alleviated by the district court’s ordering extraordinary discovery.

From the record, it is possible to conclude that defendant was fairly tried and the evidence of his guilt was substantial, if not overwhelming, and from this it may be inferred that defendant was not prejudiced by the denial of his right. In this connection, however, we recognize the almot insuperable difficulty which would be placed upon any defendant, if the burden is placed on him, to show post hoc that he was prejudiced by denial of his right to two attorneys. In Smith v. United States, 122 U.S.App.D.C. 300, 353 F.2d 838, 845-46 (1965), cert. denied, 384 U.S. 910, 974, 86 S.Ct. 1350, 1867, 16 L.Ed.2d 362, 684 (1966), it was held that the failure to advise a defendant of his right to two attorneys under § 3005 created a presumption of prejudice so that the burden of disproving it was shifted to the government.

The cases which the government cites to support its contention that a § 3005 case turns on its facts do not address the instant issue and are distinguishable. In United States v. Davis, 365 F.2d 251 (6 Cir. 1966), the issue was whether the defendant had the right to replace his two court-appointed counsel at will. The court said no. In Crum v. Hunter, 151 F.2d 359 (10 Cir. 1945), cert. denied, 328 U.S. 850, 66 S.Ct. 111-7, 90 L.Ed. 1623 (1946), the court held only that the defendant in a capital case has no right to two counsel unless he requests two. In the instant case, defendant requested two attorneys. In Smith, supra, the issue was whether the district court erred in failing to advise the capital defendant of his right to two counsel. The court held that the district court should inform the defendant of this right, that prejudice will be presumed if it does not, but that this presumption was overcome by sole defense counsel’s vigorous defense, by the fact that there was no challenge to the overwhelming evidence (insanity defense), and by the fact that the defendant was not sentenced to death. In dictum, Smith unequivocally declared: “If the substance of his request had been that he desired the appointment of additional counsel additional counsel would have been required. Section 3005 provides an absolute right.to additional counsel when requested.” 353 F.2d at 845 (emphasis added). See Davis, supra.

We reject the government’s argument. Section 3005 is unequivocal in its terms. We have no right to rewrite it, nor have we any right to provide a district court with the discretion to apply it that Congress purposefully and unambiguously withheld. Since in our view, the statute would be eviscerated by application of the harmless error doctrine, we perceive no alternative but to enforce it.

The judgment entered upon conviction is reversed and defendant is awarded a new trial. Since the other errors of substance claimed by defendant are unlikely to arise on retrial, we need not consider them.

Reversed; new trial granted.

HERBERT F. MURRAY, District

Judge dissenting:

I dissent. In my view, the sole reason Congress gave an accused charged with a capital crime the right to two attorneys was the possibility of imposition of the death penalty. When the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) abrogated the death penalty, the crime of murder with which Watson was charged no longer was a capital crime. It necessarily follows that his otherwise undoubted right under Title 18, Section 3005 to have a second counsel appointed on his request disappeared. Therefore, his rights have not been violated and the conviction below should be affirmed.

It is somewhat remarkable that the two counsel provision of Title 18, Section 3005, which has existed continuously in our law since 1790, is without any explanatory comment that the diligence of court and counsel can discover. The founding fathers, so eloquent on many of our other basic rights, seem to have maintained an unbroken silence with regard to this provision.

It does appear that they took pains to depart from the English practice with regard to the right of counsel. The harsh rule of the English common law permitted counsel in misdemeanor cases, but denied it in cases of felony or treason. Felony defendants were not allowed to testify, to call sworn witnesses on their behalf or see their charges before trial. It was not until 1695 that Parliament adopted a statute permitting representation by counsel in cases of treason. The same right was not extended to all felony cases until 1836, nearly half a century after the Sixth Amendment was added to the American Constitution. Contrastingly in this country, as Justice Sutherland noted in his extensive historical review in Powell v. State of Alabama, 287 U.S. 45, 64, 53 S.Ct. 55, 62, 77 L.Ed. 158 (1932):

“It thus appears that in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes; and this court seems to have been of the opinion that this was true in all the colonies.”

In adding the right to additional counsel in capital cases, it seems obvious that the reason for it was the finality of the punishment involved, not any inherent complexity of capital cases. Many such cases are much simpler and easier to try from the point of view of counsel than, for example, a multi-defendant narcotics conspiracy trial. The writer of this opinion believes that in a desire to guard against human error, the first Congress felt it desirable to have two lawyers keeping watch on each other when the life of the client was at stake.

When the death penalty is abolished, admittedly it gives rise to difficulties in the administration of the criminal law. However, these difficulties are not insuperable and in regard to the statutes mentioned in the majority opinion, could be solved judicially on a case by case basis or by the Congress.

      . This venerable statute was first enacted as § 29 of the Act of April 30, 1790; 1 Stat. 118. In the respects pertinent to this case, it has existed continuously since that date.

      . Counsel on appeal was not counsel at the trial. The district judge who made the pretrial rulings was not Judge Bryan, the district judge who tried the case.

      . A point the government -was quick to “concede” in its briefs.

      . Defendant’s request for appointment of additional counsel came on February 4, 1972. Furman was decided on June 29, 1972.. Thus, at the time such request was made there existed no rule of law that would have prevented the imposition of the death penalty if defendant were convicted of the offense with which he was charged. A necessary step in the government’s reasoning is that the subsequent decision in Furman retroactively determines the proper characterization, on February 4, 1972, of the offense defined in § 1111 for purposes of § 3005. We do not decide the case on this narrow issue. We prefer to rest our decision on a determination of what prospective effect, if any, the Furman decision may have upon criminal procedure statutes, like § 3005, whose operation depends upon the defendant being charged with a “capital offense.” If we were to reverse on the narrow ground that Furman cannot retroactively affect the applicability of § 3005, a new trial would be granted. Defendant would very likely renew his request for two appointed attorneys, thereby squarely raising the issue of the prospective effect of Furman. Since that issue has been fully argued in this appeal, considerations of economy of judicial effort and the general importance of the question warrant deciding it now.

      . It is worth noting that the problems confronting Watson’s defense were relatively complex. His theory was self defense. The killing was witnessed by a large number of persons whose testimony would be crucial to the establishment of the privilege of self defense. Many of these persons were members of a prison population. Such persons are often reluctant to testify truthfully as to their knowledge of crimes committed by prisoners upon their fellows. Thus, large numbers of witnesses who had to be handled with extreme care needed to be interviewed in preparation for trial.

      . Jackson held invalid the portion of 18 U.S. C.A. § 1201(a) which permitted a jury in a kidnapping case where the victim suffered harm, to specify that the death penalty should be imposed and which failed to permit any comparable imposition of the death penalty upon a plea of guilty. Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), reached the same result with regard to 18 U.S.C.A. § 2113(e) which permitted a jury to direct the imposition of capital punishment when a person was killed in the commission of a bank robbery hut failed to permit a judge the same sentencing alternatives upon a plea of guilty. The rationale of the decisions was that both statutes encouraged pleas of guilty and placed an impermissible burden upon a defendant’s right to be tried and not to incriminate himself. These statutes should be contrasted with ones like 18 U.S.O.A. § 1111, which prescribes death as the penalty for first degree murder unless the jury prescribes clemency.

      . Lewis, Gideon’s Trumpet, Chapter 8, p. 104.

      . 7 & 8 Wm. Ill, c. 3, Sec. 1 (1695).

      . 6 & 7 Wm. IV, c. 114, Sec. 1 (1836),

      . See Donaldson v. Sack, 265 So.2d 499 (Fla. 1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958).