author: COLEMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harry CONWAY, Defendant-Appellant.
    No. 74-2284.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    Rehearing and Rehearing En Banc Denied April 2, 1975.

      Owen A. Neff, Cicero C. Sessions, New Orleans, La., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Ronald J. Waska, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   COLEMAN, Circuit Judge.

After trial to a jury, Harry Conway, defendant-appellant, was convicted on a two count indictment alleging in Count One a malicious attempt by means of explosives to bomb a building affecting interstate commerce, a violation of 18 U.S.C., § 844(i), and in Count Two of traveling in interstate commerce with intent to promote the unlawful activity of arson in violation of Maryland laws and thereafter performing acts to facilitate the said unlawful activity in violation of 18 U.S.C., § 1952(a)(3). Mr. Conway was fined $5,000 and placed on supervised probation for three years. We affirm.

Appellant owned an interpreting company in Greenwich, Connecticut. The prosecution centered around the testimony of Wiley F. Altman, operations manager of the Astrohall in Houston, Texas. Mr. Altman testified that he met the appellant in connection with a 1968 convention in the Astrohall, and that he had an association with appellant in two or three other conventions between 1968 and 1972.

The witness testified that during April, 1972, appellant handled the foreign language interpretation for a convention being held in the Astrohall; that on April 19 Mr. Conway came to his office “out of the blue” with a proposition to seek Altman’s assistance in blowing up a building in Landover, Maryland, which was owned by a business competitor of appellant. Conway added that he was on his way out of town, and instructed Altman to call him if he “came up with anything”.

Altman testified that he intentionally gave Conway the impression he could find someone to bomb the building, and the next day called the Secret Service in Austin and related Conway’s proposition. The witness was subsequently contacted by Houston police officers and by agents Lowry and Johnson of the Alcohol, Tobacco, and Firearms Division of the United States Treasury Department (ATF).

On May 9, 1972, appellant called Altman to find out what progress had been made pursuant to their conversation of April 19. Altman had been furnished tape recording equipment by the Houston police, and the conversation was recorded in the presence of three Houston police officers and the two ATF agents.

During the period May 9 — May 26, 1972, Altman and Conway talked several times, and each conversation was recorded.

During the evening call of May 9, informer Altman advised appellant that he had found people (the people ultimately turned out to be ATF agents Lowry and Johnson) who could do the bombing. During ensuing conversations between May 9 and May 26, informer Altman initiated plans for Conway to take movie pictures of the target building which could be shown to the bombers. He also suggested that a $5,000 down payment be made to those who would blow up the building, with $5,000 to follow upon completion of the job, and another $5,000 be paid to himself as a finder’s fee for getting the job done.

As suggested, appellant went to Maryland and filmed the target building, borrowed $15,000 in New York, and flew from New York to Houston on May 26, 1972. Altman met him at the airport, and took him to a local motel where Altman introduced agents Lowry and Johnson to Conway as the persons who would do the bombing in Landover, Maryland. Appellant twice showed the assembled group the movie pictures of the building to be bombed. He then handed $5,000 cash to one of the two agents, and $900 of the finder’s fee to informer Altman.

All of the above events occurring in the motel room were recorded by Houston police officers and other ATF agents who occupied the adjoining room. At a prearranged signal, appellant was arrested.

As grounds for reversal, appellant contends:

I
The District Court erred in failing to enter a judgment of acquittal because
A. The facts established entrapment as a matter of law,
B. It was legally and factually impossible for him to commit the crime charged in Count I,
C. There is a fatal variance between Count II and the facts adduced at trial;
II
The jury was improperly instructed;
III
The trial court erred in admitting into evidence certain tape recordings;
IV
The trial court erred in failing to grant a mistrial following prejudicial statements made by the government prosecutor.
I
(A)

Appellant bases his entrapment argument on United States v. Bueno, 5 Cir., 1971, 447 F.2d 903. In that case there was uncontradicted testimony that the defendant, on trial for selling heroin to a government agent, had been furnished the contraband by a government informer. We held that the facts established entrapment as a matter of law because there was no dispute in the evidence that the government supplied the defendant with the means to commit the crime. Conway contends that the “bombers” were supplied by the informer Altman, thus the case is controlled by Bueno.

Although Conway testified that informer Altman initiated and planned the bombing, Altman testified the plan originated with Conway. Undoubtedly, there was evidence from which the jury could find (as it did) that the bombing scheme originated with Conway.

The defendant’s predisposition to commit the crime remains the test for entrapment, United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366; United States v. Register, 5 Cir., 1974, 496 F.2d 1072, 1081. The fact that officers or employees of the government afford opportunities or facilities for the commission of the offense will not defeat a prosecution, Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848.

As Mr. Justice Rehnquist noted in Russell, supra, 411 U.S. at 432, 93 S.Ct. 1637, infiltration and limited participation in some unlawful practices frequently affords the only means of their detection.

(B)

Appellant also contends that a judgment of acquittal should have been entered because it was legally and factually impossible for him to commit the crime charged in Count One — attempting to bomb a building “affecting interstate commerce”. He contends that an essential element of this crime is the use of an explosive, and that no showing was made of the existence or use of an explosive by anyone connected with the case.

The defenses of legal and factual impossibility are not applicable to this case. Legal impossibility occurs when the actions which the defendant performs, or sets in motion, even if fully carried out as he desires, would not constitute a crime. Thus, an indictment for attempted rape can be defeated by showing that the woman the defendant attempted to ravish was his wife. However, such is not the case here, since the activity Conway proposed was unquestionably illegal.

Factual impossibility denotes conduct where the objective is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing it about. The classic example is the thief who picks an empty pocket. When criminal liability has been imposed for attempt where factual circumstances precluded commission of the intended crime, proof of intent to commit a specific crime has generally been emphasized, United States v. Berrigan, 3 Cir., 1973, 482 F.2d 171. For a discussion of factual impossibility, see United States v. Roman, 356 F.Supp. 434 (1973), affirmed 2 Cir., 1973, 484 F.2d 1271, cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974); and W. LaFave & A. Scott, Handbook on Criminal Law 438, 445 (2d Ed., 1972).

The District Court properly declined to recognize impossibility as a defense. Appellant had completed his personal involvement in the case. All that was left for him to do was sit back and watch the bombing take place.

(C)

As a final basis for acquittal, appellant contends that there is a fatal variance between the government’s alie-gations under Count Two of the indictment and the evidence adduced at trial.

Count Two of the indictment charged appellant with a violation of 18 U.S.C., § 1952, which prohibits interstate travel with intent to carry on any “unlawful activity”. The statute’s applicable definition of unlawful activity includes “extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States”. It is appellant’s contention that at best, all the government established was an intent by him to travel in interstate commerce to procure the bombing of a building in Maryland, and that the evidence failed to disclose an intent by him to procure the burning of any building.

The record contains sufficient references to burning to indicate that Conway at least anticipated it, and on occasion he seems to have used the words “burning” and “bombing” interchangeably. Informer Altman testified that when Conway initially approached him regarding the bombing, he said, “I want the bastards blown up” or “I want them burned out”. Conway later told Altman that “he knew by dynamiting their place and burning it out that he wouldn’t put Har-grove out of business, but he would be delaying him. . . . ”

On cross examination, the following dialogue took place between appellant and the United States Attorney.

“Q. You admit, Mr. Conway, that the discussion in the course of these events, for which you are on trial, contained the language of explosive, burning, bombing?
“A. Yes, that’s what’s so frightening about it.
“Q. You do admit that?
“A. Yes.”

Earl Hargrove, President of the corporate victim of appellant’s plan, testified that due to the paints and plastics his company kept on hand, fire was their biggest fear.

Viewing the testimony in the light most favorable to the verdict the jury had sufficient grounds to determine the appellant knew that fire would play a role in the destruction of his competitor’s business.

II

Appellant next contends that the trial court’s failure to define arson under Maryland law constituted a failure to submit an essential element of the offense charged in Count Two (violation of 18 U.S.C., § 1952), and is therefore grounds for reversal.

This, however, does not appear to be the test. In United States v. Nardello, 398 U.S. 286, 295, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969), a prosecution under § 1952 for extortion, the Supreme Court held that Congress did not intend to restrict the coverage of the “Travel Act” by defining extortion according to state labels. Writing for the Court, Mr. Chief Justice Warren concluded that it was sufficient that the acts for which the appellee was indicted fall within the “generic term” of extortion.

The Seventh Circuit has reached a similar conclusion. In United States v. Rizzo, 7 Cir., 1969, 418 F.2d 71, 80, cert. denied, Tornabene v. United States, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 (1970), that Court held that proof of the violation of the state statute to which reference is made for purposes of prosecution under 18 U.S.C., § 1952 is not an essential element to be proved in such a federal prosecution.

These cases illustrate that in § 1952 cases state law merely serves a definitional purpose. “Arson” is a commonly used and understood word. There was sufficient evidence upon which the jury could find that the appellant traveled in interstate commerce with intent to bomb and/or burn a Maryland building. There is no requirement that the jury be instructed on the Maryland definition of arson and there is no reversible error here.

Appellant also complains that the trial court failed to define the word “maliciously”, and gave an inadequate definition of the word “attempt”. There was no objection made at trial (as required by Fed.R.Crim.P. 30), but appellant calls this plain error, hence noticeable under Fed.R.Crim.P. 52(b). However, appellant cites no authority to support this position, and we have found none. The Court’s charge, viewed in its entirety, accurately instructed the jury on the applicable law.

Regarding “attempt”, the Court instructed the jury:

“To ‘attempt’ an offense means wil-fully to do some act, in an effort to bring about or accomplish something the law forbids to be done.”

Ill

Appellant next strongly urges that it was reversible error for the trial court to admit in evidence and allow the jury to hear two tape recordings.

The government introduced two tapes, one of a series of telephone conversations between appellant and informer Altman, and the other a room tape of events occurring in the Houston Sheraton Inn immediately prior to Conway’s arrest. The telephone tape (Government Exhibit 6) originally contained eleven separate conversations, but because the original tape was not produced, and because defense counsel was not furnished with a copy of all eleven conversations, a duplicate tape containing only six conversations was admitted. The six conversations heard by the jury were on the duplicate tape furnished defense counsel prior to trial, and defense counsel was furnished a transcript of all eleven conversations. Because of impairment of ■ defense counsel’s copy, only one-half of the room tape was admitted.

Appellant contends that admission of the tape in such a confused state violated the best evidence rule. This Court has consistently held that the best evidence rule is applicable only to writings, United States v. Ponder, 5 Cir., 1973, 475 F.2d 37, 39; United States v. Duffy, 5 Cir., 1972, 454 F.2d 809.

Witnesses for the prosecution testified that informer Altman transported one tape back and forth from his home to his office so all conversations would be on the same tape. The ATF agents testified that the tape introduced in evidence was a copy they made of the original. Somewhere in the process, all or part of five conversations was apparently erased. However, there is no evidence, indeed no intimation, that this erasure was intentional, and the authenticity of the tapes remains unquestioned. The tape introduced was relevant, trustworthy, thus of probative value, and properly admitted.

IV

Appellant’s final assignment of error is that the trial court erred in denying his motion for a mistrial when the Assistant United States Attorney commented in his closing argument on the fact that defense counsel “has defended many a guilty client”. He contends that this placed an alleged fact before the jury which was not in evidence, and created an inference of guilt by association. The jury was instructed to disregard the remark. Although the statement was improper, when this trial is viewed in its entirety it cannot be said in light of the appropriate admonition that it had a substantial impact on the jury’s verdict. This is the test prescribed in United States v. Arenas-Granada, 5 Cir., 1973, 487 F.2d 858, 859.

In our view the appellant received a fair trial. The judgment of the District Court is

Affirmed.


source: Caselaw Access Project

author: SWYGERT, Chiéf Judge.

license: Public Domain

text:
    LOCAL 416, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION (AFL-CIO), Plaintiff-Appellee, v. HELGESTEEL CORPORATION, Defendant-Appellant. LOCAL 498, IRONWORKERS (AFL-CIO), Plaintiff-Appellant, v. LOCAL 416, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION (AFL-CIO), Defendant-Appel-lee. IRONWORKERS LOCAL 498 OF the INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS (AFL-CIO), Plaintiff-Appellant, v. HELGESTEEL CORPORATION, Defendant-Appellee.
    Nos. 72-1932, 73-1194 and 73-1530.
    United States Court of Appeals, Seventh Circuit.
    Argued April 9, 1974.
    Decided Dec. 27, 1974.
    Charles D. Hoornstra, Gerald C. Nich-ol, Madison, Wis., for Helgesteel.
    David Loeffler, Milwaukee, Wis., for Local 416.
    Bernard M. Baum and Daniel S. Shulman, Chicago, Ill., for Ironworkers Local 498.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and NO-LAND, District Judge.

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

   SWYGERT, Chiéf Judge.

These appeals were consolidated for briefing and oral argument. Appeal No. 72 — 1932 is from the district court’s grant of enforcement of a bipartite arbitration award to Local 416, Sheet Metal Workers International Association, AFL-CIO (sheet metal workers) against Helgesteel Corporation. Appeal No. 73 — 1194 is from the grant of the sheet metal workers’ motion for summary judgment on the complaint of Local 498, International Association of Bridge, Structural and Ornamental Ironworkers, AFL — CIO (iron-workers) seeking to compel the sheet metal workers and Helgesteel to submit a jurisdictional dispute involving all of the parties to the National Joint Board for the Settlement of Jurisdictional Disputes (national joint board). The final appeal docketed, No. 73 — 1530, is from a later grant of Helgesteel’s motion for summary judgment in the same case. The district court had jurisdiction of both cases pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

The underlying facts which gave rise to these appeals, are as follows. Helges-teel, a Wisconsin corporation is a general contractor in the building and construction industry. In connection with its work Helgesteel has collective bargaining agreements with the ironworkers, the sheet metal workers, and other construction unions. Part of the company’s business is the erection of preengineered steel buildings which consists of constructing the steel superstructure and the covering of the skeleton with sheet metal walls and roof. The latter processes are known respectively as “skinning” and “decking.” It is that which is the heart of this controversy. Both the sheet metal workers and the ironworkers claimed the right to perform this work. Prior to August 1968, Hel-gesteel hired ironworkers to erect the superstructure and sheet metal workers to cover it. In August of 1968, the company, in violation of its existing collective bargaining agreement with the sheet metal workers, agreed to a collective bargaining agreement with the iron-workers which assigned the skinning and decking operations to them. The company required that the employees performing that work switch from the sheet metal workers to the ironworkers. All of the employees but one complied and he was jfired.

Pursuant to article X of its collective bargaining agreement with the company, the sheet metal workers filed a grievance with the Local Joint Adjustment Board complaining of the company’s actions in reassigning the work to the iron-workers. The board, which was composed of representatives of the union and of sheet metal contractors, found on October 8, 1968 that the company had violated the collective bargaining agreement by assigning work traditionally performed by the sheet metal workers to the ironworkers. The board assessed $10,000 as liquidated damages for the breach of the agreement and also ordered the company to pay $710.40 to the discharged employee who refused to switch to the ironworkers. The company refused to pay and the sheet metal workers then brought suit in the district court in 1969 to enforce the arbitration award pursuant to § 301 of the Labor Management Relations Act.

In April of 1970, an official of the company informed the business representative of the ironworkers that the company might have to have sheet metal workers perform the skinning and decking operations rather than ironworkers because of the pending litigation with the sheet metal workers. Pursuant to their collective bargaining agreement, the ironworkers and the company submitted the issue to arbitration. On July 3, 1970, the arbitrator concluded the company was bound under its collective bargaining agreement with the iron-workers to assign the skinning and decking work to the ironworkers. The iron-workers then filed suit in the district court to enforce its bipartite arbitration award alleging that the company had continued to threaten to reassign the disputed work to the sheet metal workers.

The ironworkers suit to enforce its contract with Helgesteel, which was consolidated with the suit filed earlier by the sheet metal workers against Helges-teel, was later dismissed by stipulation. Helgesteel then filed a complaint against the ironworkers seeking to compel them to force the sheet metal workers to arbitrate the jurisdictional dispute and requesting that the ironworkers be ordered to pay Helgesteel any money damages which it might be required to pay under the sheet metal workers’ suit; but this complaint was also dismissed by stipulation when the ironworkers agreed to bring suit to compel the sheet metal workers and Helgesteel to seek tripartite arbitration. Accordingly, the ironwork-ers brought a fresh law suit which sought relief against the sheet metal workers. It was based on article X of the Constitution of the Building and Construction Trades Department of the AFL — CIO which provides:

All jurisdictional disputes between or among affiliated National and International Unions and their affiliated Local Unions and employers shall be settled and adjusted according to the present plan established by the Building and Construction Trades Department, or any other plan or method of procedure adopted in the future by the Department for the settlement of jurisdictional disputes. Said present plan or any other plan adopted in the future shall be recognized as final and binding upon the Department and upon all affiliated National or International Unions and their affiliated Local Unions.

A portion of the complaint was against Helgesteel and was based on the iron-workers collective bargaining agreement with the company which provided in relevant part:

Any dispute as to the proper interpretation of this agreement shall be handled in the first instance by a representative of the Union and the Employer, and if they fail to reach a settlement within five (5) days it shall be referred to a Board of Arbitration composed of one (1) person appointed by each party, the two (2) so appointed to select a third member. In the event that the two (2) so appointed arbitrators are unable within two (2) days to agree upon the third arbitrator, they shall jointly request the Federal Mediation and Conciliation Service to furnish a panel of five (5) names from which the third member shall be selected. The decision of the Board of Arbitration shall be handed down within two (2) days after the selection of the third member and the decision of the Board of Arbitration shall be final and binding upon both parties. During such time as the matter is pending before the committee, there shall be no work stoppage.
The Board of Arbitration shall have jurisdiction over all questions involving the interpretation and application of any section of this agreement, but may not add to or subtract from the wording of this agreement. It shall not be empowered to handle negotiations for a new agreement, changes in the wage scale, or jurisdictional disputes.

In answer to first suit filed, the sheet metal workers suit to enforce its bipartite arbitration award of damages, the company maintained that article XI, rather than article X of their collective bargaining agreement controlled. The company contended that article XI required that the sheet metal workers submit their grievance to the national joint board since it involved a jurisdictional dispute between the sheet metal workers and the ironworkers. Article X, provides in pertinent part:

SECTION 1. Grievance of the Employer or the Union, arising out of interpretation or enforcement of this Agreement, shall be settled between the Employer directly involved and the duly authorized representative of the Union, if possible. An Employer may have the local Association present to act as his representative.
SECTION 2. Grievances not settled as provided in Section 1 of this Article may be appealed by either party to the Local Joint Adjustment Board in the area in which the work is performed and such Board shall meet promptly on a date mutually agreeable to the members of the Board but in no case more than fourteen (14) calendar days following the request for its services, unless the time is extended by mutual agreement of the parties, to render a final and binding determination, except as provided in Section 3 of this Article. The Board shall consist of an equal number of representatives of the Union and of the local Employer’s Association and both sides shall cast an equal number of votes at each meeting.

Article XI provides:

SECTION 1. Agreements, national in scope, between Sheet Metal Workers’ International Association and other international unions, covering work jurisdiction and the assignment, allocation and division of work among employees represented for the purposes of collective bargaining by such labor organizations, shall be respected and applied by the Employer, provided such agreements have been consummated with the knowledge of and without objection from Sheet Metal and Air Conditioning Contractors’ National Association, Inc.

The district court granted the sheet metal workers’ request for enforcement of its arbitration award against the company and also granted to the company and the sheet metal workers summary judgment on the ironworkers’ complaint for national joint board arbitration.

The district judge in his judgment enforcing the sheet metal workers’ arbitration award framed the main issue and gave his reasons for the decision:

The language of Article X of the collective bargaining agreement between the Sheet Metal Workers and the defendant is broad. Absent express language that the parties had selected a forum other than the Local Board for work assignment disputes, I am reluctant to infer that the parties rejected that forum. This reluctance is based not only upon the ordinary principles governing the construction of private contracts, but also upon a concern for the policies underlying the federal common law of labor relations. In enacting the Labor Management Relations Act, Congress expressed a policy favoring the settlement of labor disputes by the parties through the machinery of private arbitration. Under § 301, the courts are to enforce the awards of arbitrators unless “it may be said with positive assurancé that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Steelworkers v. Warrior & Gulf Company, 363 U.S. [574] 575, 582-583 [80 S.Ct. 1347, 4 L.Ed.2d 1409] (1960).
Defendant argues that despite this well-established Congressional and judicial preference for final and binding arbitration, Article X should be construed to exclude work assignment disputes, because Article X does not create a forum capable of resolving the entire controversy, in a manner which binds all interested parties. If enforced, the defendant contends, this award will serve to fragment rather than to resolve this dispute, because eventually the Iron Workers will bring this controversy before the National Joint Board. The defendant also stresses the important national labor policy of encouraging internal union machinery for the adjudication of in-tra-union differences.
I am not persuaded that these policies outweigh the broad language of Article X. See Cary [Carey] v. Westinghouse, 375 U.S. 261, 265 [84 S.Ct. 401, 11 L.Ed.2d 320] (1963); contra Jennings v. M. & M. Transportation Company [104 N.J. Super. 265], 249 F.2d [A.2d] 631 (N.J.Sup.Ct.1969). It may be that the Sheet Metal Workers are bound by two inconsistent contracts: the Helgesteel agreement channeling work disputes to the Local Joint Adjustment Board, and the Constitution of the Building and Construction Trades Department requiring jurisdictional disputes to be submitted to the National Joint Board. If in choosing to submit this dispute to the Local Board, the plaintiff has violated the Constitution of the Building and Construction Trades Department, it is subject to whatever sanctions may exist for that violation.

In the ironworkers suit to compel the company and the metal workers to initiate tripartite arbitration proceedings before the national joint board, the district judge in granting summary judgment to both defendants concluded that the dispute was not a continuing one since the sheet metal workers had only asked for damages and the sheet metal workers’ collective bargaining agreement had terminated.

Because of the decision that we reach, it is only necessary to deal with one of the issues raised on appeal: whether article X of the building trades constitution which requires submission of this dispute to the national joint board is applicable to the sheet metal workers and Helgesteel pursuant to article XI of their collective bargaining agreement.

The ironworkers and the company jointly contend that the phrase in article XI of the steel workers’ collective bar-bargaining contract, “agreements, national in scope, between Sheet Metal Workers’ International Association and other International Unions, covering work jurisdiction and the assignment, allocation and division of work” includes the building trades constitution. The sheet metal workers make the counter-contention that this phrase means “substantive agreements between International Unions as to who will represent people performing particular tasks.” The sheet metal workers maintain that unlike the collective bargaining agreement between the ironworkers and the company, supra at 4 — 5 article XI of the collective bargaining agreement between the sheet metal workers and the company “made no express reference to the National Joint Board.” The reason for this according to the sheet metal workers was that “Article XI was concerned with the substantive standards for resolving work allocations disputes, not with the forum in which those standards would be applied.”

All the parties to this appeal agree that “[i]n order to interpret such an agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements. ’ ’ Transportation-Communication Employees Union v. Union Pacific Railroad Co., 385 U.S. 157, 161, 87 S.Ct. 369, 371, 17 L.Ed.2d 264 (1966). Mr. Justice Black went on to say for the court in that case that “[t]his is particularly true when the agreement is resorted to for the purpose of settling a jurisdictional dispute over work assignments.”

If we were to follow the sheet metal workers urging of a narrow construction in interpreting the term “agreements” in article XI, we would have to ignore the existence of the building trades constitution. Although there was some evidence that that may have been the very intention of the draftsman of the contract for the sheet metal workers, the language used does not allow such a conclusion. There is no limitation on the types of interunion agreements which are covered in article XI. To accept the restricted construction would mean, as the district judge noted, that the sheet metal workers as well as the company would be bound by inconsistent agreements. Under the sheet metal workers’ agreement with the company, the jurisdictional dispute would have to be submitted to bipartite arbitration by the local joint board, while under the building trades constitution to which both unions are signatories and under the collective bargaining agreement with the ironworkers, the dispute would have to be submitted to tripartite arbitration by the national joint board.

Article XI of the collective bargaining agreement between the company and the sheet metal workers, not article X, controls. The jurisdictional dispute should have been submitted to the national joint board.

The sheet metal workers contend that even if the dispute should have been submitted to the national joint board, they are still entitled to damages for breach of the contract under article X of their collective bargaining agreement. Such an interpretation of the contract, however, would allow inconsistent final arbitration awards; the national joint board may say that the work should be assigned to the ironworkers while the local joint board has awarded damages to the sheet metal workers. We cannot accept that interpretation of the agreement. Only one forum is provided for resolving this dispute, the national joint board.

Since there is still a question of damages as well as a question as to whether the disputed work came within the jurisdiction of the sheet metal workers or the ironworkers, we reverse the final judgments of the district court in these three appeals and remand the cases with direction that the parties be ordered to initiate proceedings to resolve this jurisdictional dispute before the National Joint Board for the Settlement of Jurisdictional Disputes.

Reversed and remanded with direction.

      . Article X is set forth on p. 5, infra.

      . Circuit Rule 23 shall not apply.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Elena CLASS et al., Plaintiffs-Appellees, v. Nicholas NORTON, Individually and as Commissioner of Welfare, State of Connecticut, Defendant-Appellant.
    No. 318, Docket 74-1812.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 18, 1974,
    Decided Dec. 20, 1974,
    See also, D. C., 376 F.Supp. 496.

      Edmund C. Walsh, Asst. Atty. Gen., Hartford, Conn. (Robert K. Killian, Atty. Gen., State of Connecticut, of counsel), for defendant-appellant.
    Marilyn K. Katz (Fairfield County Legal Services, Inc., Bridgeport, Conn.), James C. Sturdevant (Tolland-Windham Legal Assistance, Inc., Rockville, Conn., of counsel), for plaintiffs-appellees.
    Before SMITH, HAYS and MANSFIELD, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

The Commissioner of Welfare for Connecticut, Nicholas Norton, challenges on appeal the denial of his motion for relief from judgment, Fed.R.Civ.P. 60(b)(5), by Judge Blumenfeld of the District of Connecticut. 376 F.Supp. 503 (1974). The order from which relief is sought enjoined the Commissioner to process applications for Aid to Families with Dependent Children (AFDC) within 30 days of an individual’s filing such application and to pay benefits retroactive to the date of application to applicants determined eligible for AFDC assistance. Subsequent to the court’s entry of the above order on June 16, 1972, the Department of Health, Education and Welfare (HEW), the federal agency charged with establishing criteria for state plans to qualify for federal financial assistance, amended its regulations as to the time allowed to process applications and the date from which an eligible applicant becomes entitled to benefits. 45 C.F.R. §§ 206.10(a)(3), (6). The Commissioner contended in his 60(b) motion that these amendments require revision of the court’s two-part order — specifically, extension of the processing ceiling (from 30 to 45 days) and deferral of the date on which an eligible applicant becomes entitled to benefits (from date of application to the earlier of the date of authorization or 30 days after filing the application). The court declined to modify either portion of its prior order. We affirm the district court’s denial of relief as to the retroactive benefits portion of its 1972 order, but reverse its refusal to grant relief from the processing deadline established in its prior order.

This appeal marks this court’s second encounter in recent months with Connecticut’s administration of its state plan under the federal government’s AFDC program, 42 U.S.C. § 601 et seq. In our earlier decision, Class v. Norton, 505 F.2d 123, (2d Cir. 1974) (Class 1), we upheld with minor exception the ruling on a motion for contempt by Judge Blumen-feld. That motion focused on the extent of Commissioner Norton’s compliance with orders entered in June, 1972 by Judge Blumenfeld with regard to processing applications for AFDC assistance. The court denied the motion in form but, finding substantial non-compliance with its 1972 orders, reiterated those orders and required the Commissioner to take certain measures designed to enhance the likelihood of compliance in the future. Class v. Norton, 376 F.Supp. 496 (D.Conn. 1974).

In the present appeal, the Commissioner asks this court to modify two aspects of these prior orders in light of HEW amendments to regulations allegedly underpinning these portions of the orders. At the outset, then, we note that our decision in Class I does not preclude granting the relief for which the appellant now moves. One is bound to obey an order issued by a court with jurisdiction over the person and subject matter unless and until that order is reversed by appropriate judicial proceedings. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers of America, 330 U.S. 258, 293-294, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Howat v. Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550 (1922); In re Sawyer, 124 U.S. 200, 220-221, 8 S.Ct. 482, 31 L.Ed. 402 (1888). Ac- ■ cordingly, a court may consistently hold a defendant in contempt for disobeying its order (or, as in Class I, grant the movants other proper relief) and decide in view of subsequent events substantially altering the situation to modify that order. The Commissioner’s claim for 60(b) relief, therefore, is a matter which we approach unconstrained by our holding in Class I.

I. PROCESSING APPLICATIONS WITHIN 30 DAYS

In ordering the Commissioner to process AFDC applications within 30 days of filing, the district court drew for its authority on 45 C.F.R. § 206.10(a)(3). As the regulation then read, 30 days was the maximum time allowed participating states to make eligibility determinations:

A decision will be made promptly on applications, pursuant to reasonable State-established time standards not in excess of 30 days for AFDC. . . ■ Under this requirement, the applicant is informed of the agency’s time standard in acting on applications, which covers the time from date of application to the date that the assistance check, or notification of denial of assistance or change of award, or the eligibility decision with respect to medical assistance, is mailed to the applicant or recipient.

HEW has since amended 45 C.F.R. § 206.10(a)(3) to extend the 30-day ceiling to 45 days:

A decision shall be made promptly on applications, pursuant to reasonable State-established time standards not in excess of:
(i) 45 days for . . . AFDC.

In moving for relief under Fed.R.Civ.P. 60(b)(5), the appellant contended that this change in the law rendered continued enforcement of the injunctive order inequitable. Pointing to “inexcusable and unjustified,” 376 F.Supp. at 505, non-compliance with its 1972 orders, however — noncompliance with which the district court dealt at length in Class I —the court held that the equitable doctrine of clean hands, see generally, 2 J. Pomeroy, Equity Jurisprudence § 400 (5th ed. 1941), counseled denial of the requested relief. The court then reinforced its decision against the appellant by intimating, 376 F.Supp. at 506, that relaxation of a frequently exceeded 30-day ceiling might well mean not improvement in the welfare department’s compliance record but only further postponement by the department of the date after filing on which it begins to review an application.

Judge Blumenfeld’s ruling is surely understandable in view of the welfare department’s “substantial and widespread” non-compliance, Class v. Norton, supra, 376 F.Supp. 496 at 498, with the order from which relief is now sought. Nevertheless, the ruling cannot be allowed to stand, for it conflicts with a doctrine long recognized by the Supreme Court. In Pennsylvania v. The Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855), the Court was asked to enforce its injunction ordered in Pennsylvania v. The Wheeling and Belmont Bridge Co., 54 U.S. (13 How.) 518, 14 L.Ed. 249 (1852), directing elimination of the navigational obstruction created by a bridge across the Ohio River at Wheeling, Virginia. The 1852 order assumed that elevation of the bridge to a designated height would suffice to clear the route for navigation but indicated that removal of the bridge altogether would be ordered if the former measure provided inadequate relief. The Court’s determination in 1852 that the bridge constituted an obstruction of navigation rested upon its construction of various acts of Congress. Within four months after the decision in Wheeling and Belmont I, Congress enacted legislation declaring the bridge to be a “lawful structure” and making it a post-road for the passage of the United States mail. In Wheeling and Belmont II, the Court, deferring to this change in the law fashioned by Congress, felt compelled to dissolve the injunction:

So far, therefore, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, is not so in the contemplation of law.

59 U.S. 421 at 430.

This doctrine of judicial deference to legislative revision of a statute upon which a prospective court order is based was recently reaffirmed in System Federation No. 91 v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961). In System Federation, the Court ordered modification of a consent decree proscribing union shop agreements. The decree was issued in 1945 when the Railway Labor Act prohibited union shop agreements; the Act was amended in 1951 to permit such agreements. In 1957, the defendant unions moved under Fed.R.Civ.P. 60(b) for modification of the 1945 decree to allow for agreements of this sort. The district court denied the motion, the Sixth Circuit affirmed, and, despite the unions’ continued acts of hostility to non-union employees, the Supreme Court reversed for abuse of discretion in not giving due respect to Congress’ amendment of the law underpinning the decree. Despite the “wide discretion” permitted district courts in 60(b) rulings to reconcile the policies of res judicata and the equities of changed circumstances,

discretion is never without limits and these limits are often far clearer to the reviewing court when the new circumstances involve a change in law rather than facts.

364 U.S. 642 at 648, 81 S.Ct. 368 at 371. See also, International Ry. v. Davidson, 65 F.Supp. 58, 60 (W.D.N.Y.1945), and cases cited therein.

The principle of deference enunciated in Wheeling and Belmont II and System Federation is decisive of the instant case. There is a possible distinguishing factor: Wheeling and Belmont II and System Federation involved changes in a statute, whereas this case deals with an amended regulation. The regulations, however, have the presumptive force of law and we see no reason to accord lesser respect to a change in regulation than to one in statute, cf., United States v. Obermeier, 186 F.2d 243, 247 (2d Cir. 1950), cert. denied, 340 U.S. 951, 71 S.Ct. 569, 95 L.Ed. 685 (1951); New York Foreign Freight Forwarders and Brokers Association, Inc. v. Federal Maritime Commission, 337 F.2d 289, 295 (2d Cir. 1964), cert. denied, 380 U.S. 910, 914, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965), and thus regard this distinction as immaterial. The principle’s application to the instant case is plain. The district court required that the appellant process AFDC applications within 30 days of filing because the HEW regulations so required. Unlike that part of the court’s order relating to retroactive payments, see II, infra, this 30-day ceiling relied for •its force upon a regulation which has since been amended. In this instance, therefore, the amendment to the regulation directly undercuts the authority for the 1972 order. By failing to give proper recognition under Fed.R.Civ.P. 60(b) to this change in applicable law, the district court was in error.

II. PAYMENT OF BENEFITS TO DATE OF APPLICATION

In ordering that AFDC recipients be paid benefits retroactive to the date of application, Judge Blumenfeld sought to remedy a situation in which two persons could apply for AFDC benefits on the same day but begin to receive benefits on different dates because the welfare department determined their eligibility on different days. The court predicated relief on two independent grounds. First, different treatment of persons simultaneously applying for benefits is inconsistent with 45 C.F.R. § 233.20(a)(1), which requires states receiving federal financial assistance for their AFDC programs to determine “need and amount of assistance for all . recipients on an objective and equitable basis. . . . ” Secondly, this distinction among persons similarly situated constitutes irrational discrimination vio-lative of the Equal Protection Clause of the Fourteenth Amendment.

On appeal, the Commissioner renews his claim in the district court that Fed.R. Civ.P. 60(b)(5) requires modification of this order because, in the language of the rule, “it is no longer equitable that the judgment should have prospective application.” The alleged inequity ostensibly derives from HEW’s revision of 45 C.F.R. § 206.10(a)(6), which establishes the maximum period of time after an application for assistance has been filed which a participating state may allow to run without recognizing an eligible applicant’s right to receive benefits. Thus, the regulation in force at the time of the 1972 order read in relevant part:

Entitlement will begin as specified in the State plan, which (i) for financial assistance must be no later than the date of authorization of payment and, for purposes of Federal financial participation, may be as early as the first of the month in which an application has been received and the individual meets all the eligibility conditions,

whereas the regulation now provides:

Assistance shall begin as specified in the State plan, which:
(i) For financial assistance
(A) Must be no later than:
(1) The date of authorization of payment, or
(2) Thirty days in ... AFDC . from the date of receipt of a signed and completed application form, whichever is earlier: Provided, That the individuals then met all the eligibility conditions, and
(B) For purposes of Federal financial participation, may be as early as the first of the month in which an application has been received and the individual meets all the eligibility conditions.

The appellant’s argument based on this change in law suffers from two basic flaws. First of all, since the amended regulation is more demanding of the state than the superseded regulation, it would be strange indeed to find a mandate in this amendment to require less of the state than was determined necessary when the- prior rule was in effect. Secondly, and more fundamentally, any amendment of this regulation must be irrelevant to this court’s review of the district court’s ruling. For although the district court could be charged with abuse of discretion for failure to modify an existing order in light of a change in the law upon which the court relied, see I, supra, here there has been no such change in the law. That is, since Judge Blumenfeld’s order in no way rested on the original 45 C.F.R. § 206.10(a)(6), any amendment of that regulation is a fortiori of no moment as concerns the validity of that order. As long as 45 C.F.R. § ■ 233.20(a)(1) or the Equal Protection Clause retains its present form, this order is insulated from modification by an appellate court on the basis of a relevant change of law.

This court is not free in effect to reverse, despite the time for appeal having run, any lower court order of continuing force with which it comes to disagree — a position in obvious conflict with the principles of finality underlying the doctrine of res judicata. As the Supreme Court stated in United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), “[w]e aré not at liberty to reverse under the guise of readjusting.” See also, Schildhaus v. Moe, 335 F.2d 529, 530 (2d Cir. 1964).

Having failed to perfect a timely appeal of the 1972 order, the appellant must again be denied, as he was in Class I, the benefits of plenary review of the merits of that order. Cf. Class v. Norton, supra, 505 F.2d 123, at 125. The validity of the district court’s rationale for this part of its order is not open to question on this appeal. Since the court’s unreversed rationale has not been undercut by the changes in law adduced by the appellant, we conclude that the district court correctly denied the Commissioner’s 60(b)(5) motion with regard to modifying the date on which an eligible applicant’s right to AFDC benefits vests.

The ruling below is reversed insofar as it denied relief from that portion of the 1972 order requiring AFDC applications to be processed within 30 days of filing. In accordance with the amendment of 45 C.F.R. § 206.10(a)(3) upon which this portion of the order was based, the 1972 order is hereby modified to allow the state 45 days for processing applications. On the other hand, since the injunction requiring payments to eligible applicants retroactive to the date of application did not depend on any law subsequently changed, the district court acted within its discretion in refusing to modify that part of its 1972 order.

Affirmed in part and reversed in part.

      . On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:
      ******
      (5) . . . it is no longer equitable that the judgment should have prospective application.
      Fed.R.Civ.P. 60(b)(5). In the district court, the Commissioner also moved for relief from judgment under Fed.R.Civ.P. 60(b)(6), which authorizes relief from judgment for “any other reason [than those enumerated in (1) through (5)] justifying relief from the operation of the judgment.” The appellant abandons his unsuccessful 60(b)(6) tack for purposes of this appeal.

      . The district court assessed attorneys’ fees and costs against the appellant in both his official and individual capacities. We reversed with regard to the Commissioner’s individual liability. 505 F.2d at 127-128.

      . The appellees rely upon Sullivan v. Houston Indep. School Dist., 475 F.2d 1071 (5th Cir.), cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973), to justify the court’s ruling as within its discretion. Sullivan involved a school district’s promulgation of new regulations designed to satisfy an injunction under which it was operating; the issue was whether or not the mere promulgation of these regulations terminated the need for the injunction and required its dissolution. In declining to reverse a ruling denying modification of the existing injunctive order on the basis of this satisfaction rationale, the Fifth Circuit indicated that satisfaction of the injunction would be judged on the basis of enforcement of the regulations, not their promulgation alone. As should be clear, Sullivan and the instant case deal with very different problems: Sullivan with what constitutes compliance with an injunction; Class II with the appropriate scope of an injunctive order. They both deal with regulations, which is the beginning and end of their consanguinity.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James M. MAHONEY, Defendant-Appellant.
    No. 74-1578.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    Rehearing Denied April 25, 1975.
    Ralph W. Rinehart, Tampa, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Oscar Blasingame, Claude Ti-son, Jr., Terry Smiljanich, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appel-lee.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   PER CURIAM:

This appeal is from a conviction on charges involving marijuana importation offenses. Appellant was one of a group charged but was given a separate trial.

One principal assignment of error is that appellant was entrapped as a matter of law by the government’s use of a pilot-informer. The arrangements to import large quantities of marijuana were well underway by the time the pilot was employed. It happened that the pilot was a government informer and that the government allowed him to keep fees earned from his endeavors. The fee in this instance for flying from Tampa, Florida to Colombia, South America and return with 1,000 pounds of marijuana was $10,000 and 50 pounds of the marijuana. (The government stoutly denied "that the pilot was allowed to keep the marijuana.) ;

Appellant and Geder, one of his co-in-dictees, went to Colombia with the pilot to purchase the marijuana and to transport it to Tampa. All in the group of nine were apprehended upon the return of the pilot, appellant and Geders. The only additional fact favoring appellant was the claim that he and Geders were dissuaded by the pilot from dumping the marijuana from the plane while in flight and prior to reaching Tampa. The entrapment defense was submitted to the jury as an issue.

In our decision in United States v. Fink, supra, we rejected the contention of Geders that he was entrapped as a matter of law under these circumstances. Although the facts as to appellant differ to some extent, we reach the same conclusion here.

We have considered and likewise find without merit the following additional assignments of error: (1) that the government was permitted to introduce hearsay testimony from a police officer as to appellant’s predisposition to commit the crimes with which he was charged; (2) that the district court refused to compel the police officer to reveal the name of his confidential informant; (3) that the police officer’s name had not been included on the government’s pretrial list of witnesses against appellant; (4) that the district court admitted hearsay testimony of a coconspirator; (5) that the district court refused to ask prospective jurors questions submitted by appellant; (6) that the district court prematurely instructed the jury during the testimony of a coconspirator; and (7) that judgment of acquittal was not granted.

Affirmed.

      . See United States v. Fink, 5 Cir., 1974, 502 F.2d 1. The eight persons indicted with appellant included Rufus R. Surles, Jr., Tom Waddington, Michael and Fred Fink, Randy Kilgore, Stephen Patrick, David Butler, and John Geders. Michael Fink and Geders were convicted and their convictions were affirmed in the above styled case. Waddington is deceased. Kilgore and Fred Fink pleaded guilty to charges against them prior to trial. Charges against Butler and Surles were dismissed on motion of the government.